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 (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• Because trial courts are in the best position to make the call on substantive questions of admissibility of evid of bad character when relevant to a non-character-conformity fact of consequence in the case, such as rebutting a defensive theory, an appellate court must review a trial court's admissibility decision under an abuse of discretion standard. This standard requires appellate court to uphold trial court's admissibility decision when that decision is within zone of reasonable disagreement. An appellate court would misapply the appellate abuse of discretion standard of review by reversing a trial court's admissibility decision solely because the appellate court disagreed with it. Powell v State (November 28, 2001, No. 1244-00)

issue not preserved (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• Nothing presented for review on claim was error to admit at guilt stage evid of def's involvement in other murders that occurred on same day as capital murder on trial where was no trial objection; appeals court did not need to decide whether challenged testimony was foreseeable because def did not request instruction to disregard or move for mistrial. Perry v State (December 15, 2004, No. AP-74,591)

• Nothing presented for review by motion in limine regarding cross-examination about extraneous offenses where def raised no objection during hearing outside presence of jury or during cross-examination before jury. Manns v State (December 17, 2003, No. 74,305)

• Relevance objection did not preserve Rule 404 claim for review on appeal. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

• Nothing preserved under Rule 404 where only trial objection was to relevancy, which does not preserve error concerning a Rule 404 extraneous offense claim. Medina v State, 994 S.W.2d 153 (June 2, 1999)

construction of rule 404 (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• It is important to distinguish the role of Rule 404 in excluding evidence from its role in admitting evidence. Rule 404(a) is a general rule that excludes evidence of character for the purpose of proving that, in the case on trial, a person acted characteristically, although there are three exceptions. The first sentence of Rule 404(b) expresses a prohibition against using evidence of acts to prove character, even when character is at issue under one of the three exceptions in 404(a). The reason is the familiar one of prejudice outweighing probative value. Character evidence used for this purpose, while typically being of slight value, usually is laden with the dangerous baggage of prejudice, distraction, time consumption and surprise. The second sentence of Rule 404(b) shows a recognition that evidence of extraneous acts may be admissible for purposes other than proving character. Rule 404(b)'s examples of specific, bad conduct do not exhaust the possibilities of proper purposes for such evidence. It may be proper to admit evidence of a person's bad conduct in order to prove the context in which an offense was committed. When evidence of misconduct is offered for such purposes, there is a danger that the jury will misuse the evidence to infer character. The admissibility of evidence offered under the second sentence of Rule 404(b) will almost always involve a balancing under Rule 403. The weight of the prejudice to the defendant may be different if the extraneous acts are a third party's rather than his own, keeping in mind that the prejudice is greater if the third party's acts in some way prove the defendant's character. The danger of prejudice to the defendant is usually highest when evidence of the defendant's extraneous acts is offered to prove that the defendant acted the same way in the offense on trial. The danger of prejudice may be much lower when evidence of a third party's extraneous acts is offered. If the third party's acts are in some way probative of the defendant's character as well as the third party's, the danger of prejudice may be somewhere in between. Castaldo v State (June 26, 2002, No. 189-01)

• When a witness presents a picture that the defendant is not the type of person to commit the charged offense, the prosecution may impeach that witness' testimony by cross-examining the witness concerning similar extraneous offenses. Wheeler v State (January 30, 2002, No. 815-99)

rules: 404(a) (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• When a defendant in a homicide prosecution raises self-defense issue, he may introduce evidence of deceased's violent character. Specific acts of violence may be introduced to demonstrate reasonableness of def's fear of danger or to demonstrate that deceased was first aggressor. However, such specific acts of violence are admissible only to extent that they are relevant apart from showing character conformity. Specific, violent acts are relevant apart from showing character conformity in the context of proving that deceased was first aggressor by demonstrating deceased's intent, motive, or state of mind. Because the specific act is probative of deceased's state of mind or intent, the witness must know, but def need not know, of the act. There must be some evidence of aggression by deceased during the events that gave rise to the criminal charges in the case before def may introduce evidence of a prior specific violent act that tends to explain deceased's later conduct. Torres v State (October 15, 2003,No. 1822-02)

• The proper predicate for the specific violent prior act by the deceased is some act of aggression that tends to raise the issue of self-defense, which the violent act may then help clarify. Thus, it is not necessary for the defendant to raise the issue of self-defense before the introduction of the character evidence as long as there is some evidence of an act of aggression by the deceased. Torres v State (October 15, 2003,No. 1822-02)

• It is unnecessary for there to be evidence of a fray when there is evidence of an act of aggression by the deceased. Torres v State (October 15, 2003,No. 1822-02)

• Deceased's act of climbing balcony, uninvited, during the early morning hours was an act of aggression; def was not required to show that deceased was physically inside the apartment. Also, deceased "entered" the apartment within meaning of that term in the criminal trespass statute. The balcony is part of the habitation, and thus, deceased entered the habitation when he climbed onto the balcony for purposes of the criminal trespass statute. Torres v State (October 15, 2003,No. 1822-02)

• In general, evidence of a person’s character may not be used to prove that she behaved in a particular way at a given time. (Character is a generalized description of a person’s disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness.) This rule exists despite the fact that, frequently, evidence of a person’s disposition will be of obvious probative value with respect to her behavior on an occasion in issue. This general ban on character evidence is not absolute, however. TRCrE 404(a)(2) specifically allows evidence concerning the pertinent character traits of the victim of a crime to be admitted. Tate v State, 981 S.W.2d 189 (Dec. 9, 1998)

rules: 404(b) (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• If a defendant testifies to a blanket statement of good conduct or character - e.g., "I would never have sex with a minor" - he may "open the door" by leaving a false impression with the jury about a relevant act or character trait. Evidence of an extraneous act that tends to rebut such testimony may be admissible to impeach the defendant. When such evidence is admitted, however, the jury may not consider it as substantive evidence of the charged offense, but only as evidence that the defendant misrepresented himself. Thus, upon request, a judge must provide a limiting instruction informing the jury that they may use the evidence only to gauge the defendant's credibility, not as any proof that he is guilty of the charged offense. Daggett v State (December 14, 2005, No. PD-0503-03)

• The list of purposes for admissibility under 404(b) is illustrative, rather than exhaustive, and extraneous-offense evidence may be admissible when a defendant raises a defensive issue that negates one of the elements of the offense. Thus, a party may introduce evidence of other crimes, wrongs, or acts if such evidence logically serves to make more or less probable an elemental fact, an evidentiary fact that inferentially leads to an elemental fact, or defensive evidence that undermines an elemental fact. Martin v State (October 5, 2005, No. PD-1545-04)

• Rule 404(b) does not prohibit the admission of extraneous bad acts committed by a third party. Castaldo v State (June 26, 2002, No. 189-01)

• 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)

• 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)

• 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)

• Although the Texas Rules of Criminal Evidence superceded common law rules on admission of evid of prior acts of violence by victim, under Rule 402(a)(2) def may still offer evidence of a victim’s character or pertinent character trait, so evid of a victim’s character for violence remains admissible to show the victim was the first aggressor. Also, under Rule 404(b), victim’s extraneous acts of violence remain admissible to show def’s state of mind. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• Where def’s purpose in offering victim’s extraneous acts of violence was to show def's state of mind, the evid was admissible under Rule 404(b), but it was still subject to Rule 403. No merit to def's claim that Rule 404 is absolute and trial judge was therefore prohibited from excluding the evidence under Rule 403. Trial court correctly ruled that Rule 403 applied. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• Rule 404 was promulgated as a specific balancing application of Rule 403's more general balancing test due to the inherent prejudice associated with admitting character evidence. Hence, Rule 404 does incorporate, at least to some extent, Rule 403's concept of prejudice. The plain language of Rule 403, however, states all “relevant evidence” is subject to its general balancing determination. There is no exception for evidence relevant to a defensive theory. Consequently, while evidence may be admissible under Rule 404 the trial court may nevertheless exclude the same evidence if it determines, within its discretion, that the probative value of such evidence is substantially outweighed by its unfair prejudice. Mozon v State, 991 S.W.2d 841 (April 28, 1999)

• If evidence is otherwise admissible, Rule 404(b) permits evidence of specific instances of crimes, wrongs, or acts to be introduced for purposes other than to show character. Such evidence is admissible if the evidence has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Tate v State, 981 S.W.2d 189 (Dec. 9, 1998)

rules: 404(b) specific situations (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• When used properly, the "plan" exception under rule 404(b) allows admission of evidence to show steps taken by the defendant in preparation for the charged offense. For example, if the defendant steals a car on Monday, buys a machine gun on Tuesday, pastes together a robbery note on Wednesday, parks illegally in front of the Wells Fargo building on Thursday while casing out the bank, and then robs the bank on Friday using the machine gun and driving off in the stolen car, all of the extraneous acts are relevant to prove each step of the defendant's ultimate plan to rob the bank. Repetition of the same act or same crime does not equal a "plan." It equals the repeated commission of the same criminal offense offered obliquely to show bad character and conduct in conformity with that bad character - "once a thief, always a thief." This bad-character-conformity purpose, whether express or not, is precisely what is barred by Rule 404(b). Thus, if the proponent is unable to articulate exactly how an extraneous act tends to prove a step toward an ultimate goal or overarching plan, the evidence is not admissible to prove part of a "plan." Daggett v State (December 14, 2005, No. PD-0503-03)

• Court of criminal appeals rejected conclusion of court of appeals that Tate v. State, 981 S.W.2d 189 (Tex.Cr.App. 1998) (that Rule 404(b) allowed a defendant claiming self-defense in a murder prosecution to present evidence of the deceased's prior threat against him), did not apply to evid of incident involving prior threats by deceased against other persons, but in instant case it was unnecessary to decide whether the excluded evid was admissible under Tate because the evid would only have been relevant to murder charge of which def was acquitted. Hayes v State (April 27, 2005, No. PD-0191-04)

• Gang membership evidence is admissible under Rules 404(b)and 402 if it is relevant to show a noncharacter purpose that in turn tends to show the commission of the crime. Ortiz v State (September 25, 2002, No. 73,692)

• TRCrE 404(b) allows a defendant to present evidence of a victim’s threat against him in order to show that the victim was the aggressor and the defendant acted in self-defense. Tate v State, 981 S.W.2d 189 (Dec. 9, 1998)

rule 404 not implicated (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• Article 37.071, not Rule 404, governs admission of character evidence in a capital trial. Jackson v State, 992 S.W.2d 469 (April 28, 1999)

notice requirement - presenting issue (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• Where def objected only to the lack of notice as to uncharged misconduct, and did not object to the admissibility of the uncharged misconduct itself, in harmless error analysis appeals court looks only at the harm that may have been caused by the lack of notice and the effect the lack of notice had on the def's ability to mount an adequate defense. McDonald v State (November 23, 2005, No. PD-1943-04)

• Court of appeals incorrectly held that def provided no authority or reasoning to show how the notice he received failed to constitute reasonable notice of state's intent to offer uncharged misconduct. Def properly objected at trial to the lack of reasonable notice of state's intent to introduce the specific uncharged offenses as required by Rule 404(b). Def also properly asserted this error on appeal by providing a record that identified his objection to the lack of notice and by identifying case law to assert that, upon a defendant's request for notice of uncharged misconduct under Rule 404(b), the state is obligated to provide reasonable notice of that conduct. McDonald v State (November 23, 2005, No. PD-1943-04)

• Where def requested notice of extraneous offenses under Rule 404(b) and state served a response designating that a certain witness would testify, but that response did not explain what extraneous offenses would be discussed, and state also gave def copies of several witness statements that involved descriptions of extraneous offenses, but record did not reflect when state gave copies of those witness statements to def, trial court's ruling that the act of delivery in this particular case constituted "reasonable notice" of state's intent to introduce evidence of the extraneous offenses is reviewed for abuse of discretion. Hayden v State (November 14, 2001, No. 610-00)

• Where def requested notice of extraneous offenses under Rule 404(b) and state served a response designating that a certain witness would testify, but that response did not explain what extraneous offenses would be discussed, and state also gave def copies of several witness statements that involved descriptions of extraneous offenses, but where record did not reflect how soon after its receipt of the notice the state responded with its delivery of the witness statements, but state claimed at trial that def, "... clearly had notice of these matters and knew in fact that they were part of the State's case," and when trial court asked if there was anything further, defense counsel responded, "Nothing with respect to that, Your Honor," and did not dispute state's claim that he had actual notice, but instead claimed that "discovery doesn't satisfy 404(b)": def's failure to object (by disputing state's claim that def had actual notice) prevented appeals court from concluding trial court abused its discretion when finding state had provided reasonable notice. Although the better practice is for the prosecutor to state explicitly the intent to introduce extraneous offense evidence, trial court did not abuse its discretion in concluding that delivery of witness statements to def in instant case provided def with reasonable notice. Conversely, had trial judge ruled that state's notice was not reasonable under these circumstances, that factual determination would not have constituted an abuse of discretion. Hayden v State (November 14, 2001, No. 610-00)

• Where def challenged adequacy of notice of extraneous offenses under Rule 404(b) and state relied on copies of several witness statements delivered to def that involved descriptions of extraneous offenses, but copies of those statements were not in record on appeal, court of appeals incorrectly held the statements could not be considered because they were not in the record; state claimed before trial court that the witness statements described all of the extraneous offenses and def did not dispute that claim and did not attempt to have the witness statements placed in the record; court of criminal appeals therefore assumed that the witness statements were as state represented them to be. Hayden v State (November 14, 2001, No. 610-00)

notice requirement - rules (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• When the facts of the primary offense can be understood on their own, Rule 404(b) notice is needed for evidence of uncharged misconduct. McDonald v State (November 23, 2005, No. PD-1943-04)

• Rule 404(b) literally conditions the admissibility of other-crimes evidence on the State's compliance with the notice provision of Rule 404(b). Since the notice requirement of Rule 404(b) is a rule of evidence admissibility, then it is error to admit Rule 404(b) evidence when the State has not complied with the notice provision of Rule 404(b). The Rule 44.2(b) harm standard is whether the error in admitting the evidence "had a substantial and injurious effect or influence in determining the jury's verdict." The purpose of the Rule 404(b) notice provision of preventing surprise is a valid consideration in conducting a Rule 44.2(b) harm analysis, but this is not inconsistent with the usual harm analysis applied to the improper admission of evidence. When an appellate court determines that a jury's verdict was substantially influenced by the improper admission of substantively inadmissible Rule 404(b) evidence, that influence on the jury's verdict will always be "injurious" since there was no proper purpose for the jury to consider the evidence. But this is not the case when substantively admissible Rule 404(b) evidence is improperly admitted because of the State's failure to comply with the Rule 404(b) notice provision. Under these circumstances, the error in admitting this evidence may have had a substantial effect or influence on the jury's verdict, but it cannot be said that this effect or influence was "injurious" if the defendant was not surprised by the evidence. Hernandez v State (November 2, 2005, No. PD-2106-03)

• Because the purpose of Rule 404(b) notice is to prevent surprise, delivery to def of witness statements detailing extraneous offenses may, in an appropriate case, satisfy the notice requirements of Rule 404(b). The rule requires "reasonable" notice. Whether the delivery of witness statements constitutes reasonable notice depends in part on the timing of that delivery. Because a reasonable conclusion to be drawn when delivery of witness statements follows upon the heels of a timely request for notice, is that state intends to use the evidence, "reasonable" notice is implicit in the delivery. Hayden v State (November 14, 2001, No. 610-00)

• 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)

notice requirement - no error (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• It was not abuse of discretion for trial court to conclude state could satisfy notice requirement of Rule 404(b) by giving the defense copies of witness statements that described the extraneous offenses later admitted into evidence at trial. Hayden v State (November 14, 2001, No. 610-00)

notice requirement - harmless (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for indecency with a child, it was error to admit evidence of uncharged misconduct (that def had pulled down pants of c/w's cousin) over def's objection that he did not receive notice as required by Rule 404(b), where state informed def of several acts of uncharged misconduct in four separate responses to def's request for notice, most notably, that it intended to introduce evidence that def touched the cousin's breast, but in none of these documents did the state inform def of its intent to offer evidence that he had pulled the cousin's pants down. Also, no merit to position that notice was not required because evid arose from same transaction as offense on trial: The challenged evidence was not necessary for the jury to understand def's conduct toward c/w, and the evidence concerning c/w made perfect sense without bringing in evidence of def's conduct with the cousin and is clearly divisible in that it involved a different victim, at a different time, after the charged conduct was completed. But error was harmless. McDonald v State (November 23, 2005, No. PD-1943-04)

• In pros for indecency with a child, it was error to admit evidence of uncharged misconduct over def's objection that he did not receive notice as required by Rule 404(b), but error was harmless where def had opportunity at trial to cross-examine c/w, the source of the testimony concerning the uncharged misconduct; def's strategy was to discredit c/w and her ability to remember specific details about her encounter with the def; he did not deny his presence at the house at the time or on the day in question. Def received notice that the state would offer evidence concerning def's conduct with c/w's cousin, just not all of the conduct that the state introduced. Def had received notice of the state's intent to introduce evidence of def's touching cousin's breast and did not object to its admissibility. If def was surprised by the testimony concerning the cousin, it was only as to the additional allegation that def pulled down the cousin's pants. It is hard to imagine that his defense would have been altered in any meaningful way. Furthermore, had there been legitimate surprise that required a re-evaluation of trial strategy, def could have requested a continuance. Because notice as to the extraneous misconduct at issue would not have affected def's trial strategy, the error did not influence the jury or had but slight effect. McDonald v State (November 23, 2005, No. PD-1943-04)

• Def was not harmed by erroneous admission evid when state failed to give notice required under rule 404(b), where def did not show surprise from failure of state to give notice. Def did not make any assertion at trial, or on appeal, that he was "surprised" by the notion that the State would offer into evidence six tape-recordings of def's own statements to police which contained his oral admission of numerous acts of extraneous misconduct. In instant case state was obviously aware of the tape recordings, had timely furnished def's counsel a copy of those recordings, and, considering how relevant they were to the capital murder charge, could be expected to use them at trial. Further, def failed to make any showing of how his defense strategy might have been different had the State explicitly notified him that it intended to offer the complete tape recordings at trial, or how his defense was "injuriously" affected by the State's failure to provide reasonable notice Hernandez v State (November 2, 2005, No. PD-2106-03)

not error under rule 404 (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• It was not abuse of discretion to allow state to cross-examine def about extraneous offenses which he committed more than twenty years before offense on trial where def on direct-examination testified he had "been in trouble before" and state's question asking def to explain his previous statement about being in trouble did not exceed the scope of the invitation def initially gave. Furthermore, every time def volunteered additional information, state was justified in asking for clarification. Feldman v State (November 21, 2001, No. 73,654)

• Evid of gang membership was not error, in pros for capital murder of prisoner by another prisoner, by means of heroin injection. Testimony relating to the Texas Syndicate and def's association with it showed (1) the Texas Syndicate had conflicts with other gangs and had to be segregated in the jail system, (2) def was a high ranking member of the Syndicate, (3) as a high ranking member, def controlled the Syndicate tank, was the contact person with jail officials for all members of the tank, controlled the exercise of jail privileges including what items were ordered at the commissary, conducted numerous meetings with other gang members, and could have other inmates killed, and (4) X, who testified against def, was a prospect being brought into the Syndicate by def. This testimony served a variety of noncharacter purposes relevant to showing def's guilt of the crime. Conflicts between gangs explained why the Texas Syndicate had its own tank. Def's status in the gang proved a variety of things. First, his high ranking in a criminal gang explained his ability to smuggle heroin into the jail and tended to show that the heroin was def's, not victim's. Second, def's high ranking in the organization and his control over the tank tended to prove his opportunity and ability to carry out the crime. It explained def's ability to gain the cooperation of other inmates to restrain victim and force an injection of heroin without leaving signs of a struggle. Third, the evidence tended to rebut defense impeachment of state's witnesses. Def's position in the Texas Syndicate explained inconsistencies in statements by showing that statements favorable to def were motivated by their fear of him. Evidence also tended to rebut defense claim that a secret deal existed between state and witness by explaining why state declined to incarcerate witness and why witness testified on cross-examination that there was a deal. Ortiz v State (September 25, 2002, No. 73,692)

• In pros for possession of marihuana, where def was passenger in vehicle stopped by police, it was not error to admit evid of driver's conduct before he stopped for police. The extraneous misconduct was committed by the driver of the vehicle in which the defendant was riding and in which the marihuana was found; driver was reckless in driving and showed signs of intoxication. Evidence of the manner of driving was relevant to the contested issue in the case, knowledge. Driver and def were in a vehicle that smelled of marihuana and which contained marihuana. State's theory was that the two men were drinking and smoking together. Defense was that def had no knowledge of the marihuana because he was asleep the entire time he was in the vehicle, and (by broad implications) the marihuana was the driver's and the smoke came from his smoking. The defense of lack of knowledge turned on def's testimony that he went to sleep the moment he got in the vehicle and remained asleep until the officer rousted him from it. He testified that neither the reckless driving nor the siren, lights (including bright, white lights that shone into the vehicle) and loudspeaker used by police woke him up. These facts were relevant (1) to the credibility of his story that he was continuously and soundly asleep during the time the marihuana was used, and (2) to the issue of the reason why a person could sleep so soundly if he had not been smoking marihuana. Intoxication was also relevant to show driver's knowledge and possession; his driving was strong evidence of his intoxication, and therefore it was relevant to the defense. As to prejudice, evidence of voluntarily riding with a drunk driver might show that a passenger was at least reckless to intoxication; also, because defensive theory was that the marihuana smoker was the driver, the more the evidence showed the driver was a bad person, and intoxicated driver, and a drug user, the more it helped the defense. The slight prejudice that might accrue from evidence of voluntarily riding with an intoxicated driver could not greatly outweigh the proper relevance of the evidence of bad driving to the issues of knowledge and use of the marihuana. Castaldo v State (June 26, 2002, No. 189-01)

• It was not abuse of discretion to allow state to cross-examine def about extraneous offenses which he committed more than twenty years before offense on trial where def on direct-examination testified he had "been in trouble before" and state's question asking def to explain his previous statement about being in trouble did not exceed the scope of the invitation def initially gave. Furthermore, every time def volunteered additional information, state was justified in asking for clarification. Feldman v State (February 20, 2002, No. 73,654)

• In pros for capital murder it was not error to admit evid of extraneous offenses committed against two others on night of offense on trial. The extraneous offenses were admissible to prove theft element of robbery. To establish the "murder in the course of robbery" theory of capital murder, state was required to show that the murder was committed during the course of the theft rather than the theft being a mere afterthought. The extraneous offenses evidenced a scheme of robbing women who traveled alone. Also, the multiple offenses tended to establish a conspiracy between def and his accomplice. Johnson v State (January 30, 2002, No. 73,765)

not error to admit identity (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• It was not error to admit extraneous offense evid under 404(b) where cross-examination on discrepancy between def's actual weight and description of perpetrator's weight given to police by eyewitness put identity in issue. Page v State (June 9, 2004, No. 2191-02 & 2192-02)

• In pros for capital murder it was not error to admit evid of extraneous offenses committed against two others on night of offense on trial, where evid was admissible to show identity. Identity was the only disputed issue in the case, the three offenses were committed within a few hours of each other, directed at lone women, and involved the murder victim's red Ford Taurus. Two witnesses specifically identified def as the driver of the murder victim's car on the occasions in question. Even without other similarities, possession of the victim's car is a significant piece of evidence tying def to the victim's death. Johnson v State (January 30, 2002, No. 73,765)

not error to admit common scheme or plan (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for capital murder it was not abuse of discretion to admit evid of extraneous offense where def conceded that he killed the two victims named in the indictment but disputed that he committed the murders in the same criminal transaction (19.03(a)(7)(A)) or during the same scheme or course of conduct (19.03(a)(7)(B)). In presenting evidence about the extraneous offense (assault/attempted murder), state was able to present to jury evidence that made the existence of this fact more probable by revealing def's common "anti-truck driver" motive or a common scheme behind the shootings. Also, record showed that early in state's case-in-chief, prosecutor read to the jury a letter* def had written and sent to police detective in which def made admission that, along with the minimal evidence of the facts and circumstances of the extraneous assault, made the fact that the murders alleged in indictment were committed during the same transaction or scheme or course of conduct more likely. Hence, the evidence had relevance apart from character conformity, and the judge acted within his discretion in allowing it. Feldman v State (November 21, 2001, No. 73,654)

• In pros for capital murder it was not abuse of discretion to admit evid of extraneous offense where def conceded that he killed the two victims named in the indictment but disputed that he committed the murders in the same criminal transaction (19.03(a)(7)(A)) or during the same scheme or course of conduct (19.03(a)(7)(B)). In presenting evidence about the extraneous offense (assault/attempted murder), state was able to present to jury evidence that made the existence of this fact more probable by revealing def's common "anti-truck driver" motive or a common scheme behind the shootings. Also, record showed that early in state's case-in-chief, prosecutor read to the jury a letter* def had written and sent to police detective in which def made admission that, along with the minimal evidence of the facts and circumstances of the extraneous assault, made the fact that the murders alleged in indictment were committed during the same transaction or scheme or course of conduct more likely. Hence, the evidence had relevance apart from character conformity, and the judge acted within his discretion in allowing it. Feldman v State (February 20, 2002, No. 73,654)

not error to admit motive & intent (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for capital murder it was not error to admit evid of extraneous offense of another murder by co-def in instant case in which def participated, where def's intent in instant case was hotly contested and def's participation in extraneous murder four months earlier served to rebut def's argument that he lacked requisite intent to promote co-def in instant murders. Also, that evid was not so prejudicial that jury would have been unable to limit its consideration of it to its proper purpose. Sorto v State (October 5, 2005, No. AP-74,836)

• In pros for capital murder of a child under six years of age, it was not error to admit evid of sexual assault of the child that accompanied the murder, over contention def was being tried only for capital murder of a child under six years of age and not for the sexual assault itself. Admission of the sexual assault evidence tended to establish motive. In the instant case, the State's theory was to prove that the murder of the three-year-old child was intentional by showing that the sexual assault was the motive for the murder. (also admissible as context of offense) Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

• In pros for capital murder it was not error to overrule objections under rules 401, 403 and 404(b), to testimony that earlier on night of offense def along with some other members of his gang were involved in an altercation with X, allegedly a relative of an H-Town Crips gang member, and that def threatened X with a gun. State’s theory of the offense was that def opened fire into group of people gathered in front of a home in revenge for the murder of a fellow gang member. Various witnesses testified that, at the time of the offense, the H-town Crips and def's gang were at odds. In this context, the testimony was most relevant as to def’s motive and intent on the night of the offense. In the context of the entire record, it cannot be said that the testimony was more prejudicial than probative. The elements of the testimony which might be considered prejudicial to def (that he was a gang member, that he had a violent grudge against the H-town Crips, that he carried a deadly weapon and that he did not hesitate to threaten others with this gun) were facts established elsewhere in the record. Medina v State, 994 S.W.2d 153 (June 2, 1999)

not error to admit motive (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for capital murder, it was not error to admit evid of def's affiliation with the Mexican Mafia, over rule 404 objection. The evidence was used to show a motive for an allegedly gang-related crime. Vasquez v State (February 6, 2002, No. 73,729)

• In pros for capital murder, it was not abuse of discretion to admit evidence that def smoked cocaine on night of victim's murder. The trial court could have reasonably concluded that the extraneous offense evidence was admissible to help prove appellant’s motive for the killing, to wit: to obtain the victim’s property so that he could exchange it for cocaine. If error, it was harmless under 44.2(b). Ladd v State, 3 S.W.3d 547 (October 6, 1999)

• In pros for capital murder based on gang-related drive-by-shooting, it was not error to admit over Rule 403 and 404(b) objections, testimony that, earlier on the night of the offense, def along with some other members of his gang got involved in an altercation with X, allegedly a relative of a rival gang member, and that def threatened X with a gun. State’s theory of the offense was that def opened fire into the group gathered in front of a home in revenge for the murder of a fellow gang member. In the context of the entire record, the evid was not more prejudicial than probative. The elements of the testimony which might be considered prejudicial to def were facts established elsewhere in the record. Medina v State, 7 S.W.3d 633 (Oct. 6, 1999)

not error to admit context of offense (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for capital murder of X and Y it was not error to admit evid of extraneous offense, that three children died from smoke inhalation caused by fire def set during commission of charged murders. The evid was admissible (1) to corroborated def's extra-judicial confession to a jailhouse informant, and (2) as same-transaction contextual evid. Admission of this evid did not violate rule 404(b), rule 403, or due process right to a fair and impartial trial. Prible v State (January 26, 2005, No. AP-74,487)

• In pros for capital murder of a child under six years of age, it was not error to admit evid of sexual assault of the child that accompanied the murder, over contention def was being tried only for capital murder of a child under six years of age and not for the sexual assault itself. No merit to contention that the sexual assault was an extraneous offense. The evidence of the sexual assault was so intertwined with the murder that the jury's understanding of the offense would have been obscured without it. (Def confessed to smothering the child to death with a plastic bag shortly after sexually penetrating the child's anus. Def then called "9-1-1" and claimed that the child had drowned in the bathtub. Other evidence showed that when the child was taken to the hospital, medical personnel noticed that sexual abuse had taken place and determined that the child had not drowned, alerting the hospital staff and the authorities that foul play had taken place.) (also admissible to show motive) Wyatt v State, 23 S.W.3d 18 (May 3, 2000)

not error to admit sex crime: defense (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for sexual assault it was not error to admit extraneous offense evid of prior sexual assault where lack of consent, an element of the alleged offense, was hotly disputed and the extraneous-offense evidence was admitted only after def testified that his sexual intercourse with the complainant was consensual. In instant case, def admitted that he falsely claimed to be a law enforcement officer as a ruse to "pick up" both the complainant and the extraneous-offense witness, and both women testified that they agreed to meet def in a residential area, that the meeting was the first face-to-face meeting after initial contact, and that they were sexually assaulted by def in a residence. Facts of the instant case showed a modus operandi sufficiently distinctive to qualify as an exception to the general rule precluding the admission of extraneous-offense evidence. Martin v State (October 5, 2005, No. PD-1545-04)

not error to admit def opened door by cross examination (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• It was error for court of appeals to decide it was abuse of discretion for trial court to admit extraneous offense evidence, where trial court could have reasonably concluded it was admissible to rebut defensive theory raised in cross-examination* of victim. Judgment of court of appeals reversed and case remanded for further analysis under Rule 403. Powell v State (November 28, 2001, No. 1244-00)

not error to admit def opened door by defense theory (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for bribery it was not error to admit extraneous offense evid to rebut defensive theory that police officers fabricated existence of charged offense in order to retaliate against def for his role in a controversy involving other police officers. Moses v State (May 21, 2003, No. 2093-01)

• In pros for aggravated sexual assault of a child, it was not abuse of discretion to allow state to cross-examine defense witness (case worker) about extraneous offense against another child, where testimony of defense witness on direct was relevant only for inference that def was type of person who did not pose a risk of abuse around children. Cross-examination was permissible for two reasons. (1) Def presented witness as a species of expert witness, one who had conducted a CPS investigation and "did not find any risk of abuse or neglect in the home." Therefore, state was entitled to cross-examine her for two independent but related reasons. First, the opposing party is always entitled to cross-examine an expert witness concerning the facts and data upon which that expert relied in forming her conclusion or opinion. Once witness testified to her "determination," state was entitled to inquire into the circumstances of that investigation, the mode under which she conducted her inquiry, the people she interviewed, the materials upon which she relied, and about information of which she was aware, but upon which she did not rely. State specifically asked her what information she relied on for her official report, and when asked whether she had received information that def may have molested his niece several years earlier, she stated that a law enforcement officer had told her "something like that," but it was hearsay, that she might have asked def or his wife about it, but she made no attempt to investigate that incident or contact the child, and she closed her file. When asked if she would have changed her opinion had she been able to verify the earlier molestation, she stated that she "possibly" would change her opinion that def was not a risk. This was permissible cross-examination into the basis for an expert witness's opinion. (2) State's cross-examination was also permissible to correct the false impression that witness' testimony left concerning def's risk of abuse. By raising the defensive theory that def posed no risk of abuse, he (through caseworker) opened the door for state to cross-examine her regarding an extraneous offense if the extraneous offense would tend to correct the false impression left by the witness' direct examination testimony. Def did not overtly present witness as a character witness, and she did not overtly testify to def's character for moral and safe conduct around children. However, because her testimony was relevant only for the inference that def was the type of person who did not pose a risk of abuse around children, state was entitled to rebut that "false impression" inference with cross-examination questions concerning allegations of similar misconduct toward another child. Wheeler v State (January 30, 2002, No. 815-99)

not error to admit evidence was not extraneous offense (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• No merit to contention was error to permit state to cross examine def about extraneous offense, where it was not an extraneous offense, but was offense arising from capital murder victim's cooperation with police, and instant indictment charged def with murder in retaliation for that act of cooperation. Russell v State (February 2, 2005, No. AP-74,595)

• In pros for intoxication manslaughter and manslaughter, where indictment alleged four different manners and means of committing offense, including allegation def's recklessness was caused "by consumption of a controlled substance," evid of a cocaine metabolite in def's bloodstream an hour and a half after offense was not evid of an extraneous offense; it was evid of charged offense. Manning v State (September 10, 2003, No. 1287-02)

• Where defendant was charged with delivery of cocaine to a minor "on or about" a certain date, minor's testimony that defendant delivered cocaine to her "maybe 20 or 30 times" during the nine-month period before alleged date was not extraneous offense evid to the charged offense; def's remedy was to require state to elect the occurrence on which it sought to rely for conviction. Absent an election, defendant cannot later be prosecuted for the separate acts of misconduct upon which the jury could have based conviction. Rodriguez v State (March 26, 2003, No. 290-01)

• In pros for capital murder as part of combination, it was not abuse of discretion to admit evid of def's membership in Texas Mafia and of Texas Mafia's criminal activities, over contention it was extraneous to charged offense and offered only for character conformity purpose, and that probative value was substantially outweighed by danger of unfair prejudice; it was not extraneous to charged offense, but was part of "combination" element of offense. Canales v State (January 15, 2003, No. 73,988)

• In pros for capital murder it was not error to admit evid that after killing his parents def forged and cashed three checks from their checking account, over contentions they were extraneous, irrelevant and overly prejudicial, where one of capital murder theories in case was murder in the course of a robbery. Was not abuse of discretion to admit this evidence to prove the underlying robbery offense. Turner v State (September 11, 2002, No. 73,559)

error to admit in sexual offense (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for aggravated sexual assault of a child under 17, it was error to admit evid of sexual assault against a second child in violation of rule 404(b), on claim it was admitted to show "plan," where state failed to articulate any logical link between the sexual interlude with second victim and an ultimate goal or plan to have a sexual relationship with victim in case on trial. Although that error was cured when def opened the door by his subsequent testimony stating "I would not do something like that," and "I have never done anything of that sort with a sixteen year old girl, period," the trial court also committed error by allowing the state to use the extraneous offense as substantive evidence of the charged offense. Because the court of appeals did not assess the potential harmfulness of this testimony being misused for substantive purposes when it was admissible only to impeach def's credibility, cause remanded to court of appeals to conduct harm analysis. Daggett v State (December 14, 2005, No. PD-0503-03)

error to exclude (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• In pros for murder def laid proper predicate to introduce evid of deceased's character where he presented evid that immediately before shooting deceased, deceased climbed up to second-story balcony outside a bedroom window, unannounced and uninvited at 6:30 a.m. This action was an act of aggression and tended to raise issue of self defense. It was therefore appropriate to allow def to introduce deceased's previous act of climbing in the window and threatening witness and her children because it may help clarify deceased's purpose in climbing up the balcony in instant case. Excluded testimony would have provided evidence to explain this conduct and was therefore admissible and relevant at the time it was offered. Cause remanded for harm analysis. Torres v State (October 15, 2003,No. 1822-02)

• Evid on issue of self-defense (in pros for murder), that a few days before date of shooting, deceased entered through window premises where X and deceased had once lived with Y and threatened Y and her children if Y did not tell him where X was, was not inadmissible for being relevant only to character conformity. The excluded evid showed a mind set of violence against those who might stand between deceased and X. It could also explain deceased's unorthodox entry by demonstrating the intent or motive of getting back into relationship with X one way or another, or keeping others away from X by violence if necessary. Because the proffered testimony was probative of the deceased's state of mind, intent, and motive, court of appeals erred in concluding that the evidence was relevant only to character conformity. Cause remanded to court of appeals for reconsideration of whether issue was preserved for review, whether def laid proper predicate, and if so, for harmless error analysis. Torres v State (April 3, 2002, No. 1321-00)

• In pros for murder where def raised issue of self-defense, it was abuse of discretion to exclude testimony* of prior threats by victim against def, even though not communicated to def, in order to show that the victim was the aggressor and the defendant acted in self-defense. No merit to state's contention that evid was inadmissible character evid, where it was not offered to prove victim's character, but rather to prove his intent or motive to cause def harm on the night in question. Evidence of this uncommunicated threat, allegedly made only a month or two before offense, had relevance beyond its tendency to demonstrate victim’s character. Tate v State, 981 S.W.2d 189 (Dec. 9, 1998)

harmless (Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes)

• Any error in allowing references (during trial for offense of failure to register as sex offender) to prior sex offense was harmless. State's repetition of the name of the offense at various stages of the trial was not harmful because: 1) the jury would have known of, and been reminded of, the nature of the offense even if the trial court had accepted the stipulation and prevented mention of the name of the offense at any stage of the trial except the indictment, 2) the character conformity inference of the prior conviction was not particularly strong, 3) the conviction itself was for one of the less serious offenses subject to the registration statute, and 4) the evidence supporting the conviction was substantial. Herring v State (October 6, 2004, No. PD-0358-03)

• In pros for causing injury to 3-year-old child, it was error to admit photos of injuries to 4-year-old sister of victim: Photos of bruises to second child did not tend to show it was def, rather than child's mother, who burned c/w's palm with a lit cigarette, and did not tend to rebut defense that def accidentally, mistakenly or inadvertently burned c/w's palm. Although the photos were not relevant for a permissible purpose under rule 404(b), the error was harmless where they had little prejudicial effect in light of: numerous photos of c/w's bruises and other very serious injuries; medical records diagnosed c/w as victim of "chronic child abuse"; def offered evid that def had already been convicted of injury to a child for having beaten both c/w and his sister and had already been sentenced to 45 years; other evid that def and mother had beaten sister were already before jury; def's admission to burning c/w with cigarette was already in evid; and photos of sister were not mentioned in jury arg. Johnston v State (September 15, 2004, No. 1650-03)