This page of Baker's Legal Pages contains casenotes from recent decisions of the Texas Court of Criminal Appeals. This information is made available as a free public service for your personal, non-commercial use. While every effort has been made to provide accurate material at this site, it is provided "as is" and no representations are made that it is free of mistakes or inaccuracies. If you inform me of any mistake or inaccuracy that you find here, I will make every effort to determine what corrections are required and to make those changes.

Below are casenotes from recent opinions of the Texas Court of Criminal Appeals, supplementing Baker's Texas Criminal Evidence Handbook. Each casenote is linked to the text of the opinion from which it was derived.

For links to other casesnote pages supplementing Baker's Texas Criminal Evidence Handbook, see the Criminal Evidence Handbook Casenotes Listing.

For links to casesnote pages for other handbooks, see the Main Casenotes Listing.

If you already know the name of a particular recent case of interest, you may go directly to that opinion from the Table of Recent Opinions.

rules (CCP Art. 38.30. Interpreter)

• When a trial judge is aware that def has a problem understanding the English language, def's right to have an interpreter translate the trial proceedings into a language which the defendant understands is a category-two Marin right [Marin v S, 851 S.W.2d 275 (Tex. Crim. App. 1993)]. In these circumstances, the judge has an independent duty to implement this right in the absence of a knowing and voluntary waiver by def. The judge may become aware of def's language problem either by being informed of it by one or both parties or by noticing the problem sua sponte. Garcia v State (March 24, 2004, No. 0489-03)

error (CCP Art. 38.30. Interpreter)

• Def was denied right of confrontation where he did not speak English, trial was in English and proceedings were not translated for def, and def did not affirmatively waive right to translation and was apparently unaware of that right. No merit to state's contention that def was required to object at trial because he had an ineffective interpreter, and was not deprived of an interpreter; record did not support state's claim that person (X) sitting next to def during trial was his interpreter and could have interpreted proceedings for him; X was not instructed to interpret for def, and she did not interpret for him. No merit to state's contention def waived error by failure to object at trial to lack of a translation; record reflected trial judge was aware that def needed a translator, so judge was required to ensure that proceedings were translated into a language def could understand, absent an effective waiver by def. Garcia v State (March 24, 2004, No. 0489-03)

construction (CCP Art. 38.36. Evidence in Prosecutions for Murder)

• Court of appeals erred in holding evid of certain act was introduced solely for character conformity purposes and in failing to consider that the evidence had probative value under 38.36(a) CCP to explain the nature of the relationship between def and murder victim at the time of the offense; as a result, court of appeals' Rule 403 analysis was flawed. Garcia v State (June 28, 2006, PD-1633-04)

• Application of Rule 404(b) does not act to automatically bar evidence admissible under Article 38.36(a). Instead, Rule 404(b) prohibits the State from introducing evidence for the sole purpose of showing the accused acted in conformity with his past bad character towards the victim and thus murdered the victim. The evidence, however, may be admissible for purposes other than character conformity; that is, the trial court may admit past bad acts towards the victim to show the accused’s motive, opportunity, intent, preparation, plan, knowledge, or identity. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• Application of Rule 403 does not act to automatically bar evidence admissible under Article 38.36(a). Rule 403 acts to exclude Article 38.36(a) evidence only where the probative value of the evidence is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• Harmonizing Article 38.36(a) with Rules 404(b) and 403 is consistent with Article 38.36’s plain language. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• In 1991 and 1994 amendments of 38.36 the Legislature did not enact language to overturn prior court holdings that evidence admissible under the statute was still subject to the general rules of evidence. Smith v State, 5 S.W.3d 673 (June 23, 1999)

• Because Article 38.36(a) and Rules 404(b) and 403 can be congruously applied as mandated by Rule 101(c), and because grafting an exception into Article 38.36(a) contravenes its plain language, court held that evidence admissible under 38.36(a) may be nevertheless excluded under Rule 404(b) or Rule 403. Consequently, if a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue. If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors in Rule 403. Smith v State, 5 S.W.3d 673 (June 23, 1999)

evidence admission proper (CCP Art. 38.36. Evidence in Prosecutions for Murder)

• In pros for capital murder, it was not abuse of discretion to admit relationship evid under 38.36(a) and overrule objections under Rules 404(b) and 403. Offense was murder of 18-month-old child and relationship evid (showing three prior occasions where child received injuries while in def's care) was offered after def suggested through cross-examination that victim could have died from sudden infant death syndrome, that bruises on child were result of incorrectly performed CPR, and that def would not have intentionally harmed child. Robbins v State (October 23, 2002, No. 1939-00)

notes (CCP Art. 38.37. Evidence of Extraneous Offenses or Acts)

• Where def was indicted before effective date of 1995 amendment of 38.37 and case was tried after effective date, the amendment applied under terms of enactment provision stating that it applies "to any criminal proceeding that commences on or after the effective date of this Act, regardless of whether the offense that is the subject of the proceeding was committed before, on, or after the effective date of this Act." Howland v State, 990 S.W.2d 274 (March 31, 1999)

• 38.37 as amended in 1995 is applicable to any one of many isolated proceedings within a prosecution, so long as the proceeding at issue occurred after September 1, 1995. Howland v State, 990 S.W.2d 274 (March 31, 1999)

• In 38.37 sec. 1, the phrase “a proceeding in a prosecution,” refers on its face to one of the individual or smaller “steps or measures” that may be taken within the larger criminal prosecution. Howland v State, 990 S.W.2d 274 (March 31, 1999)