I. Evolution of the Meaning of Extraneous Offense
The definition of an extraneous offense has evolved in Texas jurisprudence. It was once defined as “one that is extra, beyond, or foreign to the offense for which the party is on trial.” Ridinger v. State, 174 S.W.2d 319, 320 (Tex. Crim. App. 1943). Later, several cases held that where the State offers evidence of more than one act of criminal conduct alleged in the indictment, the acts not relied upon by the State for conviction were extraneous offenses. O’Neal v. State, 746 S.W.2d 769, 771 (Tex. Crim. App. 1988); Crawford v. State, 696 S.W.2d 901 (Tex. Crim. App. 1985); Yzaguirre v. State, 957 S.W.2d 38, 40 (Tex. Crim. App. 1997) (Myers, J., concurring). “An extraneous offense is an offense other than the offense charged.” Guidry v. State, 896 S.W.2d 381, 385 (Tex. App. – Texarkana 1995, pet. ref’d, reh. den.), citing Parks v. State, 746 S.W.2d 738 (Tex. Crim. App. 1987). The Court of Criminal Appeals said the following about the purpose of admission of extraneous offenses:
It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense for which he is charged and not for being a criminal in general. See, e.g., Templin v. State, 7y99 S.W.2d 30 (Tex. Crim. App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Because extraneous offense evidence carries with it the apparent risk that a defendant may be convicted because of his propensity for committing crimes generally—i.e., his bad character—rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual’s prior bad acts or extraneous offenses. Under Tex. R. Crim. Evid. 404(b), extraneous offense evidence may be admissible only if it tends to prove a material fact in the State’s case, apart from its tendency to demonstrate an accused’s general propensity for committing criminal acts.
Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992, reh’g deneid). In Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996), the Court of Criminal Appeals again altered the definition of extraneous offenses without reference to the foregoing cases. The court defined an extraneous offense “as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers.” Id. at 741.
There was a special exception to the general admissibility of extraneous offenses for cases involving sexual abuse of a child by one standing in a parental relationship. Battles v. State, 140 S.W. 783 (1911). That exception permitted the State to introduce evidence of similar offenses committed by the accused against the same child for the purpose of showing, among other things, the broad context in which the charged offense occurred. This exception became subject to “persistent criticism over the years” until it was abandoned by the Court of Criminal Appeals in Vernon v. State, 841 S.W.2d 407, 410 (Tex. Crim. App. 1992), finding it to not “have any legal force independent of Rule 404(b).” Id. at 411. Thus, it became clear that the admissibility of extraneous crimes, wrongs, and acts in child abuse cases would be governed by Rule 404(b), Tex. R. Evid. Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990); Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992); Vernon v. State, 841 S.W.2d 407 (Tex. Crim. App. 1992); Pavlacka v. State, 892 S.W.2d 8972 (Tex. Crim. App. 1994).
The prosecutors came to believe that Rule 404(b) was a substantial impediment to the State’s ability to secure convictions in child abuse cases because of a perceived reluctance of jurors to believe a child, when asked to make a decision about guilt or innocence on a single identified offense, and in having the child identify a particular act upon which the State relied for a conviction and distinguishing that act from extraneous conduct. The Court of Criminal Appeal’s interpretation of Rule 404(b) limited the introduction of extraneous offense evidence at trial in a way the prosecution believed made securing convictions more difficult.
II. Article 38.37, C.C.P.
A. Original Version
This difficulty remained the state of the law in Texas until September 1, 1995, when the Legislature passed Art. 38.37, C.C.P. It appears that the Legislature was attempting to reinstate the common law exception in child abuse cases for the admission of extraneous offenses. Under the statute, evidence would be admitted of other crimes, wrongs, or acts committed by the defendant against the child who was the victim of the alleged offense “for its bearing on relevant matters,” including the state of mind of the defendant and the child and the previous and subsequent relationship between the defendant and the child. Art. 38.37, C.C.P. The rule has been roundly criticized as allowing the State to prosecute a defendant for generally being a “child molester.” The belief by the critics has been that the limiting instructions to the jury did not really limit its consideration of the evidence to the particular purpose set forth in the statute, but instead the jury simply considered the evidence as showing propensity and character of the accused. The admission of extraneous offense evidence under Art. 38.37, in conjunction with the Court of Criminal Appeals’ change in the definition of extraneous offense in Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2001), changed the nature of trials of child abuse allegations to trials about the character of the accused, and not trials about whether the accused committed a particular offense. That the defendant was entitled to be indicted and tried for a particular single act of conduct had become a mere pretense. That pretense was finally dropped by amendments to Art. 38.37, C.C.P., that were effective September 1, 2013.The original version of Art. 38.37 applied to cases where the victim was a child under the age of 17 in prosecutions for offenses defined under Chapter 21 (sexual offenses); Chapter 22 (assaultive offense); Section 25.02 (prohibited sexual conduct); and where the victim was younger than18 years of age, in prosecutions under Section 43.25 (sexual performance of a child); Section 20A.02(7) or (8) (human trafficking); or Section 43.05 (compelling prostitution); and any attempt or conspiracy to commit one of the foregoing offenses. Prior Art. 38.37, Section 1, C.C.P.
B. Amendments Effective Sept. 1, 2013
The 2013 amendments to Art. 38.37 combined Sections 1 and 2 of the old statute into Section 1 of the new statute, without change, and added a new Section 2, which creates a second “tier” of offenses for which evidence of extraneous offenses may be admitted at trial, for a different purpose than for the offenses set forth in Section 1 of both of the prior and amended articles. New Section 2 of Art. 38.37 applies to a narrower group of offenses than does new Section 1. Section 2 applies only to the trial of a defendant for an offense under the following provisions of the Penal Code: (A) Section 20A.02, if punishable as a felony of the first degree under Section 20A.02(B)(1) (sex trafficking of a child); (B) Section 21.02 (continuous sexual abuse of a young child or children); (C) Section 21.11 (indecency with a child); (D) Section 22.011(a) (sexual assault of a child); (E) Sections 22.021(a)(1)(B) and (2) (aggravated sexual assault of a child); (F) Section 33.021 (online solicitation of a minor); (G) Section 43.25 (sexual performance by a child); or (H) Section 43.26 (possession or promotion of child pornography); or an attempt or conspiracy to commit an offense described in Section 2. See Aquillan v. State, 584 S.W.3d 701 (Tex. App.–Texarkana 2017), where a court of appeals found that evidence of the defendant having physically abused the complainant’s sisters was not an admissible extraneous offense because it was not similar to the indecency-with-a-child charge for which the defendant was being tried.
C. Operation of Current Statute
Upon a trial of one of the offenses described in new Section 2(a)(1) and (2), evidence that the defendant “committed a separate offense described by Subsection (a)(1) or (2)” of Section 2 may be admitted “for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant.” New Art. 38.37, Section 2(b), C.C.P.; Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet/ ref’d). Art. 38.37, § 2 creates an exception to the Rules of Evidence that otherwise make character evidence inadmissible. Manning v. State, 2015 WL 8473347, *2 (Tex. App. – Beaumont 2015, pet. ref’d).
The limitations upon the use of character evidence in Rules 404 and 405 do not apply regarding the admission of extraneous offenses upon the trial of the kind of cases listed in new Section 2 of Art. 38.37. Said another way, upon trial of a Section 2 offense, evidence of other sexual offenses committed by the defendant will be admitted as evidence of the defendant’s character and to show he acted in conformity with that character. Lara v. State, 513 S.W.3d 135 (Tex. App.–Houston [14th Dist.] 2016, no pet.); Carmichael v. State, 505 S.W.3d 95 (Tex. App.–San Antonio 2016, pet. ref’d). This appears to apply only to other offenses, not to wrongs or acts, as in new and prior Section 1; and applies to separate offenses against other victims and is not just limited to offenses against the complainant in the case being tried. Said another way, the Legislature has authorized the trial of a defendant for being a “child molester” generally, and as a practical matter has done away with the requirement that the State prove beyond a reasonable doubt that the defendant committed a particular act. See Moore v. State, 2015 WL 1317205, *2 (Tex. App. –Austin 2015, pet. ref’d) (sexual acts that were not considered sexual acts for purposes of §21.02, continuous sexual abuse statute, were admissible as circumstantial evidence that the defendant had engaged in other conduct that could form the basis of his conviction). However, evidence offered pursuant to Art. 38.37 is subject to the Rule 403 balancing test of whether its probative value is substantially outweighed by the danger of unfair prejudice. Carmichael v. State, 505 S.W.3d 95, 102 (Tex. App.–San Antonio 2016, pet. ref’d); Distefano v. State, 532 S.W.3d 25, 31 (Tex. App.–Houston [14th Dist.] 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.–Tyler 2015, no pet.).
Art. 38.37 requires the trial court to hold a hearing outside the presence of the jury to determine whether the evidence admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt. Art. 38.37, § 2–a. C.C.P.; Carmichael v. State, supra at 102; Agrillen v. State, 534 S.W.3d 701, 710 (Tex. App.–Texarkana 2017, no pet.). If the defendant does not request a hearing, or object to the failure to have the hearing, the right to the hearing is forfeited. Carmichael v. State, supra at 103. Art. 38.37 does put limitations on the admissibility of such evidence. Section 2-a provides that before the extraneous conduct evidence may be introduced, the trial judge must: (1) determine that the evidence likely to be admitted at trial will be adequate to support a “finding by the jury that the defendant committed a separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose.”
Also, Section 3 of new Art. 38.37 requires that the State give the defendant notice of the State’s intent to introduce in its case in chief the evidence set forth in Section 1 or 2 of amended Art. 38.37 “not later than the 30th day before the date of the defendant’s trial.” This provision eliminates the need for a request for notice to be filed by the defense in order to trigger the State’s duty to provide notice of intent to offer extraneous offense evidence. This provision also does not include the “reasonable notice” provision of Rule 404(b) and does not require the State to give notice of the county in which the alleged extraneous acts took place, as required by Art. 37.03, Section 3, C.C.P. The purpose of the notice is to prevent surprise. In determining whether a defendant is harmed by failure to give notice of an extraneous offense, an appellate court will consider whether the defendant was surprised and how it affected his ability to mount an effective defense.
A trial court must also conduct a Rule 403 balancing test. Art.38.37, Section 2(b), C.C.P. The statute does not restrict a defendant’s right to have the State elect the incident for which it will seek conviction. Owings v. State, 541 S.W.3d 144 (Tex. Crim. App. 2017); McCombs v. State, 562 S.W.3d 748 (Tex. App.–Houston (14th Dist.] 2018, no pet.); Gauna v. State, 534 S.W.3d 7 (Tex. App.–San Antonio 2017).
The change in Art. 38.37 applies to a criminal proceeding that commences on or after the effective date of Senate Bill 12, September 1, 2013. Section 2, SB12. This means that the change in the law applies to trials that commence on or after the effective date, whether the indictments were pending prior to the effective date of the amendment or the offense occurred prior to the effective date of the amendments to Art. 38.37. Fahrni v. State, 473 S.W.3d 486 (Tex. App.–Texarkana 2015, pet. ref’d); Bezarra v. State, 485 S.W.3d 133, 138-139 (Tex. App.–Amarillo 2016, pet. ref’d).
There is an argument to be made that application of amended Art. 38.37 to offenses that occurred prior to September 1, 2013, would violate the ex post facto prohibition of the United States Constitution. The Supreme Court has held there are four categories of ex post facto laws. The fourth category is a “law that alters the legal rules of evidence, and requires less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” Carmell v. Texas, 529 U.S. 513, 522, 551 (2000). Amended Art. 38.37 certainly admits evidence different than did its predecessor. Some Texas courts have rejected claims that employment of Art. 38.37, in cases where the offense occurred before the effective date of Art. 38.37, violates ex post facto prohibitions. Baez v. State, 486 S.W.3d 592 (Tex. App.–San Antonio 2015, pet. ref’d). Courts have determined that Art. 38.37 does not violate a defendant’s right to due process of law nor lessen the presumption of innocence or the State’s burden of proof. Perez v. State, 562 S.W.3d 676 (Tex. App.–Ft. Worth 2018, pet. ref’d) (unique nature of sexual assault justified the admission of extraneous offense evidence, even though traditional notions of due process generally caution against admission of such evidence); Distefano v. State, 532 S.W.3d 25 (Tex. App.– Houston [14th Dist.] 2016, pet ref’d); Buxton v. State, 526 S.W.3d 666 (Tex. App.–Houston [1st Dist.] 2017, pet. ref’d); Ryder v. State, 519 S.W.3d 391 (Tex. App.–Amarillo 2017, pet. ref’d); Bezarra v. State, 485 S.W.3d 133 (Tex. App.–Amarillo 2016, pet. ref’d); Belcher v. State, 474 S.W.3d 840 (Tex. App. –Tyler 2015, no pet.); Robisheaux v. State, 483 S.W.3d 205 (Tex. App.–Austin 2016, pet. ref’d).
The amendment of Art. 38.37 has probably rendered Rule 404(b) and Art. 37.07, Section 3, C.C.P., largely irrelevant in the trial of child abuse cases. Under new Art. 38.37, all extraneous offenses against any child (or perhaps adult) will be admissible under Art. 38.37, so there is no need for the State to bear the burden of showing their admissibility under Rule 404(b) and Art. 37.07, Section 3, C.C.P. However, these provisions do remain in effect and are available as a means to admit extraneous matters not covered by new Art. 38.37, or where the State does not comply with the requirements of Art. 38.37.
III. Rule 404(b), Tex. R. Evid.; Art. 37.07, Section 3, C.C.P.; and Rule 609(f), Tex. R. Evid.
Rule 404(b) applies to the admission of evidence of extraneous crimes, wrongs, and bad acts during the guilt-innocence portion of a trial. Art. 37.07, Section 3 applies to the admission of extraneous crimes, wrongs and bad acts at the punishment phase of a trial but is not applicable to a pre-sentence investigation report. Hart v. State, 342 S.W.3d 659, 671(Tex. App.–Houston [14th Dist.] 2011, pet. ref’d); Fielder v. State, 2015 Tex. App. LEXIS 10554, *12, (Tex. App.–Amarillo). Rule 609(f) applies to the admission of records of prior convictions.
B. Notice Requirement
Each of these provisions have in common a notice provision which, upon request by the defendant, requires the State to give the defendant reasonable notice of the intent to introduce extraneous crimes, acts, or wrongs into evidence. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995) (en banc); Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) (en banc). Art. 37.07, Section 3, explicitly states that notice of the intent to introduce extraneous conduct evidence under this article shall be given in the manner required by the Rule 404(b). Worthy v. State, 312 S.W.3d 34, 37 (Tex. Crim. App. 2010). The wording of the notice provision of Rule 609(f), Tex. R. Evid., is very similar to that of Rule 404(b). In cases not covered by Art. 38.37 the defendant should specifically request notice of the State’s intent to offer evidence of extraneous matters under Rules 404 and 609. The purpose of the notice provisions for admission of extraneous offenses is to avoid surprise and allow the defendant to mount an effective defense. Pena v. State, 554 S.W.3d 242 (Tex. App.–Houston (14th Dist.] 2018, pet. ref’d).
Filing a request for notice under Art. 38.37 should not be necessary because that provision appears to be self-executing. In child abuse cases, due to the effect of new Art. 38.37, a request for notice of extraneous offenses pursuant to Rule 404(b) and Art. 37.07 Section 3 may not be necessary. On the other hand, Rules 404(b) and Art. 37.07, Section 3, do remain in effect for all kinds of cases, so some extraneous matters may be admissible pursuant to those provisions, even if not admissible under Art. 38.37. Early discovery of the State’s case and knowledge of your prosecutor and court may inform defense counsel as to what requests and motions should be filed. It is the safer choice to file the request for notice under Rules 404(b) and 609(f) and Art. 37.07, Section 3. That request should be filed with the court very soon after you begin representation. You may want to include Art. 38.37 in your request to bolster your contention that because the State did not give the 30-day notice required by Art. 38.37, the extraneous offenses are not admissible.
C. Triggering the Duty to Give Notice
The State’s duty under Rules 404(b) and 609(f) and Art. 37.07, Section 3, to give notice to the defendant of its intent to offer evidence of other crimes, wrongs, or bad acts, or prior convictions, is triggered by timely serving a REQUEST upon the attorney for the State. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993, reh’g denied); Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Ford v. State, 106 S.W.3d 765, 766 (Tex. App.–Texarkana 2003, no pet.); Randon v. State, 107 S.W.3d 646, 651 (Tex. App.–Texarkana 2003, no pet.). A copy of such request should be filed with the Court. Espinosa v. State, supra at 38 n. 3. The REQUEST may be in some other format, such as a letter. If the State receives a request for notice of extraneous offenses and fails to give notice of its intent to use such evidence, the evidence should not be admitted. Davis v. State, 315 S.W.3d 908, 919-920 (Tex. App.–Houston [14th Dist.] 2010) (erroneous admission of defendant’s jail disciplinary record as punishment evidence was harmless), rev’d on other grounds, 349 S.W.3d 517 (Tex. Crim. App. 2011). “Rule 404(b) literally conditions the admissibility of other crimes evidence on the State’s compliance with the notice provisions of Rule 404(b).” Hernandez v. State, 176 S.W.3d 821,824 (Tex.Crim. App. 2005).
A REQUEST for notice does not need to be acted upon by a trial court before the State is obligated to comply. The State’s duty to comply is invoked by the receipt of the request. Espinosa v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993). Making the request in the form of a discovery motion is insufficient to trigger the notice requirement unless the accused secures a ruling from the Court. Mitchell v. State, supra at 427; Simpson v. State, 991 S.W.2d 798 (Tex. Crim. App. 1998); Ford v. State, supra at 766-67;. Sanders v. State, 191 S.W.3d 272, 276 (Tex. App.– Waco 2006, pet. ref’d), cert. denied 127 S.Ct. 1141 (2007). The REQUEST should ask for notice under all the applicable provisions. A request for notice under one provision does not constitute a request for notice under another provision. McCarty v. State, 2014 WL 1572455, *2 (Tex.App.–Austin 2014); Hitt v. State, 53 S.W.3d 697, 705 (Tex.App.– Austin 2001, no pet.) (request for notice pursuant to Rule 404(b) does not entitle the defendant to prior notice under Art. 38.37).
D. What is “Reasonable”?
While each statute or rule requires that the State give the defense reasonable notice in response to a request, they do not define what constitutes “reasonable notice” and the appellate decisions determine reasonableness on a case -by-case basis. The State’s open-file policy does not satisfy that notice requirement. Buchanan v. State, 911 S.W.2d 11, 15 (Tex. Crim. App. 1995); Allen v. State, 202 S.W.3d 364, 367 (Tex. App.–Ft. Worth 2006, no pet.). Reasonable notice can be given by actions not constituting an explicit statement of intent. For example, where the State’s notice stated that certain witnesses would be called to testify and attached a copy of the witnesses statements, it was held that the trial court did not abuse its discretion in admitting the witnesses testimony about extraneous offenses where defense counsel had made a request for notice of extraneous offenses and did not contend that he did not receive actual notice of the State’s intent to offer the extraneous offenses into evidence. Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001).
Whether notice under Rules 404(b) and 609(f) and Art. 37.07 Section 3 is reasonable is determined by the facts and circumstances of each case, including when the request is made, the circumstances of the request, the nature of the response, the timeliness of the response, and any other relevant circumstances, Dix and Dawson, 42 Texas Practice §27:128, 3rd Ed.; Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001); Owens v. State, 119 S.W.3d 439, 443-444 (Tex. App.–Tyler 2003, no pet.). Again, the purpose of the Rule 404(b) notice requirement is to prevent the defendant from being surprised by extraneous offense evidence and ensure he has time to counter the evidence at trial. Hernandez v. State, 176 S.W.3d 821,824 (Tex. Crim. App. 2005).
What is considered to be a timely request is not clear, although a request made on the day of trial is not timely. Espinoza v. State, 853 S.W.2d 36, 38-39 (Tex. Crim. App. 1993) (en banc, reh’g denied). The length of time that a request for notice has been pending is a relevant consideration. The longer the pendency of the request before a late notice, the stronger the case for lack of reasonableness. Whether notice is given in sufficient time to prevent unfair surprise is the primary consideration. Dix and Schmolesky, 42 Texas Practice § 27.127, p. 635, 3rd Ed.
Notice is not reasonable simply because the record shows that the defense was not surprised. An appellate court will “consider the notice that is to be expected or required under the particular circumstances of the case.” Webb v. State, 36 S.W.3d 164, 177 (Tex. App.–Houston [14th Dist.] 2000, no pet.) (opinion on rehearing en banc). In Webb, the notice given on the Thursday before the Monday on which trial was scheduled to start was held unreasonable primarily because the defendant made his request for notice six months prior to trial. In addition, the timing gave the defense only one business day to prepare to cross-examine an important witness and to make any necessary adjustments in trial strategy. Webb v. State, supra at 178. See also, Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App.–Waco 1996) (notice filed on Friday afternoon and apparently received by defense counsel on that day was held not reasonable where the request for notice was made ten months earlier); Sebalt v. State, 28 S.W.3d 819 (Tex. App. –Corpus Christi 2000, no pet.) (receipt of notice on the Friday before Monday trial date was reasonable); Owens v. State, supra at 444 (notice was reasonable, even though received by defendant three days before trial, as State gave notice one day after it received evidence, it was presented to jury 10 days after receipt, defendant had court appointed investigator to assist investigation of evidence and defendant had opportunity to cross-examine complainant about evidence). Waguespack v. State, 2015 WL 3822314 (Tex. App. – Waco 2015) (notice of evidence of extraneous sexual encounter provided on the day of jury selection that was admitted seven days later as punishment evidence was not harmful error because the record did not reveal the deficient notice was due to prosecutorial bad faith and did not impair defendant’s ability to prepare for the evidence and present a defense, so defendant’s substantial rights not affected). Oral notification may satisfy the notice requirement of Art. 37.07, Section 3(g), C.C.P. Jackson v. State, 2004 WL 837876 (Tex. App.–Dallas 2004, no pet.); Martin v. State, 176 S.W.3d 887 (Tex. App.–Ft. Worth 2005, no pet.) (notice seven days prior to trial was reasonable when information came from State’s file which had been open to defense counsel since indictment).
While it is error to admit extraneous offense evidence where notice has not been given, the error was not reversible where defendant did not claim he was surprised or that the lack of notice prejudiced his ability to prepare or present his defense. Hernandez v. State, 176 S.W.3d 821, 825 (Tex. Crim. App. 2005); Gonzalez v. State, 337 S.W.473 (Tex. App.–Houston [1st Dist.] 2011, pet. ref’d); Padilla v. State, 254 S.W.3d 585, 593 (Tex. App.–Eastland 2008, pet. ref’d); Sharp v. State, 210 S.W.3d 835, 839-40 (Tex. App. –Amarillo 2006, no pet.). The State’s notice under Art. 37.07, Section 3, is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred, and the name of the alleged victim. Johnson v. State, 2015 Tex. Crim. App. Unpub. LEXIS 9040, *96-98, No. AP-77,030 (11/18/15). If a notice is deficient, an appellate court must determine whether the deficiency had a substantial and injurious effect on the jury’s verdict when considering the totality of the circumstances. Id. In Johnson v. State, supra, although the notice did not include the day and month of the extraneous conduct, it included sufficient other details that rendered it sufficient. Id.
Rule 404(b) applies to actual conduct. Evidence of a defendant’s thoughts about or feelings for a minor are not covered by Rule 404(b). Green v. State, 287 S.W.3d 277, 285 (Tex. App.– Eastland 2009, pet. ref’d). When a defendant raises a defensive theory that opens the door to extraneous offenses, the State is not required to give advance notice that it will use an extraneous offense to rebut a defensive theory. Shedden v. State, 268 S.W.3d 717, 739 (Tex. App.–Corpus Christ 2009, pet. ref’d); Jaubert v. State, 74 S.W.3d 1,2-4 (Tex. Crim. App. 2002) (notice provision of Rule 404(b) applies only to the State’s case-in-chief). Rule 404(b) does not apply to impeachment during the appellant’s case in chief. Westbrooks v. State, 2015 Tex. App. LEXIS 12759, *6 (Tex. App.–Houston [14th Dist.] 12/17/15). Notice of extraneous offenses is not required for same-transaction contextual evidence. Buchanan v. State, 911 S.W.2d 11,15 (Tex. Crim. App. 1995); McDonald v. State, 179 S.W.2d571,577 (Tex. Crim. App. 2005); Worthy v. State, 312 S.W.3d 34, 39-40 (Tex. Crim. App. 2010) (sentencing evidence pursuant to Art. 37.07, § 3(g), C.C.P.).
E. Admissibility of Extraneous Offenses Under Rule 404(b) and Article 37.07, Section 3
Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. All relevant evidence is admissible except as otherwise provided by constitutions, statutes, or rules. Tex. R. Evid. 402; Montgomery v. State, 810 S.W.2d 372, 376 n.3 (Tex. Crim. App. 1990). Tex. R. Evid. 404(b)(1) provides that “[e]vidence of a crime, wrong or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with that character.” It may “be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident, . . . . . .” Tex. R. Evid. 404(b)(1). “The exceptions listed in Rule 404(b) are neither mutually exclusive nor collectively exhaustive.” De la Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); Poindexter v. State, 942 S.W.2d 577, 583-584 (Tex. Crim. App. 1996, reh’g denied); Montgomery v. State, 810 S.W.2d 373, 387 (Tex. Crim. App. 1991) (opinion on reh’g). Rule 404(b) is considered to be a rule of inclusion rather than exclusion. De la Paz v. State, supra at 343. “The Rule excludes only that evidence that is offered (or will be used) solely for the purpose of proving bad character and hence conduct in conformity with that bad character.” Id.
The proponent of uncharged misconduct evidence “must be able to explain to the trial court, and to the opponent, the logical and legal rationales that support its admission on a basis other than ‘bad character’ or propensity purpose.” Id.; Gibbs v. State, 555 S.W.3d 718 Tex. App.–Houston (1st Dist.] 2018, no pet.).
In Montgomery, the Court of Criminal Appeals prescribed a procedure that should be followed when a party offers evidence of extraneous crimes, wrongs, or acts. 810 S.W.2d 372 (Tex. Crim. App. 1990) (opinion on reh’g). The opponent must timely object to the offer of the evidence as being inadmissible under Rule 404(b), as being an “extraneous offense” or “extraneous misconduct,” or that it is not relevant (preferably citing Rules 401 and 402, Tex. R. Evid.). Thereafter, the proponent of the evidence should state the purpose for which it is offered. Once the objection is made, the proponent of the evidence must satisfy the trial court that the “other crimes, wrongs, or act” is relevant apart of its tendency to prove the character of a person in order to show that he acted in conformity with that character. Id. at 387. At this point, if he has not done so, the opponent should request that the proponent articulate into the record the purpose for which the evidence is being offered by the proponent, and, if admitted by the trial court, seek articulation by the trial court of the basis for which the evidence was admitted. Id. This is important because upon timely further requests by the opponent, “the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves.” Id., citing Tex. R. Cr. Evid. 105(a), now Rule 105(a), Tex. R. Evid. The opponent of the evidence should object to the failure of the proponent and the trial court to follow the foregoing procedure. Failure to follow the procedure should be error. Of course, then the question becomes whether it is reversible error.
Once a trial court has ruled that evidence has relevance apart from character conformity, it has ruled on the full extent of the opponent’s Rule 404(b), or relevance objection. Thereafter, the opponent may, and should, further object that, under Rule 403, Tex. R. Evid., the probative value of the evidence is substantially outweighed by its unfair prejudice. Id., at 388-389. Once this objection is made, the trial court must weigh the probativeness of the evidence against its potential for unfair prejudice. The burden is on the opponent to levy the objection. Thereafter, Rule 403 imposes a duty on the trial court to conduct a balancing test. When Rule 403 provides that evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” it simply means that trial courts should favor admission in close cases, in keeping with the presumption of admissibility of relevant evidence.” Montgomery v. State, supra at 389; Fowler v. State, 553 S.W.3d 576 (Tex. App.–Texarkana 2018) (trial court must balance between the probative value and danger of unfair prejudice, although that balance is slanted toward the admission of otherwise relevant evidence).
Once the Rule 403 objection has been made, “it will not suffice for the trial court simply to determine that the evidence is relevant to some legitimate, non-character-related purpose such as one of those enumerated in Rule 404(b). ‘The determination must be made whether the danger of unfair prejudice outweighs the probative value of the evidence in view of the availability of other means of proof and other factors appropriate for making decisions of this kind under Rule 404(b).’ Advisory Committee’s Note to Fed. R. Evid. 404(b).” Montgomery, supra at 389. These factors include how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence—that is, its inherent probativeness; the strength of the proponent’s evidence to show the opponent in fact committed the extraneous conduct; the potential the ‘other crimes, wrongs, or acts’ have to impress the jury in some irrational but nevertheless indelible way (often the function of the nature of the misconduct); how much trial time does the proponent need to develop the evidence of the extraneous misconduct such that the attention of the fact finder will be diverted from the indicted offense; and how great is the proponent’s need for the extraneous transaction. Montgomery, supra at 389-390. “This last inquiry breaks down into three subparts: Does the proponent have other available evidence to establish the fact of consequence that the extraneous misconduct is relevant to show? If so, how strong is that other evidence? And is the fact of consequence related to an issue that is in dispute? When the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in a probative-versus-prejudicial balance.” Id. The opponent of the evidence should ask the court to engage in the probativeness-prejudice balancing exercise on the record, and if the trial court declines to do so, further object to that failure.
F. Use by Defendants
Although most often employed by the State, there is nothing in Rule 404(b) that “would lead one to believe that it is a rule intended solely as a benefit for the State to be applied against the defendant . . . . . .” Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998); Torres v. State, 71 S.W.3d 758, 760-762 (Tex. Crim. App. 2002). While Rules 404(a) and 405(a) “specifically disallow particular acts of the victim to demonstrate character,” Tate v. State, supra at 193, evidence of specific acts may be admissible under Rule 404(b) to show intent, motive, knowledge, and to rebut contentions (analogous to defensive theories) of the State. “Rule 404(b) permits the defense, as well as the prosecution, to offer evidence of other acts of misconduct to establish a person’s motive for performing some act – such as making a false allegation against the defendant.” Johnson v. State, 490 S.W.3d 895 (Tex. Crim. App. 2016).
IV. Extraneous-Offense Evidence Under Article 38.371
The legislature has also carved out a special exception for the admission of extraneous-offense evidence in family- violence cases. Article 38.371 of the Code of Criminal Procedure provides an avenue for the admissibility of “all relevant facts and circumstances” that would assist the trier of fact in determining whether a defendant committed certain family-violence-related offenses as follows:
(b) In the prosecution of an offense described by Subsection (a), subject to the Texas Rules of Evidence or other applicable law, each party may offer testimony or other evidence of all relevant facts and circumstances that would assist the trier of fact in determining whether the actor committed the offense described by Subsection (a), including testimony or evidence regarding the nature of the relationship between the action and the alleged victim.
(c) This article does not permit the presentation of character evidence that would otherwise be inadmissible under the Texas Rules of Evidence or other applicable law.
Areas of relevant and admissible extraneous-offense evidence that complies with Article 38.371 include evidence that: (1) explains why a victim of domestic violence is unwilling to cooperate with prosecution; (2) confirms the victim’s initial—and later recanted— statements to police; or (3) contextualizes the nature of the relationship between victim and assailant. Fernandez v. State, __ S.W.3d __, No. 08-17-00217 (Tex.App. – El Paso, 2020) (citing Gonzalez v. State, 541 S.W.3d 306, 312 (Tex. App. – Houston [14th Dist.] 2017, no pet.); Williams v. State, No. 02-18-00382-CR, 2019 WL 2223214, at *3 (Tex.App. – Fort Worth 2019, no pet.) (mem. op., not designated for publication). Importantly, though, by the very terms of the statute, this type of extraneous-offense evidence is subject to the limitations of Rule 403.
V. Particular Applications
In Crocker v. State, 2009 WL 4725299 (Tex. App.– Dallas 2009, pet. ref’d) (not designated for publication), the defendant was a preacher who was charged with indecency with an 11-year-old boy by contact and by exposure. Admitted into evidence over the defendant’s objection were three incidents that had occurred nearly 20 years before where the appellant had gone skinny dipping in the presence of three 10-to-12-year-old boys; had gone swimming in the baptistry with one of the same boys; and had been naked while fishing on an overnight fishing trip with the same boy. Although the defendant had been nude in front of 10-to-12-year-old boys, there had been no sexual suggestion, sexual contact, or any physical contact at all. The Court of Appeals found that the three incidents of extraneous conduct were not relevant to any fact of consequence under Rules 401 or 402, because it was not sufficiently similar to the charged conduct, the extraneous conduct was too remote, and there was no intervening sexual misconduct of a similar nature. Id. at *5. In reaching this decision, the Court of Appeals relied on its own prior case of Harrison v. State, 2004 WL 1663982, *6 (Tex. App. –Dallas 2004) (there was no proximity in time between the extraneous conduct 16 years earlier and the charged conduct); and James v. State, 554 S.W. 2d 680, 682-83 (Tex. Crim. App. 1977) (extraneous offense occurring two years and nine months prior to offense being tried, with only certain similarities, and no intervening offenses, too remote in time to be admissible on issue of identity and alibi). The Crocker court held the extraneous conduct offenses were not sufficiently relevant under Rules 401 and 402 and found their admission was harmful.
In Newton v. State, 301 S.W.3d 315 (Tex. App.–Waco 2009, pet. ref’d 2010), the defendant was charged with sexual abuse of his stepdaughter who was about 10 years of age. The State also introduced into evidence extraneous conduct evidence that the defendant had repeatedly sexually abused his older stepdaughter, L.D., about 25 years before the charged offenses. The court found the extraneous offense sufficiently similar to the charged offense as both victims were the defendant’s stepdaughters; both were about 10 when the defendant sexually assaulted them; both were similar in appearance; the defendant did not threaten either of them; and the defendant abused both of them for several years. The defendant even conceded on cross-examination that the extraneous offense evidence and the charged offense were “remarkably similar.” Id. at 318. The Court of Appeals found that the extraneous offense evidence regarding L. D. was sufficiently similar to the charged offenses to be admissible under Rule 404(b) to rebut the defendant’s fabrication defense. The court found that remoteness is not a consideration under Rule 404(b) and the trial court did not abuse its discretion by overruling the defendant’s Rule 404(b) objection. Id. at 318. The court found that remoteness was to be considered in ruling on a defendant’s Rule 403 objection. In analyzing the relevant Rule 403 factors, the Court of Appeals found that two factors weighed in favor of exclusion and two weighed in favor of admission. The Court found that Rule 403 required exclusion of evidence only when there is a clear disparity between the degree of prejudice of the extraneous evidence and its probative value. Id. at 321-322. As the court could not say there was a clear disparity between the danger of unfair prejudice posed by the extraneous offense evidence and its probative value, it found the trial court did not abuse its discretion by overruling the Rule 403 objection. Id. at 322.
There is a lack of consistency as to how much remoteness is enough, and not enough, for prior conduct to be admitted as an extraneous offense. Remoteness and the passage of time should be factors in determining whether evidence of other offenses is admissible as same-transaction evidence, but remoteness must be considered with other factors. Yates v. State, 941 S.W.2d 357 (Tex. App.–Waco 1997, pet. ref’d). An unadjudicated extraneous offense of assault against a wife approximately 10 years earlier was so remote as to make it inadmissible in a prosecution for aggravated kidnaping of a former girlfriend and her employer. Lavarry v. State, 936 S.W.2d 690 (Tex. App.–Dallas 1996, pet. ref’d), habeas corpus dismissed 2001 WL 484426. Even ignoring a period of confinement of the defendant for prior sexual assault convictions up until three months before the primary conviction, convictions five and one-half years before the primary offense were not too remote, so as to be inadmissible. Stringer v. State, 845 S.W.2d 400 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d). In West v. State, 554 S.W.3d 234 (Tex. App.–Houston [14th Dist.] 2018), where prior convictions were similar to allegations in indictment, but were for conduct that was from 29 years before, the remoteness weighed in favor of excluding the evidence.
B. Same-Transaction Contextual Evidence
One exception to the admission of extraneous offenses, wrongs, and acts, is same-transaction contextual evidence, which is admissible when the charged offense would make little or no sense without also bringing in the same-transaction contextual evidence. Such evidence is admissible only where such evidence is necessary to the jury’s understanding of the instant offense. Beltran v. State, 517 S.W.3d 243 (Tex. App.–San Antonio 2017, no pet.). In that case, evidence that the defendant was dealing drugs was admissible same-transaction evidence that placed charges on multiple accounts of sexual assault of a child in context, as the evidence was offered to show that the victim’s mother allowed the defendant to sexually assault the victim in exchange for cocaine, and thus was relevant to show how the defendant had access to the victim and why the victim would be at the defendant’s home without her mother. Extraneous offense evidence also may be admissible as same-transaction contextual evidence where several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction. In that situation, the jury is entitled to know all of the relevant surrounding facts and circumstances of the charged offense, because the trial of an offense is not in a vacuum. Id. Evidence admitted under the “same-transaction” exception to the rule excluding evidence of extraneous offenses to prove conformity is considered general evidence to be used for all purposes and does not require a limiting instruction. Id.
On the other hand, evidence of a defendant’s possession of pills at the time of his arrest for DWI was not admissible as same-transaction contextual evidence because the evidence did not confirm the identity of the pills as necessary to show whether the defendant was committing an offense by possessing them, and even if possession of the pills was a separate offense, the evidence related to the pills was not necessary to the jury’s understanding of the charged offense because there was no evidence that the defendant’s intoxication was caused from ingesting the pills. Burnett v. State, 488 S.W.3d 913 (Tex. App.– Eastland 2016, pet. granted 2016).
C. Doctrine of Chances
Another basis for the admission of extraneous offenses is called the “doctrine of chances,” which indicates that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance. Hinojosa v. State, 554 S.W.3d 795 (Tex. App.–Waco 2018); Duntsch v. State, 2018 WL 6445369 (Tex. App.–Dallas 2018, pet. ref’d). There are no rigid rules that dictate what constitutes sufficient similarities between charged and extraneous offenses under the doctrine of chances. A very high degree of similarity is not required where intent, as opposed to identity, is the material issue. Id.
VI. Evidence of Extraneous Conduct Properly Admitted
In a child sexual abuse case, particularly in an indecency -by-contact case, extraneous offenses commonly become admissible on the issue of intent. If the specific intent to arouse and gratify sexual desire cannot be inferred from the act itself, evidence of extraneous acts may be admitted to prove that intent. Morgan v. State, 692 S.W.2d 877 (Tex. Crim. App.1985). Extraneous offenses may also be admissible on the issue of knowledge, Prescott v. State, 123 S.W.3d 506 Tex. App. – San Antonio 2003, no pet.), and motive, Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000); Etheridge v. State, 903 S.W.2d 1 (Tex. Crim. App. 1994), cert denied 116 S.Ct. 314. Additionally, if there is any defensive testimony or evidence that the contact or exposure was accidental or innocent, the door is then opened to evidence of extraneous acts to show the intentional nature of the charged offense. Baldonado v. State, 745 S.W.2d 491 (Tex. App.–Corpus Christi 1988, pet ref’d). Extraneous act evidence may be admissible to rebut defensive theories of retaliation, Moses v. State, 105 S.W.3d 611 (Tex. Crim. App. 2001); and lack of opportunity, Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), Rivera v. State, 269 S.W.3d 697 (Tex. App.–Beaumont 2008); Blackwell v. State, 193 S.W.3d 1 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d); Dennis v. State, 178 S.W.3d 172 (Tex. App.– Houston [1st Dist.] 2005, pet. ref’d).
In an attempt to give meaning to the prohibition of character conformity evidence, courts of appeal in Texas distinguished a frame-up defense from a fabrication defense. Case law defined a frame-up theory as where the defendant suggests that he is the victim of a conspiracy, while a fabrication defense is where a defendant contends that the allegations are entirely made up. Courts generally found that extraneous offenses were admissible to rebut a frame-up theory, but not admissible to rebut a fabrication defense. Bass v. State, 222 S.W.3d 571 (Tex. App.– Houston [14th District.] 2007, rev’d in Bass v. State, 270 S.W.3d 557). On petition for discretionary review, the Court of Criminal Appeals held that its case law makes no categorical distinctions between ‘fabrication’ defenses and ‘frame-up’ or ‘retaliation’ defenses. Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). The issue does not necessarily turn on the type of defense presented, but on whether the extraneous-offense evidence has non-character conformity relevance by, for example, rebutting a defensive theory or making less probable defensive evidence that undermines an elemental fact. Id. at n.8. Since its decision in Bass, the Court of Criminal Appeals has reversed other courts of appeals’ decisions regarding the distinction between the frame-up and fabrication defenses, instructing the courts of appeals to reconsider their decisions in light of Bass. Galvez v. State, 2008 WL 5259226 (Tex. Crim. App. 2008); Newton v. State, 275 S.W.3d 490 (Tex. Crim. App. 2009). The Court of Criminal Appeals partially relied on Bass in reversing the 5th Court of Appeals in De La Paz v. State, 279 S.W.3d 336, 347 n.33 (Tex. Crim. App. 2009).
The Court’s decision in Bass was noteworthy in other respects. The Court clearly held that a defendant’s opening statement that suggested he did not have the character flaws which would cause him to sexually abuse a child opened the door to the admission of extraneous offense evidence to rebut the defensive theory presented in the defense’s opening statement. Bass v. State, supra at 563, citing Powell v. State, 63 S.W.3d 435, 438-440 (Tex. Crim. App. 2001) (defendant’s opening statement that he lacked opportunity to molest the complainant under the circumstances of the charged offense opened the door to admission of extraneous offense evidence that defendant molested others under almost identical circumstances to rebut defendant’s lack of opportunity theory); Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim. App. 2005) (defendant’s sweeping direct examination testimony disavowing any sexual misconduct with minors opened the door to admission of extraneous offense evidence of defendant’s sexual misconduct with another minor to rebut his sweeping testimony).
In Bass, the defense’s opening statement put the defendant’s character in issue, and also mentioned that there might be evidence of other allegations. The Court held that the opening statement opened the door to the admission of extraneous offense testimony, in the State’s case in chief, of two other girls who claimed that the defendant molested them. Further, the Court went on to agree with the State’s contention that if the State can show that a defendant has committed similar sexual assaults against unrelated and unconnected children, an affirmative defense allegation that the victim [of the charged offense] fabricated her claim is less likely to be true. By showing that the victim’s allegations are less likely to be fabricated, the evidence directly rebuts the defensive claims and has logical relevance aside from character conformity. Bass v. State, supra at 562-563.
In James v. State, 555 S.W.3d 254 (Tex. App.–Texarkana 2018, pet. dismissed as untimely filed), the trial court did not abuse its discretion in admitting evidence of extraneous offense that defendant evaded arrest 20 days prior to charged crime, as evidence of his modus operandi, and prosecution for evading arrest where the defendant placed his identity at issue during opening statement, which allowed the State to offer evidence of an extraneous offense to prove his identity where there were distinguishing characteristics common both to the extraneous offense and the offense for which he was on trial. The State presented evidence that, in each instance, the defendant led the police on a high-speed chase, took the same roads during the chase, abandoned the same vehicle at the same train crossing, and fled on foot.
In Struckman v. State, 2011 WL 4712236 (Tex. App.–Waco 2011, no pet.) (not designated for publication), the defendant was charged and convicted of continuous sexual abuse of a young child, indecency with a child, and aggravated sexual assault. The complainant was the daughter of the defendant. The conduct began at ages two to three. She was seven at the time of the trial. At trial testimony was admitted from a seven- and a nine-year-old girl of incidents of sexual abuse by the defendant. While the conduct was not the same, the court found it similar enough to be admissible to rebut a defensive theory as both of the victims were young girls, both had their privates rubbed by the defendant’s hand or finger, and both offenses occurred while the victims were in bed. Id. at *4.
In Cross v. State, 2012 WL 6643832 (Tex. App.–Beaumont, pet. ref’d 2013), the defendant was convicted of continuous abuse of a young child. At trial the State was allowed to introduce, over objection, evidence he forced an 18-year-old female to have intercourse with him, even though the criminal charge based on that allegation had been dismissed. The State offered the testimony to rebut defensive theories of fabrication and that the complainant’s claims were not humanly possible because the defendant was of average size. The victim of the extraneous offense was somewhat smaller in size than the complainant in the indictment. The appellate court held the testimony was admissible under Bass to rebut the defendant’s defensive theories, Id. at *2, and the trial court did not abuse its discretion in overruling the defendant’s Rule 403 objection. Id. at 3.
CAVEAT: In the past, extraneous offenses were often admitted in order to rebut a false impression left by a defendant or his witnesses that he is not the type of person to commit such an offense. Townsend v. State, 776 S.W.2d 316 (Tex. App.–Houston[1st Dist.] 1989, pet. ref’d). However, in Wheeler v. State, 67 S.W.3d 879 (Tex. Crim. App. 2002), the Court made it clear that false impression evidence may only be rebutted by cross-examination of the witness as to the extraneous offenses, not by introducing extrinsic evidence of them. Id., at 885. The Court, nonetheless found that the admission of extrinsic evidence was proper in Wheeler, to rebut the defendant’s frame-up evidence.
VII. Admission of Extraneous Conduct Evidence Was Error
Although there appears to be wide latitude in the admission of extraneous offenses, courts have found some evidence goes too far. In Pittman v.State,321S.W.3d 565 (Tex. App. –Houston [14th Dist.] 2010, no. pet.), the defendant was indicted, as part of the “Mineola Swingers” investigation, for one count of aggravated sexual assault in which he was alleged to have caused two minor children to engage in sexual conduct with one another. The trial court admitted extensive evidence pertaining to the other Swinger defendants and complainants on the theory that it showed the defendant’s plan to engage in a sexual exploitation/abuse scheme with several other defendants. However, the court of appeals held that the evidence of the many extraneous acts did not show a plan to sexually assault the two complainants for whom the defendant was indicted, but rather, was evidence of repeated occurrences of the same bad act, compounded by numerous additional bad ones. Id. at 573. The court found the evidence was inadmissible under Rule 404(b) because it was character conformity evidence, and under Rule 403.
In Fox v. State, 283 S.W.3d 85 (Tex. App.–Houston [14th Dist.] 2009, pet. ref’d), the defendant was charged with indecency by contact with his former stepson. The defendant complained on appeal of the admission at trial, over objection, that he was a cross dresser, had a homosexual experience as a teenager, and was the victim of attempted sexual abuse by an adult male. The Court of Appeals found that the evidence of cross dressing was not relevant because it did not assist the jury in its determination of whether the defendant sexually assaulted the complaining witness.
In Atnipp v. State, 517 S.W.3d 379 (Tex. App.–Eastland, pet ref’d), a witness’ testimony that she heard gunshots, saw the defendant shoot chickens, and saw the defendant pile them on the road in front of his residence was not admissible in prosecution of the defendant for cruelty to a non-livestock animal, because this other act evidence did not logically relate to the impeachment of the testimony given by the defendant during his direct examination, namely that the dog, which was outside the house, acted aggressively toward the defendant and the defendant’s dog, and that the defendant was concerned for the safety of his dog, and this evidence was aimed to discredit the defendant by demonstrating that he had a bad character or that he had a propensity for committing bad acts.
The appellate courts have steadily widened the circumstances where extraneous offenses may be admitted. If evidence has relevance for a reason other than character conformity, the extraneous evidence will likely be found to be relevant, pursuant to Rules 401, 402 and 404(b), Tex. R. Evid. and Art. 37.07, Section 3, C.C.P. Defense counsel should be sure to follow any adverse relevancy ruling with a Rule 403 objection. As the relevancy window widens, the Rule 403 balancing exercise becomes even more important.