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.

presenting issue (Evidence under CCP Art. 37.07, Sec. 3)

• On state's PDR of court of appeals' ruling that was error to admit extraneous offense evid at punishment stage, state could assert in court of criminal appeals that court of appeals erred by failing to review evid under a "bad act" theory of admissibility; no merit to def's contention issue was not before court of criminal appeals because it was never presented to court of appeals. Although state never expressly advanced the bad act theory in its brief before court of appeals and a detailed analysis was not found in that court's decision, the court of appeals nevertheless implicitly decided this issue in its resolution of this case; by holding that the only way the jury could consider this evidence under article 37.07 in assessing punishment was to first find def guilty beyond reasonable doubt for extraneous offense murder, the court of appeals rejected the argument that this evidence could be admissible as a bad act. Therefore, this implicit holding was a decision of the court of appeals and the state's argument warranted review. Haley v State (October 5, 2005, No. PD-1531-03)

evidence under sec. 3(a) - rules (Evidence under CCP Art. 37.07, Sec. 3)

• While 37.07 sec. 3 includes (but is not limited to) (1) the prior criminal record of the defendant; (2) the general reputation of the defendant; (3) the character of the defendant; (4) an opinion regarding the reputation of the defendant; (5) the circumstances of the offense on trial; and, (6) extraneous offenses and bad acts that are shown beyond a reasonable doubt to have been committed by the defendant or for which he could be held criminally responsible, the only types of evidence for which a burden of proof is articulated are unadjudicated offenses and bad acts. Bluitt v State (June 9, 2004, No. 723-02)

• The court should consider policy reasons - such as admitting the truth in sentencing, giving complete information for the jury to tailor an appropriate sentence for def, and the policy of optional completeness - in determining whether the evidence should be admissible at the punishment stage under 37.07 sec. 3(a). Mendiola v State, 21 S.W.3d 282 (Jun. 21, 2000)

• The sentencing phase presents different issues than those contemplated in the guilt/innocence phase. The Rule 401 definition of "relevant" is not a "perfect fit" in the sentencing context. Rather, admissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy. This is so because by and large there are no discreet factual issues at the punishment stage. There are simply no distinct facts of consequence that proffered evidence can be said to make more or less likely to exist. Rather, deciding what punishment to assess is a normative process, not intrinsically factbound. What evidence should be admitted to inform that normative decision is not a question of logical relevance, but of policy. Determining what is relevant should be a question of what is helpful to the jury in determining the appropriate sentence in a particular case. Mendiola v State, 21 S.W.3d 282 (Jun. 21, 2000)

• The reasonable-doubt standard of art. 37.07 is neither constitutionally required nor based on a constitutional mandate. Neither Geesa v. State, 820 S.W.2d 154 (Tex.Cr.App. 1991) nor art. 37.07 can be read to require that a reasonable-doubt instruction be given at the punishment phase, absent a request. (The definition of reasonable doubt set out in Geesa applies specifically to the guilt-innocence phase of a trial.) Fields v State, 1 S.W.3d 687 (September 15, 1999)

rules: criminal record (Evidence under CCP Art. 37.07, Sec. 3)

• Punishment assessed for non-final convictions is relevant evidence during the punishment phase of a trial. Just as it is important that the fact-finder take into account whether the objectives of the Penal Code will be furthered by the imposition of a harsher sentence, it is equally important to take the objectives into consideration when deciding whether any circumstances warrant imposition of a lesser sentence. Informing the jury of the punishment assessed for a defendant's non-final convictions is helpful when making this determination. For example, if the fact-finder is informed that a defendant has recently been punished for an offense similar to the one for which the defendant is currently on trial, then the fact-finder could conclude that a harsher punishment would not assist in the deterrence of future criminal acts. Or, the fact-finder could conclude that the prior sentence is sufficient to ensure the rehabilitation of the defendant. Sunbury v State (October 23, 2002, No. 183-01)

• Although there is no definition of the term “criminal record” in 37.07 sec. 3(a), it is reasonable that the term would include the sentences that the courts assessed for prior convictions. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

• The Code of Criminal Procedure does not define the term “relevant.” Texas Rule of Criminal Evidence 401 is helpful to determine what should be admissible under 37.07 sec. 3(a). The definition of “relevant” in Rule 401 is not a perfect fit in the punishment context. Determining what is relevant then should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

• When a jury has the task of assessing a sentence for a defendant who has committed crimes in the past, especially when those crimes are the same as or similar to the offense with which that defendant is currently charged, it is helpful to know the length of the sentence that was too short to prevent the recurrence of criminal behavior by that particular defendant. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

• Sentences assessed for prior convictions are relevant in the context of the jury’s decision on punishment. Rogers v State, 991 S.W.2d 263 (April 7, 1999)

rules: extraneous bad acts (Evidence under CCP Art. 37.07, Sec. 3)

• Language of 37.07 sec. 3(a) means the state may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the defendant or (2) an act for which he could be held criminally responsible. Sec. 3(a) does not contemplate any significant distinction between the terms "bad act" and "extraneous offense." It is irrelevant whether the conduct the offering party is attempting to prove is, or can be characterized as, an offense under the Texas Penal Code. The statutorily imposed burden of proof beyond a reasonable doubt does not require the offering party to necessarily prove that the act was a criminal act or that the defendant committed a crime. Before the jury can consider this evidence in assessing punishment, it must be satisfied beyond a reasonable doubt that the acts are attributable to the defendant. The statute requires the burden of proof to be applied to a defendant's involvement in the act itself, instead of the elements of a crime necessary for a finding of guilt. Haley v State (October 5, 2005, No. PD-1531-03)

evidence under sec. 3(a) - error (Evidence under CCP Art. 37.07, Sec. 3)

• It was error to exclude evid of punishment assessed against def in other non-final convictions, where state presented 12 witnesses to prove def committed extraneous offenses; def was entitled to introduce evid of punishment assessed in two of those cases. Sunbury v State (October 23, 2002, No. 183-01)

notice under sec. 3(g) (Evidence under CCP Art. 37.07, Sec. 3)

• PDR reversing Mitchell v. State, 948 S.W.2d 62 (Tex. App.--Fort Worth 1997), on issue of whether trial court erred in admitting extraneous offenses during the punishment phase of trial because the State’s compliance with his notice request was untimely. Def's motion requesting the court to order the State to provide notice of intent to offer evidence of extraneous offenses was not sufficient to trigger the notice requirements of Article 37.07, Sec. 3(g) CCP. Def’s motion contained specific language requesting the State to issue a written confirmation of compliance or non-compliance. When a document seeks trial court action, it cannot also serve as request for notice triggering the State’s duty under Article 37.07, Sec. 3(g). To hold otherwise would encourage gamesmanship. When a document asks the trial court to enter an order and it also asks the State to provide notice, the document is insufficient to trigger the duty to provide notice under Art. 37.07, Sec. 3(g). The State provided timely notice when ordered to do so by the trial court pursuant to Appellant’s request for the order. Mitchell v State, 982 S.W.2d 425 (Nov. 18, 1998)

rules (Evidence under CCP Art. 37.07, Sec. 3)

• Notice requirement of 37.07 sec. 3(g), of state's intent to introduce evid of extraneous offenses and bad acts at punishment stage, applies to evid introduced in state's case-in-chief, not to cross-examination and rebuttal evid. Jaubert v State (April 10, 2002, Nos. 260-01 - 264-01)

• No merit to contention that state failed to provide def with proper notice of certain extraneous offenses offered at punishment stage of capital case under 37.07 sec. 3(g) and Rule 404(b). Capital cases are governed by 37.071, not 37.07; punishment stage is governed by Rule 404(c), not Rule 404(b). Neither 37.071 nor 404(c) require notice concerning use of extraneous offense evidence at punishment. Guidry v State, 9 S.W.3d 133 (Dec. 15, 1999)

charge to jury (Evidence under CCP Art. 37.07, Sec. 3)

• In any final conviction, the evidence was subjected to judicial testing of guilt with a standard of proof of beyond a reasonable doubt, and the burden of proof was met. In any probation, the defendant has plead guilty or been found guilty by a judge or jury. In any deferred adjudication, the defendant has pled guilty, and the court has found sufficient evidence to support a finding of guilty. In all these circumstances, the burden of proof has been met. Thus, in all such cases no further proof of guilt is required. Giving a charge that prior offenses must be proven beyond a reasonable doubt is a useless act if no unadjudicated offenses have been introduced. Bluitt v State (June 9, 2004, No. 723-02)

• Where def's prior convs were proven at guilt stage and reintroduced by state at punishment stage, it was not error to fail to charge jury at punishment stage that they must be proven beyond a reasonable doubt. Because they were not unadjudicated offenses, no such charge was required. Bluitt v State (June 9, 2004, No. 723-02)

• Article 37.07's requirement that extraneous-offense and bad-act evidence must be proven beyond a reasonable doubt is an evidentiary rule; it has no constitutional underpinnings. Therefore, Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), does not compel sua sponte submission of the reasonable-doubt instruction as to extraneous-offense evidence admitted at punishment. At punishment the reasonable-doubt standard is applicable in deciding whether or not to consider certain evidence in assessing the sentence (a statutory requirement); at guilt, the standard applies in deciding whether or not all the elements of the charged offense have been proven beyond a reasonable doubt (a constitutional requirement). Huizar v State, 12 S.W.3d 497 (Feb. 23, 2000)

• Article 37.07 requires that extraneous bad acts and offenses may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that such acts and offenses are attributable to the defendant. A defendant is entitled to have the jury instructed of this burden of proof, upon request. Huizar v State, 12 S.W.3d 497 (Feb. 23, 2000)

• While section 3(a) says nothing about the submission of a jury instruction on proof of extraneous offenses beyond a reasonable doubt, such instruction is logically required if the jury is to consider the extraneous-offense and bad-act evidence under the statutorily prescribed reasonable-doubt standard . Absent such instruction, the jury might apply a standard of proof less than reasonable doubt in its determination of the defendant’s connection to such offenses and bad acts , contrary to section 3(a). Section 3(a)’s requirement that the jury be satisfied of the defendant’s culpability in the extraneous offenses and bad acts is thus “law applicable to the case” in the non-capital punishment context. As this was “law applicable to the case” appellant was not required to make an objection or request under section 3(a) in order for the trial court to instruct the jury thereunder. The trial court erroneously failed to instruct the jury under section 3(a). Because such error derives from statutory violations of articles 36.14 and 37.07, and is purely “charge error” under article 36.19, Almanza, 686 S.W.2d 157 (1985), not Rule 44.2, sets forth the appropriate harm analysis. Huizar v State, 12 S.W.3d 497 (Feb. 23, 2000)