Cross-Examination

& Effective Use of the Rules of Evidence COURSE DIRECTORS: Betty Blackwell • Gerry Morris • Clay Steadman December 2-3, 2021 • Round Rock, TX

CROSS-EXAMINATION AND EFFECTIVE USE OF THE RULES OF EVIDENCE SEMINAR SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

December 2-3, 2021 Round Rock, Texas l Kalahari Resort Betty Blackwell, Gerry Morris, and Clay Steadman 12.0

Ethics: 1.0

Thursday, December 2, 2021 Time

CLE

Topic

Daily CLE Hours: 6.0 Ethics: 0 Speaker

8:00 am

Registration and Continental Breakfast

8:45 am

Opening Remarks

Betty Blackwell, Gerry Morris, & Clay Steadman

Cross of the Snitch

Robb Fickman

9:00 am

1.0

10:00 am 10:15 am

Break 1.0

11:15 am 12:30 pm

Cross of the Witness and the Expert in a Family Violence Case

Sam Bassett

Lunch Break 1.0

1:30 pm

Cross of a 404(b) witness

Mark Stevens

Break

1:45 pm

1.0

Cross of a Medical Expert in a Child Abuse Case

Angelica Cogliano

2:45 pm

1.0

Cross of the Accident Reconstruction Detective/Expert in Vehicular Manslaughter

Gene Anthes

3:45 pm

1.0

Cross of a Forensic Expert- Panel Discussion

Betty Blackwell, Gerry Morris, and Clay Steadman

4:45 pm

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS-EXAMINATION AND EFFECTIVE USE OF THE RULES OF EVIDENCE SEMINAR SEMINAR INFORMATION Date Location Course Directors Total CLE Hours

December 2-3, 2021 Round Rock, Texas l Kalahari Resort Betty Blackwell, Gerry Morris, and Clay Steadman 12.0

Ethics: 1.0

Friday, December 3, 2021 Time

CLE

Topic

Daily CLE Hours: 6.0 Ethics: 1.0 Speaker

7:45 am

Registration and Continental Breakfast

8:15 am

Opening Remarks

Betty Blackwell, Gerry Morris, and Clay Steadman

8:30 am

1.0

Cross When Race is an Issue

Monique Sparks

9:30 am

1.0

Cross of “Soft-Science” Expert

Sarah Roland

10:30 am 10:45 am

Break 1.0

11:45 am

Utilizing Technology in Cross

Frank Sellers

Lunch Break

12:45 pm

Cross of the SANE Expert

Heather Barbieri

1.0 1:45 pm 2:00 pm

Break 1.0

Mistakes Criminal Defense Attorneys Make in Cross

Hon. Audrey Moorehead

3:00 pm

The Ethics of Cross

John Hunter Smith

4:00 pm

Adjourn

TCDLA :: 6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar Table of Contents

Speaker

Topic Complete Date of Seminar

Robb Fickman Sam Bassett

Cross of the Snitch Cross of the Witness and the Expert in a Family Violence Case

Mark Stevens

Cross of a 404(b) witness

Gene Anthes

Cross of the Accident Reconstruction Detective/Expert in Vehicular Manslaughter

Monique Sparks Sarah Roland Jeep Darnell Heather Barbieri Hon. Audrey Moorehead

Cross When Race is an Issue Cross of “Soft-Science” Expert Utilizing Technology in Cross Cross of the SANE Expert Mistakes Criminal Defense Attorneys Make in Cross

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross of the Snitch Speaker:

Robb Fickman 440 Louisiana St Ste 200 Houston, TX 77002-1665 (713) 655-7400 Phone (713) 224-2815 Fax rfickman@gmail.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINING RATS & SNITCHES BY: ROBERT J. FICKMAN 440 Louisiana, Ste. 200 Houston, Texas 77002 (713) 655-7400 www.fickmanlaw.com

WHY DO WE INVESTIGATE THE RAT? • BECAUSE PREPARATION IS THE KEY TO VICTORY, • ALL RATS ARE DIRTY, • WE GOT TO FIND THE DIRT.

PREPARATION IS THE KEY TO VICTORY ZHANG YU

“THE VICTORIOUS WARRIORS WIN FIRST AND THEN GO TO WAR, WHILE DEFEATED WARRIORS GO TO WAR FIRST AND THEN SEEK TO WIN” THE ART OF WAR

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INVESTIGATING THE RAT

I. GET WHAT THE GOVERNMENT WILL GIVE YOU • • • •

STATEMENTS, CRIMINAL RECORD, PLEA AGREEMENTS, DEALS, POLICE REPORTS OF OTHER CASES THE RAT WAS ON, • REMEMBER: IF IT’S REALLY GOOD YOU WON’T FIND IT IN THE GOVERNMENT’S FILE, • PRACTICE TIP: YOU GOT TO WORK FOR REAL GOLD

II.

• • • •

CHECK CRIMINAL COURTHOUSE RECORDS

(DER…) CONDITIONS OF BOND CONDITIONS OF PROBATION ANYTHING SWORN TO (YEAH BABY)!!!

SOMETIMES YOU GET SURPRISES (PSYCH REPORTS) (RAT LETTERS)

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III. CHECK CIVIL COURTHOUSE RECORDS • DIVORCE RECORDS (EX-WIVES OR EX- WIVES’ LAWYERS) (FOLLOW $) • PROPERTY RECORDS • DBA’s (OPEN THAT CAN OF WORMS) • “KNOCKED THE HALO RIGHT OFF HER HEAD”

IV.

GO ONLINE

• GOOGLE SEARCH • NEWSPAPERS • E-MAILS – WHATS “E” STAND FOR?

• SOCIAL MEDIA

V.

(PHOTOS, VIDEOS, LINKS)

PUT THE WORD OUT (TO THE DEFENSE BAR)

• FIND OTHER CASES WHERE RAT SNITCHED, • GET RAT’S OTHER TESTIMONY, • MAKE A “RAT BOOK” • TURN THE RAT INTO a DOG (Pavlov’s)

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VI. HIT THE STREETS WITH PI • ALWAYS BRING WITNESS TO PROTECT YOU • ASK NICE & THEY MAY JUST GIVE IT TO YOU ( “WE ARE HERE”!!!)

• TALK TO (POTENTIAL WITNESSES) • • • • • • •

FORMER EMPLOYERS, CO-WORKERS, FORMER SPOUSES, FORMER GIRLFRIENDS, FORMER FLAMES (BEST), NEIGHBORS, LANDLORDS, BUSINESS ASSOCIATES.

VII. IF THEY WON’T GIVE IT TO YOU • SUBPOENA, SUBPOENA, SUBPOENA – USE PRIVATE SERVICE, – GIVE RECIPIENT METHOD TO COMPLY WITH BSNS RECORD AFFIDAVIT BEFORE TRIAL, – PUT RETURN DATE ON A PTC DATE.

RULE 17 (c)(1) F.R.Cr.P. • A SUBPOENA MAY ORDER THE WITNESS TO PRODUCE ANY: – – – – –

BOOKS PAPERS DOCUMENTS DATA OR OTHER OBJECTS

• PRIVILEGE? I DON’T SEE NO STINKIN’ PRIVILEGE!

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VIII. WHAT TO SUBPOENA : • • • • • • • • • • • •

SCHOOL RECORDS LOAN APPLICATIONS (SWORN) (AUTO, STUDENT, BANK) JOB APPLICATIONS LEASE APPLICATIONS BOND RECORDS PROBATION RECORDS UTILITY RECORDS CELL PHONE RECORDS CPS RECORDS (TAPES) PSYCH RECORDS (4,400 PAGES!) (GET GOVERNMENT TO SUBPOENA FOR YOU) SNITCH PAYMENT RECORDS COURT MAY HOLD UNLESS OR UNTIL RELEVANT (DON’T FORGET)

CROSSING “THE

I.

RAT”

WHAT IS OUR GOAL?

• TO DISCREDIT THE RAT. • TO MAKE THE JURY HATE THE RAT.

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II.

WHY?

BECAUSE WE WIN WHEN THE JURY FINDS SOMEONE IN THE COURTROOM TO HATE MORE THAN OUR CLIENT • WHO IS THAT SOMEONE? •

THE STINKING RAT!

III.

START DOMINATING THE RAT BEFORE YOU START CROSS

• GET THE RAT IN YOUR LINE OF FIRE OR GET CLOSE, • OBJECT DURING DIRECT, • LET THE RAT KNOW YOU ARE COMING! “I AM COMING FOR YOU”

IV. GET THE EASY STUFF FIRST

• GET WHAT THE RAT GIVES THAT SUPPORTS DEFENSE THEORY. * SHOW AN INNOCENT EXPLANATION FOR HOW THE RAT KNOWS YOUR CLIENT.

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V. THE DEFENSE THEORY IS “THE PATH” TO A NOT GUILTY VERDICT JIA LIN

“THE PATH MEANS THE WAY TO ADJUST TO THE SITUATION AND ESTABLISH VICTORY—FIND THIS AND YOU SURVIVE, LOSE THIS AND YOU PERISH.”

TO ESTABLISH THE PATH TO A NOT GUILTY YOU MUST SHOW

• THAT THE RAT HAS A HUGE MOTIVE TO LIE!!!

• THAT THE RAT IS A RAT LIAR!!!

HOW DO YOU SHOW THE RAT IS A LIAR ???

USE THE “NEW & IMPROVED”

ROBB FICKMAN’s PATENTED

“LIST OF LIES”

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VI.

LIST OF LIES

ALLOWS YOU TO: • MAKE USE OF THE DIRT ON THE RAT. • SHOW THE RAT’S LIFE AS A LIAR. • SHOW THE RATS HAVE BEEN IN CAHOOTS BEFORE. • SHOW THE RATS ARE NOW IN CAHOOTS AGAIN. • PRACTICE TIP: USE ON ANY RAT ON ANY CASE: DRUGS, CONSPIRACY, MORTGAGE FRAUD, MURDER • IT’S FUN!!!

LIMIT ON USE OF LIST OF LIES • THE LIST OF LIES IS MUCH EASIER TO DO IN FEDERAL COURT THAN IN STATE COURT. • COMPARE FEDERAL RULES OF EVIDENCE 608(b) TO THE STATE EQUIVALENT.

FEDERAL RULES OF EVIDENCE 608(b) (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being crossexamined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

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TEXAS RULES OF EVIDENCE 608(b) b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness.

IN TEXAS YOU MUST BE “MORE CREATIVE” TO FIND A WAY TO GET AROUND 608(b).

“THE ORIGINAL LIST OF LIES” • DARRYL CAMPBELL CASE – – – –

10 CO-DEFENDANTS, 4 PRIMARY RATS, 9 WEEKS OF TRIAL, DOJ PROSECUTIONS,

• USED “LIST OF LIES” TO ATTACK RATS • RESULTS: CLIENT ACQUITED ON ALL 5 FEDERAL CHARGES- LAWYER NOT PAID. • IF YOU SEE STEVE TELL HIM I AM LOOKING FOR HIM.

PRACTICE TIPS FOR LIST OF LIES • • • • • • • •

USE FLIP CHART GIVE PLENTY OF ROOM WRITE RAT’S NAME AT TOP CREATE TIME LINE TO SHOW LIFE OF LIES USE BLACK FOR IMPORTANT POINTS USE BLUE FOR GOOD GUYS USE RED FOR BAD GUYS JURY SEES YOU MAKING IT- MAKE SURE ITS ACCURATE, USE RAT’S WORDS • USE AGAIN FOR FINAL • JURY WILL REMEMBER

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UNITED STATES V JOHNNY JOHNSON RATS: DWAYNE LEE MELVIN LEE

EXAMPLE: LIST OF LIES ON DWAYNE LEE, THE RAT

Dwayne Lee’s Word “I SWEAR, I NEVER LIE...”

WEDNESDAY, DECEMBER 1, 2:28 PM

• 2017-2020

DEALT Meth For 3 YEARS HID Facts 3 YEARS From:

- Mother, Family, Friends, Acquaintances

LIED To Momma 150 Times LIED To Momma About Melvin - (Brother RAT)

• 2017

HID The Truth From:

-Apartment Manager, Neighbors At The “El Diablo”

• 2017

HID The Truth From:

-Coworkers at “The Sizzler”

•

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Dwayne Lee’s Word • 2017

LIED On TRUCK Loan Applications To: - Dealership

• 2018

Continued DEALING METH WITH MELVIN ALL YEAR LONG

• MAY 2018

ARRESTED On State Delivery of Meth Case“Did not tell truth” To: - Police - Pretrial Services

Dwayne Lee’s Word • JUN 2018

- Judge, PLEAD GUILTY - Probation Officer, Received Probation And LIED Under Oath To: - Your Lawyer, - Your Momma, - Your Preacher

• JUN 2018JUN 2020 • OCT 2018

CONTINUED DEALING LIED MONTHLY TO: (24 MONTHS)

- Probation Officer

Bought House & LIED TO: - Your Realtor - The Seller - Mortgage Co. - Bank, Title Co.

Dwayne Lee’s Word • 2019 • APR 2019 • MAY 2019

HID The Truth From:

- Nice

LIED TO FEDS (EVERY YEAR)

- IRS, Tax Returns

LIED on Job App To:

People in Sugarland

- New Employer, “Dickie Johnson Used Cars”

11

Dwayne Lee’s Word • JUN 2019

You and Melvin Sold Meth Repeatedly In GREAT UNCLE’S Yard Used & HID Truth From:

• AUG 2019

- Aunts - Uncles (Vet)

YOU & MELVIN SOLD METH WITH BABY IN THE CAR

“DAD OF THE YEAR” “UNCLE OF THE YEAR”

Dwayne Lee’s Word • 2020

As Car Salesman: Doing METH DEALS You HID Truth From:

- Employer, - Co-workers - Customers

• DEC 1, 2020 YOU AND MELVIN ARE ARRESTED FOR SELLING METH You LIED AND DENIED To

- 6 Federal Agents

Dwayne Lee’s Word • DEC 3, 2020

• DEC 6, 2020

• 2021

YOU & MELVIN DECIDED TO COOPERATE Initial Interview 10 HOURS NEVER MENTIONED JOHNNY JOHNSON TO: - Agents - AUSA In This Building YOU LIED To get bond to: - Pre-Trial Service - Agents - AUSA - Magistrate AGENTS TOLD YOU & MELVIN THEY WERE AFTER JOHNNY JOHNSON

12

Dwayne Lee’s Word • 2021

You & Melvin Talk About JOHNNY

• MAR 2021

On MARCH 27, 2021, YOU TOLD AGENTS YOUR STORY ON JOHNNY (FIRST TIME)

• MAY-JUN 2021

You & Melvin “COMPARE NOTES” and Melvin tells his story on Johnny for the first time.

Dwayne Lee’s Word • 2021

Met With Agents & AUSAs Met with Defense

- 80 Hours - 0 Hours 0 Minutes

YOU USED METH FOR 5 YEARS YOU WERE USING METH ON DAYS YOU MET WITH AGENTS ABOUT JOHNNY

Dwayne Lee’s Word DEC 1, 2021

IN THIS COURT YOU CLAIMED ON WEDNESDAY DECEMBER 1, at 2:28 PM THAT:

“THE ONLY THING ME & MELVIN EVER DO TOGETHER IS GO TO TED NUGENT CONCERTS.” YOU LIED UNDER OATH TO: - HIS HONOR - THIS JURY

13

VII. THE DEFENSE THEORY MUST TAKE THE MORAL HIGH GROUND DU MU

“FIGHT GOING DOWN, NOT CLIMBING UP”

GOOD LUCK!

14

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross of the Witness and the Expert in a Family Violence Case Speaker:

Sam Bassett 1100 Guadalupe St Austin, TX 78701-2116 (512) 472-0144 Phone (512) 479-8315 Fax sbassett@mbfc.com email

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

FAMILY VIOLENCE Criminal & Civil Aspects

SAMUEL E. BASSETT Minton, Bassett, Flores & Carsey, P.C. 1100 Guadalupe Austin, Texas 78701 (512) 472-0144 direct line (512) 479-8315 facsimile email: sbassett@mbfc.com www.mbfc.com

CROSS EXAMINATION SEMINAR - TCDLA DECEMBER, 2021

TABLE OF CONTENTS CRIMINAL OFFENSE OF “ASSAULT FAMILY VIOLENCE” 1 CONTINUOUS VIOLENCE AGAINST THE FAMILY ……………………………………………………………..1 BAIL IN CERTAIN FAMILY VIOLENCE CASES

2

FAMILY VIOLENCE FINDINGS & DEFINITIONS………………………………………………………………... 2-3 DEFERRED ADJUDICATION & FAMILY VIOLENCE ENHANCEMENTS

4

COLLATERAL CONSEQUENCES…………………………………………………………………………………..5 Collateral Consequence #1 – Protective Orders…………………………………………………………………..5 Collateral Consequence #2 – Firearm Possession 7 Collateral Consequence #3 – Custody of Children……………………………………………………………….9 Collateral Consequence #4 – Deportation 9 Collateral Consequence #5 – Alimony/Maintenance in Divorce 10 EVIDENTIARY ISSUES IN FAMILY VIOLENCE CASES The Sixth Amendment, Crawford & Texas Courts 10 Excited Utterances 12 Marital Privilege 13 Due Process to Present Defense 13 Expert Testimony 13-14 Medical Testimony 14 VIOLATION OF PROTECTIVE ORDERS FORGETFUL STATE’S WITNESS

15

DEFENSIVE ISSUES 16 Who is the Aggressor 16 7Criminal Record of the “Victim”

16-17

PRACTICE TIPS Motions to file 17

17

ETHICAL DILEMMAS18 Conflict of Interest 18 Fear of False Testimony 18 Avoiding a Subpoena 19 CONCLUSION 19

LEGISLATIVE UPDATE – 2021 - 20

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22.01(a)(3) is normally a Class C misdemeanor with enhancements carved out for sports participants, elderly individuals and/or disabled individuals. Tex. Penal Code Ann. § 22.01(c)(1)-(2). If the defendant is accused of committing assault against a pregnant woman to force the woman to have an abortion, the offense becomes a Class A misdemeanor under § 22.01(c)(3).

FAMILY VIOLENCE Criminal & Civil Aspects “Family Violence” cases can be more time consuming and emotionally taxing than the average criminal case.

A charge of “Assault Family Violence” carries with it many unique psychological, ethical and legal dynamics for the lawyer and the client. When I am handling these cases, I sometimes have to read the Penal Code, Code of Criminal Procedure, Family Code and Rules of Professional Conduct during the course of the case.

There are many traps to avoid both practically and personally in taking these cases. There are also many unintended or collateral consequences with civil and criminal implications for clients who have been charged with and/or convicted of assault family violence. As a lawyer who practices in both family and criminal courts, This paper aims to assist attorneys in understanding the tangled web of decisions in family violence cases and the effects those decisions can have on a client’s future from the perspective of a lawyer who works in both family and criminal court.

Finally, under § 22.01(b)(2)(B), there is a strangulation enhancement that turns a first offense Assault/Family Violence into a third degree felony if the offense is committed by intentionally, knowingly or recklessly impeding the normal breathing or circulation of the blood of the person of by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. Tex. Penal Code Ann. § 22.01(b)(2)(B).

Under § 22.01(b-1), a second offense Assault/Family Violence may be a second-degree felony if the offense is committed in the above manner AND the defendant has a prior Assault Family Violence, homicide or sexual assault conviction against a person who is a household member, spouse, former spouse or child.

Tex. Penal Code Ann. § 22.01(b-1).

THE CRIMINAL OFFENSE OF “ASSAULT FAMILY VIOLENCE” - Penal Code, Section 22.01

OFFENSE OF “CONTINUOUS FAMILY VIOLENCE” & “CONTINUOUS VIOLATION OF PROTECTIVE ORDER”

Article 22.01(a) of the Texas Penal Code (“TPC”) provides that a person commits the offense of assault if the person:

The 81st Legislature added Section 25.11 to the Texas Penal Code, creating the offense of Continuous Violence against the family, a third degree felony, if, during a 12 month period, a person commits family violence two or more times. Tex. Penal Code Ann. § 25.11(a). In 2019, the 86th Legislature passed “Rachel’s Law,” which enables prosecutors to file charges for continuous violence against the family even if the two incidents occurred in two separate counties. Tex. Penal Code Ann. § 25.11(b). Under TX CRIM PRO Art. 13.072, an offense under Section 25.11 of the TPC may be prosecuted in any county in which the defendant engaged in the conduct constituting an offense under Section 22.01(a)(1) of the TPC against a person described by Section 25.11(a) of the TPC. See, PROSECUTION OF THE CRIMINAL OFFENSE OF CONTINUOUS VIOLENCE AGAINST THE FAMILY, 2019 Tex. Sess. Law Serv.

Ch. 1360 (H.B. 1661) (VERNON'S) In 2013, the 82nd Legislature added Section 25.07 creating a new third degree felony offense for violations of certain conditions of bond or a protective order two or more times in a 12-month period. Tex. Penal Code Ann. § 25.07(g). Additionally, Section 25.07 was amended at that same time to enhance such violations of bond conditions or protective orders if the person had prior convictions for the same. Tex. Penal Code Ann. § 25.07(g)(2)(A)-(B). In 2019, the Texas

1) intentionally, knowingly or recklessly causes bodily injury to another, including the person’s spouse; 2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or 3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Generally speaking, an offense under (a) (1) is a Class A misdemeanor unless it is shown on the trial of the offense that the person has been previously convicted of an offense against a member of the defendant’s family, household or a person with whom the defendant has had a “dating relationship.” Tex. Penal Code Ann. § 22.01(b)(2)(A). In the event of a previous conviction for assault under the one of those circumstances, the case may be prosecuted as a third degree felony. Tex. Penal Code Ann. § 22.01(b).

There are other exceptions which can cause enhancement, for example, when the victim is a public servant or security officer. Tex. Penal Code Ann. § 22.01(b)(1). An offense under § 22.01(a)(2) or § 1

Legislature amended § 25.072 of the TPC to make an offense under this statute punishable by a state jail felony if the prosecutor shows at trial that the defendant violated an order issued as a result of an application for a protective order filed under Article 7A.01(a-1) of the Texas Code of Criminal Procedure.

Tex. Penal Code Ann. § 25.07(g)(1).

judgments of conviction for assault does not preclude, in subsequent trial for family violence assault, the introduction of extrinsic evidence that the previous assaults were committed against a family member, so as to elevate present offense to a felony and vest jurisdiction in district court.

In State v. Eakins, 71 S.W.3d 443 (Tex. App. Austin, 2002), the trial court granted a motion to suppress evidence of the prior conviction because there was no affirmative finding of family violence in the judgment.

The Third Court reversed, holding that the finding in the judgment is the only way to prove that the prior case involved family violence. The Court held that the State could introduce extrinsic evidence that the previous assault was committed against a “family member.” The Houston Court of Appeals has gone even further, holding that the prior judgment containing an “N/A” notation was not sufficient to negate a showing of a family violence finding in a prior assault case. State v. Cagle, 77 S.W.3d 344 (Tex. App. Houston [14th Dist.] 2002). The Court did suggest that a different result may have occurred if the word “no” had been used in the judgment.

Finally, it is also now a separate criminal offense (Class A Misdemeanor) to tamper with GPS Device while on bond for Assault Family Violence, Sexual Assault/Abuse or Stalking. Tex. Penal Code Section 25.07(a)(6).

BAIL IN FAMILY VIOLENCE CASES The 80th Legislature passed, and the Governor signed a bill (HB 3692), which provided for a constitutional amendment to deny bail in certain family violence cases where a person was on bond for a family violence case and probable cause exists to believe that they violated a condition of that bond. This amendment won overwhelming approval in the public vote, which followed.

Similarly, in Stoker v. State, Stoker contended the district court erred by overruling his pretrial motion to quash and plea to the jurisdiction on the ground that the judgments in the two previous assault convictions alleged did not contain affirmative findings that the cases involved family violence. Stoker v. State, No. 03-02-00137-CR, 2003 WL 549128, at *2 (Tex. App. Feb. 21, 2003). The court pointed to Eakins when denying Stoker’s motion. Id.

HB 3962 expanded the crime defined in section 25.07 of the Penal Code1 so it could be committed by violating a condition of bond set in a family violence case. The offense may also be committed by violating certain orders issued in family violence cases. This bill was codified by the Criminal Code of Procedure Art. 17.152.

Under article 17.152, a person who violates a condition of their bond set in a family violence case can be taken into custody and denied bail, if following a hearing it is determined by a preponderance of the evidence that the person violated a condition of the bond related to the safety of the victim or the community. Vernon's Ann. C. Cr. P. art. 17.152. If the violation of section 25.07 charged involved a violation of a condition of the bond requiring the person not to go to or near certain places, denial of bail is permitted only if the court determines that the defendant violated the condition of bond with intent to commit or threaten to commit family violence or stalking. Vernon's Ann. C. Cr. P. art. 17.152(d).

DEFINITIONS: In 1999, the legislature expanded the definition of “family” to include not only “family members” but also “household members” as defined by the Family Code provisions below: Section 71.003, Family Code: “Family” includes individuals related by consanguinity or affinity, as determined under Section 573.022 & 573.024 of the Government Code, individuals who are former spouses of each other, individuals who are parents of the same child (without regard to marriage), and a foster child and foster parents, without regard to whether or not those individuals reside together. Tex. Fam. Code Ann. § 71.003.

FAMILY VIOLENCE FINDINGS & DEFINITIONS

Affirmative Finding in Previous Judgment Article 42.013 of the Texas Code of Criminal Procedure requires a finding of family violence be entered into the judgment of any case. TX CRIM PRO Art. 42.013. However, the absence of an affirmative family violence finding in a defendant's previous

Sections 71.005 and 71.006, Family Code: “Household” means a unit composed of persons living 2

together in the same dwelling, without regard to whether they are related to each other.1 Tex. Fam. Code Ann. § 71.005.

individual with whom the actor is or has been in a dating relationship or marriage; and is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault or sexual assault. Tex. Fam. Code Ann. § 71.0021(a).

“Member of a Household” includes a person who previously lived in a household. Tex. Fam. Code Ann. § 71.006.

In Haynes v. State, 273 S.W.3d 183 (Tex. Crim. App. 2008), the Court of Criminal Appeals upheld the lower court's decision to prohibit the State from using TFC § 71.006 to define who constitutes a household member for the purposes of committing assault family violence.

Haynes, 273 S.W.3d at 183, 184, 198. Haynes clarifies that such a broad definition does not apply to TPC § 22.01(b)(2) since § 22.01(b)(2) does not refer to TFC § 71.006. Id. In the opinion affirming the judgment of the Court of Appeals, the Court of Criminal Appeals’ debated whether or not the court of appeals could reform the judgment of the trial court to reflect a lesser included offense when one was not included/requested in the jury charge. Haynes, 273 S.W.3d at 184-89. The Court of Criminal Appeals concluded that the court of appeals could not reform and render a judgment on a lesser-included offense under these circumstances.

Haynes, 273 S.W.3d at 184.

Subsection (b) of § 71.0021 of the Texas Family Code discusses the factors to be considered in determining whether there is a “dating relationship”: 1) 2) 3)

The length of the relationship; The nature of the relationship; and The frequency and type of interaction . . .

In the 2005 legislative session, SB 91 also amended Section 22.01 of the Texas Penal Code to expand the enhancement provisions to include other convictions besides assault/family violence (sexual assaults, kidnapping, aggravated kidnapping, indecency with a child), including those involving a dating relationship.

Tex. Penal Code Ann. § 22.01(f)(1) (West). The amendment permits out-of-state assault convictions to be used for enhancements. Tex. Penal Code Ann. § 22.01(f)(2) (West).

A portion of Haynes was overruled by Bowen v. State, 374 S.W.3d 427 (Tex. Crim. App. 2012). Bowen held that reformation of conviction to lesser included offense rather than reversal and rendering of judgment of acquittal was permitted on appeal, regardless of whether instruction on lesser-included offense was requested. Bowen, 374 S.W.3d at 427, 432.

Keep in mind that a victim of dating violence, even involving a non-household or family member, can seek a protective order under Chapter 85 of the Texas Family Code or under Chapter 17.292 of the Code of Criminal Procedure. Tex. Fam. Code Ann. § 85.001 (West); Tex. Code Crim. Proc. Ann. art. 17.292 (West).

In 2019, the Texas Legislature amended article 17.292 of the Texas Code of Criminal Procedure so that a defendant who violates an emergency order of protection by committing an act of dating violence can be charged with a separate misdemeanor or felony if the dating violence resulted in a separate offense. Tex. Code Crim. Proc. Ann. art. 17.292(g) (West). If the dating violence resulted in a separate felony offense, that offense is punishable by confinement in prison for at least 2 years. Id.

Section 71.0021(a), Family Code: “Dating Violence” can now be the basis for an enhancement of an Assault/Family Violence or an Assault/Dating Violence to a third degree felony under 2005 legislative amendments to Section 22.01 of the Texas Penal Code. Therefore, such a finding in an assault case is now of great significance. “Dating Violence” is defined in Section 71.0021(a) of the Texas Family Code (TFC) as follows: an act, other than a defensive measure to protect oneself, by an actor that: is committed against a victim: with whom the actor has or has had a dating relationship; or because of the victim’s marriage to or dating relationship with an

The definition of family violence was expanded in 2015 to include “abuse” as defined in Section 261.001 of the Texas Family Code. Tex. Fam. Code Ann. § 71.0021(A).

1

As a result of this expansion of the meaning of “family,” I have on several occasions represented college roommates who get into a physical altercation and are charged with assault family

violence. Keep in mind that the definition also encompasses “former spouses,” which leads to many interesting possibilities for persons who are divorced.

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42.12 of the Code of Criminal Procedure was specifically amended to except sexual assault cases listed in Article 12.42 of the Penal Code from the discharge provisions of deferred adjudication. No such provisions exist for deferred adjudication on family violence cases. In fact, in Scott, Judge Keller held that the punishment increase for sexual assault cases could only apply to individuals who received deferred adjudication after Article 42.12 of the Code of Criminal Procedure was amended to specifically except Article 12.42 Penal Code offenses from the discharge provisions of deferred adjudication. Scott, 55 S.W.3d at 593-94, 597-98.

Prior Convictions It is clear that the State must prove the facts of an alleged prior conviction for an assault, which constitutes family violence, but it has been held that the dates of the convictions for the prior offenses are not elements of a felony assault family violence.

Sheppard v. State, 5 S.W.3d 338 (Tex. App. – Texarkana, 1999). In that case, the offense for which the defendant was convicted occurred after the effective date of the amended statute, but the prior convictions occurred before the statute was amended.

Sheppard, 5 S.W.3d at 337-38. The defendant contended that the two prior offenses were elements of the offense. Id. The court rejected his claim and permitted the felony conviction for assault family violence to stand. Sheppard, 5 S.W.3d at 340.

Practice note: There are some circumstances where a completed community supervision that is not deferred adjudication can have similar discharge order language under Section 20 of Article 42.12. In that case, a defendant might argue that he had an expectation that the completed community supervision released him from all penalties and disabilities and thus should not be considered for enhancement purposes in family violence cases. There are criminal law cases where the court held that a completed prior probation could not be considered a prior conviction for purposes of enhancement. See, Jordan v. State, 36 S.W.3d 871, 875 (Tex. Crim. App. 2001) (holding that a probated sentence is not a final conviction for enhancement purposes under the community supervision statute unless the sentence is revoked in a state jail felony POCS case where the lower court improperly used a prior probation to incarcerate the defendant rather than giving him automatic probation ); State v. Newsom, 64 S.W.3d 478 (Tex. App. – El Paso) (holding that the defendant's prior probation could not be considered a prior conviction for enhancement purposes in a subsequent stalking case).

Class C Misdemeanors: If there is a finding of family violence made in a Class C Assault case, even where deferred disposition is granted, it is possible that the finding may be used to elevate a subsequent assault to a third degree felony.

DEFERRED ADJUDICATION & FAMILY VIOLENCE ENHANCEMENTS Although Texas Penal Code Article 22.01(f) provides that a prior deferred adjudication community supervision sentence, even if successfully completed, is to be considered a prior conviction for enhancement purposes, this could violate the ex post facto provisions of the Texas and U.S. Constitutions. Tex. Penal Code Ann. § 22.01(f)(1) (West). The change in the law applies only to an offense committed on or after September 1, 1999, making a case where the deferred adjudication for family violence assault occurred after September 1, 1999 the simplest case upon which to obtain a third

Deadly Weapon Findings – “Hands and Feet” In Lane v. State, the Court of Criminal Appeals held that the defendant’s hands and feet could be considered deadly weapons in an assault family violence case, thereby properly raising the charge to aggravated assault. Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In Lane, the appellant argued that ALL family violence cases could be raised to felony aggravated assault under this theory. Lane, 151 S.W.3d at 190. Nonetheless, the Court held that a factual circumstance analysis of the deadly weapon findings caused it to conclude that the evidence was sufficient to support the findings in that case. Lane, 151 S.W.3d at 191-92. In a candid footnote, the court stated:

degree felony assault conviction. See: Scott v. State, 55 S.W.3d 593 (Tex. Crim. App. 2001) (holding that a successfully completed deferred adjudication cannot be used to enhance a punishment for a later offense when the provision permitting such enhancement at the time adjudication was deferred). In Scott, the defendant charged with

aggravated sexual assault was sentenced to an automatic life sentence based on an enhancement using a successfully completed deferred adjudication for indecency with a child that occurred prior to the enactment of Article 12.42 of the Texas Penal Code.

Scott, 55 S.W.3d at 595. The Court of Criminal Appeals, with Keller writing for the majority, held that using a successfully completed deferred adjudication to enhance in this context violated the ex post facto prohibition. Scott, 55 S.W.3d at 597-98.

Indeed, almost anything can be a deadly weapon, “depending upon the evidence shown.”

Id. at 191.

Another challenge to make, even for prior enhancements involving a family violence finding after September 1, 1999, would be to argue that Article 4

The court seems to imply that if an injury is significant, whatever caused the injury can be considered a deadly weapon. Lane, 151 S.W.3d at 191-92. This was a factdriven case since the victim was punched several times with a fist, was kicked after she fell, lost consciousness temporarily and suffered bruising in several areas of her body. Id. At the hospital, she was seen to have suffered from nausea, vomiting, dizziness and considerable pain to her neck, chest and back. Id.

there is a conflict. Id. In cases where there is a conflict between an Article 17.292 order issued under the criminal code and a Chapter 83 order issued under the family law code, the Article 17.292/criminal code order supersedes the conditions set forth in the Chapter 83/family code order unless the court issuing the Chapter 83/family code order is informed of the Article 17.292/criminal code order and makes a finding that the order issued under Chapter 83 of the family code supersedes the order issued under this Article 17.292 of the criminal code. Tex. Code Crim. Proc. Ann. art.

17.292(f-2) (West).

COLLATERAL CONSEQUENCES – (“I Had No Idea That Would Happen”)

In a case where serious bodily injury is alleged or where the use or exhibition of a deadly weapon is alleged, the magistrate prior to the defendant’s release from jail must issue an Emergency Protective Order.

Tex. Code Crim. Proc. Ann. art. 17.292(b) (West). A magistrate issuing this type order may also suspend the defendant’s permit to carry concealed handgun. Tex. Code Crim. Proc. Ann. art. 17.292(c)(4) (West).

Furthermore, a magistrate can order a ban on communication with the protected persons on a showing of “good cause.” Tex. Code Crim. Proc. Ann. art. 17.292(c)(2)(C) (West). An alleged victim of “dating violence” can be granted such a protective order since Article 17.292 of the Code of Criminal Procedure permits such an order for an offense involving “family violence” within the definitions set forth in Chapter 71 of the Family Code. Tex. Code Crim. Proc. Ann. art. 17.292(m)(1) (West).

When a person is arrested for family violence, a number of possible collateral consequences come into play. For example, for a couple under stress, there is often a concurrent divorce or protective order application filed. Furthermore, the magistrate at the jail often enters an Emergency Protective Order.

This is sometimes followed by a more formal and adversarial Protective Order Hearing before a judge with jurisdiction over family law matters. The abovenoted are clear examples of collateral consequences in assault family violence cases.

Collateral Consequence #1 – Protective Orders There are two types of protective orders in assault family violence situations. The first, known as an “Emergency Protective Order,” is authorized under Article 17.292 of the Code of Criminal Procedure.

Tex. Code Crim. Proc. Ann. art. 17.292 (West). The second type of protective order is authorized under Chapters 83 and 85 of the Family Code. There are important distinctions between the two protective orders of which every practitioner should be aware when representing a client in a family violence case.

Under Article 17.292, the duration of such an order is no less than 30 days but no more than 60 days. Tex. Code Crim. Proc. Ann. art. 17.292(j) (West). However, if a deadly weapon was involved in the alleged assault, the period is no less than 60 days and no more than 90 days. Id.

Code of Criminal Procedure, “Emergency Protective Orders”: Article 17.292 of the Texas Code of Criminal Procedure permits a magistrate to issue a protective order of 31-61 day duration on the magistrate’s own motion or on the motion of a victim, prosecutor, guardian or any peace officer. Tex. Code Crim. Proc. Ann. art. 17.292(a) (West). This order may be issued without any opportunity for an adversarial hearing only following an arrest for a family violence related offense or a stalking offense. Tex. Code Crim.

Proc. Ann. art. 17.292(j) (West).

Family Code Protective Orders: A person may apply for a protective order under Chapters 82, 83 and 85 of the Texas Family Code. These applications are sometimes handled by a County or District Attorney’s Office but it is common for private attorneys to file these applications on behalf of their clients (usually in the context of a divorce proceeding).

Section 82, Texas Family Code: Article 82.009 of the Texas Family Code sets forth the prerequisites for the issuance of a Temporary Ex Parte Protective Order:

Even if this order conflicts with existing court orders, the conditions imposed under this Article prevail unless a court later enters a protective order under Chapter 85 of the Texas Family Code. Tex. Code Crim. Proc. Ann. art. 17.292(f-1) (West). In that case, the Chapter 85 Protective Order supersedes the Emergency Protective order conditions, to the extent

The application must contain: 1) 5

a detailed description of the facts and circumstances concerning the alleged

2)

family violence and the need for the immediate protective order; and must be signed by each applicant under an oath that the facts and circumstances contained in the application are true …

1) family violence has occurred; & 2) family violence is likely to occur in the future.

Tex. Fam. Code Ann. § 85.001 (West).

Tex. Fam. Code Ann. § 82.009(a) (West).

The duration of a protective order is up to two (2) years from the date the order is issued in open court.

Tex. Fam. Code Ann. § 85.001(d) (West). However, subsection (d), added in 2011 by the Texas Legislature, allows a court to render a protective order for a period of more than two years, provided the court includes a finding described in § 85.025 (a-1), which states:

In 2011, the Texas Legislature added the following language as new subsection (b) to § 82.009: “For purposes of this section, a statement signed under oath by a child is valid if the statement otherwise complies with this chapter.”

Section 83, Texas Family Code:

The court may render a protective order sufficient to protect the applicant and members of the applicant's family or household that is effective for a period that exceeds two years if the court finds that the person who is the subject of the protective order:

Under § 83 of the TFC, the court must also find that there is a clear and present danger of family violence before issuing a temporary ex parte order. Tex. Fam. Code Ann. § 83.001(a) (West). In a temporary ex parte order, the court may direct the respondent to affirmatively act in a certain way or to refrain from acting in certain ways. Tex. Fam. Code Ann. § 83.001(b) (West).

Under Article 83.006 of the Texas Family Code, a defendant may be excluded from his/her residence if the applicant appears to testify at the time the Temporary Ex Parte Protective Order is issued, provided that the court finds:

(1) caused serious bodily injury to the applicant or a member of the applicant's family or household; or (2) was the subject of two or more previous protective orders rendered: (A) to protect the person on whose behalf the current protective order is sought; and

1) the applicant resides in the same residence and has for at least 30 days resided in the same residence; 2) the person to be excluded has, within 30 days, committed family violence against a member of the household; and 3) there is a clear and present danger that the person to be excluded is likely to commit family violence against a member of the household.

(B) after a finding by the court that the subject of the protective order: (i) has committed family violence; and (ii) is likely to commit family violence in the future.

Tex. Fam. Code Ann. § 85.025(a-1) (West).

Tex. Fam. Code Ann. § 83.006(a) (West).

If a protective order is granted for longer than 2 years under Chapter 85 of the Texas Family Code, it is a firearms act violation to possess a firearm during the duration of the protective order (see “Collateral Consequence #2 - Firearm Possession” below).

Such an order is often referred to as a “kick out order” among family law practitioners.

Section 85, Texas Family Code: Following the issuance of a Temporary Ex Parte Protective Order under Chapter 82 or 83, a hearing is conducted pursuant to Chapter 85 of the Texas Family Code. Tex. Fam. Code Ann. § 85.001 (West). Such a hearing requires notice to the respondent and the right to an adversarial hearing on whether or not the requisites can be met to justify the issuance of a protective order. Although often referred to as a “quasi criminal proceeding,” a hearing under this Chapter is a civil proceeding, and the movant’s burden is preponderance of the evidence. At the close of the hearing, the court must make two findings to support the issuance of a protective order:

Section 87, Texas Family Code: After a protective order is issued, a court has the discretion to modify the protective order under Chapter 87 of the Texas Family Code. Tex. Fam. Code Ann. § 87.001 (West). Under the 2005 legislative amendments to the Family Code, a protective order is appealable. However, in the event that the protective order is entered in a pending divorce or SAPCR, the appeal of the protective order may not be prosecuted until a final order is entered in said divorce or SAPCR. Tex. Fam. Code Ann. § 85.009 (West).

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Regarding such an appeal, it is apparently not necessary for the protective order to be pending in order to prosecute an appeal of a protective order. See, In re I.E.W., No. 13-09-00216-CV, 2010 WL 3418276, *5 (Tex. App. Aug. 27, 2010) (holding that it was permissible to allow the appeal of a protective order after the protective order expired under the “collateral consequences” exception to the mootness doctrine, reasoning that the protective order carries with it social and legal stigma long after it expires).

protective order on your client’s behalf in conjunction with a divorce petition. Remember, the “first to file” has a distinct advantage in civil proceedings, including protective order hearings.

Protective Orders – Sexual Assault and Trafficking Cases Though it is outside the scope of this topic, it should be noted that Article 7A of the Code of Criminal Procedure provides for the availability of a protective order in cases involving sexual assault with adults or children as the alleged victim, regardless of the relationship between the applicant and the alleged offender. Tex. Code Crim. Proc. Ann. art. 7A.01(a)(1) (West) In some circumstances, such a protective order can be effective for the duration of the entire life of the offender and victim. Tex. Code Crim. Proc. Ann. art.

7A.07(a) (West). Chapter 7A of the Code of Criminal Procedure was also amended to permit application for protective order in Trafficking, Sexual Assault or Stalking cases to in any county where an element of the offense occurred. Tex. Code Crim. Proc. Ann. art.

7A.07(a)(2) (West).

Another important amendment to the Family Code with regard to protective orders occurred in the 2005 legislative session(s). To resolve the dispute as to whether or not an agreed protective order without findings of family violence could be enforceable in a criminal prosecution, Section 85.005 of the Texas Family Code was amended to explicitly provide that an agreed protective order is enforceable both civilly and criminally. Tex. Fam. Code Ann. § 85.005(b) (West).

Even though I believe there are several good objections to the admissibility of protective order findings in subsequent criminal proceedings (i.e. hearsay, 6th amendment right of confrontation, TRE 403, 6th Amendment right to impartial jury), it is possible that a protective order finding can be admissible if the defendant opens the door to their use. For example, in Ludwig v. State, a protective order was admitted after the defendant repeatedly stated that he entered the alleged victim’s apartment solely to get his daughter and that he could never hurt the victim. Ludwig, 969 S.W.2d at 24-25. The prosecution admitted the protective order to show that he had repeatedly threatened and inflicted violence on the alleged victim and successfully argued that the protective order was relevant to establish intent and rebut a defensive theory. Ludwig, 969 S.W.2d at 25, 28-30.

Furthermore, it is also possible that the prosecution can admit a protective order in a subsequent murder prosecution under Article 38.36(a) of the Texas Code of Criminal Procedure, to show the presence of family violence in the previous relationship between the accused and the murder victim, if the defendant “opens the door” by asserting self-defense. Tex. Code Crim.

Proc. Ann. art. 38.36(b)(1) (West).

Procedural Note: Texas Rule of Civil Procedure 245: This rule provides that a court may set contested cases for trial “with reasonable notice, of not less than fortyfive days” for the first setting for trial or otherwise by agreement of the parties. Tex. R. Civ. P. 245. It would seem that this rule could be enforced with regard to a final hearing on a protective order and should be used when the matter is going to be hotly contested and not merely a tool for discovery.

Collateral Consequence #2 – Firearm Possession A finding of family violence and/or a conviction for assault/family violence carries the collateral possibility of being convicted under either state or federal statutes prohibiting firearms possession in this context.

Federal Firearms Law 18 U.S.C. 922 (g)(9) provides that it shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence, to … possess … any firearm or ammunition. 18 U.S.C.A. § 922(g)(9) (West).

18 U.S.C. 921 (a)(33)(A) provides that the term “misdemeanor crime of domestic violence” means an offense that is a misdemeanor under any law and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current of former spouse, parent, or

Practice Note: Since a protective order is a civil proceeding, you can institute discovery (interrogatories, depositions, etc.) to defend against the issuance of the order. If you are handling a criminal case in which there is a protective order hearing on the same facts, the hearing and/or discovery can be an invaluable context to learn more about your case or to score an early “knockout blow” if you win the protective order hearing. If you are aggressive and if an assault arrest resulted from “mutual combat,” you should consider a race to the courthouse to file a 7

guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with or has cohabitated with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent or guardian of the victim.

18 U.S.C.A. § 922(a)(33)(A) (West).

(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; (ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury.

18 U.S.C. 921 (a)(33)(B)(i) provides that a person shall not be considered to have been convicted of such an offense unless:

18 U.S.C.A. § 922(g)(8) (West).

I) the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel; and

Based upon the above-noted statues, it is clear that a person under a Chapter 85 Protective Order, issued after notice and adversarial hearing, can be prosecuted under 18 U.S.C. 921 for a felony. What is perhaps more disturbing, is that a person under a standard temporary injunction in a divorce case (which almost always includes language prohibiting him/her from threatening the other party, causing bodily injury to the other party or threatening the other party or a child with bodily injury) can be prosecuted under 18 U.S.C. 922 for a felony federal firearms act violation if the person possesses firearms while under such an order.

U.S. v. Emerson, 270 F.3d 203 (5th Circuit – 2001) (holding that the prosecution of a defendant for possessing a firearm while subject to a protective order entered in Texas divorce action did not violate Second Amendment).

II) in the case of a prosecution for an offense described in this paragraph, for which a person was entitled to a jury trial in the jurisdiction in which the case was tried either: tried the case to a jury OR knowingly and intelligently waived the right to jury trial, by guilty plea or otherwise.

18 U.S.C.A. § 922(a)(33)(B)(i) (West).

18 U.S.C. 921 (a)(33)(B)(ii) provides that a person shall not be considered to have been convicted… if the conviction has been expunged, set aside or is an offense for which the person has been pardoned or has had civil rights restored unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess or receive firearms. 18 U.S.C.A. § 922(a)(33)(B)(ii) (West).

In Emerson, the defendant appeared at his temporary orders hearing in a divorce case without counsel and agreed, on the record, to the “standard” temporary injunction terms. Emerson, 270 F.3d at 210-12. Less than four months later, the defendant was indicted by a Tom Green County federal grand jury for a violation of 18 U.S.C. 922 (g)(8). Although U.S. District Judge Sam Cummings dismissed the indictment on motion of the defendant, the Fifth Circuit rejected statutory and constitutional arguments on his behalf, not the least of which was a Second Amendment argument which triggered numerous amicus briefs to be filed in the case on both sides of the issue. Id. at 263-65.

These prohibitions do not include convictions for reckless conduct or terroristic threat. See, U.S. v.

White, 258 F.3d 374 (5th Cir. 2001) (holding that convictions under Texas statutes proscribing reckless conduct and terroristic threats were not convictions of a “crime of domestic violence,” and thus could not serve as predicate convictions for the charged offense.

Protective Orders and Restraining Orders under the Texas Family Code may also invoke Federal Firearms Act violations. 18 U.S.C. 922 (g)(8) prohibits possession of a firearm if they are subject to a court order that:

In the U.S. Supreme Court Case, U.S. v. Hayes, the Court held that, in a prosecution under 18 U.S.C. 921, the existence of a domestic relationship must be proven beyond a reasonable doubt with regard to a predicate offense BUT does not need to be a defining element of the offense. U.S. v. Hayes, 129 S.Ct. 1079 (2009). In Hayes, the defendant was prosecuted under 18 U.S.C. 921 by virtue of a prior “battery” conviction under West Virginia law which was a general statute at the time of his conviction. Hayes, 129 S.Ct. at 1080. The Supremes held that the proof was sufficient when it was established that the defendant had a child with the prior victim and cohabitated with her at the time of the “battery.” Hayes, 129 S.Ct. at 1088-89. Thus, the

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; (B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and 8

prosecution under 18 U.S.C. 921 was upheld. Id.

a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse or a child. . . .

State Firearms Law

Tex. Fam. Code Ann. § 153.004(a)(b) (West).

Article 46.04 of the Texas Penal Code provides, in pertinent part: ... b) A person who has been convicted of an offense under Section 22.01, punishable as a Class A misdemeanor and involving a member of a person’s family or household, commits an offense if the person possesses a firearm before the fifth anniversary of the later of:

Additionally, Section 153.004 (c) of the Texas Family Code also makes it clear that the court must deny access to a child to a parent who has a history or pattern of committing family violence during the two years preceding the date of the filing of the suit unless specific findings are made ensuring the protection of the child(ren). Tex. Fam. Code Ann. § 153.004(c) (West). In In re Marriage of Stein, 153 S.W.3d 485 (Tex. App – Amarillo, 2004), the court stated that a single act of family violence can meet the “history” requirement. In re Marriage of Stein, 153 S.W.3d 485, 489 (Tex. App. 2004). Clearly, an assault family violence conviction and/or a family violence finding can have severe consequences regarding a parent’s access to his or her child.

1) the date of the person’s release from confinement following conviction of the misdemeanor; or 2) the date of the person’s release from community supervision following conviction of the misdemeanor. c) A person, other than a peace officer, … who is subject to an order issued under Article 17.292 of the Code of Criminal Procedure (emergency protective order) commits an offense if the person is in possession of a firearm after receiving notice of the order and before expiration of the order.

Collateral Consequence #4 – Deportation Any alien who is convicted at any time for a crime of domestic violence is deportable. For these purposes, convictions include a deferred adjudication sentence.

Any alien convicted of violating a protective order is deportable, but there may be a limited exception if special language is used describing a non-violent nature of the violation. In 1996, Congress changed the definition of “conviction” to include “If adjudication of guilt has been withheld where (i) the alien has entered a plea of guilty or nolo condere or has admitted sufficient facts to warrant a finding of guilt and (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.” If in the United States illegally, an alien who is convicted of a crime of domestic violence may never be granted legal alien status. An alien who is a victim of domestic violence may now “self petition” for legal status if the sponsor of the alien is the perpetrator of domestic violence against the applicant. As you might imagine, this is another fertile ground for cross examination of an alleged victim if they have a motive to gain citizenship by virtue of their claim of family violence.

Tex. Penal Code Ann. § 46.04(b)(c) (West).

Collateral Consequence #3 – Custody of Children Section 153.004 of the Texas Family Code outlines some important consequences upon a finding of a “history of domestic violence” in a suit affecting the parent child relationship. Tex. Fam. Code Ann. § 153.004 (West). Section 153.004 of the Texas Family Code provides, in pertinent part: a) In determining whether to appoint a party as a sole or joint managing conservator, the court shall consider evidence of the intentional use of abusive physical force by a party against the party’s spouse, a parent of the child or any person younger than 18 years of age committed within a two year period preceding the filing of the suit or during the pendency of the suit;

For purposes of the Federal Sentencing Guidelines, the Fifth Circuit held for over a decade that an assault conviction under the Texas Penal Code is not a “crime of violence” and thus, cannot be used to apply an eight level enhancement to the guideline offense level. U.S. v. Villegas Hernandez, 468 F.3d 874 (5th Cir. 2006). In 2014, the U.S. Supreme Court issued an opinion that overruled the Fifth Circuit. United States v. Castleman, 572 U.S. 157, 170 (2014). In light of Castleman, the Fifth Circuit overruled Villegas Hernandez in 2018.

See, United States v. Reyes-Contreras, 910 F.3d 169,

b) The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse or a child . . .It is a rebuttable presumption that the appointment of a parent as the sole managing conservator of a child or as the conservator who has the exclusive right to determine the primary residence of the child is not in the best interest of the child if credible evidence is presented of 9

182 (5th Cir. 2018) (holding that the 16-level crime-ofviolence enhancement under the Sentencing Guidelines applied to defendant’s sentence because there was no valid distinction between direct and indirect force for purposes of identifying conviction as predicate “crime of violence”).

reliability.” Under Roberts, the reliability prong could be met by the evidence either falling within a “firmly rooted hearsay exception” or by bearing “particularized guarantees of trustworthiness.” Id. at 2531. In Crawford, the court states: Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law – as does Roberts … Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross examination. 124 S.Ct. at 1374. [emphasis added].

Collateral Consequence #5 – Alimony/Maintenance in Divorce Section 8.051 of the Texas Family Code provides for the eligibility of a divorcing spouse to receive spousal maintenance. If the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, the person’s spouse is eligible for spousal maintenance under this Section, regardless of the length of the marriage. Tex. Fam. Code Ann. § 8.051(1) (West). Normally, without such a finding, the marriage must be in existence for ten (10) years or longer and meet other requirements for a spouse to be eligible for maintenance. Tex. Fam. Code Ann. § 8.051(2)(B) (West). The amount of maintenance can be up to $5,000 per month or 20 percent of the spouse’s average monthly gross income for five (5) to ten (10) years, depending on the length of the marriage, unless the spouse receiving maintenance has a disability. Sections 8.054 and 8.055, Texas Family Code. Tex. Fam. Code Ann. § 8.055 (West).

In Crawford, Scalia goes on: “leave for another day any effort to spell out a comprehensive definition of ‘testimonial’.” Id. However, he does make it clear that prior testimony at a preliminary hearing, before a grand jury, or at a former trial are “testimonial.” He also makes it clear that “police interrogations” are “testimonial.” Id. The future battles, it seems, will be fought over whether or not a given statement is the product of “police interrogation.”

In Davis v. Washington (and its companion case Hammon v. Indiana), 126 S.Ct. 2266 (2006), the Supreme Court gave some further guidance on this complex issue. The Davis case centered around a 911 call wherein the complainant reported that she was being assaulted by her boyfriend. The court admitted the 911 recording over 6th Amendment objection after the complainant did not testify at trial. The Supreme Court held that this evidence was NOT testimonial, reasoning that the caller was describing events as they were occurring and that it was an ongoing emergency.

The court went on to state that emergency assistance calls can evolve into testimonial statements once the purpose of the call has been achieved. In Hammon, the Supreme Court held that the affidavit of an alleged victim composed with the assistance of police officers responding to a domestic disturbance call was testimonial and thus the 6th Amendment objection should have been sustained. The Court reasoned that there was a lack of an ongoing emergency and that the officer’s interrogation was clearly purposed toward the investigation of a crime where there was no immediate threat present.

EVIDENTIARY ISSUES IN FAMILY VIOLENCE CASES The Sixth Amendment & Crawford v. Washington The United States Supreme Court provided a constitutional basis for exclusion of out of court statements, which is separate from traditional hearsay arguments based upon rules of evidence. In Crawford v. Washington, 124 S.Ct. 1354 (2004), the court held that “testimonial” statements are inadmissible under the Confrontation Clause unless the prosecution can show: 1) the declarant is unavailable for live testimony at trial; and 2) the accused has already had an opportunity to cross-examine the declarant with respect to the statement.

If the statement is “non-testimonial,” don’t forget to require the proponent to meet the old Ohio v. Roberts standard of showing unavailability of the declarant and other indicia of reliability.

An important aspect of this case is that it at least partially overrules Ohio v. Roberts, 100 S.Ct. 2531 (1980). In Roberts the court had stated that such statements might be constitutionally permissible under the 6th Amendment if the declarant was shown to be unavailable and the statements had “adequate indicia of 10

the officer were held to be non-testimonial since the officer was dealing with an emergency at that time. Id. In the end, the Court held the improperly admitted answers to be harmless error in light of the other evidence admitted at trial. Id.

Texas Courts and Crawford Issues “Testimonial” has been defined in Texas courts as structured questions in an investigative environment or courtroom where the declarant reasonably believes the responses might be used in the future. Gongora v.

State, 214 S.W.3d 58, 62 (Tex. App. – Ft. Worth, 2006) (holding that the defendant’s statements to his brother were non-testimonial in nature because none of the statements were made in the context of a police investigation nor were they made to a person or under circumstances that would lead an objectively reasonable witness to believe that the statements would be available for use at a later trial, and, therefore, the defendant's rights were not implicated by the Confrontation Clause).

In Rangel v. State, 199 S.W.3d 523 (Tex. App. Fort Worth – 2006, pet. granted), the statements of a four year old to investigators were held to be testimonial “regardless of whether the four year old child may or may not have perceived when she made the statements that they could be used against the appellant as evidence in a criminal case.” In that case, the statements were obtained not to address an ongoing emergency, but were focused on a description of past events. Rangel v. State, 199 S.W.3d at 528-29.

In Wall v. State, the Court of Criminal Appeals affirmed the lower court’s finding that statements made by a homeless man in the emergency room to a deputy about his injuries were testimonial and violated appellant’s right to confrontation under the Sixth Amendment. Wall v. State, 184 S.W.3d 730 (Tex. Crim. App. 2006). In Wall, the trial court admitted the defendant's statements as excited utterances. Wall, 184 S.W.3d at 732.

In Brooks v. State 132 S.W.3d 702 (Tex. App. – Dallas, 2004), the court reversed an aggravated robbery conviction in which a co-defendant made a statement which was the product of custodial interrogation after he had been arrested. The court went on to state that the error was harmful. Brooks v. State 132 S.W.3d at 708-10. A similar conclusion was reached by the Fort Worth Court of Appeals in Hale v.

State 2004 WL 1277888 (Tex. App. – Ft. Worth, 2004). However, both of these cases were easy in light of Crawford since they involved codefendants who produced statements that were a product of custodial interrogation as a matter of law. Finally, in Rubio v.

State, 2007 WL 2621181 (Tex. Crim. App., September 12, 2007), the Court of Criminal Appeals does an extensive review of the application of harmless error analysis when there is Crawford error.

Similarly, in Gutierrez v. State, a co-defendant’s videotaped statement given voluntarily to police qualified as a testimonial statement as a matter of law.

Gutierrez v. State, 150 S.W.3d 827, 829, 828-30 (Tex. App. 2004).

In Lee v. State, 143 S.W.3d 565 (Tex. App. – Dallas, 2004, no pet.), the Court held a co-defendant’s out of court statement was testimonial because the defendant made the statement in response to a police officer’s questions during a roadside stop after the defendant had been arrested. Lee v. State, at 570. Similarly, in Cassidy v. State, 149 S.W.3d 712, 716 (Tex. App. – Austin, 2004, pet. denied), the Court held that the interview of a witness at the hospital by a police officer, shortly after an assault, was not interrogation and therefore was not testimonial hearsay.

Practice Note: When dealing with hearsay statements in family violence trials, always make your objections on the grounds of HEARSAY AND THE 6TH AMENDMENT CONFRONTATION CLAUSE AS WELL AS THE CONFRONTATION CLAUSE UNDER ARTICLE I, SECTION 10 OF THE TEXAS CONSTITUTION. For the time being, it may be that constitutional grounds are actually stronger methods to exclude these statements than traditional hearsay objections under the Rules of Evidence. I would also suggest that you conduct a hearing outside the presence of the jury. In that hearing you can ask the officer, who interviewed the witness, questions such as:

In Rodriguez v. State, 274 S.W.3d 760 (Tex. App. San Antonio – 2008), the court held that some of the victim’s statements were testimonial and some were not. The officer arriving at the scene initially questioned the victim who told him that she had “escaped” from inside the house and that the assailant was inside in the master bedroom. Rodriguez v. State, 274 S.W.3d at 763. After the officer located and detained the suspect, the victim was questioned further and provided more detail regarding what had happened to cause her injuries. Id. The court held that the second set of answers were testimonial and thus, inadmissible under Crawford. Id. at 766-67. The first responses to

1) Did you ask questions of the complainant?

2) Did you place the complainant under oath or otherwise tell him/her that he/she must be truthful in answering your questions?

3) Did you cross examine the complainant when you spoke with him/her?

4) Did you videotape the complainant as he/she 11

answered questions or made statements to you? Your department has video tape capability, does it not?

Excited Utterances

There is no doubt in my mind that law enforcement officers are trained to answer these questions in a manner to limit arguments of “testimonial interrogation.” The answers to these questions may hurt your argument on admissibility but no doubt can provide ammunition for closing arguments (i.e., “When the complainant made whatever statement was made, he/she was not under oath and no one was there to cross examine him/her.”).

Hearsay Exception under Rules of Evidence Texas Rule of Evidence 803(2) is an exception to the hearsay rule allowing statements relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. The availability of the declarant is irrelevant. The exception is rooted in the theory that such statements are involuntary and do not allow the declarant adequate opportunity to fabricate. Reyes v.

State, 48 S.W. 3d 917 (Tex. App. – Ft. Worth 2001).

Factors that courts have held should be considered include whether the statement was made in response to questioning and how much time elapsed between the startling event and the statement. Reyes v. State, 48 S.W. 3d at 919-20.

Waiver/ Forfeiture By Wrongdoing Under Davis-Hammon, the doctrine of forfeiture by wrongdoing is developing in Texas courts. See, Gonzalez v. State, 195 S.W.3d 114 (Tex. Crim. App. 2006); Sohail v. State, 264 S.W.3d 251 (Tex. App. – Houston [1st Dist.] 2008); Davis v. State, 268 S.W.3d 683, 705-706 (Tex. App. – Fort Worth, 2008). The doctrine of forfeiture by wrongdoing involves a defendant who coerces a complainant to be absent from the trial and, thus, unavailable. The key inquiries here will be factual. A hearing outside the presence of the jury is going to be required. At this hearing the State bears the burden by a preponderance of the evidence to show that the defendant did in fact “undermine the judicial process” by “procuring or coercing silence” of the complainant. In this circumstance, if the showing is made, a defendant forfeits his confrontation claims.

In the Sohail v. State, 264 S.W.3d 251, 259-60 (Tex.App. – Houston [1Dist.], 2008), the court stated:

The Court of Criminal Appeals recently dealt with this issue in Zuliani v. State, 97 S.W.3d 589 (Tex. Crim.

App. 2003). In that case, the court held that the trial court did not abuse its discretion in statements made by the victim to the victim’s sister where a police officer requested that the sister take the victim into a separate room to “find out what had happened.” Zuliani v.

State, 97 S.W.3d at 589. This conversation took place twenty-four hours after the alleged assault. In its holding the Court states: “ . . . it is not dispositive that the statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception.”

We hold that the trial court did not abuse its discretion in permitting the submission of complainant’s out of court statements by determining that appellant’s deliberate wrongdoing procured the unavailability of complainant as a witness.

Zuliani v. State, 97 S.W.3d at 596.

Perhaps the court was persuaded by additional facts which included that the victim had not been separated from the defendant during the twenty-four period, the victim stated she feared the defendant, the victim stated to the husband of the sister, “help me, help me, help me” prior to their arrival on the scene and the victim had a scalp injury requiring stitches that had been left untreated. The court stated, in its conclusion, “the key is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event.” Id.

2013 Legislative Update: Article 38.49, Code of Criminal Procedure now codifies the doctrine of Forfeiture by Wrongdoing in Texas. Tex. Code Crim.

Proc. Ann. art. 38.49 (West). Importantly, the statute urges a trial court to make a preliminary determination at pretrial on this important issue. Tex. Code Crim.

Proc. Ann. art. 38.49(c) (West).

Crawford Does Not Apply

In Apolinar v. State 155 S.W.3d 184 (Tex. Crim. App., 2005), the court held that a statement of the victim of an aggravated robbery made to his daughter four days after he was attacked was admissible under the excited utterance exception to the hearsay rule. In Apolinar, the court relied upon the fact that the victim had been

Crawford does not apply to probation revocation hearings. Diaz v. State, 172 S.W.3d 668 (Tex. App. – San Antonio, 2005). Crawford does not apply to suppression hearings. Vanmeter v. State, 165 S.W.3d 68 (Tex. App. – Dallas 2005).

12

in surgery, heavily medicated, unconscious or incoherent up until the day he made the statement to his daughter. Apolinar v. State 155 S.W.3d at 185-86.

Further, the court states that the victim appeared “mad” and “excited” during his very first conversation with his daughter about the attack while in the hospital.

Apolinar v. State 155 S.W.3d at 186. The Court posed the question, “can there ever be a ‘suspended excitement’ or ‘suspended animation’ variation of the excited utterance hearsay exception?” Id. at 188. The Court answered this question in the affirmative in its holding. Id. at 184.

R EVID Rule 504(b). However, an exception applies in any proceeding in which the person is charged with a crime against the person’s spouse, a member of the household of either spouse or any minor. TX R EVID Rule 504(a)(4)(C). This permits the State to force spouses to testify against their wishes in those types of situations. However, it may be argued that in a prosecution for a violation of a protective order, the spouse is not the “victim” of the crime. Therefore, a marriage (even if a marriage without ceremony such as a common law marriage) might prevent the State from calling a spouse in such a case. Section 2.401 of the Texas Family Code sets forth the requirements for establishing a common law marriage between a man and woman. Section 2.401 was declared unconstitutional by the Eastern District of Texas in 2016 in light of the landmark U.S. Supreme Court decision declaring that the right to marry is a fundamental right inherent in the liberty of a person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, same-sex couples may not be deprived of that right or liberty.

Ranolls v. Dewling, 223 F. Supp. 3d 613 (E.D. Tex. 2016); Obergefell v. Hodges, 576 U.S. 644 (2015).

In Lane v. State, 111 S.W.3d 203 (Tex. App. – Eastland, 2003), the court held that the alleged victim’s statements made to medical personnel and officers at the hospital were admissible as excited utterances and under the medical diagnosis exception to the hearsay rule. In that case, the alleged victim took the stand and stated she had lied to the medical personnel and officers at the hospital. Lane v. State, 111 S.W.3d at 208-09. She testified at trial that appellant had never assaulted her and she made the statements because she was angry. Id. The Court of Criminal Appeals, in Lane v. State 151 S.W.3d 188 (Tex. Crim. App. 2004) upheld this ruling due, in part, to the fact that trial counsel did not properly preserve error.

Due Process to Present Defense In Alonzo v. State, the murder defendant sought to introduce a videotape of an eyewitness who identified another as the perpetrator. Alonzo v. State, 67 S.W.3d 346, 355 (Tex. App. 2001). The witness was subsequently charged with false report to a police officer and refused to testify. Id. The trial court refused to allow the introduction of the statement. Id. Due process requires that the defendant be allowed to present his defense. Washington v. Texas, 388 U.S. 14 (1967) (holding that a Texas defendant was denied his Sixth Amendment right because the trial court excluded eyewitness testimony that was relevant and material to his defense). As a result, the appellate court in Alonzo found error in denying the introduction of the tape when there was no issue as to its trustworthiness and the State had ample opportunity to examine the witness prior to trial. Alonzo v. State, 67 S.W.3d at 358-62.

In Glover v. State, 102 S.W.3d 754 (Tex. App. – Texarkana 2002), discretionary review refused), the court held that the excited utterance exception did not apply to a situation where a mother interrogated her 14 year old daughter about sneaking out and having sex with a 26 year old man. The court, however, did hold that the statements were admissible under 803(24) as a “statement against social interest, since a reasonable person in the 14 year old’s position would not have made such statements, unless she believed them to be true, since she would be subjected to her mother’s disgrace.” Glover v. State, 102 S.W.3d at 766.

In Aguilera v. State, 75 S.W.3d 60 (Tex. App. – San Antonio 2002), the court held that statements made one year after the date of the event were not excited utterances and the trial court abused its discretion in admitting the statements.

Expert Testimony In Liggens v. State, 50 S.W. 3d 657 (Tex. App. – Ft. Worth 2001), store employees’ statements to police were admitted as excited utterances even though the declarants were not specifically identified.

Marital Privilege

Expert witnesses are not permitted to give an opinion that a complainant or a class of persons to which the complainant belongs is truthful under Rule 702 of the Texas Rules of Evidence. Aguilera v. State 75 S.W.3d 60, 65-66 (Tex. App. – San Antonio 2002).

Texas Rule of Evidence 504(b) states that, in a criminal case, the spouse of the accused has the privilege not to be called as a witness by the State. TX

Lay witnesses are also prohibited from giving their opinion about whether or not the complainant is telling the truth. Arzaga v. State, 86 S.W.3d 767, 776 (Tex. 13

App. 2002). In Arzaga, the court concluded:

location of Collins’s wife’s residence and place of employment. Ordinarily, a charging instrument is sufficient if it tracks that statutory language of the law prohibiting the conduct alleged.” Collins v. State, 955 S.W.2d at 467. See also, Bollman v. State, 629 S.W.2d 54, 55 (Tex.Crim.App. 1982) (holding that the trial court did not err by overruling appellant's motion to set aside the indictment as the indictment contained all the constituent elements of the offense under the provisions of Penal Code, Sec. 20.04(a)(3)); Ames v.

State, 499 S.W.2d 110, 114 (Tex.Crim.App. 1973) (holding that the face of the indictment satisfactorily apprised appellant of the charges against him).

This type of testimony is inadmissible because it does more than assist the trier of fact to understand the evidence or determine a fact in issue; it impermissibly decides an issue for the jury. In other words, it is not helpful to the jury, and consequently, is inadmissible under Rule of Evidence 702. Although this issue generally arises in the contest of expert witnesses, lay opinions must also be helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue under Rule of Evidence 701.

In Rohrscheib v. State, the State properly pled the essential elements, but it also unnecessarily included the date of the order’s issuance. Rohrscheib v. State, 934 S.W.2d 909, 911 (Tex. App. 1996). Once the State pled the year of the original protective order, 1993, the State was bound to prove a violation of a 1993 protective order. Rohrscheib v. State, 934 S.W.2d at 911. A copy of the 1995 protective order was introduced into evidence as State’s Exhibit 1, and there was testimony regarding the 1995 protective order. Id. No proof was presented, however, as to the 1993 order that was pled in the information. Id. Additionally, in contrast to the State’s contentions, protective orders are not renewed or continued. Id. “In conclusion, we hold appellant did not commit the crime alleged by the State as a matter of law. As previously stated, protective orders are valid for a time period not to exceed two years, unless the court finds that the elements of 85.025 (a-1) are met. TEX.FAM.CODE ANN. § 71.13 (a).

By its very nature, a protective order automatically expires one year [now two years] after its issuance. As the State erroneously pled in the information, on July 26, 1995, it was legally impossible for appellant to violate a protective order issued in 1993.” Id.

Arzaga v. State, 86 S.W.3d at 776.

The defense attorney in Arzaga preserved error adequately by objecting that the testimony was improper bolstering. Id. at 775-77. The court held, however, that the error was harmless. Id. Medical Testimony Rule 803(4) of the Texas Rules of Evidence holds that statements made for purposes of medical diagnosis or treatment which are reasonably pertinent to diagnosis or treatment are not excluded by the hearsay rule. TX R EVID Rule 803(4)(A)-(B). In Reyes v. State, the court held that the statement “says husband assaulted her with fists,” contained in the medical records, was admissible under this exception. Reyes v. State, 48 S.W.3d 917 (Tex. App. – Ft. Worth 2001). The dissent pointed out that there was no showing that the statement was made for the purpose of medical treatment and, in fact, the patient did not want medical treatment. Reyes v. State, 48 S.W.3d at 922-28.

VIOLATION OF PROTECTIVE ORDERS

The defendant must have notice of the protective order.

In Small v. State, the appellant appealed his conviction for violating a protective order, alleging that there was no evidence that he actually knew of the court order and that he therefore could not violate an order he knew nothing about. Small v. State, 809 S.W.2d at 254.

The court held that it was an essential element of the offense that the State prove the appellant knowingly and intentionally violated the court order in question beyond a reasonable doubt. Id. at 256. The court found that “[u]nless a defendant is somehow aware of what he is prohibited from doing by a specific court order, he cannot be guilty of knowingly and intentionally violating that court order.” Id. Further, in reversing the conviction, the court in Small noted that “aside from indicating that the appellant was served with notice of the hearing on the protective order, there [was] no evidence in [that] record that the appellant agreed to a

In Lee v. State, the Court of Criminal Appeals held that a protective order does not need to be so specific that it supports a judgment of contempt; it is only necessary that it be specific enough to meet the normal requirements of specificity that attach to allegations of culpable conduct. Lee v. State, 799 S.W.2d 750, 75254 (Tex.Crim.App.1990). See also, Collins v. State, 955 S.W.2d 464 (Tex. App. 1997) (holding that a protective order need not be specific enough to support judgment of contempt for a person subject to such order to be charged with criminal violation of order).

In Collins, the court stated, “The information in these cases and the protective orders both track the statutory language of the Penal Code Section prohibiting the criminal conduct of going ‘at or near’ the named 14

protective order, attended any hearing or in any way participated, that he was ever served with a copy of the protective order, or that he in any way received notice, formal or informal, of the issuance or existence of the court order in question prior to his violating it.” Id. at 256-57.

Stern responded ‘I don’t remember’ to every substantive question asked on voir dire, the State was put on notice that his trial testimony would likely be the same. It is well-settled that a party may not call a witness primarily for the purpose of impeaching the proposed witness with evidence that would otherwise be inadmissible.” Armstead v. State, 977 S.W.2d 791 (Tex.App.-Fort Worth 1998). See also, Barley v. State, 906 S.W.2d 27, 37 n. 11 (Tex.Crim.App. 1995), cert. denied, 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996); Pruitt v.

State, 770 S.W.2d 909, 910-11 (Tex.App.-Fort Worth 1989, pet. ref’d). “We find, therefore, that it was improper for the State to call Stern as a witness knowing that he would feign a memory loss only to introduce facts into evidence by asking leading questions.” Armstead v. State, 977 S.W.2d 791 (Tex.App.-Fort Worth 1998). See also, Sills v. State, 846 S.W.2d 392,396-97 (Tex.App.-Houston [14 th Dist.]

1992, pet. ref’d); Gannaway v. State, 823 S.W.2d 675, 678 (Tex.App.-Dallas 1991, pet. ref’d); Ramirez v.

State, 987 S.W.2d 938, no pet.).

In a similar case, Sills v. State, the State called a witness named Chambers who testified to his name and that he was residing in jail on charges not related to that case. Sills v. State, 846 S.W.2d 392, 393 (Tex. App. 1992). He refused to answer any other questions.

Sills v. State, 846 S.W.2d at 395-96. The trial court questioned Chambers outside the jury’s presence. Id. at 396. He persisted in his refusal to answer the prosecutor’s questions even under threat of contempt.

Id.

In Ramos v. State, the conviction for violating the protective order was affirmed even though there was no proof of actual service of the protective order on the defendant. Ramos v. State, 923 S.W.2d 196, 197 (Tex. App. 1996). In that particular case, the defendant had previously pled guilty to violating the same order prior to committing the new offense which was the basis of his appeal. Ramos v. State, 923 S.W.2d at 197. The State did not have to prove that he had actually received a copy of the protective order, only that he knew of the existence of the order before he violated it.

Id. at 197-98.

In Harvey v. State, the Defendant was convicted in the 331st Judicial District Court, Travis County, Bob Perkins, J., of violating a family protective order. The Court of Appeals, found the indictment alleged that defendant acted intentionally and knowingly but not that he knew or intended to violate a protective order.

The Court of Appeals reversed saying that the indictment and subsequent jury charge omitted the element that the Defendant knowingly and intentionally violated the protective order. Harvey v.

State, 48 S.W.3d 847, 849 (Tex.App.-Austin 2001).

The Court of Criminal Appeals reversed that holding in Harvey v. State, 78 S.W.3d 368 (2002). The Court concluded that the charge was sufficient when it stated “a person commits the offense of violation of a protective order if, in violation of a protective order issued after notice and hearing, the person knowingly or intentionally commits family violence.” Harvey v.

State, 78 S.W.3d at 368-69. The Court put a lot of emphasis on the fact that the defendant did not object to the charge or request a different charge. Id. at 36974. The Court held that the defendant must know of the existence of the order but need not know all of its provisions. Id. at 373-74.

Chambers did not claim the Fifth Amendment privilege. Id. The prosecutor informed the court that Chambers refused to testify because someone had threatened Chambers that if he testified his mother would die. Id. Chambers refused to confirm or deny this report. Id. The trial court recalled the jury to the court room. Id. The prosecutor then questioned Chambers by reading each sentence from the written statement. Id. The prosecutor prefaced the reading of each sentence by asking Chambers “isn’t it true you told police,” “isn’t it true your statement reads,” or “isn’t it true you further stated.” Id. The prosecutor read aloud all of Chamber’s statement. Id. The witness refused to agree or disagree with any of the statements. Id. Chamber’s answers were consistently, “I refuse to answer.” Id. On crossexamination, Chambers was asked if he thought the shooting was accidental or purposeful. Id. The State objected on grounds of speculation. Id. The court asked Chambers if he was planning to answer the question.

Id. Chambers responded that he did not believe appellant did it on purpose. Id. There were no further objections by the State nor did the State attempt to

Note: As cited above, repeated violations of a protective order (two or more times in a 12 month time period) can be prosecuted as a third degree felony under amended TPC Articles 25.07 & 25.072. Tex. Penal Code Ann. § 25.07 (West); Tex. Penal Code Ann. § 25.072 (West).

FORGETFUL STATE’S WITNESS “In this case, we find that the trial court erred in allowing Stern to testify in front of the jury. When 15

impeach Chambers because of this answer. Id.The State did not ask Chambers any further questions after defense counsel completed his cross-examination. Id.

violent character of the victim is admissible under 404(a)(2) of the Rules of Evidence to establish that the victim was the first aggressor. Fed. R. Evid.

404(a)(2)(C). Extraneous acts of violence of the victim may also go to show the state of mind of the defendant, Fed. R. Evid. 404(b)(2). See also, Mozon v. State, 991 S.W.2d 841 (Tex.Crim.App. 1999) (holding that evidence of the victim's extraneous acts of violence was still excludable if unfairly prejudicial, and that the Court of Appeals was required to address the issue of unfair prejudice on review of trial court's exclusion of evidence as unfairly prejudicial).

Sills was convicted of murder. The Court of Appeals reversed the case, holding that the witness’ prior statement to police was not admissible to impeach the witness after the witness refused to testify at trial; the witness was not subject to hatred, ridicule, or disgrace at time of making the prior statement to police so that the statement was not admissible as a statement against interest; and the admission of witness’ prior statement to police to impeach the witness constituted reversible error. Id. at 396-97.

In a murder case, the Court of Criminal Appeals held that when the defendant raises self defense, he may introduce evidence of the deceased’s violent character.

Rule 404(a)(2). In Torres v. State, the Court stated, “The defendant may offer opinion or reputation testimony to prove the deceased acted in conformity with his violent nature, 404(a)(2) and 405(a). Specific, violent acts of misconduct may be admitted to show the reasonableness of the defendant’s fear of danger or to show the deceased was the first aggressor.” Torres v.

State, 71 S.W.3d 758, 760 (Tex.Crim.App. 2002).

These do not have to be violent acts against the defendant in order to be admissible. Torres v. State, 71 S.W.3d at 61. The Court of Criminal Appeals reversed the lower court’s holding that this evidence was only “character conformity” evidence and therefore inadmissible. Id. at 762.

In Gannaway v. State, the trial court allowed the State to introduce Rice’s statement implicating appellant in the murder although Rice did not say the statement was wholly true, did not fully testify, and was not fully cross-examined about the statement. Gannaway v.

State, 823 S.W.2d 675 (Tex. App. 1991).

“We hold this too was error...Admitting Rice’s statement was a ‘back-door’ way for the State to get facts into evidence which Rice refused to testify about at trial. We cannot find beyond a reasonable doubt that appellant was not harmed.” Gannaway v. State, 823 S.W.2d at 678.

These cases are based on an old Court of Criminal Appeals case, Wall v. State, 417 S.W.2d 59 (Tex.Crim.App. 1967), which held that if the only evidence of guilt is objected to hearsay impeachment of the complaining witness who is denying that a crime occurred, the evidence is insufficient. In Wall, a daughter was tape recorded, saying that her father raped her. Wall v. State, 417 S.W.2d at 60-61. She later changed her story to say she didn’t know who raped her. Id. at 61. The tape recording and the impeachment of her was the only evidence that the father had committed a crime. Id. 61-62. The court reversed and rendered an acquittal. Id. at 63-64. The legal premises of Wall have been severely questioned by subsequent decisions of the Court of Criminal Appeals.

In Lopez v. State, the trial court refused to admit testimony that the victim in this sexual assault case had falsely accused his mother of physically abusing him.

Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). The intermediate appellate court reversed and the case reached the Court of Criminal Appeals. Lopez v. State, 18 S.W.3d at 222. A divided court held that the evidence could not come in under Rule 608(b). Id. at 225-27. Judge Keller in a concurring opinion held that the confrontation clause allows the evidence of prior false allegations. Id. at 227-28. “I think that it is in sex cases that juries will most often be asked to reach a verdict solely on the basis of the uncorroborated testimony of a victim, and therefore I think that it is in sex cases that the balancing approach will most often render such evidence admissible.” Id. The court specifically holds that the Confrontation Clause and Due Process Clause, which require fundamental fairness in a trial, will prevail if there is a conflict between the Constitution and the Rules of Evidence. Id. at 225.

Practice Tip: If you are involved in a case where the alleged victim now claims no assault, ask the court for a preliminary hearing outside the jury’s presence to ensure that the State is not calling the witness for the sole purpose of impeachment.

DEFENSIVE ISSUES Who is the Aggressor

Criminal Record of the “Victim”

Many issues in family violence cases are the same as those in any other assault or murder case in that the

In Arroyo v. State, the court reviewed a misdemeanor conviction for assault. Arroyo v. State, 117 S.W.3d 16

795, 796 (Tex. Crim. App. 2003). In that case, the victim did not testify. Arroyo v. State, 117 S.W.3d at 796. The defendant wished to impeach her credibility with certified copies of judgments of convictions in several criminal cases. Id. The court notes in a footnote that Rule 806 and 609 of the Rules of Evidence would allow the introduction of this evidence. Id. However, the state successfully argued that the defendant could not show that this was the same person alleged as the victim, and the trial court refused to allow the introduction of the evidence. Id. at 796-98. The Court of Criminal Appeals reversed this holding. Id. at 798.

The State had previously provided the defendant with the victim’s rap sheet pursuant to the defendant’s Brady motion. Id. The State was now estopped from asserting that the exhibits were inadmissible on the ground of identity. Id. The case was remanded to the court of appeals to see if there was any other legal theory to exclude the documents .Id.

stipulated to the testimony of the remaining witnesses but did not stipulate that the defendant had a good reputation.).

NEW STATUTE ALERT: Code of Criminal Procedure: Article 38.371 and Extraneous Conduct/Offense Evidence In the 2015 Legislative Session, family violence advocates pushed for passage of Article 38.371 of the Code of Criminal Procedure, which states that, in a prosecution of a family violence offense, “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…., including testimony or evidence regarding the nature of the relationship between the actor and the alleged victim.” Tex. Code Crim. Proc. Ann. art. 38.371(b) (West). Many of you reading this will note similar language between this and Article 38.36 of the Texas Code of Criminal Procedure, which allows broad latitude to get into evidence (extraneous) showing the relationship between the accused and the deceased. Tex. Code Crim. Proc. Ann. art. 38.36 (West). Many courts have used Article 38.371 to allow in extraneous offense/conduct evidence that was not previously allowed. THIS IS A MISTAKE.

Bias of the Witness The defendant is entitled to attack the motive that a witness may have for testifying. In Thomas v. State, the court states, “The exposure of a witness’s motivation in testifying is a proper and important function of the right of cross-examination.” Specific acts may be admissible in spite of the Rule of Evidence if they are necessary to show the bias or motive for the witness to testify untruthfully. Thomas v. State, 897 S.W.2d 539, 542 (Tex.App -Ft. Worth 1995). In Thomas, the defendant, charged with sexual assault, wanted to bolster his consent defense by showing that the victim’s boyfriend was violent and jealous and that she would lie to avoid him finding out that she had consented to sex with the defendant. Thomas v. State, 897 S.W.2d at540-41. The Court of Appeals reversed the trial court decision to exclude this evidence. Id. at 540. It follows that an alleged victim’s desire to have charges dismissed would be admissible to show that the original accusation was not true.

Here is why: Article 38.371 contains an additional provision that Article 38.36 does not: (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. Tex. Code Crim. Proc. Ann. art.

38.371(c) (West).

Practice Note: If a judge is using Article 38.371 as a means to allow extraneous conduct/offense evidence into your trial, you need to point out the above and preserve error at all costs. In my opinion, subsection c noted above effectively makes Article 38.371 meaningless as far as applying the rules of evidence to family violence prosecutions.

Evidence of the Defendant’s Good Character Rule of evidence 404(a)(2)(A), allows the accused in a criminal case to introduce evidence of his good character. TX R EVID Rule 404(a)(2)(A). The defendant has the right to introduce evidence of his good character at the guilt/innocence stage of the trial.

TX R EVID Rule 404(a)(2)(A). Failure to allow such evidence has been held to be reversible error. Green v.

State, 700 S.W.2d 760 (Tex. App. 1985), aff'd, 727 S.W.2d 272 (Tex. Crim. App. 1987) (holding that trial court erroneously refused to permit the defendant to call two additional character witnesses in a prosecution in which the two character witnesses had already testified for the defendant and in which the State

PRACTICE TIPS Motions to File: The motion to quash is an important tool in most assault cases. The State is entitled to allege that the acts occurred “recklessly.” Assault is a result oriented crime. Therefore recklessly should be defined in the jury charge as: A person acts recklessly or is reckless with respect to circumstances surrounding 17

his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.

Tex. Penal Code Ann. § 6.03(c) (West).

U.S. 452, 474, 131 S. Ct. 1849, 1864, 179 L. Ed. 2d 865 (2011) (stating that, “[T]he police bear a heavy burden...when attempting to demonstrate an urgent need that might justify warrantless searches.”). This might give the defendant a pretrial hearing on the legality of the arrest. Included in this motion is the request to suppress all statements made by the defendant. This gives the attorney the opportunity to litigate whether the statements meet Article 38.22 of the Code of Criminal Procedure and whether the statements will be admissible at trial.

If recklessness is alleged, Article 21.15 of the Texas Code of Criminal Procedure requires that the prosecution allege the act or acts relied upon to constitute recklessness with reasonable certainty, and in no event shall it be sufficient to allege merely that the accused, in committing the offense, acted recklessly. Tex. Code Crim. Proc. Ann. art. 21.15 (West).

The request for notice under 404(b) and 609 of the Rules of Evidence, 39.14(b) of the Code of Criminal Procedure , and 37.07 Code of Criminal Procedure are extremely important in family violence cases.

Extraneous offenses need to be learned about in advance of trial. Fed. R. Evid. 404(b)(2)(A)-(B). Prior convictions of the State’s witnesses must be disclosed if requested. Fed. R. Evid. 609. Many of the State’s counselors want to testify as “experts” concerning the battered person syndrome. This information must be disclosed or it is not admissible.

A motion to quash might also be filed when dealing with an indictment alleging Continuous Violence Against the Family under the Texas Penal Code Section 25.11, alleging that a defendant has a State and Federal Constitutional right to jury unanimity regarding the statutory elements of the crime. See, Richardson v. United States, 526 U.S. 813 (1999) (holding that a jury in a continuing criminal enterprise case, as defined by § 848 of the United States Code, must unanimously agree to the specific “violations” that make up that “continuing series.”) ; Jefferson v.

State, 189 S.W.3d 305 (Tex. Crim. App. 2006) (holding that dispensing with jury unanimity on an “act or omission” that comprised the course of conduct element of injury to a child did not violate the defendant’s due process rights). Such a motion should allege that Section 25.11 of the Texas Penal Code is not constitutional because the statute explicitly states that the members of the jury in such cases are not required to agree unanimously on the specific conduct, which forms the basis of the multiple incidents of family violence. Tex. Penal Code Ann. § 25.11(b) (West).

ETHICAL DILEMMAS Conflict of Interest Can the lawyer give advice to both the alleged perpetrator and the alleged victim?

Rule 1.06 of the Disciplinary Rules states: A lawyer shall not represent opposing parties to the same litigation. TX ST RPC Rule 1.06. The lawyer may represent both parties with full disclosure and consent if the lawyer believes the clients will not be materially affected. TX ST RPC Rule 1.06(c).

Rule 4.03 of the Disciplinary Rules states: When the lawyer knows that the unrepresented person misunderstands the lawyer’s role, the lawyer shall make the effort to correct the misunderstanding. TX ST RPC Rule 4.03.

The motion for discovery is important in order to determine if there is a 911 tape recorded call, who the witnesses will be, and whether there are any photographs of any injuries available. Also, it includes the statutory right to be told of any statement made by the defendant. Tex. Code Crim. Proc. Ann. art. 39.14 (West).

Fear of False Testimony What does the lawyer do if he fears the alleged victim is going to lie to help her significant other avoid conviction?

Rule 3.03 of the Disciplinary Rules statesthe lawyer shall not offer or use evidence that is false. TX ST RPC Rule 3.03.

The motion to suppress the warrantless arrest is very important. Most arrests will fall under Article 14.03, which allows an arrest without a warrant. Tex. Code Crim. Proc. Ann. art. 14.03 (West)(b). However, the burden is always upon the State to prove an exception to the warrant requirement. Kentucky v. King, 563

Rule 3.04 of the Disciplinary Rules states the lawyer shall not obstruct evidence or assist another in doing so or acquiesce in the offer of payment to a witness or 18

assist a witness to testify falsely. TX ST RPC Rule 3.04.

The 82nd Legislature amended Section 36.05 of the Texas Penal Code to provide that if the underlying offense involves Family Violence in a tampering prosecution, the offense level is the greater of a felony of the third degree OR the most serious offense charged in the criminal case. Tex. Penal Code Ann. § 36.05(e-1) (West). Further, the 82nd Legislature added Article 38.48 of the Code of Criminal Procedure to allow the admission of evidence in a prosecution for Tampering with a Witness involving family violence of “all relevant facts and circumstances that would assist the trier of fact in determining whether the actor’s conduct coerced the witness or prospective witness, including the nature of the relationship between the actor and the witness or prospective witness” (subject to the Texas Rules of Evidence and other applicable law [of course]). Tex. Code Crim. Proc. Ann. art.

38.48(b) (West).

Rule 1.15 of the Disciplinary Rules states: The lawyer must terminate his representation if (1) the client persists in action the lawyer believes may be criminal or fraudulent, (2) or client uses the lawyer’s service to perpetrate a crime. TX ST RPC Rule 1.15.

Avoiding a Subpoena Can the lawyer discuss whether the State’s witness should appear in court?

There is a federal crime of obstruction of justice and the state crime of tampering with a witness, Texas Penal Code 36.05. Tex. Penal Code Ann. § 36.05 (West). A person commits an offense if he coerces a witness or prospective witness in an official proceeding:

CONCLUSION

(1) to testify falsely; (2) to withhold any testimony…

(3) to elude legal process summoning him to testify or supply evidence; (4) to absent himself from an official proceeding to which he has been legally summoned; or (5) to abstain from, discontinue, or delay the prosecution of another.

Family Violence Assault cases come with a lot of baggage. If you are not willing or able to handle all aspects of the situation brought about in the context of a family violence allegation, work closely with a family law attorney to maximize the impact concurrent proceedings can have on the outcome of the criminal case. Be careful when representing someone in this context because attorneys can become the focal point of pre-existing anger. There are complex psychological dynamics at work in these cases.

Tex. Penal Code Ann. § 36.05(a)(1)-(5) (West).

What is a Valid Subpoena?

Article 24.04 of the Code of Criminal Procedure sets out how a subpoena may be served. It now includes: (1) Reading the subpoena in the hearing of the witness; (2) Delivering a copy of the subpoena to the witness; (3) Electronically transmitting a copy of the subpoena, receipt requested, to the last known electronic address of the witness; or (4) Mailing a copy of the subpoena by certified mail, return receipt requested, to the last known address of the witness (unless the subpoena is mailed within 7 days of the proceeding or the applicant for the subpoena requests in writing that he/she not be served by mail).

Tex. Code Crim. Proc. Ann. art. 24.04(a)(1)-(4) (West).

2013 Legislative Update – Tampering With Witness Statute Amended for Cases Involving Family Violence 19

Note: 2021 – Legislative Update - Special Session In the last Special Session held in 2021, the legislature passed S.B. 6 which contains notable revisions to the Right to Bail in Family Violence related cases. The legislature amended Article 17.03 of the Code of Criminal Procedure to eliminate eligibility for Personal Bond in “offenses involving violence.” Further, the legislature then defines a laundry list of “offenses involving violence” to include any felony offense involving an allegation of family violence. These changes take effect on December 2, 2021 and will limit eligibility for Personal Bonds greatly in felony cases in Texas.

20

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross of a 404(b) witness Speaker:

Mark Stevens 310 S Saint Marys St Ste 1920 San Antonio, TX 78205-3154 (210) 226-1433 Phone (210) 223-8708 Fax mark@markstevenslaw.com email www.markstevenslaw.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross-Examination of a 404(b) Witness [And The Law Of Extraneous Misconduct] Cross-Examination And Effective Use Of The Rules Of Evidence

Texas Criminal Defense Lawyers Association Round Rock, Texas December 2-3, 2021

Mark Stevens 310 S. St. Mary’s, Ste. 1920 San Antonio, TX 78205 mark@markstevenslaw.com

TABLE OF CONTENTS I.

THE SCOPE OF MY PRESENTATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II.

A STRATEGY FOR DEALING WITH EXTRANEOUS MISCONDUCT (MOST OF WHICH HAPPENS OUTSIDE THE JURY’S PRESENCE). . . . 2

III.

IV.

V.

A.

Exclusion Is Better Than Cross-Examination. . . . . . . . . . . . . . . . . . . . . 2

B.

A Strategy For Exclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

C.

Cross-Examining The 404(b) Witness. . . . . . . . . . . . . . . . . . . . . . . . . . . 5

WHAT IS “EXTRANEOUS” MISCONDUCT? . . . . . . . . . . . . . . . . . . . . . . . 7 A.

The Definition Could Hardly Be Broader. . . . . . . . . . . . . . . . . . . . . . . . 7

B.

Extraneous Misconduct Need Not Amount To Criminal Activity. . . . . 7

C.

When The Charged Offense Is Alleged To Have Occurred “On Or About” Some Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D.

Extraneous Misconduct Embedded In Confessions. . . . . . . . . . . . . . . 11

E.

Third-Party Misconduct. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

EXTRANEOUS OFFENSES CAN BE DEVASTATING . . . . . . . . . . . . . . . . 12 A.

Oh, The Horrors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B.

“Anglo-American Jurisprudence Has Always Shown A Marked Reluctance To Admit Evidence Of Extraneous Offenses Or Prior Misconduct.” (Seriously?) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

HISTORICAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 A.

Albrecht v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B.

Williams v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 ii

VI.

VII.

RULE 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A.

Applicability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B.

Text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

THE MANY EXCEPTIONS RECOGNIZED BY RULE 404(b) . . . . . . . . . . 18 A.

B.

C.

D.

E.

Rebuttal Of A Defensive Theory. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Identity, Modus Operandi, System, Handiwork, etc. . . . . . . . . . . . . . . 21 1.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

2.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

3.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Motive. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Opportunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 iii

2.

F.

G.

H.

I.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 1.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

2.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

3.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Knowledge. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Absence Of Mistake Or Accident. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Contextual Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 1.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2.

“Same transaction” contextual evidence. . . . . . . . . . . . . . . . . . . 42

3.

a.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

b.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

c.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

“Background” contextual evidence. . . . . . . . . . . . . . . . . . . . . . . 45 a.

General rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

b.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 iv

c.

4.

J.

K.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

Other contextual cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 a.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

b.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Flight. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

Consciousness Of Guilt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 1.

Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

2.

Admissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

L.

Control. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

M.

Hostility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

N.

To Corroborate Accomplice Testimony. . . . . . . . . . . . . . . . . . . . . . . . . 52

O.

The “Doctrine Of Chances”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

P.

Sexual Offenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 1.

By the state, against the defendant. . . . . . . . . . . . . . . . . . . . . . . 53

2.

By the defendant, against the complainant. . . . . . . . . . . . . . . . . 56

Q.

Gang Membership. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

R.

Two Significant Statutory Exceptions. . . . . . . . . . . . . . . . . . . . . . . . . . 57

S.

Opening The Door (Is Surprisingly Easy To Do). . . . . . . . . . . . . . . . . 59 v

1.

2. a.

TEX. CODE CRIM. PROC. ANN. art. 38.36. . . . . . . . . . . . . . . . . . . 57 a.

Text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

b.

Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

TEX. CODE CRIM. PROC. ANN. art. 38.37. . . . . . . . . . . . . . . . . . . 59

Case law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59

VIII. TWO ESSENTIAL CASES: MONTGOMERY AND HARRELL . . . . . . . . . 62

IX.

X.

A.

The Holding In Montgomery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

B.

The Role Of Rule 404(b) Under Montgomery. . . . . . . . . . . . . . . . . . . . 62

C.

The Role Of Rule 403 Under Montgomery. . . . . . . . . . . . . . . . . . . . . . . 63

D.

The Role Of The Appellate Courts Under Montgomery. . . . . . . . . . . . 64

E.

The Holding In Harrell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

LIMITING INSTRUCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 A.

Rule 105(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

B.

General rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

C.

Limiting Instructions In Particular Cases. . . . . . . . . . . . . . . . . . . . . . . 68

D.

When Should Limiting Instructions Be Requested? . . . . . . . . . . . . . . 69 1.

The contemporaneous instruction. . . . . . . . . . . . . . . . . . . . . . . . 69

2.

The limiting instruction in the court’s final charge. . . . . . . . . . 70

RULE 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 A.

Text. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

vi

XI.

B.

In General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

C.

Montgomery v. State And Rule 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

D.

Gigliobianco v. State. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

E.

Cases Illustrating the Balancing Test. . . . . . . . . . . . . . . . . . . . . . . . . . . 73

F.

The Proper Way To Demand A Balancing Test . . . . . . . . . . . . . . . . . . 73

G.

“Unfairly Prejudicial.” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

H.

Preserving Rule 403 Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

I.

Appellate Review Of Rule 403 Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . 75

J.

Some Cases Where The Courts Have Found Otherwise Admissible Evidence Inadmissible Under Rule 403. . . . . . . . . . . . . . . . . . . . . . . . . 75

K.

Oddly enough, evidence can be irrelevant, and inadmissible under Rule 404(b), and substantially more prejudicial than probative, but still harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77

L.

Stipulations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78

RULES 401 & 402: RELEVANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 A.

XII.

Text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 1.

Rule 401. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

2.

Rule 402. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

3.

Relevance and Rule 404(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

4.

Illustrative cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

DUE PROCESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 A.

The Fifth Circuit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 vii

B.

Texas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

XIII. NOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 A.

Rule 404(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

B.

File A Request, Not A Motion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

C.

Punishment: TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 3(g) and 37.071, § 2(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

D.

Preservation Of Error. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

E.

Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

F.

When Notice Is Not Required. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

XIV. YOU MIGHT BE INEFFECTIVE IF YOU DO NOT PROPERLY DEAL WITH EXTRANEOUS MISCONDUCT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 XV.

RULE 404(B) IS USUALLY BAD FOR US, BUT NOT ALWAYS . . . . . . . . 88

viii

SAMPLE HANDOUTS: Sample 1a REQUEST FOR NOTICE OF INTENT TO OFFER EXTRANEOUS CONDUCT UNDER RULE 404(b) AND EVIDENCE OF CONVICTIONS UNDER RULE 609(f) AND EVIDENCE OF AN EXTRANEOUS CRIME OR BAD ACT UNDER ARTICLE 37.07, § 3(g) Sample 1b

DEFENDANT'S FIRST REQUEST FOR DISCOVERY UNDER ARTICLE 39.14(a), NOTICE UNDER ARTICLE 39.14(b), AND NOTICE UNDER RULES 404(b), 609(f), AND ARTICLE 37.07(g) Sample 2 MOTION IN LIMINE Sample 3 DEFENDANT’S OBJECTIONS TO EVIDENCE PURSUANT TO RULE 103(a)(1) Sample 4 PROPOSED LIMITING INSTRUCTION ON EXTRANEOUS MISCONDUCT Sample 5 DEFENDANT’S OBJECTIONS TO VIDEOTAPE EVIDENCE Sample 6 MOTION TO INSPECT THE PROSECUTION FILES OF THE DECEASED IN POSSESSION OF BEXAR COUNTY DISTRICT ATTORNEY’S OFFICE

ix

I. THE SCOPE OF MY PRESENTATION My assignment is to write and speak on cross-examining the 404(b) witness, and I intend to do so in this paper, in my talk, and in the powerpoint slides that will accompany the talk. That said, not much time will be spent either orally or in writing on “crossexamination,” for two reasons.

First, unlike some of the topics that will be presented at this seminar, the skills necessary for cross-examining a 404(b) witness are largely the same as those necessary to cross-examine any witness in any criminal case. It is a good thing that most of those attending this seminar already have the general skills and experience required to conduct a competent cross-examination, and that they will be learning even more from the excellent presenters on December 2-3, 2021.

Second, I firmly believe that, if you reach the point in your trial where you have to cross-examine a 404(b) witness in front of the jury, you are already well on your way to a one-word verdict.

Plainly put, the best way to cross-examine a 404(b) witness is not to crossexamine the witness at all — at least not in the presence of the jury. It is far better that you exclude the 404(b) evidence before the jury ever hears it. Extraneous offenses are common in our line of work, and if the jury hears that your client has done it before, or has committed any kind of extraneous misconduct before, or is just a sketchy character, the prosecutor’s job becomes incalculably easier.1 Accordingly, the criminal defense lawyer needs an effective strategy for preventing the jury from ever hearing your client’s 404(b) evidence. I will give you my strategy and a few motions in § II of this paper, and I will talk about the strategy on December 2 and have some powerpoint slides to illustrate.

The balance of the paper – §§ III through XV – discusses the case law, statutes, and rules that you can use to keep the jury from hearing about your clients’s (alleged) 1

Those of you who have seen the docu-drama, “Dr. Death,” will probably remember the email he sent to a former girlfriend. It was admitted into evidence as State’s exhibit 160, and the court of appeals reprinted it in its published opinion. Read it and you won’t be surprised that the jury convicted this one-time neurosurgeon and sent him to prison for life. Or that the court of appeals affirmed the sentence. See Duntsch v. State, 568 S.W.3d 193, 213 n.2 (Tex. App.–Dallas 2018, pet. ref’d).

1

sordid histories. And the talk and accompanying powerpoint slides will provide practical examples of how I have used these materials to keep the misconduct out of the evidence, when I was fortunate enough to do so. And since we will not always succeed in keeping the bad stuff away from the jury, I will also spend some time during my talk discussing ways to cross-examine the 404(b) witness in the presence of the jury.

II. A STRATEGY FOR DEALING WITH EXTRANEOUS MISCONDUCT (MOST OF WHICH HAPPENS OUTSIDE THE JURY’S PRESENCE).

In Burrow v. State, 668 S.W. 2d 441 (Text App.–El Paso 1984, no pet.), so much extraneous misconduct came in during that trial, from both sides, "that the original DWI charge became a minor sideshow." Id. at 443. With more than a hint of frustration, the court of appeals identified a point where "the trial turned from Wigmore to mudwrestling." Id. "The rules of relevance, materiality, extraneous offenses and argument within the record were almost totally eroded in this trial." Id. at 444.

A.

Exclusion Is Better Than Cross-Examination.

Extraneous misconduct can be devastating. Over many years dealing with it, I can say without hesitation that most of the times I have thought I was successful, it was not because of my crushing cross-examination, but rather, because I was able to convince a judge to exclude the evidence.

B.

A Strategy For Exclusion.

Your strategy for excluding extraneous misconduct must start well before the trial begins. Mine is uncomplicated: 1.

Request notice to determine what the State intends to offer. There are various ways of doing so. I typically use either a stand-alone request, or a request that is contained within a larger request for 39.14(a) & (b) information. See Samples 1a & 1b. But I always put this in the form of a “request,” not a “motion.” A request is self-executing and requires no action from the court. A motion accomplishes nothing until it is heard and ruled on by the court, which, depending on your judge, might not be until the day trial begins. You cannot afford to wait that long. For the difference between requests and motions, see Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Espinosa v. State, 853 S.W. 2d 36, 39-40 (Tex. Crim. App. 1993)(Baird, J., concurring).

2

2.

Sometimes the State does not timely respond, and that’s a good thing. If you timely request notice but do not get a timely response, the proper remedy is to exclude evidence of the misconduct. Congratulations!

3.

If the State does respond, though, for every claim you are noticed on, do the same type of factual investigation you would do if your client were actually charged with the extraneous offense. Interview witnesses. Get any police reports, witness statements, court, medical, and other records, videotapes, and photographs. For a particularly disturbing failure to investigate, see Ex Parte Rogers, 369 S.W.3d 858, 865 (Tex. Crim. App. 2012)(trial counsel found ineffective for not investigating and learning that during the hours before and after a “very ugly” unadjudicated extraneous aggravated sexual assault admitted at the punishment phase, his client’s GPS monitoring data showed that he was in his apartment five miles away).

4.

And do the appropriate legal research on every claim of misconduct you are notified of. The good news is that case law on extraneous misconduct is voluminous. If you look hard enough, you can often find a case that will provide a legal reason for excluding the bad stuff. The bad news is that this voluminous jurisprudence is packed with more bad cases than good. Sections III through Xv of this paper is my effort to digest the essential Texas law on extraneous misconduct. I hope if is helpful.

5.

File a basic, general Motion in Limine. See Sample 2. This document does not preserve error, and it is so general and vague as to be almost meaningless, but it is easy to prepare, it does no harm, its broad generality may help you.

6.

File and argue to the court Defendant’s Objections To Evidence Pursuant To Rule 103(a). This document objects, outside the jury’s presence, to everything that you think a prosecutor might use to harm the defendant, including any extraneous misconduct contained in the State’s response to your request for notice. See Sample 3. I have combined in this sample different objections I have made in different cases, over the years. It should go without saying that you will tailor your motion to fit your case.

7.

Present your written objections to the court and demand a hearing outside the presence of the jury where you object to, and ask for a ruling on, everything listed in your pleading, pursuant to Rules 103(a)(1) and 104(b) of the Texas Rules of Evidence. See Harrell v. State, 884 S.W. 2d 154, 160 (Tex. Crim. App. 1994), an enormously important case that is discussed in detail in § VIII, E of this paper .

3

Ideally your hearing should be just before the jury is selected.

8.

Typically, the judge will hear and rule on some of the objections, and then you have preserved error and need not re-urge those objections in the presence of the jury. See Maynard v. State, 685 S.W. 2d 60, 64-65 (Tex. Crim. App. 1985) ; TEX. R. EVID. 103(a)(1). Some prosecutors (the dumb ones) will reflexively object to any procedure a defense lawyer proposes. Smarter one recognize that it can also be helpful to their cases to litigate matters before trial, to know what they can voir dire on, what they can and cannot say in their openings, and to learn whether some of their extraneous misconduct will be admissible. Often, the judge will protest that she cannot be expected to “rule in a vacuum” on some of the objections in your motion, and this is not necessarily an unreasonable response. For those matters that the judge refuses to rule on, request that your pleading be treated as a motion in limine, and remind the court that the State must approach the bench before going into any of these matters before the jury.

9.

When the prosecutor approaches the bench and says she will offer the extraneous misconduct, tell the judge you want a hearing outside the presence of the jury. If you were not allowed to do this outside the presence of the jury before trial, pursuant to Rules 103(a)(1 and 104(b), you are entitled to the hearing now. See Harrell v. State, mentioned above in item 7. The single most important case in understanding how to properly object to inadmissible extraneous misconduct is Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1990), which, along with Harrell, is covered in detail in § VIII of this paper. Insist that the prosecutor articulate an exception to Rule 404(b). Require the court to make the balancing test required by Rule 403. Object further that the State is unable to prove that the defendant committed this extraneous conduct beyond a reasonable doubt.

Although the court may allow the prosecutor to proceed by proffer, request that you be allowed to ask questions of the sponsoring witness, outside the jury’s presence, and use your cross-examination skills when doing so.

10.

If the judge allows the State to elicit any of the misconduct to which you have not already timely objected during your pretrial hearing, make the necessary specific and timely objections now required by TEX. R. APP. PROC. ANN. 33.1.

Specifically, object to the evidence as irrelevant under Rules 401 and 402 of the Texas Rules of Evidence, and get a ruling from the court. If that objection is overruled, object that, if relevant at all, the evidence is relevant only for conformity, and therefore inadmissible under Rule 404(b), and get a ruling. If that objection is overruled, object that, even if the evidence is relevant to something other than character conformity, it is substantially more prejudicial than probative, 4

(and also, if applicable, that it confuses the issues, misleads the jury, causes undue delay, or is needlessly cumulative) and therefore inadmissible under Rule 403, and get a ruling.

11.

If the judge rules the evidence admissible, request a contemporaneous instruction that appropriately limits the jury’s consideration to the proper purpose for which it was admitted, and, additionally, that the jury may not consider this evidence for any purpose unless it finds, beyond a reasonable doubt, that the defendant committed this conduct. Sample 4. See Rankin v. State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996)(when requested, the court must give a limiting instruction at the time the extraneous misconduct evidence is admitted). “a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted. When the defendant has properly requested a limiting instruction in the jury charge, the trial court must also include an instruction on the State's burden of proof at that time.

Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) 12.

Use your cross-examination skills to challenge the witness who sponsors the extraneous misconduct. See § IIC, below, for some general ideas.

13.

Request, during the charge conference, that the court instruct the jury again that the jury must consider the challenged evidence only for the limited purpose for which it was admitted, and not then, unless satisfied that the State has proven beyond a reasonable doubt that the defendant committed the extraneous misconduct. Sample 4.

C.

Cross-Examining The 404(b) Witness.

Most general cross-examination skills apply to every type of case, and every type of witness, whether your case involves sexual assault or DWI, and whether your witness is a confidential informant, or a treating neurosurgeon, or any sort of person sponsoring 404(b) evidence. Each of the bullet points that follow are not unique to the 404(b) witnesses, but reminding you of them will not hurt: •

Often the extraneous misconduct will not have been immediately reported, and will only surface later, sometimes many years later, at trial. This probably happens most often when the complainants are domestic partners of the defendant, or children. Of course, the prosecutors will always offer multiple reasons for the 5

delayed outcry. That said, certainly with adult witnesses, effective crossexamination on the delay can sometimes cause doubts, and must always be considered. Smart lawyers might also determine that the delayed outcry, especially with child witnesses, might be more safely dealt with in closing arguments.

•

Extraneous misconduct can be admissible even if it was never reported, and never adjudicated. Most jurors will be more skeptical of unadjudicated conduct, so this should usually be pointed out during cross-examination. Even better are those cases in which the witness has reported the misconduct, but the police failed to arrest, or the prosecutor declined to prosecute.

•

In those cases when the misconduct was reported, paper – and sometimes lots of paper – will have been generated. Any time a witness has committed to a story on paper, their trial testimony will differ from the earlier version, and this will require you to impeach by complying with the predicate set out in T EX. R. EVID. 613(a).

•

Witnesses who sponsor extraneous misconduct will sometimes have biases or interests. Spouses in divorce or custody disputes who hope that convicting your client of the charged offense will improve their positions in their own litigation are the most obvious examples. But any sort of civil litigant might have similar interests. If you are defending a driving offense, such intoxication manslaughter, the prosecution might call a witness who claims also to have had an accident in which your client was at fault and was intoxicated or reckless. Consult T EX. R. EVID. 613(b) for impeachment based on bias or interest. See, e.g., Davis v. Alaska, 415 U.S. 308 (1974)(State’s witnesses, including juveniles, who are facing charges, might be motivated to testify against the defendant, and, can be impeached accordingly); Giglio v. United States, 405 U.S. 150 (1972)(promises of leniency).

•

The credibility of any witness may be attacked by reputation or opinion testimony.

TEX.. R. EVID. 608(a).

•

You can attack the character for truthfulness of a witness who has been finally convicted of non-remote felonies or misdemeanors involving moral turpitude. See TEX.. R. EVID. 609. And, although the rule can get complicated, a defendant can impeach certain witnesses, including juveniles, for biases even absent a final conviction. E.g., Davis v. Alaska, 415 U.S. 308 (1974).

•

In criminal cases, except as limited by Rule 412, “a defendant may offer evidence 6

of a victim’s pertinent trait.” TEX.. R. EVID. 404(a)(3)(A). See Sample 6. And Rule 404(b) is not always bad for the defendant; it can also be used by the defense to admit misconduct evidence against non-defendants. E.g., Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998). See § XV, below.

III. WHAT IS “EXTRANEOUS” MISCONDUCT? A.

The Definition Could Hardly Be Broader.

1.

"An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers." Rankin v. State, 953 S.W. 2d 740, 741 (Tex. Crim. App. 1996)("Appellant's confession that he possessed a rock of crack cocaine earlier that morning is an act that is clearly 'shown in the charging papers."').

2.

Conversely, an act that is charged, or “shown” in the charging instrument, is not extraneous. Where appellant was charged with intoxicated manslaughter by a controlled substance, “evidence of a cocaine metabolite in [his] bloodstream was not an extraneous offense—it was evidence of the charged offense.” Manning v. State, 114 S.W.3d 922, 927 (Tex. Crim. App. 2003); see also Canales v. State, 98 S.W.3d 690, 697 (Tex. Crim.

App. 2003)(appellant’s membership in the Texas Mafia and that organization’s criminal activities were not extraneous to the charged offense but were part of the ‘combination’ element of the charged offense”); Henderson v. State, 962 S.W.2d 544, 567 (Tex. Crim.

App. 1997)(a somewhat generalized admission by appellant that she had killed “a male” was not extraneous because the “testimony could rationally be viewed by a jury as an admission to committing the offense at trial”).

B.

Extraneous Misconduct Need Not Amount To Criminal Activity.

1.

"The terms 'extraneous offense' and 'prior misconduct' are not interchangeable. The former term refers to prior conduct which constitutes an offense under the penal code.

The latter refers to acts which, while not inherently criminal, are regarded in our society as morally or ethically reprehensible." Both sorts of misconduct are analyzed in the same manner. Templin v. State, 711 S.W. 2d 30, 32 n. 1 (Tex. Crim. App. 1986)(electrocution of dogs and cats). "The analysis of the admissibility of extraneous conduct is the same whenever the extraneous conduct reflects adversely on the character of the defendant, regardless of whether that conduct might give rise to criminal liability." Plante v. State, 692 S.W. 2d 487, 490 n. 3 (Tex. Crim. App. 1985)(unpaid debts).

7

2.

Rule 404(b) "applies equally to evidence of extraneous acts or transactions as it does to evidence of extraneous offenses." Bishop v. State, 869 S.W. 2d 342, 345 (Tex. Crim. App. 1993)(that appellant had liked to engage in anal intercourse with his ex-wife, that he had required her to fondle herself, and that he had been capable of extended sexual performance without ejaculation was, at a minimum, evidence of extraneous acts, and therefore subject to analysis under Rule 404(b).

3.

However, when balancing potential for prejudice against probative value, it is true that the noncriminal nature of conduct will tend to reduce its prejudicial effect. Plante v.

State, 692 S.W. 2d at 494.

4.

Appellant made a written confession to the police concerning primarily the instant capital murder, but embedded within that confession he also admitted to once having planned to kidnap and hold for ransom a person he believed to be the nephew of San Antonio mayor Henry Cisneros. Appellant’s statements, though were mere “inchoate thoughts.” Absent conduct that, alone or in combination with these thoughts, though, there was nothing constituting “a bad act or wrong, much less a crime”, and for this reason, it was not excludable under Rule 404(b). Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993), cert. denied, 114 S. Ct. 445 (1993)(trial court did, however, err under Rule 403, but the error was harmless); Goldberg v. State, 95 S.W.3d 345, 374-76 (Tex. App. 2002)(notebooks and letters in which appellant wrote his gruesome fantasies about killing a woman were relevant to motive and identity, and not excludable under Rule 403 because they contained only “inchoate thoughts”); see also Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996)(statements about appellant's thoughts on raping, killing and mutilating women in a very specific manner were not conduct and thus not subject to rule 404(b)).

5.

"Obviously, reference by a witness to a defendant's prior incarceration in the penitentiary, . . . is improper because it violates the longstanding general rule which prohibits the introduction of collateral offenses and transactions." Fuller v. State, 827 S.W. 2d 919, 926 (Text Crim. App. 1992), cert. denied, 113 S.Ct.3035 (1993); accord, Ecby v. State, 840 S.W. 2d 761, 764 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd)(trial court erred in admitting unredacted TDC identification card).

6.

The trial court errs in admitting a mug shot taken some five months before the instant offense was committed, because this picture tended to show commission of an extraneous offense. Richardson v. State, 536 S.W. 2d 221, 223 (Tex. Crim. App. 1976).

Cf. Huerta v. State, 390 S.W. 2d 770, 772 (Text Crim. App. 1965)(no error admitting police photo where [a]ll identification marks were removed, and, as far as the jury were able to determine, it might have been taken in a penny arcade"); but see Smith v. State, 8

595 S.W. 2d 120, 123 (Tex. Crim. App. 1980)(error waived absent objection).

7.

The state argued that a reference in appellant's confession to "getting a car" was not an extraneous offense, since this could have referred to innocent behavior. The court disagreed, finding that the statement indicated an extraneous offense, in the context in which it was used. Ramirez v. State, 815 S.W. 2d 636, 644 (Tex. Crim. App. 1991).

8.

In Brandley v. State, 691 S.W. 2d 699 (Tex. Crim. App. 1985), cert. denied, 498 U.S. 817 (1990), the state argued that appellant's statement concerning high school girls, "if he got one of them alone, ain't no telling what he might do," was not extraneous matter. The court disagreed. "Initially we note that the extraneous matter need not constitute an offense in order to fall under the extraneous transaction rule. The established rule in this area applies to extraneous transactions which include but are not limited to acts which are not offenses." Id. at 705-706.

9.

In Gant v. State, 649 S.W. 2d 30 (Tex. Crim. App. 1983), the trial court admitted appellant's confession in which appellant, among other things, admitted to buying a gun to shoot some people. The court of appeals had earlier held that the evidence was admissible because merely purchasing a gun with an intent to shoot someone is not a crime. The court of criminal appeals disagreed with this analysis. "The rule appellant invokes is not limited to a completed accomplishment of all elements of a penal offense defined in the code. It also embraces proof of similar occurrences, other extraneous transactions and prior specific acts of misconduct." Id. at 35.

10.

Testimony in an aggravated robbery case from seven convenience store clerks that they had encountered appellant when working, and that, in their opinions, his reputation as a peaceful and law-abiding citizen was bad, "created an inference of specific instances of extraneous unadjudicated offenses." Monroe v. State, 864 S.W. 2d 140, 143-44 (Tex. App.– Texarkana 1993, pet. ref'd).

11.

When appellant was arrested for possession of methamphetamine, the police seized $7,000.00 dollars cash from her car, and the state offered this evidence against her at trial. "Since the only inference to be drawn from introduction of the money was that Appellant was dealing in narcotics, we conclude that the money was introduced in order to show an extraneous offense by Appellant." Martin v. State, 761 S.W. 2d 26, 30-31 (Tex. App.– Beaumont 1988, pet. granted), 764 S.W. 2d 562 (Tex. Crim. App. 1989)(remanded for a harm analysis).

12. "[B]ecause a contempt proceeding is quasi-criminal in nature, and in view of the fact that appellant was ordered jailed 'day to day' until she complied with the court's order, 9

the admission into evidence of the contempt order and the reading of its contents to the jury constituted the admission of an extraneous offense." Turner v. State, 715 S.W. 2d 847, 850 (Tex. App.–Houston [14th Dist.] 1986, no pet.).

13.

"The complained of testimony concerning Hodges' girlfriend, subsequent divorce, and birth of an illegitimate child, was highly inflammatory, and should not have been admitted in evidence without relation to an essential element of the offense." Hodges v.

State, 651 S.W. 2d 386, 389 (Tex. App.–Fort Worth 1983, no pet.).

14.

Not every piece of damaging evidence, however, constitutes extraneous misconduct. A diary which did not tend to connect appellant to any prior bad acts or crimes appellant might have committed did not constitute an extraneous offense.

Lockhart v. State, 847 S.W. 2d 568, 573 (Tex. Crim. App. 1992), cert. denied, 114 S. Ct. 146 (1993); see Dixon v. State, 828 S.W. 2d 42, 47-48 (Tex. App.–Tyler 1991, pet. ref’d)(possession of police scanner not an act of misconduct).

15. Allowing a minor to remain unsupervised in the presence of his brother, a registered sex offender was “part of the context of the crime for which he was being tried and is not an extraneous bad act.” Worthy v. State, 295 S.W.3d 685, 690 (Tex. App. 2009), aff'd, 312 S.W.3d 34 (Tex. Crim. App. 2010).

C.

When The Charged Offense Is Alleged To Have Occurred “On Or About” Some Date.

1.

In Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996), the State presented evidence that crack cocaine was found under the seat of the police car that appellant had sat in. Appellant testified that he had possessed cocaine earlier that day, but that the cocaine in the car was not his. His wife also testified to his possession of cocaine earlier in the day, telling the jury that appellant had thrown that cocaine in the sink. The intermediate court of appeals reversed, holding appellant had admitted to an extraneous offense, not the charged offense, and that the prosecutor improperly argued to the jury that it could convict based on this confession. The court of criminal appeals reversed the reversal. “An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. . . . Appellant's confession that he possessed a rock of crack cocaine earlier that morning is an act that is clearly “shown in the charging papers.” Therefore, the Court of Appeals erred in holding that appellant admitted to committing an extraneous offense.” Id. at 741(emphasis in original).

2.

In Rodriguez v. State, 104 S.W.3d 87, 88 (Tex. Crim. App. 2003), the indictment 10

alleged that appellant delivered cocaine to another on or about September 9, 1998. The recipient testified that appellant delivered the cocaine to her on that date, and maybe 20 or 30 other times in a nine-month period preceding September 9. The court held that the testimony about the possible 20 or 30 deliveries preceding the date alleged in the indictment “was not evidence of extraneous offenses and that appellant's remedy was to require the State to elect the occurrence on which it sought to rely for conviction.” Id. at 91 (Tex. Crim. App. 2003); see also Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997); Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997).

D.

Extraneous Misconduct Embedded In Confessions.

1.

In Gant v. State, 649 S.W. 2d 30 (Tex. Crim. App. 1983), the trial court admitted appellant's confession in which appellant, among other things, admitted to buying a gun to shoot some people. The court of criminal appeals held that "the trial court should have caused to be excised from his confession appellant's gratuitous explanation of his decision to buy a pistol, and thereby rendered inadmissible all the extracurricular testimony and jury argument about the matter." Id. at 35-36(error harmless, though).

2.

The trial court erred in allowing a portion of appellant's confession into evidence which referred to an extraneous automobile theft. Ramirez v. State, 815 S.W. 2d 636, 645 (Tex. Crim. App. 1991).

3.

The trial court erred in not striking two extraneous offenses from appellant's confession where those offenses were not res gestae of the charged offense. Wyle v. State, 777 S.W. 2d 709, 715-16 (Tex. Crim. App. 1989).

4.

Although appellant’s medical records were relevant and admissible for their bearing on his mental state, they also “contained numerous, often detailed, references to [appellant’s] extraneous offenses, prior bad acts, and unpopular attitudes, which were admitted without objection.” Parmer v. State, 545 S.W.3d 724, 733 (Tex. App.– Texarkana 2018, no pet.)(counsel was ineffective for not objecting to the irrelevant and prejudicial evidence in the medical records, and for making no effort to redact same).

5.

Even though appellant was indicted for capital murder for murdering a child under six, the trial court did not err in refusing to redact that portion of his confession where he had admitted to also sexually assaulting the child in the course of the murder, for two reasons. First, “the sexual assault was so intertwined with the murder that the jury's understanding of the offense would have been obscured without it.” Second,”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.” Wyatt v. State, 23 11

S.W.3d 18, 25–26 (Tex. Crim. App. 2000).

E.

Third-Party Misconduct.

1.

In Castaldo v. State, 78 S.W.3d 345 (Tex. Crim. App. 2002), appellant was arrested for possession of marijuana, and was the passenger in a car driven by an intoxicated person. The State was allowed to prove the driver’s intoxication, asserting that misconduct by persons other than the defendant is not prohibited by Rule 404(b).

The Court rejected that argument. “This conduct certainly could be used to infer his bad character.” Id. at 350.

IV. EXTRANEOUS OFFENSES CAN BE DEVASTATING A.

Oh, the horrors.

Innumerable cases abstractly preach the general and fundamental principle that no one should be convicted based on propensity evidence. And then, more often than not – indeed, far more often than not, and despite the comforting platitudes – these cases go on to find some exception to the general rule that allows this devastating evidence to be admitted. Or the court holds that error was waived. Or the court finds that, although inherently prejudicial, the evidence was somehow harmless. That said, it can’t hurt to remind trial and appellate judges of some of the language that has been used over the years warning just how bad this evidence can be.

B.

“Anglo-American jurisprudence has always shown a marked reluctance to admit evidence of extraneous offenses or prior misconduct.” (Seriously?)

1.

"It is a well established and fundamental principle in our system of justice that an accused person must be tried only for the offense charged and not for being a criminal (or a bad person) generally. It is for this reason that Anglo-American jurisprudence has always shown a marked reluctance to admit evidence of extraneous offenses or prior misconduct. Such evidence carries with it the danger that a defendant in a criminal action may be convicted of an implied charge of having a propensity to commit crimes generally rather than the specific offense for which he is on trial." Templin v. State, 711 S.W. 2d 30, 32 (Tex. Crim. App. 1986)(citations omitted).

2.

"It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense of which he is charged and not for being a criminal in general.

Because extraneous offense evidence carries with it the inherent risk that a defendant may 12

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."

Owens v. State, 827 S.W. 2d 911, 914 (Tex. Crim. App. 1992).

3.

"Evidence of a defendant's bad character traits possesses such a devastating impact on a jury's rational disposition towards other evidence, and is such poor evidence of guilt, that an independent mandatory rule was created expressly for its exclusion." Mayes v.

State, 816 S.W. 2d 79, 86 (Tex. Crim. App. 1991)(that rule is Rule 404).

4.

“Character evidence is generally inadmissible, notwithstanding its relevance, because ‘it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge.’” Sims v. State, 273 S.W.3d 291, 294 (Tex. Crim. App. 2008).

5.

"The policy behind limiting the admissibility into evidence of extraneous offenses is well established. In our system of justice an accused person may not be tried for collateral criminal offenses or for being a criminal generally. As this Court has often noted, evidence of extraneous offenses is of an inherently prejudicial nature and may tend to confuse the issues of the case. Such evidence carries with it the additional danger that an accused person may be called upon to defend himself against an implied charge of having a propensity to commit crimes rather than the specific offense for which he is on trial." Parks v. State, 746 S.W. 2d 738, 739 (Tex. Crim. App. 1987)(citations omitted).

6.

“While such evidence will almost always have probative value, it forces the defendant to defend himself against uncharged crimes as well as the charged offense, and encourages the jury to convict a defendant based upon his bad character, rather than proof of the specific crime charged.” Daggett v. State, 187 S.W.3d 444, 450–51 (Tex. Crim.

App. 2005).

7.

"Evidence tending to establish a defendant is a 'criminal generally' is patently inadmissible." Bordelon v. State, 683 S.W. 2d 9, 12 (Tex. Crim. App. 1985).

8.

"It is a generally accepted proposition that a defendant is entitled to be tried on the accusation in the State's pleading and not for a collateral crime or for being a criminal generally." Cain v. State, 642 S.W. 2d 806, 808 (Tex. Crim. App. 1982). "This limitation is imposed because evidence of extraneous offenses is prejudicial, tends to confuse the issues, and forces the defendant to defend against charges the State has not provided notice of." Id.

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9.

"Evidence of extraneous offenses generally is excluded because it confuses and prejudices the issue of guilt of the instant offense." Gipson v. State, 619 S.W. 2d 169, 170 (Tex. Crim. App. 1981). "In addition to confusing and prejudicing the issue of guilt, a third danger that the rule against proof of extraneous offenses guards against is unfair surprise." Id. 10.

Extraneous offense evidence is "inherently prejudicial." Sanders v. State, 604 S.W. 2d 108, 111 (Tex. Crim. App. 1980).

11.

"Limitations on the admissibility of evidence of an accused's prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him." Albrecht v. State, 486 S.W. 2d 97,100 (Tex. Crim. App. 1972).

12.

“Because the propensity to commit crimes is not a material fact in a criminal case, Rule 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.” Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim.

App. 2008).

13.

"We are quite aware that exceptions to inadmissibility are often employed as a subterfuge for the admission of propensity type evidence." Hargraves v. State, 738 S.W. 2d 743, 749 n. 1 (Tex. App.--Dallas 1987, pet. ref’d).

V. HISTORICAL ANALYSIS Before the rules of evidence was codified, various tests were formulated in the case law.

A.

Albrecht v. State.

1.

In Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App.1972), the court recognized that extraneous offenses are admissible under a wide variety of circumstances, and then proceeded to enumerate a non-exhaustive list of such circumstances: Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred--what has been termed the "res 14

gestae"--under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state's case and cannot be inferred from the criminal act. (5) To show the accused's motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.

Id. at 100-101.

2. “[T]his Court has occasionally shown a lamentable propensity to list those situations in which extraneous offenses have been admitted into evidence, frequently citing Albrecht v. State, supra, and then attempted to fit a given set of facts within one of the listed categories of circumstances. The better approach is certainly to eschew such mechanistic attempts to apply some ‘Albrecht formula’. . . .” Crank v. State, 761 S.W.2d 328, 342 (Tex. Crim. App. 1988) 3.

"Although the list of exceptions appearing in Albrecht is an accurate and well written statement as to the current law of evidence, it has created much confusion." Parks v. State, 746 S.W. 2d 738, 740 (Tex. Crim. App. 1987). The list is not exhaustive or exclusive, and it is not a standard to determine the admissibility of extraneous offenses.

"Rather, the circumstances which justify the admissions of extraneous offenses are as varied as the factual circumstances of each case wherein the question arises." Id. B.

Williams v. State.

Many believed Albrecht was the definitive extraneous offense case. Then came Williams v. State, 662 S.W. 2d 344 (Tex. Crim. App. 1983). There, appellants argued that extraneous offenses were inadmissible because they did not fit neatly into one of the exceptions recognized in Albrecht. The Williams court made it clear that the Albrecht list of examples, although a good one, was still only a list. Pursuant to the "true test," extraneous offenses "may become admissible upon a showing by the prosecution both 15

that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential." Williams v. State, 662 S.W. 2d at 346.

VI. RULE 404(b) A.

Applicability.

1.

Since September 1, 1986, Rules 401, 402, 403 and 404 of the Texas Rules of Criminal Evidence govern most questions concerning the admissibility of extraneous evidence. "Plainly, the most important guide to admissibility of extraneous misconduct in all penal contexts is now given by the Texas Rules of Criminal Evidence. . . . Those rules were drawn to include a codification of the general prohibition against proof of extraneous offenses to show character conformity." Vernon v. State, 841 S.W. 2d 407, 410-411 (Tex. Crim. App. 1992).

2.

Some of the cases cited in this paper were decided before the Rules of Criminal Evidence became effective. There is some indication that these pre-Rules cases may have limited precedential value. In Wells v. State, 810 S.W. 2d 179 (Tex. Crim. App. 1990), the court originally granted the state's petition for discretionary review. Subsequently, the court refused the petition, finding that the trial was held in April, 1986, before the rules of evidence became effective. "The admissibility of an extraneous offense is now governed

by TEX.R.CRIM.EVID. 404(b). Thus, we find that a resolution of the issue raised in the State's petition would neither contribute to the jurisprudence of this State nor be justified under TEX.R.APP.PROC. 200." Id. at 179.

B.

Text.

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction.

TEX. R. CRIM. EVID. 404(b).

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C.

General Rule.

1.

In general, extraneous misconduct is not excluded because it is irrelevant. If it were entirely irrelevant, it would of course be inadmissible for that reason alone, under Rules 401 and 402. Rather, even relevant evidence is excluded under Rule 404(b) if it is relevant only "to prove the character of a person in order to show that he acted in conformity therewith." Extraneous misconduct may be admissible, however, "if it has relevance apart from its tendency 'to prove the character of a person in order to show that he acted in conformity therewith."' Gilbert v. State, 808 S.W. 2d 467, 471 (Tex. Crim.

App. 1991). "Hence, the State may introduce such evidence where it logically serves 'to make . . . more probable' an elemental fact; where it serves 'to make . . . more probable' an evidentiary fact that inferentially leads to an elemental fact, or where it serves 'to make . . . less probable' defensive evidence that undermines an elemental fact." Id. at 472 (evidence that made it marginally more probable that appellant committed the instant bank robbery – because he was a bank robber in general, is precisely the sort of evidence which must be excluded by Rule 404(b)).

2.

"The propensity rule is mandatory; when the rule of exclusion codified in Rule 404 applies, only those purposes other than propensity, such as those listed in subsection (b) of Rule 404, will justify otherwise inadmissible character evidence. Such evidence must be directed at a consequential fact, and its probative value must not be outweighed by its prejudicial potential." Mayes v. State, 816 S.W. 2d 79, 86 (Tex. Crim. App. 1991).

3.

"Rule 404(b) exists, in large part, to counter the possibility that evidence may be admitted to show a defendant's corrupt nature from which the jury may then render a verdict not on the facts of the case before them, but, rather, on their perception of the defendant's character." Rankin v. State, 974 S.W. 2d 707, 709 (Tex. Crim. App. 1996), Rule 404(b) contains a three part admissibility test. The evidence must have a purpose other than character conformity; it must have relevance to a "fact of consequence" in the case; and, it must be free of any other constitutional or statutory prohibitions. Id. 4.

Nothing in Rule 404(b) provides that hearsay is admissible for the purpose of establishing evidence of other crimes. King v. State, 765 S.W. 2d 870, 872 (Tex. App.–Houston [1st Dist.] 1989, no pet.).

VII. THE MANY EXCEPTIONS RECOGNIZED BY RULE 404( b) Rule 404(b) contains illustrations of the permissible "other purposes" to which extraneous misconduct can be put. Gilbert v. State, 808 S.W. 2d 467, 472 (Tex. Crim.

17

App. 1991)(motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). These illustrations, of course, are not exhaustive. E.g, Banda v.

State, 768 S.W. 2d 294, 296 (Tex. Crim. App. ), cert. denied, 493 U.S. 2d 923 (1989). In fact, the "other purposes" sentence in the rule "has sometimes been more a source of confusion than guidance." Rankin v. State, 974 S.W. 2d 707, 709 (Tex. Crim. App. 1996).

“Rule 404(b), however, lists a number of exceptions to this rule. . . . This list is neither exclusive nor exhaustive.” Smith v. State, 898 S.W.2d 838, 842 (Tex. Crim. App. 1995). “At the guilt/innocence phase of a trial, an extraneous offense may be offered for any number of reasons.” Powell v. State, 898 S.W.2d 821, 830 (Tex. Crim. App. 1994 Indeed. A reasonable person might wonder whether the exceptions have swallowed the rule.

A.

Rebuttal Of A Defensive Theory.

“Probably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory.” Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988); accord, Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim.

App. 2003).

1.

Inadmissible.

a.

In Pavlacka v. State, 892 S.W. 2d 897 (Tex. Crim. App. 1994), the state argued that an extraneous sexual assault was admissible to rebut defensive evidence that the child's testimony was the product of improper influence or motive. The court of criminal appeals rejected this theory. It was the state, on direct examination, which asked the witnesses whether they had suggested the child implicate appellant, and both witnesses emphatically denied they had done so. Appellant did not pursue the matter on cross-examination or in summation. Also, the state did not argue this theory of admissibility at trial. Id. at 901. b.

The Pavlacka court also rejected the state's assertion that this extraneous misconduct was admissible to rebut appellant's emphatic denials that he had committed the instant offense. This is not a permissible purpose of Rule 404(b). Pavlacka v. State, 892 S.W. 2d 897, 901-02 (Tex. Crim. App.1994). The only logical force of evidence in this context is to show character conformity, and this, of course, is expressly forbidden by Rule 404(b). Id. at 902. c.

An extraneous sexual assault against his daughter was not admissible to rebut appellant's implied theory of "frame-up." "[T]his 'frame-up' theory was not 18

presented to the jury in the trial court's limiting instruction. Absent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant's 'system' to rebut the weight or credibility of appellant's 'frame-up' theory or relied on it for an improper basis such as character conformity."

Owens v. State. 827 S.W. 2d 911, 917 (Tex. Crim. App. 1992). d.

Evidence that appellant committed burglary and attempted murder in his trial for escape was not admissible to rebut his defense of necessity. These extraneous offenses occurred some 12 hours after the escape was complete. "That an escapee later in time and place committed extraneous offenses or engaged in other misconduct has no bearing on whether at the threshold he reasonably believed it immediately necessary to leave custody in confinement to avoid imminent harm." That is, this extraneous evidence is not relevant to any material issue in the defense of necessity. Fitzgerald v. State, 782 S.W. 2d 876, 883-85 (Tex. Crim. App. 1990). e.

The fact that appellant killed his uncle and was found not guilty by reason of insanity did not tend to prove that appellant was sane at the time of the instant offense, nor did it tend to rebut his defensive theory. Sanders v. State, 604 S.W. 2d 108, 111 (Tex. Crim. App. 1980). There was no attempt here to establish a mental defect solely by adducing evidence of repeated criminal acts, and even if there had been, repeated commission of criminal acts does not prove sanity. Id. at 111-112. f. “[A] challenge to the complainant’s credibility on cross-examination does not automatically open the door to extraneous-offense evidence. . . . Instead, the response elicited from the State’s witnesses on cross-examination must be sufficient to construct a defensive theory before the State may introduce extraneous-offense evidence in rebuttal.”

Aguillen v. State, 534 S.W.3d 701, 714 (Tex. App.–Texarkana 2017, no pet.). g.

“The fact that the appellant's defense in this case was alibi would not alone authorize the admission of testimony about extraneous offenses to show the appellant's identity.” Messenger v. State, 638 S.W.2d 883, 887 (Tex. Crim. App. 1982)(extraneous offenses were not committed on the night of the instant offense, they would not have shown appellant was not where he said he was on the night in question). h.

“Evidence to rebut alibi is admissible if it places the accused at a place where he claimed not to be, or if the evidence shows the impossibility of his alibi, notwithstanding the fact that it shows the commission of an offense, even if that offense is dissimilar to the charged offense.” Reyes v. State, 69 S.W.3d 725, 742 (Tex. App.–Corpus Christi 2002, pet. ref’d)(an extraneous offense more than seven months before the charged offense, could not serve to refute appellant's alibi which was limited to 19

the date of the charged offense”). i.

On cross-examination, appellant testified that he thought he was being framed and that one Jackie Morgan was in fact the perpetrator. On rebuttal, the state called Morgan, who denied any sexual misconduct with the complainant, but claimed that appellant had sexually assaulted him. This was error. This was a collateral matter. It is improper for the state to first extract a defensive theory on cross-examination, and then to proceed to impeach or rebut appellant's denial. Nor did Morgan's testimony about appellant serve to rebut appellant's defensive theory. "[I]t does no more than show generally appellant's propensity to commit the crime of sexual assault." Celeste v. State, 805 S.W. 2d 579, 581 (Tex. App.–Tyler 1991, no pet.). j.

Defensive theory that appellant did not own the car nor have exclusive access to the car in which the cocaine was found did not open the door to evidence of a prior conviction for possession of cocaine by appellant. Perry v. State, 933 S.W.2d 249, 254 (Tex. App.–Corpus Christi 1996, pet. ref’d).

2.

Admissible.

a.

Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)(trial court did not err in admitting extraneous misconduct for purpose of rebutting the defense theory that the charges in the instant case were retaliatory). b.

Evidence of a prior murder was admissible to rebut appellant's defensive theory that he neither killed the complainant nor knew his co-defendant would kill him.

Taylor v. State, 920 S.W. 2d 319, 322 (Tex. Crim. App. 1996). c.

Evidence that appellant stole the murder weapon is admissible to rebut a defensive theory raised during cross-examination which may have raised the inference that appellant did not own this weapon. Ransom v. State, 920 S.W. 2d 288, 301 (Tex. Crim. App. 1996). d.

Other crime evidence might be admissible either to establish or rebut the defense of entrapment to the extent it is relevant to the issues of inducement or persuasion. England v. State, 887 S.W. 2d 902, 909 (Tex. Crim. App. 1994). e.

Extraneous offense evidence is admissible to rebut a defensive theory and establish participation in the instant offense. Crank v. State, 761 S.W. 2d 328, 347 (Tex. Crim. App. 1988).

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f.

The trial court properly admitted evidence of extraneous sexual misconduct to rebut appellant's claim that he was the victim of a conspiracy engineered by the complainant and his mother. "An accused's claim that he was framed is a recognized defensive theory which may be rebutted by evidence of similar extraneous acts."

Creekmore v. State, 860 S.W. 2d 880, 893 (Tex. App.–San Antonio 1993, pet. ref’d). g.

Evidence that appellant previously assaulted the complainant was admissible to rebut his defensive theory that necessity required he strike the complainant to subdue her since she was extremely inntoxicated. Moreno v. State, 961 S.W.2d 512, 51333-14 (Tex. App.–San Antonio 1997, pet. filed).

B.

Identity, Modus Operandi, System, Handiwork, etc.

1.

General rule.

a.

“One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender.” Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim.

App. 2008). b.

The court of criminal appeals has used a number of terms synonymously to describe the “identity” exception, including: system, modus operandi, signature, handiwork, and methodology. Page v. State, 213 S.W.3d 332, 336 n. 7 (Tex. Crim. App. 2006); see also Owens v. State, 827 S.W. 2d 911, 914-15 (Tex. Crim. App. 1992). c.

Modus operandi may also encompass the “doctrine of chances” theory to show lack of consent, motive, and the manner of committing an offense.” Casey v. State, 215 S.W. 3d 870, 881 (Tex. Crim. App. 2007). d.

At least two things must be true before the identity exception applies. First, identity must be in issue in the case. Beets v. State, 767 S.W. 2d 711 (Tex. Crim. App. 1987). Second, even when identity is disputed, "the extraneous matter may still be inadmissible unless there are distinguishing characteristics common to both offenses such that the accused's acts are earmarked as his handiwork; his 'signature' must be apparent from a comparison of circumstances in both cases." Id. at 740. “Raising the issue of identity does not automatically render extraneous offenses admissible.” Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). e.

The first requirement – that identity be disputed – is, to put it mildly, far from onerous. “The trial judge has considerable latitude in determining that identity is, in fact, disputed. It may be placed in dispute by the defendant's opening statement or 21

cross-examination, as well as by affirmative evidence offered by the defense.” Segundo v. State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008)(the question is not how strong or effective the impeachment was, but rather, whether it occurred at all; if so, extraneous misconduct relevant to identity are admissible under Rule 404(b)). Just about anything competent defense counsel might do will put identity in dispute. E.g., Page v. State, 137 S.W.3d 75, 78 (Tex. Crim. App. 2004)(cross-examination of the victim suggesting that his 265 pound client was not her 200 pound assailant” was sufficient to raise the issue of identity and authorize admission of extraneous misconduct); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)(appellant made it clear in a pretrial hearing that the voluntariness of his confession would be an issue, and then later attacked his confession during cross-examination). f.

The second requirement is arguably a slightly bigger obstacle for the State.

The court recognizes that there will always be some similarities when the charged and the extraneous offenses are the same type of crime. “That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime.” Ford v. State, 484 S.W.2d 727, 730 (Tex. Crim. App. 1972) (conviction reversed where there “no distinguishing characteristic common to both crimes” and the only similarities were “more in the nature of the similarities common to the type of crime itself rather than similarities peculiar to both offenses alone”).

2.

Inadmissible.

a.

In Bishop v. State, 869 S.W. 2d 342 (Tex. Crim. App. 1993), the state offered evidence of the defendant's sexual behavior with his ex-wife as a basis for establishing his identity as the rapist. The state argued that the extraneous acts were admissible to show identity. Id. at 345. The court of criminal appeals disagreed. "The traditional rule in regard to admission of extraneous acts for the purpose of showing identity is that the acts sought to be admitted must be so similar to the offense charged that the accused's acts are marked as his handiwork, that is, his 'signature' must be apparent from a comparison of circumstances in both cases." That is, the similarity between the extraneous acts of misconduct and the charged offense must be shown to have a higher degree of similarity than extraneous acts sought to be admitted for other purposes in order for the probative value to overcome the prejudicial effect of the evidence. Id. at 346. b.

An extraneous sexual assault was inadmissible where the similarities between it and the instant offense were "not so unusual or idiosyncratic as to signal 22

conclusively that the two offenses were the handiwork of the same individual." Owens v.

State, 827 S.W. 2d 911, 915 (Tex. Crim. App. 1992). Although the two offenses were alike in that they were both sexual assaults against appellant's minor daughters of approximately the same age, they "were not so compellingly similar that an objective trier of fact could, upon examining only the similarities of the two offenses, conclude with any certitude that they were so alike as to identify both crimes as the work of the same person." Additionally, there were several important dissimilarities between the two offenses. Id. To hold that these two offenses were similar enough to constitute a system would be to allow almost any two crimes of the same class and against the same type of victim to be found a system. This is forbidden under Rule 404(b). Id. at 915-16. c.

Even assuming the State showed a system of criminal activity, "we find that such evidence was not relevant to any material fact in dispute." Owens v. State, 827 S.W. 2d 911, 916 (Tex. Crim. App. 1992). There was no contested issue of identity, nor was there any other issue pursuant to Rule 404(b). "We fail to see how evidence of appellant's 'system' could assist the jury in its determination of whether or not appellant molested his daughter, except that it tends to show character conformity in violation of Rule 404." Id. at 916-17. d.

Photographs showing bruises to the Christopher’s sister inflicted by appellant and his wife, Crystal, do not tend to prove the fact of consequence, “that appellant, not Crystal, burned Christopher. Johnston v. State, 145 S.W.3d 215, 222 (Tex. Crim. App. 2004)(harmless error, though). e.

Although identity is a material issue raised in every indictment, that alone does not necessarily insure the admission of extraneous offenses. Here, the state elicited a direct, positive identification of appellant which was in no way impeached or even weakened by cross-examination. "Thus, the issue was utterly uncontested at the time the State instituted its barrage of evidence regarding the extraneous offense." Elkins v. State, 647 S.W. 2d 663, 665-66 (Tex. Crim. App. 1983). f.

That appellant assaulted adult women as they returned to their cars in public places was not so distinctive as to mark these assaults as appellant's handiwork. "To say that two sexual assaults are similar because they are both acts of sadistic sexual deviations is not to point to a device that is so unusual and distinctive as to be like a signature; it is merely to characterize a feature of that general class of offenses. Almost any two sexual assaults could be characterized as sadistic acts, just as almost any two murders could be characterized as violent acts. This is nothing more than dressing in psychological garb the very thing that the law on evidence of extraneous offenses forbids: proof of the repeated commission of a class of offenses to demonstrate that the defendant is a criminal (or 23

sexual deviate) generally." Collazo v. State, 623 S.W. 2d 647, 649 (Tex. Crim. App. 1981). g.

An extraneous assault was not admissible to prove identity where there was no question of identity. "The only question was, which of the shots which were fired from various guns was the one that struck the victim." Cross v. State, 586 S.W. 2d 478, 481 (Tex. Crim. App. 1979). h.

That appellant used heroin three months after the instant delivery was alleged to have occurred "adds little, if anything, in the way of probative evidence to rebut his defensive theory of alibi." Hines v. State, 571 S.W. 2d 322, 325 (Tex. Crim.

App. 1978). i.

Remoteness of time together with other circumstances "were such as to render the evidence of the rape in Florida two years and nine months prior to the instant offense, when appellant was less than 13 years old, to be inadmissible. James v. State, 554 S.W. 2d 680, 683 (Tex. Crim. App. 1977). j.

Where there were numerous dissimilarities, and the similarities that did exist were neither unique, nor like a “signature” or “earmark” of any person, and where they were “extremely remote” with no intervening misconduct, the trial court erred in admitting the extraneous misconduct on the question of identity. Curtis v. State, 89 S.W.3d 163, 174 (Tex. App.–Fort Worth 2002, pet. ref’d). k.

That appellant choked and sexually assaulted two young females in the El Paso area within a six week time frame after meeting them at a social gathering is insufficiently similar to justify admission. "[W]e find these general 'similarities' to be wholly innocuous as such features would tend to be common to many cases. It is not enough to say the offenses are sufficiently similar. Rather, the offenses must be distinctively similar. Nothing within the instant 'similar' facts indicates an unusual and distinctive method or commission of an offense such that it can be considered an earmark of the perpetrator's handiwork." Lazcano v. State, 836 S.W. 2d 654, 659 (Tex. App.–El Paso 1992, pet. ref’d). l.

Although appellant raised identity with his alibi defense, the instant and the extraneous offenses were insufficiently similar. Wysner v. State, 763 S.W. 2d 790, 793 (Tex. App.–Dallas 1987, pet. ref’d). "With regard to both extraneous offenses, the fact that they occurred in Oak Cliff within a two week span, involved violence and stealing, involved second persons, and involved thefts of cash from small businesses, does not illustrate characteristics that are so nearly identical in method to the instant offense as to 24

earmark them as the handiwork of appellant. Far from being distinctive, these 'characteristics' would describe a great many robberies and thefts committed by persons other than appellant." Id. Also, since the complainant consistently testified that appellant was the robber, the probative value of the extraneous offenses is outweighed by its prejudicial effect. Id. m.

There were insufficient distinguishing characteristics to constitute a "signature." Additionally, appellant's identity had already been proven by an eyewitness.

McGee v State, 725 S.W. 2d 362, 365 (Tex. App.–Houston [14th Dist.] 1987, no pet.).

"The State introduced circumstantial evidence of the extraneous offense even though appellant's identity had already been proven adequately. The inflammatory and prejudicial effect outweighed any probative value the extraneous offense might have had." Id. n.

Although there were several distinctive similarities concerning the victims, locations, and times of the two offenses, the court also found certain dissimilarities. In analyzing both the similarities and dissimilarities, the court was unable to find the type of distinctive signature necessary to justify admission of the extraneous offense. Martin v.

State, 722 S.W. 2d 172, 174-75 (Tex. App.–Beaumont 1986, pet. ref’d). o.

The victim of an aggravated robbery testified that a group of Hispanic males, he believed were gang members, attacked him. The State offered evidence of appellant’s gang membership to establish identity. The appellate court noted that evidence of gang membership does not constitute an act or wrong highly similar to the crime charged and status or trait evidence is barred by Rule 404. Galvez v. State, 962 S.W.2d 203, 205 (Tex. App.–Austin 1998, pet. ref’d). p.

Even if it could be argued that appellant's alleged sexual misconduct with his former wife was sufficient to prove modus operandi or system, this evidence was not relevant here where identity was clearly not in issue. Cooper v. State, 901 S.W. 2d 757, 761 (Tex. App.– Beaumont 1995), pet dism'd, improvidently granted, 933 S.W.2d 495 (Tex. Crim. App. 1996). q.

That both sexual assaults occurred in Crystal City, early in the morning, while both complainants were sleeping, by a man who entered their homes without consent, and assaulted his victims in a common sexual position were not similarities that would mark both crimes as the “handiwork of the accused.” Avila v. State, 18 S.W.3d 736, 741 (Tex. App.–San Antonio 2000, no pet.). r.

That the intruder did not wear glasses, and had entered tow nearby residences early in the morning, that he fondled the complainants while they slept with a 25

child and fled when they awoke were not similarieies “so distinctive to rise to the level of the defendant's signature.” Rather, the similarities were “more in the nature of the similarities common to this type of crime itself”). Reyes v. State, 69 S.W.3d 725, 739 (Tex. App.–Corpus Christi 2002, pet. ref’d)(also considering remoteness with no intervening misconduct).

3.

Admissible.

a.

In Beets v. State, 767 S.W. 2d 711 (Tex. Crim. App. 1987), appellant was on trial for killing her then husband for remuneration. The state contended that appellant herself killed the deceased. Appellant's defensive theory was that another person, not she, was the trigger person. The trial court admitted evidence that she had also killed a former husband on the question of identity. The distinguishing characteristics were sufficient in Beets: In the case at bar, the "signature" is close to perfect. A similar and unique weapon with a barrel grooved with a 'left-hand twist' was used in each shooting. The initial act of murder by means of multiple .38 caliber bullet wounds to the back of the head is the same. So too is the time of the killing, occurring late at night after the victim had retired for the evening and lay unguarded in sleep. The reason behind the murders appears to be the same, for pecuniary gain of which the actor would not otherwise be entitled. Comparison of the coverup activity in both cases is also instructive. The bodies of both men were enshrouded in sleeping bags and buried in the yard around appellant's trailer house. Holes for the bodies had been previously excavated, ostensibly for a 'bar-b-que pit' in the back yard and a 'wishing-well planter' in the front yard.

Innocuous-looking structures were placed over each grave site and the yard was tended in a normal fashion by appellant.

Taking all of the above facts into consideration, we find the State has shown the existence of sufficient common distinguishing characteristics between the extraneous and primary offenses to tip the balance in favor of admitting the extrinsic probative evidence going to the contested, material issue of identification.

Id. at 740.

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b.

Identity is a gold-mine for the State. E.g., Page v. State, 213 S.W.3d 332, 338 (Tex. Crim. App. 2006)(appellant drove a maroon car and told three prostitutes he was a policeman but would not arrest them in exchange for sex in mid-1997); Martin v.

State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)(appellant falsely claimed to be a law enforcement officer as a ruse to “pick up” both the complainant and the extraneousoffense witness, and both women testified that they agreed to meet appellant in a residential area, that the meeting was the first face-to-face meeting after initial contact, and that they were sexually assaulted by appellant in a residence); Johnson v. State, 68 S.W.3d 644, 651 (Tex. Crim. App. 2002)(“Though appellant's challenges on the identity issue may not have been persuasive, that was nevertheless his only defense.”); Lane v.

State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996)(both victims were young girls who were strangled and sexually assaulted and the appellant kept the underwear of both victims as a trophy); Taylor v. State, 920 S.W. 2d 319, 322 (Tex. Crim. App. 1996)(both elderly victims were found with some cloth and a wire coat hanger wrapped around their necks); Moore v. State, 700 S.W.2d 193, 201 (Tex. Crim. App. 1985)(sufficient common characteristics between the offenses); Jones v. State, 587 S.W. 2d 115, 119 (Tex. Crim.

App. 1978)(the defensive theory of alibi places identity in issue).

C.

Motive.

1.

Inadmissible.

a.

Evidence that appellant used and sold methamphetamine was not admissible to show his motive to commit burglaries. "We have previously held such arguments to be overly speculative and without merit." Rogers v State, 853 S.W. 2d 29, 34 (Tex. Crim.

App. 1993). b.

The trial court erred in admitting evidence that appellant was in possession of a syringe when arrested for the instant burglary. "There is no suggestion or indication that appellant burglarized the warehouse to obtain money or property to support a drug habit." Couret v. State, 792 S.W. 2d 106, 108 (Tex. Crim. App. 1990). c.

Where appellant admitted he knew he was selling some kind of dope, but claimed that he did not know it was heroin, the trial court erred in admitting evidence of multiple indictments for delivery of heroin. The court of criminal appeals was "unpersuaded that their admission could have been of any assistance to the jury in resolving the material issues regarding appellant's motive, intent or guilty knowledge, which were contested by defensive testimony." Bates v. State, 643 S.W. 2d 939, 945 (Tex. Crim. App. 1982).

27

d.

In Bush v. State, 628 S.W. 2d 441, 443 (Tex. Crim. App. 1982), appellant was tried for capital murder, the proof showing that appellant killed a police officer during commission of a burglary of a pharmacy. Proof of the burglary was admissible since it was so connected to the murder as to "constitute an indivisible criminal transaction." Id. The state also, however, put on evidence that appellant had used Preludins intravenously to get high. This evidence was inadmissible. It was not related in time or place to the capital murder. Id. at 443-44. Nor was this evidence relevant to prove motive. Such evidence was not offered to prove the motive for the offense charged -capital murder -- but rather for another offense, burglary of the pharmacy. "We find that the extraneous offense of drug use is impermissibly offered to show a motive to commit an additional extraneous offense and that it is not material or relevant to the offense charged." Id. at 444. There is no relevancy in demonstrating the motive for an offense other than the one charged. Id. e.

Evidence that appellant had been previously acquitted for murder by reason of insanity was not admissible to prove appellant's knowledge of the commitment process, which was his motive for faking the insanity defense. Sanders v. State, 604 S.W. 2d 108, 112 (Tex. Crim. App. 1980). f.

Evidence that appellant had needle marks in his arm was not admissible to prove his motive to commit the charged offense -- theft. "The chain of inferences is too long and contains too many gaps to allow the introduction of evidence of needle marks alone to show possible motive for theft. The prejudicial effect of such evidence far outweighs any probative value it might have. To admit such testimony without showing some affirmative link between the theft and narcotics would show only that the accused is 'a criminal generally."' Powell v. State, 478 S.W. 2d 95, 98 (Tex. Crim. App. 1972). g.

Appellant's propensity to lure susceptible females away from the public view and assault them does not show that he harbored some ill will or other motive to murder the complainant or females in general. "Such an inference is precisely the type of character conformity evidence that Rule 404(b) does not allow." Lazcano v. State, 836 S.W.2d 654, 660 (Tex. App.–El Paso 1992, pet. ref'd). h.

Motive, intent or knowledge for appellant's alleged possession of cocaine were not at issue. Nelms v. State, 834 S.W. 2d 110, 113-14 (Tex. App.–Houston [1st Dist.] 1992, pet. ref'd). i.

A hearsay statement from the deceased complainant to her mother some two weeks before her death that she was afraid and had found proof that appellant had killed his former wife was not admissible to prove motive. "The extraneous offense referred to 28

happened seven years previously. There was no evidence, other than objected-to hearsay, that appellant killed a prior wife. It is clear that the prejudice to appellant of admitting testimony regarding a possible murder of a prior wife is substantial. The prosecution had already put on overwhelming evidence of marital problems between appellant and his wife and that his wife feared him. The extraneous offense evidence was simply unnecessary, whose relevance value did not outweigh its prejudicial potential." Ridgely v.

State, 756 S.W. 2d 870, 872 (Tex. App.–Fort Worth 1988, no pet.). j.

The trial court erred in admitting evidence that appellant had been found in contempt of court in her trial for capital murder. "The rule is clear that evidence showing motive must be offered to show a motive to commit the offense for which the defendant was charged -not to show a motive to commit an additional extraneous offense." Turner v. State, 715 S.W. 2d 847, 852 (Tex. App.–Houston [14th Dist.] 1986, no pet.). k.

In Escort v. State, 713 S.W. 2d 733 (Tex. App.–Corpus Christi 1986, no pet.), appellant was charged with killing her boyfriend or former common-law husband, and the state was permitted to prove that she had previously killed an ex-husband, for the purpose of showing motive and rebutting her defense of self-defense. This was error. The state put on overwhelming evidence of appellant's guilt, refuting her defense. The extraneous offense was "overkill." Unrelated violence toward a third party could not have been helpful to the jury in resolving the contested issue of self-defense. The fact that appellant shot an ex-husband provides no insight into her motive for the instant murder.

Id. at 737. l.

In Martinez v. State, 705 S.W. 2d 772 (Tex. App.–San Antonio 1986, pet. ref'd), appellant was charged with attempting to murder a Mr. Hackett, who was permitted to testify that appellant had participated in the killing of her husband. "The justification for the introduction of the extraneous offense was to establish motive, however, there is no proof in this record that appellant was guilty of that offense or that she had ever been indicted for it." Id. at 776. m.

Testimony concerning appellant's girlfriend, subsequent divorce, and birth of an illegitimate child, was highly inflammatory, and, contrary to the assertions of the prosecutor, "did not fairly raise an inference of motive and was clearly prejudicial to the rights of the appellant to a fair trial." Hodges v. State, 631 S.W. 2d 386, 389 (Tex. App.–Fort Worth 1983, no pet.). n.

That appellant had previously been abusive to his 16 year live in girl friend was not admissible to prove motive for injuring a two year old child. Motive evidence is usually required to relate or pertain to other acts by the accused against the victim of the 29

instant crime. Additionally, "it must fairly tend to raise an inference in favor of the existence of the motive on the part of the accused to commit the offense for which he is being tried." Neither is true here. The extraneous assaultive evidence does not explain why appellant would assault the child victim here, other than that it showed his propensity to do so. Zuliani v. State, 903 S.W. 2d 812, 827 (Tex. App.–Austin 1995, pet. ref'd). o.

Evidence of appellant's prior act of misconduct where he, while under the influence of drugs, went over to his ex-girlfriend's house, undressed, and climbed into her bed was not admissible to show motive in appellant's trial for murder of someone other than the ex-girlfriend and the victim was not killed in bed and no evidence existed that appellant was using drugs at the time of the murder. Lopez v. State, 928 S.W.2d 528, 532 (Tex. Crim. App. 1996).

2.

Admissible.

a.

Where appellant disputed that he had committed the charged murders in the same criminal transaction or during the same scheme or course of conduct, extraneous misconduct was admissible because it revealed “appellant's common ‘anti-truck driver’ motive or a common scheme behind the shootings.” Feldman v. State, 71 S.W.3d 738, 755 (Tex. Crim. App. 2002). b.

Admission of evidence that the victim was sexually assaulted was proper where ”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.” Wyatt v.

State, 23 S.W.3d 18, 25–26 (Tex. Crim. App. 2000). c.

That appellant and other members of his gang had been involved in an altercation earlier in the night with members of a rival gang was admissible to show appellant's motive and intent, where the State’s theory was that the charged offense was in revenge for the murder of a member of appellant’s gang. Medina v. State, 7 S.W.3d 633, 644 (Tex. Crim. App. 1999). d.

Evidence that appellant smoked cocaine on the night of the murder “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.” Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). e.

Evidence of needle marks was admissible, since appellant's drug use was relevant to show his motive in committing capital murder. Etheridge v. State, 903 S.W.2d 1, 11 (Tex. Crim. App. 1994).

30

f.

Evidence of an extraneous aggravated robbery was admissible to show appellant's motive and intent. Smith v. State, 898 S.W. 2d 838, 842 (Tex. Crim. App. 1995). g.

Evidence that appellant was afraid of having to serve federal time, and that he committed the instant offense to finance his flight to Belize, is admissible to show motive. Gosch v. State, 829 S.W.2d 775, 783 (Tex. Crim. App. 1991). h.

The state was permitted to prove that defendant had been investigated (not convicted) several years earlier for kidnaping and sexual assault, where there was evidence that he feared further investigation when he shot a policeman. According to the court, this proved motive. Hafdahl v. State, 805 S.W.2d 396, 398 (Tex. Crim. App. 1990). i.

Evidence that appellant was on federal parole, and knew that a warrant had been issued for his arrest due to parole violations, was admissible to prove his motive for killing a police officer -- namely to avoid apprehension. Valdez v. State, 776 S.W. 2d 162, 168 (Tex. Crim. App. 1989). j.

Evidence of a robbery 11 days prior to killing a police officer was relevant to prove that defendant's motive in shooting the officer was to avoid apprehension. Porter v. State, 623 S.W. 2d 374, 384 (Tex. Crim. App. 1981); accord, Barefoot v. State, 596 S.W. 2d 875, 886 (Tex. Crim. App. 1980); Hughes v. State, 563 S.W. 2d 581, 589 (Tex. Crim. App. 1978); see also Crane v. State, 786 S.W.2d 338, 350 (Tex. Crim. App. 1990) (probation). k.

Evidence that defendant had previously been charged with robbing the deceased was admissible to prove his motive to eliminate the principal witness in that prosecution. Russell v. State, 598 S.W. 2d 238, 251 (Tex. Crim. App. 1980). l.

Evidence of a prior murder was admissible to rebut appellant's defensive theory that he neither killed the complainant nor knew his co-defendant would kill him.

Taylor v. State, 920 S.W. 2d 319, 322 (Tex. Crim. App. 1996). m.

Evidence of appellant's prior drug use was admissible in appellant's capital murder trial to show the motive of why someone from Alabama would rob a drug store in Galveston. Because an affirmative link existed between the underlying offense of robbery of a pharmacy and appellant's use of narcotics, the evidence complained of established a motive for the charged offense and was admissible. Knox v. State, 934 S.W.2d 678, 682-83 (Tex. Crim. App. 1996).

31

D.

Opportunity.

1.

Inadmissible.

a.

Whatever its speculative value, evidence in a possession of cocaine case that appellant, when arrested, had marijuana hidden in his shoe and sock, was not admissible to prove knowledge or opportunity. Garcia v. State, 871 S.W. 2d 769, 772 (Tex. App.–Corpus Christi 1994, pet. ref’d).

2.

Admissible.

a.

Extraneous misconduct was admissible to rebut appellant’s defensive that he had no opportunity to commit the crime charged because he was never alone with the complainant. “It is at least subject to reasonable disagreement whether the extraneous offense evidence made this defensive theory less probable since this evidence shows that appellant molested other girls in the presence of others.” Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001) E.

Intent.

1.

Inadmissible.

a.

Extraneous forgeries, because of their similarity to the instant offense, were clearly relevant. However, the court found that the probative value of this evidence was outweighed by its prejudicial effect. When she signed her name to 22 checks, appellant established her fraudulent intent. No other alternative was put forth. "Thus, the inclusion of the extraneous offenses was not necessary to shore up the State's case or disprove an otherwise innocent intent. Consequently its comparative prejudicial impact outweighed its minimal probative value in the instant case." Clark v. State, 726 S.W. 2d 120, 124 (Tex. Crim. App. 1986)(citations omitted). b.

In the instant case, appellant was charged with the aggravated kidnaping of a twelve year old girl, with intent to terrorize, sexually violate and sexually abuse her. To prove his intent, the state offered an extraneous offense, several months before, in which appellant committed sodomy on a twelve year old boy. The court of criminal appeals held this evidence inadmissible. Relevance is a function of similarity. "The extraneous offense involved in the instant case is simply not sufficiently similar to be probative on the issue of intent. As is amply pointed by the Court of Appeals there are numerous similarities and differences between the two offenses." Garza v. State, 715 S.W. 2d 642, 644 (Tex. Crim.

App. 1986). Even under the relaxed similarity requirement that applies to proof of intent, 32

the extraneous offense here is not sufficiently similar to justify its admission. Id. c.

The probative value of certain extraneous misconduct was too low to make it admissible concerning appellant's intent. Some of these debts were too dissimilar, others were too remote in time, and, in one, the evidence did not clearly show that appellant committed the misconduct. Plante v. State, 692 S.W. 2d 487, 495 (Tex. Crim.

App. 1985). d.

Where appellant admitted he knew he was selling some kind of dope, but claimed that he did not know it was heroin, the trial court erred in admitting evidence of multiple indictments for delivery of heroin. The court of criminal appeals was "unpersuaded that their admission could have been of any assistance to the jury in resolving the material issues regarding appellant's motive, intent or guilty knowledge, which were contested by defensive testimony." Bates v. State, 643 S.W. 2d 939, 945 (Tex. Crim. App. 1982). e.

Evidence of an extraneous burglary/theft and rape was not admissible to prove that appellant had the intent to commit theft when he committed the instant burglary. "Appellant's intent to commit theft was presumed after the complainant testified that appellant entered her locked apartment without her consent in the nighttime." Jones v. State, 587 S.W. 2d 115, 119 (Tex. Crim. App. 1978). f.

Where appellant used a deadly weapon to commit the instant capital murder, "intent to kill was not really in issue." Riles v. State, 557 S.W. 2d 95, 99 (Tex. Crim. App. 1977). Nor was the evidence of intent to rob equivocal. Here, intent to commit robbery during the course of a murder was clearly inferable from the acts of the appellant. "Thus, where the intent can be inferred from the act, extraneous offenses are not admissible." Id. g.

Where appellant’s DNA showed intentional penetration, but his sole defense was that he did not murder the victim, and the did not attempt to undermine the State’s evidence on intent, it was “not a hotly contested issue in the case. Appellant's sole defense was that he was not the murderer. “The State may not introduce extraneous offenses as circumstantial evidence of an element in its case-in-chief if that element can be readily inferred from other uncontested evidence.” Curtis v. State, 89 S.W.3d 163, 175 (Tex. App.–Fort Worth 2002, pet. ref’d). h.

Where appellant’s intent to arouse and gratify his sexual desire could be inferred from his acts, words, and conduct, extraneous misconduct was inadmissible.

DeLeon v. State, 77 S.W.3d 300, 312 (Tex. App.–Austin 2001, pet. ref’d).

33

i.

Here, the trial court admitted an extraneous aggravated robbery even though intent was not seriously contested. This was error. "In this case, the trial court abused its discretion by admitting extraneous offense evidence that was relevant only to issues that were not seriously contested and that were proved by direct evidence or were readily inferred from other available evidence." Castillo v. State, 865 S.W. 2d 89, 96-97 (Tex. App.–Corpus Christi 1993, no pet.). j.

The evidence that appellant caused another's sexual organ to contact his mouth was also sufficient to establish the requisite intent. The trial court therefore erred in admitting extraneous misconduct. Hill v. State, 852 S.W.2d 769, 770 (Tex. App.–Fort Worth 1993, pet. ref'd). k.

Approximately an hour after he was arrested for aggravated assault on a peace officer, appellant said he wanted to kill the first white officer he saw after getting out of jail. The state argued that this statement was admissible on the question of intent.

The court of appeals disagrees. Because it was made well after the instant offense, "[t]here is clearly no relevance to the statement other than as propensity evidence." Peterson v.

State, 836 S.W. 2d 760, 764 (Tex. App.–El Paso 1992, pet. ref'd). l.

Nothing about the extraneous sexual assault indicated any intent to kill, since appellant voluntarily released his choke hold. Also, it does not appear that appellant challenged intent. Finally, the circumstances surrounding the offense "abundantly support a strong inference of Appellant's intent to kill without the need for support by way of extraneous offense evidence." Lazcano v. State, 836 S.W. 2d 654, 659-660 (Tex. App.–El Paso 1992, pet. ref’d). m.

Motive, intent or knowledge for appellant's alleged possession of cocaine were not at issue. Nelms v. State, 834 S.W. 2d 110, 113-14 (Tex. App.–Houston [1st Dist.]

1992, pet. ref'd). n.

In Garcia v. State, 827 S.W. 2d 27 (Tex. App.–Corpus Christi 1992, no pet.), the state argued that extraneous sexual misconduct with other children was admissible to prove appellant's intent to arouse and gratify his sexual desire in the instant case. The court of appeals disagreed. The evidence of intent in the instant case could be amply inferred from the act itself. On the other hand, such intent was not necessarily implied in the extraneous conduct. The state had no compelling need to prove the extraneous misconduct.

Id. at 31. o.

The trial court erred in admitting two extraneous robberies which were 34

remote and insufficiently similar to be relevant and probative on the question of intent.

Birl v. State, 763 S.W. 2d 860, 862 (Tex. App.–Texarkana 1988, no pet.). p.

Where the circumstances surrounding the offense of aggravated sexual assault abundantly support the inference of intent, an extraneous offense was more prejudicial than probative. Hargraves v. State, 738 S.W. 2d 743, 748 (Tex. App.–Dallas 1987, pet. ref'd). q.

Although intent was relevant where appellant was charged with burglary, intent was not a contested issue. "When the required intent can be inferred from the act itself, and the defendant puts on no evidence to rebut the inference, intent cannot be said to be a contested issue." Here, the circumstances were clearly sufficient for the jury to infer an intent to commit theft. Ortega v. State, 626 S.W. 2d 746, 747-48 (Tex. Crim. App. 1981); see McGee v. State, 725 S.W. 2d 362, 365 (Tex. App.–Houston [14th Dist.] 1987, no pet.). r.

The trial court erred in admitting extraneous assaultive evidence in an injury to a child case where the circumstances surrounding the offense abundantly supported a strong inference of intent. "Here, there was medical testimony about the victim's injuries and the cause of death. Photographs introduced into evidence reflected those injuries.

There was testimony from [several witnesses] about appellant's repeated verbal and physical conduct towards the victim." Zuliani v. State, 903 W. 2d 812, 827 (Tex. App.–Austin 1995, pet. ref’d). s.

In Cooper v. State, 901 S.W. 2d 757 (Tex. App.–Beaumont 1995), pet. dism'd, improvidently granted, 933 S.W.2d 495 (Tex. Crim. App. 1996), the court of appeals rejected the state's attempt to justify extraneous offenses on the "intent" rationale.

This theory was not propounded at trial, and seemed to the appellate court as "a rather transparent attempt at resurrecting admissibility at the eleventh hour." Id. "At any rate, we are not prepared to concede that evidence of otherwise consensual sexual relations between an adult male and female, albeit involving anal intercourse, is relevant in the prosecution of said adult male for engaging in forcible sex acts perpetrated upon male and female children, albeit also involving anal intercourse." Id. t.

Evidence that appellant had a teardrop tattoo and that this tattoo symbolized either that one has murdered someone, or that one has served time in jail, was not relevant to the issue of intent in a murder and attempted murder case. Palomo v. State, 925 S.W.2d 329, 337 (Tex. App.–Corpus Christi 1996).

2.

Admissible.

35

a.

Although a defendant does not put intent in issue merely by pleading not guilty, it is different where he has the audacity to go beyond this “through vigorous cross-examination of the prosecution witnesses suggesting that the victim's death was caused by some means other than an intentional act by appellant. As a matter of logic and common sense it is at least debatable whether this is sufficient to put appellant's intent at issue.” Robbins v. State, 88 S.W.3d 256, 261 (Tex. Crim. App. 2002). b.

That appellant and other members of his gang had been involved in an altercation earlier in the night with members of a rival gang was admissible to show appellant's motive and intent, where the State’s theory was that the charged offense was in revenge for the murder of a member of appellant’s gang. Medina v. State, 7 S.W.3d 633, 644 (Tex. Crim. App. 1999). c.

Where intent was hotly contested, “[e]vidence of appellant's participation in [an extraneous] murder just four months earlier . . . served to rebut his argument that he lacked the requisite intent to promote or assist [his co-conspirator] in the capital murder in the instant case.” Sorto v. State, 173 S.W.3d 469, 491 (Tex. Crim. App. 2005). d.

"The issue of intent is of such overriding importance in a case of forgery that it effectively becomes the focus of the State's case. Establishing intent in such cases is so crucial and so difficult to do that, as a practical matter, evidence of extraneous offenses is nearly always admissible." Parks v. State, 746 S.W. 2d 738, 739 (Tex. Crim. App. 1987). e.

A high degree of similarity is required when extraneous offenses are offered to show identity. "Clearly, such a high degree of similarity is not required when the purpose of the proof is to show intent." Plante v. State, 692 S.W. 2d 487, 493 (Tex. Crim.

App. 1985)(certain extraneous debts admissible because they made criminal intent more likely in theft by deception case). f.

Extraneous election law violations were found to be admissible in this election law prosecution. "Extraneous offenses are admissible 'to prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself."' Beck v. State, 583 S.W. 2d 338, 346-47 (Tex. Crim. App. 1979). g.

Forty other instances in which appellant's books had shown shortages were admissible in her trial for theft on the issue of her intent. McCarron v. State, 605 S.W. 2d 589, 593-94 (Tex. Crim. App. 1980). h.

Evidence of an extraneous aggravated robbery was admissible to show appellant's motive and intent. Smith v. State, 898 S.W. 2d 838, 842 (Tex. Crim. App. 36

1995). i.

Evidence of a prior murder was admissible to prove appellant's intent and motive. Taylor v. State, 920 S.W.2d 319, 322 (Tex. Crim. App. 1996).

F.

Plan.

1.

General rule.

a.

“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, 187 S.W.3d 444, 451–52 (Tex. Crim. App. 2005).

2.

Inadmissible.

a.

"The 'common plan' exception has been often employed as a 'subterfuge for the admission of propensity-type evidence."' Boutwell v. State, 719 S.W. 2d 164, 180 (Tex. Crim. App. 1986). "A series of similar acts are not enough to show a common plan or design." Id. "Central to the common plan or scheme exception is that there be a plan or scheme and the extraneous offenses are steps taken toward the accomplishment of the plan." Mere general similarities do not show a plan or preconceived scheme. "In the instant case there is no evidence of a plan such that the extraneous offenses could be viewed as steps taken toward the accomplishment of a plan. A showing of appellant's commission of other similar offenses, without more, does not show a common plan so that the various acts are 'to be explained as caused by a general plan of which they are individual manifestations."' Id. at 181. b.

"The proof offered as to the alleged offense clearly showed the fraudulent scheme and the lack of consent on the part of the complainant. The extraneous offenses were not needed to prove a fraudulent scheme or the other elements of the offense. They served only to establish the appellant's bad character. Nance v. State, 647 S.W. 2d 660, 663 (Tex. Crim. App. 1983). c.

In Lazcano v. State, 836 S.W. 2d 654, 660 (Tex. App.–El Paso 1992, pet. ref'd), the state argued that a prior sexual assault accompanied by choking was admissible 37

to show a common plan or scheme. The court of appeals disagreed. "Due to the deplorable prevalence of such similar acts, it cannot be said that evidence of an accused's commission of a single generally similar act, without more, constitutes a logically related central plan, scheme or motivation." Id. at 661. d. "[T]here is no evidence that the extraneous offenses were committed during a continuing course to accomplish a plan to sexually assault the complainant. The showing of appellant's commission of similar offenses with third parties does not, of itself, show a plan or scheme." Dove v. State, 768 S.W. 2d 465, 468 (Tex. App.–Amarillo 1989, pet. ref’d). e.

The instant offense was aggravated sexual assault, and the state offered evidence that appellant had attacked another woman and stolen jewelry from her a week after the instant offense. The court found that the fact that appellant took a piece of jewelry from each woman failed to show a common plan or scheme to commit aggravated sexual assaults. "The extraneous offense involved in the instant case is simply not sufficiently similar to support its admissibility on a 'common plan or scheme' exception to the general rule." Hargraves v. State, 738 S.W. 2d 743, 749 (Tex. App.–Dallas 1987, pet. ref’d). f.

Evidence of extraneous sex offenses committed by the appellant against third parties was not admissible to show a continuing course of conduct on the part of the appellant. Such acts prove nothing but propensity. Cruz v. State, 737 S.W. 2d 74, 77 (Tex. App.–San Antonio 1987, no pet.). g.

"The evidence showing extraneous offenses is no more indicative of a plan than of the possibility that the appellant did not know what was going to happen when he brought the horse over to the girls, but, instead, formed the intent to molest each girl separately." Rankin v. State, 974 S.W. 2d 707, 710 n. 2 (Tex. Crim. App. 1996).

3.

Admissible.

a.

Evidence that appellant solicited the help of another to commit a robbery before the instant offense was admissible as part of appellant's plan and preparations to carry out the instant offense. Also, the evidence is admissible as "same transaction contextual evidence." Burks v. State, 876 S.W. 2d 877, 899-900 (Tex. Crim. App. 1994). b.

Judge Clinton dissented in Burks: The majority parades these words as if their meanings, and application in the context of this case, were self-evident. One 38

suspects that, forced to articulate how [the witness’s] testimony shows “plan” as that word is properly understood in context of Rule 404(b), or how exactly it can be construed to be part of the “same transaction” or “context” as the offense here, the majority would be, ironically, at a loss for words. . . .

Burks v. State, 876 S.W.2d 877, 911-13 (Tex. Crim. App. 1994)(Clinton, J., dissenting).

G.

Knowledge.

1.

Inadmissible.

a.

Where appellant admitted he knew he was selling some kind of dope, but claimed that he did not know it was heroin, the trial court erred in admitting evidence of multiple indictments for delivery of heroin. The court of criminal appeals was "unpersuaded that their admission could have been of any assistance to the jury in resolving the material issues regarding appellant's motive, intent or guilty knowledge, which were contested by defensive testimony." Bates v. State, 643 S.W. 2d 939, 945 (Tex. Crim. App. 1982). b.

Evidence that appellant had been previously acquitted for murder by reason of insanity was not admissible to prove appellant's knowledge of the commitment process, which was his motive for faking the insanity defense. Sanders v. State, 604 S.W. 2d 108, 112 (Tex. Crim. App. 1980). c.

The instant charge was aggravated possession of amphetamine. The trial court admitted a prior conviction for burglary, which occurred some 36 months prior to appellant's arrest for the instant offense. The state argued that this burglary was relevant to prove appellant's knowledge, because appellant stole, among other things, glassware commonly used to manufacture amphetamine. The court disagreed, chiding the state for the series of assumptions required. "The chain of inferences is too attenuated. The first offense was too dissimilar and too far removed in time to be relevant for the purpose of proving [appellant's] 'guilty knowledge.' By no reasonable perception of common experience can it be concluded that a burglary conviction has a tendency to make more or less probable the fact that [appellant] knew what amphetamine was and knew that it was a controlled substance." Nolen v. State, 872 S.W. 2d 807, 812-13 (Tex. App.–Fort Worth 1994, pet. ref'd). d.

Whatever its speculative value, evidence in a possession of cocaine case that appellant, when arrested, had marijuana hidden in his shoe and sock, was not admissible to 39

prove knowledge or opportunity. Garcia v. State, 871 S.W. 2d 769, 772 (Tex. App.–Corpus Christi 1994, pet. ref'd). e.

Where the evidence merely established a credibility question between the respective witnesses, evidence that appellant was a drug dealer because he wore a beeper was inadmissible. Motive, intent or knowledge for appellant's alleged possession of cocaine were not at issue. Nelms v. State, 834 S.W. 2d 110, 113-14 (Tex. App.–Houston [1st Dist.] 1992, pet. ref'd). f.

Although possession of a large amount of money might be admissible to show knowledge in a possession of methamphetamine case, this evidence is not admissible absent some affirmative link between it and appellant. Martin v. State, 761 S.W.2d 26, 30-31 (Tex. App.–Beaumont 1988, pet. granted), remanded for a harm analysis, 764 S.W. 2d 562 (Tex. Crim. App. 1989). g.

Appellant's prior conviction for possession of cocaine is not admissible in the instant charge of possession of cocaine simply because the prior possession would demonstrate that appellant had knowledge of what cocaine looks like. The court of appeals held that whether appellant knows what cocaine looks like is neither an element of the crime, nor an issue raised by the defense and is excludable under Rule 404(b). Perry v.

State, 933 S.W.2d 249, 254 (Tex. App.–Corpus Christi 1996, pet. ref’d).

2.

Admissible.

a.

That appellant presented multiple identification cards when arrested was relevant to show that he knew a crime had been committed and that he was a likely suspect. Felder v. State, 848 S.W. 2d 85, 98 (Tex. Crim. App. 1992), cert. denied, 114 S. Ct. 95 (1993). b.

Extraneous election law violations were found to be admissible in this election law prosecution. "Extraneous offenses are admissible 'to prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself."' Beck v. State, 583 S.W. 2d 338, 346-47 (Tex. Crim. App. 1979).

H.

Absence Of Mistake Or Accident.

1.

Inadmissible.

a.

Pictures of injuries caused to the complainant’s sister were not admissible under the accident exception where appellant’s defense was not accident or mistake, but 40

instead that his wife accidentally or mistakenly caused the injury. Johnston v. State, 145 S.W.3d 215, 223 (Tex. Crim. App. 2004)(error harmless, though). b.

Evidence that appellant was a drug dealer because he wore a beeper was not admissible in this possession case because "there is no issue of accident or mistake to explain possession." Nelms v. State, 834 S.W. 2d 110, 114 (Tex. App.–Houston [lst Dist.]

1992, pet. ref’d). c.

In Baker v. State, 781 S.W.2d 688 (Tex. App.–Fort Worth 1989, pet. ref'd), the state offered extraneous misconduct to prove that appellant touched the child with intent to gratify his sexual desire, and not by accident. "We note that if extraneous offenses are used to negate the possibility the present act was an accident, such offenses must be sufficiently similar in nature to the charged offense so that the inference of improbability of accident logically comes into play." Id. at 690. Not so here. "The facts and circumstances of each alleged offense are different." Id. d.

Evidence of a previous attempted capital murder was not admissible in the charged attempted capital murder to refute the appellant's absence of mistake. Booker v.

State, 929 S.W.2d 57, 64 (Tex. App.–Beaumont 1996, pet. ref’d).

2.

Admissible.

a.

In a prosecution of an employee for helping his wife receive paychecks for work she did not perform, the testimony of a witness that he also was paid for work he did not do by falsely filling out time sheets at the appellant's direction, and that he did personal work for the appellant on state time, was admissible to show an absence of mistake and that the appellant had knowledge and opportunity to commit the charged offense. Willis v.

State, 932 S.W.2d 690, 697 (Tex. App.–Houston [14th Dist.] 1996, no pet.). b.

Evidence of sexual abuse of the victim was admissible in a trial for injury to a child to rebut the defensive theory that the victim's head injury was the result of an accident. Stiles v. State, 927 S.W.2d 723, 732 (Tex. App.–Waco 1996, no pet.).

I.

Contextual Evidence.

1.

General rule.

a.

Context is sometimes used synonymously with "res gestae." "Simply put, to qualify as 'res gestae', the evidence of extraneous offenses must be so closely interwoven with the offense on trial that it shows the context in which the offense occurred." Maynard 41

v. State, 685 S.W. 2d 60, 67 (Tex. Crim. App. 1985)(evidence of marijuana and switchblade did not constitute res gestae because there was absolutely no relationship or connection between these offenses and the burglary with which appellant was charged). b.

What was formerly called "res gestae" evidence is now called "background" evidence. A two-part test is employed to determine the admissibility of background evidence. "The first question to be addressed is whether the background evidence is relevant under Rule of Criminal Evidence 401. If the background evidence in question is relevant, the next issue to be resolved is whether the evidence 'should be admitted as an "exception" under Rule 404(b)"' Rogers v. State, 853 S.W. 2d 29, 32 (Tex. Crim. App. 1993)(citations omitted). c.

There are two different types of contextual evidence: "same transaction" contextual evidence, and "background" contextual evidence. Mayes v. State, 816 S.W. 2d 79, 86-87 (Tex. Crim. App. 1991).

2.

"Same transaction" contextual evidence. a.

General rule.

i.

"Same transaction contextual evidence is deemed admissible as a so-called exception to the propensity rule where several crimes are intermixed, or blended with one another, or connected that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.' The reason for its admission 'is simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose. Necessity, then seems to be one of the reasons behind admitting evidence of the accused's acts, words and conduct at the time of the commission of the offense." Mayes v. State, 816 S.W. 2d 79, 86-87 n.4 (Tex. Crim. App. 1991)(citations omitted). ii. “[S]ame transaction contextual evidence is admissible ‘only to the extent that it is necessary to the jury's understanding of the offense.’ . . . . (quoting England v. State, 887 S.W.2d 902, 915 (Tex. Crim. App. 1994)). It is admissible ‘only when the offense would make little or no sense without also bringing in the same transaction evidence.’” Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App. 2000). b.

Inadmissible. i.

Although the charged and extraneous offenses occurred on the same 42

day, during the appellant's same visit to the grandmother's apartment, and within a short time after the charged offense, evidence about the cousin was not necessary for the jury to understand appellant’s conduct toward the complainant. “The evidence concerning the complainant makes perfect sense without bringing in evidence of the appellant's conduct with the cousin and is clearly divisible in that it involves a different victim, at a different time, after the charged conduct was completed.” McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). ii.

In Rogers v. State, 853 S.W. 2d 29 (Tex. Crim. App. 1993), the instant offenses were burglary of habitation and possession of methamphetamine. Id. at 31.

When they arrested appellant, the police found marijuana in a bedroom. Appellant admitted that he possessed, used and sold the marijuana, and the trial court admitted this confession. The court of criminal appeals held that evidence concerning appellant's possession, use and sale of marijuana constituted same transaction contextual evidence, "as such evidence is of 'acts, words and conduct' of appellant at the time of his arrest." Id. at 33. "Necessity, then is an 'other purpose' for which same transaction contextual evidence is admissible under Rule 404(b). Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted." Id. Here, the court found that, although evidence of the marijuana might have been relevant to whether appellant also possessed methamphetamine, it was not admissible under Rule 404(b), because the police could have described appellant's arrest for the instant offenses without mentioning the marijuana. "We hold that the evidence concerning the marijuana was not 'necessary' to the jury's understanding of the offense of burglary and possession of methamphetamine and was therefore not admissible as same transaction contextual evidence under Rule of Criminal Evidence 404(b)." Id. at 34. iii.

Even if the court had found that appellant’s gang associations and activities were relevant, it would still have been inadmissible. “Because all of the testimony that was offered about appellant and gangs was not necessary to the jury's understanding of the capital murder, this testimony was not same transaction contextual evidence, and thus not admissible as an exception under Rule 404(b).” Pondexter v. State, 942 S.W.2d 577, 584 (Tex. Crim. App. 1996)(harmless error, though). iv.

Evidence that appellant had physically abused the complainant’s sisters was not necessary to show the circumstances of the complainant’s outcry, and was superfluous since the charged offense could be understood by the jury without this evidence. Aguillen v. State, 534 S.W.3d 701, 712 (Tex. App.–Texarkana 2017, no pet.). v.

Evidence that appellant possessed a switchblade knife was not 43

relevant to the possession of a small amount of cocaine. And, even if it had been relevant, evidence of the switchblade was not necessary to the jury's understanding of the offense of possession of cocaine. Garrett v. State, 875 S.W. 2d 444, 446-47 (Tex. App.–Austin 1994, pet. ref’d). vi.

Evidence in a possession of cocaine case that appellant also had marijuana hidden in his shoe and sock had "no other relevance but to show character conformity, and the State could have proved the charged offense without referring to the extraneous offense. Such evidence is substantially more prejudicial than probative."

Garcia v. State, 871 S.W. 2d 769, 772 (Tex. App.–Corpus Christi 1994, pet. ref'd). vii. A prior incident that occurred several days before the instant offense and which was a distinct and totally separate event was not so intermixed or blended with the instant offense as to form an indivisible criminal transaction such that full proof of one could not be given without showing the other. Buchanan v. State, 911 S.W. 2d 11 (Tex. Crim. App. 1995). viii. Evidence of defendant's gang affiliations and activities was not relevant or necessary to the jury's understanding of how the defendant planned to rob and murder the victim. Pondexter v. State, 942 S.W.2d 577 (Tex. Crim. App. 1996)(held to be harmless error); see also Macias v. State, 959 S.W.2d 332, 339 (Tex. App.–Houston [14th Dist.] 1997, pet. filed) (admission of gang affiliation found to be harmful and reversal required). ix.

Evidence of the death of a passenger in the car of the victim was not same transaction contextual evidence in an involuntary manslaughter trial. Matthews v.

State, 960 S.W.2d 750, 754 (Tex. App.–Tyler 1997, no pet.)(failure to object to this testimony was not ineffective assistance of counsel). c.

Admissible.

i.

Although appellant was only on trial for killing the parents, the court did not abuse its discretion in allowing the jury to also hear that their three children died in the fire, because the deaths “were so connected that they formed an indivisible criminal transaction.” Prible v. State, 175 S.W.3d 724, 732 (Tex. Crim. App. 2005)(the court agreed, though, that this was “a delicate business” because the evidence of “collateral consequences” could be more prejudicial than probative). ii.

“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.”

44

Wyatt v. State, 23 S.W.3d 18, 25-26 (Tex. Crim. App. 2000). iii.

The state was entitled to prove an extraneous attempted capital murder during the instant capital murder trial where appellant simultaneously sexually assaulted and stabbed two women. "The facts and circumstances of the charged offense would make little or no sense without also admitting the same transaction contextual evidence as it related to the second victim. It would have been impracticable to avoid describing the charged offense without also describing the attempted capital murder of the second victim." Nelson v. State, 864 S.W. 2d 496, 499 (Tex. Crim. App. 1993), cert. denied, 114 S.Ct. 1338 (1994). iv.

Admission of extraneous kidnaping and murders were admissible as "same transaction contextual evidence," to prove appellant's intent at the time of the burglary. Camacho v. State, 864 S.W. 2d 524, 532 (Tex. Crim. App. 1993). v.

Evidence that appellant attempted to buy drugs in a stolen car with stolen license plates was contextual evidence indivisibly connected to the offense of capital murder and therefore admissible. This evidence explains why the deceased police officer pursued appellant. It describes the circumstances surrounding his death and is necessary to the jury's comprehension of the offense. Lockhart v. State, 847 S.W. 2d 568, 571 (Tex. Crim. App. 1992), cert. denied, 114 S. Ct. 146 (1993). vi.

In a capital murder trial for murder in the course of attempting to commit kidnaping, evidence that appellant sexually abused the corpse of the victim was so interwoven with the indicted offense that it was essential to the understanding of the context and circumstances of the crime charged. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Crim. App. 1997).

3.

"Background" contextual evidence. a.

General rule.

"Background" contextual evidence is not indivisibly connected with the primary offense. Rather, as the name suggests, it is simply general background evidence, which is helpful to a full understanding of the case. "Contextual 'background' evidence has been admitted not out of necessity but out of judicial grace." Mayes v. State, 816 S.W. 2d 79, 86-88 (Tex. Crim. App. 1991).

45

b.

Inadmissible.

i In Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App.1991), the court carefully distinguished "background" and "same transaction" contextual evidence. After Mayes, it appears that mere background evidence is rarely admissible. The court held that the trial court erred in admitting background evidence which referred to appellant's habitation of an administrative segregation wing in TDC. Such evidence may have been background, but it also had a "character component," conveying that appellant was a threat to others. The court went on, however, to find that the error was harmless. Mayes v. State, 816 S.W. 2d 79, 88 (Tex. Crim. App. 1991). ii.

Background evidence offered only for the reason that it is background evidence and therefore helpful to the jury is not admissible under Rule 404(b). Rogers v.

State, 853 S.W. 2d 29, 33 n.5 (Tex. Crim. App. 1993). iii.

The state was allowed to prove that appellant committed a bank robbery the day before the instant capital murder and that the murder was committed with a gun stolen in a burglary some seven months earlier. This was error. Such evidence was not connected to the instant offense, nor was it necessary the jury's comprehension of that offense. Lockhart v. State, 847 S.W. 2d 568, 572-73 (Tex. Crim. App. 1992), cert. denied, 114 S. Ct. 146 (1993)(error harmless, though). c.

Admissible.

i.

Evidence of the previous relationship and the quarreling between appellant and the deceased was proper contextual or background evidence. Peden v. State, 917 S.W. 2d 941, 951 (Tex. App.–Fort Worth 1996). ii.

Evidence of possession of firearms and attempt to conceal them was admissible as background or contextual evidence in appellant's trial for involuntary manslaughter in a traffic death. Lum v. State, 903 S.W.2d 365, 372 (Tex. App.–Texarkana 1995, pet. ref’d). iii.

Evidence by a gang intelligence officer describing the Bloods, Crips, and the malice between them was admissible in appellant's murder trial as contextual background evidence. Stern v. State, 922 S.W.2d 282, 287 (Tex. App.–Ft. Worth 1996, pet. ref’d).

46

4.

Other context cases. a.

Inadmissible.

i.

"It is certain, following Mayes and Rogers, however, that invoking 'context' of the offense is not enough to justify admission of 'other crimes, wrongs or acts."' England v. State, 887 S.W. 2d 902, 915 (Tex. Crim. App. 1994). In England, the question was whether extraneous misconduct was admissible to prove the context of persuasion, where appellant mounted an entrapment defense. The court found that it was not. Evidence of prior sales of LSD was not relevant to whether the persuasion later brought to bear was such as to cause a reasonable person to deliver drugs. "The character or degree of persuasiveness used does not depend upon the apparent willingness of the accused on other occasions." Id. ii.

The trial court erred in this burglary case in admitting evidence that appellant was driving a car which had been stolen earlier in the day. The state is entitled to put on evidence of what occurs immediately before and after the commission of the instant offense, "if that evidence is relevant to something at issue in the case, and is not inherently prejudicial." Although the fact that the car was stolen would have been relevant to show probable cause to stop the car, probable cause was not at issue before the jury. "Therefore, no evidence supporting (or contesting) probable cause was admissible at trial on grounds of relevancy to any issue of probable cause." Christopher v. State, 833 S.W. 2d 526, 529 (Tex. Crim. App. 1992). Nor was this evidence admissible to show the context in which the offense occurred. The circumstance was "of little significance" and "simply was not part of the 'context of the offense'. . . ." Id. iii.

The trial court erred in allowing a portion of appellant's confession into evidence which referred to an extraneous automobile theft in this capital murder case.

Ramirez v. State, 815 S.W. 2d 636, 644-45 (Tex. Crim. App. 1991). The act of stealing the car had no connection to the capital murder except to provide transportation to and from the vicinity of the crime. "We hold the extraneous offense of stealing the car was not so interwoven with the charged capital murder as to be res gestae of the offense, and the trial judge erred in allowing the statement regarding this extraneous transaction into evidence via the confession." Id. iv.

In the instant case, appellant was arrested during the commission of a burglary of a building. Extraneous matters which occurred during this arrest which were relevant to place the offense in a proper setting and to show the jury the whole transaction would certainly be admissible to show the context of the offense. But, possession of a hypodermic needle does not meet this test. There is no suggestion or indication that 47

appellant burglarized the warehouse to obtain money or property to support a drug habit.

Couret v. State, 792 S.W. 2d 106, 108 (Tex. Crim. App. 1990). v.

In Fitzgerald v. State, 782 S.W.2d 876 (Tex. Crim. App.1990), the instant offense was escape. The state was also allowed to prove that some 12 hours after the escape, appellant committed burglary and attempted murder. This was error. Since the escape was complete 12 hours prior to the extraneous offenses, these offenses were not a part of a single criminal episode. Id. at 881. vi.

The trial court erred in admitting extraneous offenses concerning possession of five pounds of marijuana and a .357 Magnum handgun in this capital murder case. The gun was not used in the instant murder. Since the handgun was possessed at least 24 hours prior to the murder, it cannot be argued that appellant was engaged in one continuous criminal episode. Although it is arguable that appellant was in the midst of flight from the commission of this capital murder when he transferred the marijuana, this does not make the marijuana offense admissible, since the possession and transfer of marijuana in no way facilitated appellant's escape, nor did it place the murder in its immediate context. Wyle v. State, 777 S.W. 2d 709, 716 (Tex. Crim. App. 1989). vii. In Smith v. State, 646 S.W. 2d 452 (Tex. Crim. App. 1983), appellant was prosecuted for aggravated robbery. The arresting officer testified that as he approached appellant's car, an unidentified woman ran away screaming "He robbed me!

He was going to rape me!" Id. at 454-55. This so-called spontaneous declaration was erroneously admitted under the res gestae exception. "[B]efore a spontaneous declaration, uttered at the scene of the accused's arrest, is admissible in evidence at the trial of an accused, the State must establish and demonstrate that the spontaneous declaration is related to or connected in some material way with the offense for which the accused is on trial for committing." Id. at 457. Here, there was no showing that the declaration was related to the instant offense. Id. at 458. viii. The trial court erred in admitting evidence of rape and sodomy committed by appellant's co-defendants, in his absence. The evidence was sufficient to show that appellant participated in the abduction of the complainant, and robbed her. Still, the subsequent offenses were inadmissible against him. "Because we are unable to state that the offense of robbery and the extraneous offenses committed at the second location were sufficiently connected to establish that they were part of one continuous transaction, or that the rape and sodomy offenses were part of the case on trial, or so blended, or closely interwoven therewith, or that the offenses of rape and sodomy were the ordinary, probable, or foreseeable consequences of the abduction, kidnaping, and robbery offenses, which would have warranted the admission into evidence of the latter offenses, we hold 48

that the rape and sodomy offenses should not have been admitted into evidence." Cain v.

State, 642 S.W. 2d 806, 809 (Tex. Crim.App. 1982). ix.

In Bush v. State, 628 S.W.2d 441, 443 (Tex. Crim. App. 1982), appellant was tried for capital murder, the proof showing that appellant killed a police officer during commission of a burglary of a pharmacy. Proof of the burglary was admissible since it was so connected to the murder as to "constitute an indivisible criminal transaction." Id. The state also, however, put on evidence that appellant had used Preludin intravenously to get high. This evidence was inadmissible. It was not related in time or place to the capital murder. Id. at 443-44. x.

The charged offense was aggravated robbery. When arrested 13 days after the robbery, appellant was in possession of a large number of weapons. Although the arresting officers testified that they were unaware of any connection between these weapons and the instant offense, the trial court permitted their proof. This was error.

Stanley v. State, 606 S.W. 2d 918, 920 (Tex. Crim. App. 1980). xi.

The trial court erred in admitting extraneous evidence concerning a burglary in the prosecution of appellant for possession of paraphernalia. The question of probable cause was not raised before the jury. "Therefore, the validity of the arrest was not a contested issue before the jury and hearsay evidence concerning probable cause to arrest was not admissible upon this issue." Gaston v. State, 574 S.W. 2d 120, 121 (Tex. Crim.

App. 1978). xii. Appellant was arrested after hours in a bank and charged with burglary of a building. A strip search at the jail revealed cocaine. The state prosecuted appellant for the cocaine and introduced the burglary as an extraneous offense. This was error. The only issue was whether appellant possessed cocaine. "The evidence of the burglary was improperly admitted since it was irrelevant and prejudicial." The circumstances surrounding the arrest are not automatically admissible. They must still be relevant and not unduly prejudicial. Clark v. State, 722 S.W. 2d 14, 15 (Tex. App.– Houston [1st Dist.] 1986, no pet.)(error harmless, though). b.

Admissible.

i.

A murder that occurred in the same continuous transaction as the instant offense may be proven. Lincecum v. State, 736 S.W. 2d 673, 681 (Tex. Crim. App. 1987); Mann v. State, 718 S.W. 2d 741, 743 (Tex. Crim. App. 1986). ii.

Murders that occurred a half hour before the instant murder were 49

admissible to show "one continuous episode," and to show that the case on trial was "blended or closely interwoven." Moreno v. State, 721 S.W. 2d 295, 301 (Tex. Crim. App. 1986). iii.

Evidence of an extraneous burglary was admissible to "show the context in which the criminal act occurred." Wools v. State, 665 S.W. 2d 455, 471 (Tex. Crim. App. 1983).

J.

Flight.

1.

Inadmissible.

a.

In Fitzgerald v. State, 782 S.W. 2d 876 (Tex. Crim. App. 1990), the instant offense was escape. The state was also allowed to prove that some 12 hours after the escape, appellant committed burglary and attempted murder. This was error. The evidence was not admissible on the theory that it proved flight, since the objective of appellant is ambiguous, at most. Id. at 882. b.

Where both the instant and the extraneous offenses were committed in Houston, some blocks apart, and within 40 minutes, "[w]e cannot conclude under these circumstances that flight is shown so as to justify the admission of extraneous offenses on that theory." Riles v. State, 557 S.W. 2d 95, 99 (Tex. Crim. App. 1977).

2.

Admissible.

a.

In Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994), the appellant got a gun from behind the trial judge's bench, went into chambers, aimed the gun at the judge and informed him they were leaving together. Thinking otherwise, the judge lept across his bench, grabbed the weapon, and he and the bailiff (who, as the opinion noted, “had finally arrived”), and an assistant district attorney disarmed and subdued appellant. “Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn.” It was here also, even though appellant’s defense was insanity. Id. E.g., Burks v. State, 876 S.W.2d 877, 903 (Tex.Crim.App.1994) (same); Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App.1989) (same). b.

“The forfeiture of an accused's bail bond may be proved as tending to show flight. . . . And flight, in the context of bail-jumping, may be construed as evidence of guilt.” Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987). c.

A defendant who asserts that his failure to appear occurred because of 50

circumstances relating to something other than the instant offense should be allowed to take the stand outside the presence of the jury for the limited purpose of establishing why he did not appear. See Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975). d. "[B]ecause flight is a circumstance from which guilt may be inferred, evidence of flight is admissible even though it may show the commission of other crimes.

Such evidence is also relevant 'to show the efforts made to locate or apprehend the accused, his pursuit and capture, including his resistance to arrest when overtaken."'

Thompson v. State, 652 S.W. 2d 770, 772 (Tex. Crim. App. 1981)(citations omitted). Here, an extraneous robbery in which appellant stole a car and traveled approximately 16 miles before his arrest was admissible to show his attempted flight to avoid arrest. Id. at 773. e.

Evidence that appellant kidnaped two teenage boys was admissible to show flight. Alba v. State, 905 S.W. 2d 581, 586 (Tex. Crim. App. 1995).

K.

Consciousness Of Guilt.

1.

Inadmissible.

a.

Counsel performed deficiently by not objecting to extraneous offense evidence that a witness for the appellant had been threatened or abused by the appellant because the defense had not opened the door to these issues and it did not demonstrate consciousness of guilt. Greene v. State, 928 S.W.2d 119, 123-24 (Tex. App.–San Antonio 1996, no pet.).

2.

Admissible.

a.

Attacks upon the prosecutor and defense in the courtroom during trial clearly fall within the "consciousness of guilt" exception to the general rule excluding extraneous offenses. Ransom v. State, 920 S.W. 2d 288, 299 (Tex. Crim. App. 1996). b.

"The 'a consciousness of guilt' exception to the general rule is alive and well in Texas. Reports of its demise have been widely exaggerated." Torres v. State, 794 S.W. 2d 596, 599 (Tex. App.–Austin 1990, no pet.). The trial court properly admitted evidence that appellant threatened his wife from the jail if she testified. The court of appeals called this sort of evidence "perhaps one of the strongest kinds of evidence of guilt." Id. at 598.

E.g., Schexnider v. State, 943 S.W.2d 194, 200 (Tex. App.–Beaumont 1997, no pet.)(dismembering a corpse and disposing of body parts in various places were not actions of an innocent person); Yates v. State, 941 S.W.2d 357, 366 (Tex. App.–Waco 1997, pet. ref’d)(evidence that appellant took, dismantled, and abandoned the deceased’s 51

truck was probative of appellant’s consciousness of guilt); Madden v. State, 911 S.W.2d 236, 243 (Tex. App.–Waco 1995, pet. ref’d)(appellant’s statement that he would shoot anyone, including the police, who tried to stop him from leaving the state went to his "consciousness of guilt" and were admissible); Peoples v. State, 874 S.W. 2d 804, 809 (Tex. App.–Fort Worth 1994, pet. ref’d)(appellant’s threats to witness in an attempt to coerce her testimony is admissible to show consciousness of guilt).

L.

Control.

a.

The trial court properly admitted a pistol found during a drug raid because it served to affirmatively link appellant to the drugs. "It is reasonable to conclude appellant placed the pistol in the bathroom to protect whatever drugs he possessed. The pistol makes more probable appellant's dominion over the drugs. Evidence which makes control more or less probative is both relevant and admissible under Tex. R. Crim. Evid. 404(b)."

Hawkins v. State, 871 S.W. 2d 539, 541-42 (Tex. App.–Fort Worth 1994, no pet.).

M.

Hostility.

a.

Rule 404(b) supports the “admission of evidence of the victim's prior specific acts of violence when offered for a non-character purpose—such as his specific intent, motive for an attack on the defendant, or hostility—in the particular case.” Ex parte Miller, 330 S.W.3d 610, 620 (Tex. Crim. App. 2009); see Torres v. State, 117 S.W.3d 891, 896–97 (Tex. Crim. App. 2003)(evidence of prior assault was relevant to show the deceased had a specific motive or intent to be the first aggressor).

N.

To Corroborate Accomplice Testimony.

“The crime spree evidence also served to corroborate the accomplice testimony.”

Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995).

O.

The “Doctrine Of Chances”.

1.

“The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.” De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009)(appellant’s “‘I saw what no one else saw’ defense becomes considerably less probable when one hears that appellant saw two other fake drug deals that no one else saw and others denied that they occurred”).

As Auric Goldfinger, the infamous James Bond villain, said, “Once is happenstance. Twice is coincidence. The third time it's enemy action.”

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Id. at 348; accord, Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016)(appellant’s defense, that someone else had set up the drug lab on his property without his knowledge – opened the door to evidence that he had previously set up a drug lab on his property).

2.

Although the modus operandi theory of admissibility under Rule 404(b) usually refers to evidence offered to prove the identity of a specific person, its use is not so limited in the law. Modus operandi may also encompass the “doctrine of chances” theory to show lack of consent, motive, and the manner of committing an offense.” Casey v. State, 215 S.W. 3d 870, 881 (Tex. Crim. App. 2007); see also Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App. 2005)(“whether articulated under Rule 404(b) standards or the doctrine of chances, we conclude that under the facts and circumstances of this case the trial court did not abuse its discretion”).

3.

The so-called “doctrine of chances” is most often used against the defendant. It can conceivably be used by a defendant, however. “‘[T]he doctrine of chances” has been invoked as a possible basis for admitting evidence of a victim's prior false accusation of rape.” Hammer v. State, 296 S.W.3d 555, 565-66 (Tex. Crim. App. 2009).

P.

Sexual Offenses.

1.

By the state, against the defendant.

a.

“We have held that sexually related bad acts and misconduct involving children are inherently inflammatory.” Pawlak v. State, 420 S.W.3d 807, 809 (Tex. Crim.

App. 2013)(trial court reversibly erred under Rule 403 when it admitted thousands of images depicting pornography and child pornography). b. “[W]hen the defensive theory of consent is raised in a prosecution for sexual assault, the defendant necessarily disputes his intent to engage in the alleged conduct without the complainant's consent and places his intent to commit sexual assault at issue.”

Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). c.

Many years ago, Texas recognized in child sex cases a narrow exception to the general rule against propensity evidence. Accordingly, extraneous sexual conduct between the accused and the complainant in the instant case was admissible to explain the instant charge, and to permit the jury to view such an unnatural act in light of the relationship of the parties and to make the child's accusation more plausible. See Battles v.

State, 140 S.W. 783, 788 (Tex. Crim. App. 1911). Later, this narrow exception was broadened to permit the introduction of sex acts between appellant and third parties in 53

addition to the instant complainant. See generally McDonald v. State, 513 S.W. 2d 44 (Tex. Crim. App. 1974); Johnston v. State, 418 S.W. 2d 522 (Tex. Crim. App. 1967). A pre-Rules case – Boutwell v. State, 719 S.W. 2d 164 (Tex. Crim.App. 1986) – overruled McDonald and Johnston to the extent they admitted extraneous acts between the accused and third parties on a probability or unnatural attention exception. Boutwell v. State, 719 S.W. 2d at 179; accord, Hernandez v. State, 754 S.W. 2d 321, 327 (Tex. App.–Houston [14th Dist.] 1988), aff’d on other grounds, 861 S.W. 2d 908 (Tex. Crim. App. 1993)(trial court erred in admitting evidence that appellant arranged for other men to sexually assault complainant because there were not sexual acts between appellant and complainant).

Boutwell, however, continued to permit proof of misconduct between the accused and the instant complainant to the extent that it was necessary to understand the context of the relationship. Id. at 178-79. This was the law until the rules of evidence became effective. d.

In Montgomery v. State, 810 S.W. 2d 372, 394 (Tex. Crim. App. 1991), the court pointed out that sexual misconduct evidence is not necessarily admissible after the rules of evidence took effect. The court did recognize that extraneous sex offenses might be admissible under Rule 404(b), not to show character, but rather to counter a perceived societal aversion to the notion that parents or others in similar positions would actually sexually abuse their own children. e.

In Vernon v. State, 841 S.W. 2d 407 (Tex. Crim. App. 1992), the trial court admitted extraneous sexual misconduct between appellant and the instant complainant on the theory that this six year course of conduct was really a single act of misconduct, and because it was necessary to illuminate the unnatural relationship that existed. Id. at 410.

The court of criminal appeals first disagreed that this was a single course of conduct. Id. The court then discussed the Battles and the Boutwell cases, and found they had no "significant precedential value today." Id. Specifically, the court held that the rule restated in Boutwell has no "legal force independent of Rule 404(b)." Id. at 411. "[U]nless it can plausibly be argued that the repetition of 'unnatural' acts actually makes an elemental fact more likely, then its repetition is not an evidentiary fact of consequence either." Id. The court went on to hold the extraneous evidence inadmissible, noting that appellant did not cross-examine the prosecution witnesses, or tender any witnesses of his own. Id. f.

In Pavlacka v. State, 892 S.W. 2d 897 (Tex. Crim. App. 1994), the trial court admitted an extraneous sexual assault allegedly committed by appellant against the complainant, after the complainant was impeached with a prior inconsistent statement.

Appellant contended that testimony from the same complainant about another offense committed by the same person who allegedly committed the charged offense cannot logically rehabilitate the complainant. In other words, an impeached complainant cannot logically rehabilitate himself. The court of criminal appeals agreed. "Simply put, an 54

impeached complainant's own testimony as to other molestations, without more, is just as unreliable as rehabilitative evidence of the accused's lascivious intent and willingness to act on it as is his testimony regarding the charged offense. It cannot therefore serve logically to rehabilitate him." When the impeached complainant is the only source of the extraneous misconduct, such misconduct is not admissible to rehabilitate. Id. at 902-03.

See Hill v. State, 852 S.W. 2d 769, 770 (Tex. App.–Fort Worth 1993, pet. ref'd)("testimony concerning extraneous offenses was subject to the same challenge as the testimony concerning the indicted offense, and therefore, could not rebut a challenge to the credibility of testimony concerning that offense"). g.

An extraneous sexual assault against his daughter was not admissible to rebut appellant's implied theory of "frame-up." "[T]his 'frame-up' theory was not presented to the jury in the trial court's limiting instruction. Absent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant's 'system' to rebut the weight or credibility of appellant's 'frame-up' theory or relied on it for an improper basis such as character conformity." Owens v. State, 827 S.W. 2d 911, 917 (Tex. Crim. App. 1992). h.

Evidence of extraneous sexual misconduct between appellant and a third party is not admissible to prove "the unnatural attitude of the appellant towards the complaining witness and the probability of the act charged." Turner v. State, 754 S.W. 2d 668, 674 (Tex. Crim. App. 1988); see Kelly v. State, 828 S.W. 2d 162, 165 (Tex. App.– Waco 1992, pet. ref’d). i.

Testimony from the child complainant that appellant had sexually assaulted her on other occasions should not have been admitted. Jessup v. State, 853 S.W. 2d 141, 143 (Tex. App.–Fort Worth 1993, pet. ref’d). Evidence from the complainant herself does not logically rebut a challenge to her credibility. Nor was the evidence admissible to show the context in which the offense occurred. This evidence simply shows that appellant repeatedly committed the same sort of offenses against her child. Finally, there is no longer an exception which permits the admission of extraneous offenses "to overcome an aversion to the notion that parents would sexually abuse their children." Id. j.

In Garcia v. State, 827 S.W. 2d 27 (Tex. App.–Corpus Christi 1992, no pet.), the State argued that extraneous sexual misconduct with other children was admissible to prove appellant's intent to arouse and gratify his sexual desire in the instant case. The court of appeals disagreed. The evidence of intent in the instant case could be amply inferred from the act itself On the other hand, such intent was not necessarily implied in the extraneous conduct. The state had no compelling need to prove the extraneous misconduct.

Sexual misconduct with children is inherently inflammatory. "The conclusion is 55

inescapable that appellant was tried and convicted primarily for his personal character and not for the specific offense for which he was charged." Id. at 31; see also Castillo v. State, 910 S.W. 2d 124,128 (Tex. App.–El Paso 1995)(state had no compelling need to prove intent where intent was inferable from the act itself and appellant's subsequent behavior). k.

Evidence of extraneous sex offenses committed by the appellant against third parties was not admissible to show a continuing course of conduct on the part of the appellant. Such acts prove nothing but propensity. Cruz v. State, 737 S.W. 2d 74, 77 (Tex. App.–San Antonio 1987, no pet.). l.

The danger that juries will convict on propensity evidence is even more pronounced in sex cases. Celeste v. State, 805 S.W. 2d 579, 580 (Tex. App.–Tyler 1991, no pet.). m.

Evidence of a previous sexual encounter with the child victim was admissible to show motive. "The uncharged misconduct evidence presented at appellant's trial was admissible to prove his motive for the charged offense – that motive being his abnormal sexual desire for the complainant – regardless of whether the complainant's credibility was challenged. Hernandez v. State, 900 S.W.2d 835, 838 (Tex. App.–Corpus Christi 1995, no pet.).

2.

By the defendant, against the complainant.

a.

“Rule 404(b) explicitly 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.” Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). In this case, the court held that the trial court abused its discretion by preventing appellant from cross-examining the complainant about several incidents “to demonstrate her bias against appellant and her possible motive to testify falsely against him.” Id. at 570. b.

“Trials involving sexual assault may raise particular evidentiary and constitutional concerns because the credibility of both the complainant and defendant is a central, often dispositive, issue. Sexual assault cases are frequently ‘he said, she said’ trials in which the jury must reach a unanimous verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or other corroborative evidence. Thus, the Rules of Evidence, especially Rule 403, should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the credibility of either the defendant or complainant in such ‘he said, she said’ cases.” Hammer v. State, 296 S.W.3d at 561–62.

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c.

The trial court abused its discretion under Rule 613(b) when it prevented appellant from cross-examining the complainant about threats to he had made to falsely accuse others when he was mad at them “to show [the complainant’s] possible motive for accusing appellant of sexual molestation.” Billodeau v. State, 277 S.W.3d 34, 43 (Tex. Crim. App. 2009). “The possible animus, motive, or ill will of a prosecution witness who testifies against the defendant is never a collateral or irrelevant inquiry, and the defendant is entitled, subject to reasonable restrictions, to show any relevant fact that might tend to establish ill feeling, bias, motive, interest, or animus on the part of any witness testifying against him.” Id. at 42-43.

Q.

Gang Membership.

1.

Evidence of appellant’s affiliation with the Mexican Mafia war relevant and admissible “to show a motive for an allegedly gang-related crime.” Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002).

2.

Evidence of extraneous misconduct at a home was relevant to show that the home was the target of the gang Medina v. State, 7 S.W.3d 633, 643–644 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102 (2000).

3.

The trial court did not err in admitting appellant’s membership in the Texas syndicate where it was relevant to something other than character conformity.

Specifically, Ortiz’s high ranking in the gang showed his ability to smuggle heroin into the jail, and that the heroin was his, and not the victim’s; and it showed his opportunity and ability to commit the murder in his tank; and it tended to rebut the defense’s impeachment of witnesses. Ortiz v. State, 93 S.W.3d 79, 94 (Tex. Crim. App. 2002).

4.

Galvez v. State, 962 S.W.2d 203, 205 (Tex. App.– Austin 1998, pet. ref’d)(gang membership admissible to establish identity in this robbery case).

5.

But see Pondexter v. State, 942 S.W.2d 577, 584-85 (Tex. Crim. App. 1996)(gang membership was irrelevant, but the error was harmless).

R.

Two Significant Statutory Exceptions.

1.

TEX. CODE CRIM. PROC. ANN. art. 38.36. a.

Text.

(a) In all prosecutions for murder, the state or the defendant shall be permitted to 57

offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. (b) In a prosecution for murder, if a defendant raises as a defense a justification provided by Section 9.31, 9.32, or 9.33, Penal Code, the defendant, in order to establish the defendant's reasonable belief that use of force or deadly force was immediately necessary, shall be permitted to offer: (1) relevant evidence that the defendant had been the victim of acts of family violence committed by the deceased, as family violence is defined by Section 71.004, Family Code; and (2) relevant expert testimony regarding the condition of the mind of the defendant at the time of the offense, including those relevant facts and circumstances relating to family violence that are the basis of the expert's opinion. b.

Case law.

Texas Code of Criminal Procedure 38.36(a) allows for relevant extraneous offense evidence proffered by the state in murder cases involving former relationship of the accused and the victim. i.

In Smith v. State, 5 S.W.3d 673 (Tex. Crim. App. 1999), the court of appeals held that Article 38.36(a) overrides Rule 403 or Rule 404(b), and affirmed the trial court’s decisions admitting evidence that appellant had physically abused his wife, the complainant in this murder case. The court of criminal appeals reversed the conviction, finding that these three provisions can be harmonized and applied congruously, and that evidence admissible under the statute my nevertheless be excluded under either of the two rules. “Consequently, if a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under Article 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue.” Id. at 679. Judge Keasler did not like Smith, labeling it a “misbegotten opinion” decided by a “bare majority.”2 “Like radioactive waste, the fallout from Smith v. State continues to wreak havoc on the landscape of the law.” Robbins v. State, 88 2

Q. What do you call a 5-4 opinion? A. The law.

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S.W.3d 256, 264 (Tex. Crim. App. 2002)(Keasler, J., concurring).

Interestingly, all that radioactive waste wreaking havoc on the landscape of the law, was no help to Robbins’s whose objections to extraneous misconduct were overruled in the trial court, whose rulings were affirmed in both the court of appeals and the court of criminal appeals. ii.

“The car dumping incident was relevant to circumstances surrounding their relationship immediately preceding the murder, i.e., that they had separated, attempted to reconcile, and sought marriage counseling, but instead were in the process of divorcing.” Garcia v. State, 201 S.W.3d 695, 703–04 (Tex. Crim. App. 2006).

2.

TEX. CODE CRIM. PROC. ANN. art. 38.37.

Article 38.37 of the code of criminal procedure provides that, for certain enumerated sexual and assaultive offenses against children, relevant extraneous misconduct is admissible, “notwithstanding Rules 404 and 405.” a.

Case law

i.

Appellant objected to the application of this statute to any part of his prosecution because he was indicted before its effective date. The court disagreed. “[A]rticle 38.37 is applicable to any one of many isolated proceedings within a prosecution, so long as the proceeding at issue occurred after September 1, 1995.”

Howland v. State, 990 S.W.2d 274, 277 (Tex. Crim. App. 1999). ii.

Appellant’s physical abuse of the complainant’s sisters had no relevant bearing on whether inappropriately touched the complainant as alleged in the indictment, and was therefore inadmissible under article 38.37. Aguillen v. State, 534 S.W.3d 701, 712 (Tex. App.–Texarkana 2017, no pet.).

S.

Opening the door (Is Surprisingly Easy To Do).

1.

“The trial judge has considerable latitude in determining that identity is, in fact, disputed. It may be placed in dispute by the defendant's opening statement or cross-examination, as well as by affirmative evidence offered by the defense.” Segundo v.

State, 270 S.W.3d 79, 86 (Tex. Crim. App. 2008)(the question is not how strong or effective the impeachment was, but rather, whether it occurred at all; if so, extraneous misconduct relevant to identity are admissible under Rule 404(b)).

2.

Segundo shows how (shockingly) easy it is for the defense to open the door. As 59

that case noted, one of the ways the defense can place identity in dispute is through crossexamination. The court went on to say, both that appellant’s impeachment was “not particularly damaging or effective” and that his identity was not “seriously contested” and “was not undermined by his cross-examination of the State's DNA experts.”

However, appellant argued at the jury-charge conference that he was entitled to instructions on the lesser-included offenses of aggravated sexual assault and murder because his cross-examination had raised an issue concerning the identity of the murderer; therefore, we must agree that identity was disputed.

Segundo v. State, 270 S.W.3d 79, 85–86 (Tex. Crim. App. 2008). Later in the opinion, the court held that, despite his argument, Segundo was not entitled to either lesser he requested. Id. at 91. In other words, you can not only place your client’s identity in dispute with an unpersuasive cross-examination, but also by requesting the court – unsuccessfully – to charge on lesser offenses. Say what?

3.

Even assuming two extraneous murders were not admissible under Rule 404(b), the trial court did not abuse its discretion by admitting the evidence because appellant “opened the door by deliberately choosing to question” a witness about these murders. Williams v.

State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009), cert. denied, 560 U.S. 966 (2010).

4.

Where the defendant testified on direct examination that he had “been in trouble before,” the trial court did not err in allowing the State to ask appellant to explain his previous testimony, where the questioning “did not exceed the scope of the invitation appellant initially gave. Furthermore, every time appellant volunteered additional information, the State was justified in asking for clarification.” Feldman v. State, 71 S.W.3d 738, 756 (Tex. Crim. App. 2002).

5.

Appellant opened the door to extraneous misconduct evidence “by stating ‘I would not do something like that,’ and ‘I have never done anything of that sort with a sixteen year old girl, period.’” Daggett v. State, 187 S.W.3d 444, 453 (Tex. Crim. App. 2005).

However, this only entitled the State to rebut appellant’s blanket statement of good conduct. The trial court erred by instructing the jury that it could used the evidence as proof of a “plan”; properly it should have instructed that the evidence could only be used to assess appellant’s credibility. Id. at 454.

6.

“However, ‘To hold that the cross-examination of [a State's witness] would permit the introduction of an extraneous offense would be tantamount to holding that such testimony would be admissible in any case where a defendant's counsel exercises the 60

constitutional right of cross-examination. This is not and should not be the law.’” Moore v.

State, 700 S.W.2d 193, 200 (Tex. Crim. App. 1985). “[A] challenge to the complainant’s credibility on cross-examination does not automatically open the door to extraneousoffense evidence. . . . Instead, the response elicited from the State’s witnesses on cross-examination must be sufficient to construct a defensive theory before the State may introduce extraneous-offense evidence in rebuttal.” Aguillen v. State, 534 S.W.3d 701, 714 (Tex. App.–Texarkana 2017, no pet.).

7. “[A] mere denial of commission of an offense generally does not open the door to extraneous offenses because, as appellant properly points out, “a defendant generally denies commission of the offense at trial – that is the reason for having a trial.’” De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009).

8.

In Powell v. State, 63 S.W.3d 435 (Tex. Crim. App. 2001), the court found that appellant opened the door to extraneous misconduct in both his cross-examination and his opening statement. Apparently the court wanted to make it clear in this case that the door could be opened solely by an opening statement, and it so stated. Id. at 439-440. Judge Price properly observed that the court’s decision was “obiter dictum and unnecessary to the disposition of the case.” Id. at 440. (Price, J., concurring).

9.

From Powell’s dictum, the court subsequently held this: “Our case law supports a decision that a defense opening statement, like that made in this case, opens the door to the admission of extraneous-offense evidence, like that admitted in this case, to rebut the defensive theory presented in the defense opening statement.” Bass v. State, 270 S.W. 3d 557, 558, 563 (Tex. Crim. App. 2008)(defense’s opening statement called the allegations were “pure fantasy . . . pure fabrication,” contrary to appellant’s character, not worthy of belief, and that appellant was the “the real deal,” and “the genuine article”).

10. “[E]ven if a party opens the door to rebuttal evidence, the trial judge still has the discretion to exclude the evidence under Rule 403.” Hayden v. State, 296 S.W.3d 549, 554–55 (Tex. Crim. App. 2009)(murder-victim’s status as a sex offender was a collateral issue, irrelevant to the jury’s determination of the proper sentence, and allowing this impeachment “would waste time and confuse the issue by focusing the jury's attention on the victim's character rather than the defendant's personal responsibility and moral culpability”); see also Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007(trial court did not abuse its discretion in excluding under Rule 403 a 14-year old assault by complaining witness against her former husband after she testified “I'm not crazy enough to hit a man or start a fight,” given the “nature and considerable remoteness of” the earlier assault).

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11.

“Although appellant knew that there were other robberies committed in close temporal proximity to the robbery of the murder victim, he failed to specifically limit his questions about “the robbery” to the robbery of the complainant. His questions about “the robbery” did not identify the complainant as the victim of the robbery.” Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996).

VIII. TWO ESSENTIAL CASES: MONTGOMERY & HARRELL A.

The Holding in Montgomery.

In Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1990), appellant was charged with committing indecency with a child against two of his daughters. In addition to the conduct charged in the indictments, the state proved that he would quite frequently walk around in front of his daughters in the nude, with an erection. Id. at 393. The court of criminal appeals found that the trial court erred in admitting this evidence because the probativeness of the evidence was substantially outweighed by the danger of unfair prejudice. Id. at 397. In arriving at this conclusion, the court analyzed in great detail the relevancy rules, particularly Rules 403 and 404(b), and formulated standards for the admissibility of extraneous offenses, and the roles expected of trial counsel, the trial court, and the appellate courts.

B.

The Role Of Rule 404(b) Under Montgomery.

1.

Montgomery begins by restating the general rule: Character evidence is generally inadmissible if it is offered solely to show that the person acted in conformity with this character trait. The court refers to such evidence as "character conformity" evidence. Such evidence is "absolutely inadmissible" under Rule 404(b). Id. at 386-87.

2.

Extraneous offense evidence is, however, admissible under Rule 404(b) if it has relevance apart from its tendency to show mere character conformity. Specifically, it is admissible if it makes an "elemental fact" more or less probable; if it makes more or less probable an "evidentiary fact" that inferentially proves an "elemental fact," or, if it makes more or less probable defensive evidence that undermines an "elemental fact." Id. at 387.

Illustrative of permissible purposes to which extraneous offenses may be put are those listed in Rule 404(b), including "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." These purposes, however, are only illustrative, and "neither mutually exclusive nor collectively exhaustive." Id. at 387-88.

3.

The opponent of such evidence bears the burden of timely objecting. The optimal 62

objection is that the evidence is inadmissible under Rule 404(b). Although not as precise as it might be, an objection that the evidence is not relevant, or that it constitutes an extraneous offense or misconduct, will ordinarily be sufficient to apprise the trial court of the nature of the complaint. Id. at 387.

4.

Once the objection is lodged, the proponent of the evidence must satisfy the court that the extraneous offense has relevance apart from its tendency to prove character conformity. "The trial court should honor any request by the opponent of the evidence of articulation into the record of the purpose for which evidence is either offered by the proponent or ultimately admitted by the trial court." Id. at 387.

5.

If the evidence has no relevance apart from character conformity, then it is absolutely inadmissible and the trial court has no discretion to admit it. If the trial court believes that it is relevant to some other issue, the trial court may admit the evidence.

"Should he admit the evidence, then upon timely further request, the trial judge should instruct the jury that the evidence is limited to whatever purpose the proponent has persuaded him it serves." Id. at 387-88.

6. The objection, “extraneous matters,” while not as precise as it could have been, was sufficiently specific under the circumstances. The objection was not timely, though, because it was made after the witness had already testified about the misconduct.

Accorgingly, appellant failed to preserve her Rule 404(b) claim. Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007).

C.

The Role Of Rule 403 Under Montgomery.

1.

Even if evidence is relevant to something other than character conformity, and therefore admissible under Rule 404(b), it must still pass muster under Rule 403. That is, its prejudicial effect must not substantially outweigh its probative value. While an "extraneous offense" objection may be sufficient to preserve Rule 404(b) error, it will not be sufficient to preserve Rule 403 error. Thus, the opponent must make a further objection to the evidence under Rule 403. "It is now incumbent upon him, in view of the presumption of admissibility of relevant evidence, to ask the trial court to exclude the evidence by its authority under Rule 403, on the ground that the probative value of the evidence, assuming it is relevant apart from character conformity, is nevertheless substantially outweighed by, e.g., the danger of unfair prejudice." Id. at 388-89. An objection that the evidence is "highly prejudicial" and "inflammatory" is sufficient to invoke Rule 403. Moreno v. State, 858 S.W. 2d 453, 463 (Tex. Crim. App.), cert. denied, 114 S. Ct. 445 (1993).

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2.

Once this objection is made, "the trial court is called upon to weigh probativeness of the evidence against its potential for 'unfair' prejudice." Id. at 389. "The court would do well to inquire of the opponent what his view of the prejudice is. On the other hand, the court should ask the proponent to articulate his need. But once the rule is invoked, 'the trial judge has no discretion as to whether or not to engage in the balancing process."' Trial courts should favor admission in close cases, since there is a presumption of admissibility of relevant evidence.

3.

The court enumerated several factors which should go into the trial court's balancing decision. These factors include the inherent probativeness of the extraneous act, which is a function of both the similarity of this act to the charged conduct, and the strength of the evidence showing that appellant is guilty of the extraneous act. Another factor is the potential for the extraneous conduct to "impress the jury in some irrational but nevertheless indelible way." This is often a function of the nature of the misconduct. Also important is the amount of trial time needed to prove extraneous misconduct. "Finally, how great is the proponent's 'need' for the extraneous transaction?" This last factor has three subparts. Does the proponent have other available evidence to prove that which the extraneous conduct goes to prove, how strong is that other evidence, and is the fact to be proved related to an issue 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 the probative versus prejudicial balance." Id. at 389-90.

4.

If the extraneous misconduct evidence is admitted, the trial court errs in refusing a request to also give at the time of admission an instruction that appropriately limits the jury’s consideration of the evidence to the reason which justified its admission. Rankin v.

State, 974 S.W.2d 707, 713 (Tex. Crim. App. 1996).

D.

The Role Of The Appellate Courts Under Montgomery.

1.

The court also discussed the function of the appellate courts. The trial courts have no discretion to admit evidence relevant only to character conformity, over objection. And, the trial court has no discretion to refuse a request to conduct a Rule 403 balancing inquiry. But, after conducting that balancing, the trial court must be given wide latitude.

"So long as the trial court thus operates within the boundaries of its discretion, an appellate court should not disturb its decision, whatever it may be." Id. at 390.

2.

The standard of review on appeal regarding the Rule 404(b) decision is "abuse of discretion." As long as the ruling "was at least within the zone of reasonable disagreement, the appellate court will not intercede. The trial court's ruling is not, however, 64

unreviewable. Where the appellate court can say with confidence that by no reasonable perception of common experience can it be concluded that proffered evidence has a tendency to make the existence of a fact of consequence more or less probable than it would otherwise be, then it can be said the trial court abused its discretion to admit that evidence. Moreover, when it is clear to the appellate court that what was perceived by the trial court as common experience is really no more than the operation of a common prejudice, not borne out in reason, the trial court has abused its discretion." Id. at 391.

3.

The appellate standard of review for the Rule 403 decision is also abuse of discretion. An "appellate court should not reverse a trial judge whose ruling was within the zone of reasonable disagreement." This decision is not unreviewable. Indeed, exclusion is required when prejudice substantially outweighs probative value. The appellate court will not, however, conduct a de novo review. In fact, it should reverse only rarely, after a clear abuse of discretion.

4.

Relevant 403 criteria are: "that the ultimate issue was not seriously contested by the opponent; that the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; that the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious." When the record reveals one or more criterion, an appellate court should conclude that the trial court acted irrationally in admitting extraneous offense evidence. Id. at 392-93.

5.

The court noted that review "would be facilitated by on-the record articulation of the consideration that governed the trial court's decision." Although the court was not required to decide whether this is necessary in this case, it did "note that the Fifth Circuit has required the federal district courts, upon request, to make the record reflect those consideration, on pain of remand." Id. at 393 n.4.

6.

Applying these rules to the facts in Montgomery, the court found that the trial court did not err in admitting the evidence under Rule 404(b), because the fact that appellant walked around with an erection in front of his children had some tendency to prove the "elemental fact" of intent to arouse and gratify his own sexual desire. Id. at 394. The court reversed, however, because it found that the prejudicial effect of this evidence did substantially outweigh its probative value, considering the relevant factors. Id. at 397.

7.

Even though the appellant failed to properly object pursuant to Rule 403, the court of appeals must engage in the balancing test unless the state raises the fact that appellant waived the error on appeal. Peterson v. State, 836 S.W. 2d 760, 763 (Tex. App.--El Paso 65

1992, pet. ref’d).

E.

The Holding In Harrell v. State.

1.

For years, the court has held that the standard for admissibility of extraneous offenses is "clear" proof, without clarifying what is meant by "clear" proof The logical interpretation is that clear proof means proof beyond a reasonable doubt. Thus, the standard of admissibility for extraneous offense evidence is proof beyond a reasonable doubt. Harrell v. State, 884 S.W. 2d 154, 158-59 (Tex. Crim. App. 1994).

2.

The United States Supreme Court has established a lesser standard for admission of extraneous offenses under the Federal Rules of Evidence. Accordingly, such evidence is admissible in federal court if the jury could conclude that appellant committed same, by a preponderance of the evidence. See Huddleston v. United States, 485 U.S. 681, 690 (1988). Some judges believe Huddleston is better reasoned than Harrell. Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008)(Harrell v. State was wrongly decided in 1994, and why it should be overruled today)(Cochran, J., joined by Johnson, concurring).

3.

Notwithstanding the views of the concurring judges in Fischer, the standard for admissibility of extraneous offense evidence, even after the adoption of the Rules of Criminal Evidence, is proof beyond a reasonable doubt that the defendant committed the extraneous offense. See George v. State, 890 S.W.2d 73, 76 (Tex. Crim. App. 1994).

4.

While the trial court might not be compelled to make a preliminary finding under Rule 104(a) as to the proof of extrinsic evidence, under Rule 104(b) it must nevertheless make an initial determination as to the relevancy of the evidence, dependent upon the fulfillment of a condition of fact. Harrell v. State, 884 S.W. 2d at 159-160.

5. "[I]n deciding whether to admit extraneous offense evidence in the guilt/innocence phase of trial, the trial court must, under rule 104(b), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." Harrell v. State, 884 S.W. 2d at 160.

6.

The trial court’s initial decision under Harrell that evidence is relevant and admissible may properly be based on a proffer by the prosecutor, but the basis for this initial decision is not dispositive. So even if the trial court incorrectly found that evidence was sufficient to prove beyond a reasonable doubt that appellant committed the extraneous misconduct, its decision to admit the evidence was conditional, and was not erroneous in light of evidence later admitted at trial that proved appellant guilty of the offense alleged, as well as the extraneous misconduct. “We do not believe that it is legally significant that 66

the State's pretrial proffer did not satisfy this burden so long as the evidence presented by the end of trial did.” Fischer v. State, 268 S.W. 3d 552, 558 (Tex. Crim. App. 2008).

7.

An autopsy report containing references to numerous prior injuries of deceased infant was erroneously admitted because it did not meet the standard of admissibility of an extraneous offense; that is, it was not proven beyond a reasonable doubt that appellant caused those injuries. George v. State, 959 S.W.2d 378, 381 (Tex. App.–Beaumont 1998, pet. ref’d).

8.

The determination of whether the state has proved extraneous offenses beyond a reasonable doubt during punishment phase is a matter to be determined by the jury with a proper instruction, not by the judge. Mitchell v. State, 931 S.W.2d 950 (Tex. Crim.

App.1996).

IX. LIMITING INSTRUCTIONS A.

Rule 105(a).

If the court admits evidence that is admissible against a party or for a purpose– but not against another party or for another purpose–the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly.

TEX. R. EVID. 105(a).

B.

General rule.

1.

"When extraneous offenses are admitted for a limited purpose, the defendant is entitled, on timely request, to an instruction by the trial judge to the jury limiting the jury's consideration of the extraneous offenses to those purposes for which they are admitted.

Failure to give a limiting instruction, upon timely request, is 'reversible error."' Abdnor v.

State, 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994)(citations omitted); see Crank v. State, 761 S.W.2d 328, 347 (Tex. Crim. App. 1988).

2.

Rule 404(b) requires that great care be taken, especially in criminal cases, that extraneous misconduct not be used to deprive a defendant of his freedom ‘because the trier of facts believes that he is a bad person.’ The danger is that, despite a limiting instruction, the jury will misuse the evidence for some other purpose than the limited purpose for which it was admitted.” Moreno v. State, 22 S.W.3d 482, 489 (Tex. Crim. App. 67

1999)(trial court abused its discretion under Rule 403 in permitting the prosecution to use deferred adjudication to impeach appellant for bias and interest).

3.

When a limiting instruction is given, the trial judge should instruct the jury that the evidence is limited to whatever specific purpose the proponent advocated. A limiting instruction which names four separate purposes is not impermissibly broad where the evidence is relevant to the four purposes instructed on. Evidence of a prior murder was admissible to rebut appellant's defensive theory that he neither killed the complainant nor knew his co-defendant would kill him. Taylor v. State, 920 S.W. 2d 319, 322 (Tex. Crim.

App. 1996).

4.

An instruction purporting to limit the jury's consideration of extraneous evidence to motive had no curative value where the evidence was not admissible to prove motive.

Escort v. State, 713 S.W. 2d 733, 737-38 (Tex. App.–Corpus Christi 1986, no pet.).

5.

Limiting instructions may lessen the prejudice from an extraneous offense. Plante v. State, 692 S.W. 2d 487, 494 (Tex. Crim. App. 1985). "But where no limiting instruction is given, however, we must conclude that any prejudice resulting from introduction of the extraneous offense is unabated." Abdnor v. State, 871 S.W. 2d 726, 738 (Tex. Crim. App. 1994).

6.

A limiting instruction will not cure error where "the evidence was clearly calculated to inflame the minds of the jury to the extent that the charge could not withdraw the impression the evidence made upon the jury." Ecby v. State, 840 S.W. 2d 761, 764 (Tex. App.–Houston [1st Dist.] 1992, pet. ref'd).

C.

Limiting Instructions In Particular Cases.

1.

In England v. State, 887 S.W. 2d 902 (Tex. Crim. App. 1994), appellant raised the defense of entrapment. The court of criminal appeals found that certain extraneous offenses were admissible to rebut the notion that appellant had been induced to commit the instant offense, but were not admissible to show that the persuasion used was likely to cause a reasonable person to commit the offense. Id. at 914-15. In this situation, the appellant would be entitled to a limiting instruction under Rule 105(a) of the Texas Rules of Criminal Evidence, requiring the jury to limit its consideration of extraneous offenses to the issue of whether appellant engaged in the conduct charged because he was induced to do so by a law enforcement officer. Appellant would also be entitled to a limiting instruction which told the jury not to consider the same evidence for the purpose of whether the persuasion used was likely to cause an average law-abiding person to commit the offense. "Finally, the trial court should instruct the jury upon request that it is not to 68

consider the evidence of 'other crimes, wrongs, or acts' in its deliberations of the primary question whether the accused in fact committed the alleged offense." Because the extraneous offense evidence was admissible only to rebut an element of the entrapment defense, the trial court should not have instructed the jury that it could consider such evidence "only . . . in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment and for no other purpose." Id. at 915-16 n. 12.

2.

An extraneous sexual assault against his daughter was not admissible to rebut appellant's implied theory of "frame-up." "[T]his 'frame-up' theory was not presented to the jury in the trial court's limiting instruction. Absent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant's system' to rebut the weight or credibility of appellant's 'frame-up' theory or relied on it for an improper basis such as character conformity." Owens v. State, 827 S.W. 2d 911, 917 (Tex. Crim. App. 1992).

3.

No limiting instruction is required where evidence is admitted as same transaction contextual evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944 (2001); accord, Devoe v. State, 354 S.W.3d 457, 471 (Tex. Crim.

App. 2011); Castaldo v. State, 78 S.W.3d 345, 352 (Tex. Crim. App. 2002)(appellant’s alcohol intoxication).

D.

When Should Limiting Instructions Be Requested?

1.

The contemporaneous instruction.

a.

This limiting instruction may be requested contemporaneously, at the time of the evidence is admitted, pursuant to Rule 105(a). Failure to give a contemporaneous instruction when requested is error. Rankin v. State, 974 S.W. 2d 707, 712 (Tex. Crim.

App. 1996). b.

A contemporaneous instruction makes sense. Such instructions should curb the improper use of evidence, and should do so effectively as possible. "Working under these notions, logic demands that the instruction be given at the first opportunity. If limiting instructions impede the improper use of evidence, then an instruction given when the evidence is admitted limits that evidence to its proper scope immediately. An instruction given for the first time during the jury charge necessarily leaves a window of time in which the jury can contemplate the evidence in an inappropriate manner." Id. at slip op. 7-8. The court also held that, if requested, the limiting instruction should also be 69

given again in the final jury charge. Id. at slip op. 9 n.3. c.

Appellant waived his right to a contemporaneous limiting instruction where told the court during a pretrial hearing that he anticipated an adverse ruling, and that he would ask for the instruction at the appropriate time, but then he failed to do so. And the court’s response, “okay” is not a ruling. Nor was his objection specific enough to request a contemporaneous instruction. Wilson v. State, 7 S.W.3d 136, 144 (Tex. Crim. App. 1999). d.

The decision to request a limiting instruction is a matter of trial strategy.

Accordingly the trial court need not (and should not) give a limiting instruction unless counsel requests that it be given. Delgado v. State, 235 S.W.3d 244, 250 (Tex. Crim. App. 2007). e.

The contemporaneous instruction need only instruct the jury on the limited purpose that the extraneous misconduct was admitted to serve, i.e., motive, intent, plan, etc. The “trial court is not required to give an instruction concerning the burden of proof at the time evidence of unadjudicated offenses and bad acts is admitted.” Jackson v. State, 992 S.W.2d 469, 478 (Tex. Crim. App. 1999).

2.

The limiting instruction in the court’s final charge.

a.

If the defense requests a contemporaneous limiting instruction, it is also entitled to a limiting instruction in the court’s final charge. But if counsel fails to request a contemporaneous instruction, then the evidence is admitted for all purposes, and since the evidence was considered for all purposes, “a limiting instruction on the evidence in the charge was not warranted.” Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001); accord, Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007)(judge is not obligated to limit the use of extraneous misconduct evidence in the final charge if no instruction was requested when the evidence was admitted). b.

The rule is different at the punishment phase of a non-capital trial, because there, under article 37.07, the legislature has deemed that extraneous offense evidence is admissible only if the State can offer proof that would allow the jury to conclude beyond a reasonable doubt that the defendant committed the misconduct. “Article 37.07 is ‘the law applicable’ to all non-capital punishment proceedings. Thus, the trial judge must sua sponte instruct the jury at the punishment phase concerning that law, including the fact that the State must prove any extraneous offenses beyond a reasonable doubt.” Delgado v.

State, 235 S.W.3d at 252.

70

c.

Unlike the contemporaneous instruction, a properly requested instruction in the court’s final charge "must instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant committed the extraneous offense." George v. State, 890 S.W. 2d 73 (Tex. Crim. App. 1994).

X. RULE 403 A.

Text.

Although relevant, evidence may be excluded if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

TEX. R. CRIM. EVID. 403.

B.

In general.

1.

“All testimony and physical evidence are likely be prejudicial to one party or the other. . . . It is only when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value that Rule 403 is applicable.” Davis v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010).

2.

The court unpacked Rule 403's terminology in Casey v. State, 215 S.W.3d 870, 879–80 (Tex. Crim. App. 2007): •

“The term ‘probative value’ refers to the inherent probative force of an item of evidence—that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation—coupled with the proponent's need for that item of evidence.”

•

“‘Unfair prejudice’ refers to a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. [citations omitted] Evidence might be unfairly prejudicial if, for example, it arouses the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence.”

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C.

•

“‘Confusion of the issues,’ refers to a tendency to confuse or distract the jury from the main issues in the case. . . . Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues.”

•

“‘Misleading the jury,’ refers to a tendency of an item of evidence to be given undue weight by the jury on other than emotional grounds. For example, ‘scientific’ evidence might mislead a jury that is not properly equipped to judge the probative force of the evidence.”

•

“‘Undue delay’ and ‘needless presentation of cumulative evidence’ concern the efficiency of the trial proceeding rather than the threat of an inaccurate decision.”

Montgomery v. State and Rule 403.

Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1990), is essential reading.

Its significance as far as Rule 403 goes was discussed above in § VIII., A – D. In summary, Montgomery teaches that evidence might be admissible under Rules 401, 402 and 404(b), but inadmissible under Rule 403; that a separate objection under Rule 403 is required to preserve error; that the trial court must balance prejudice and probity; and, that certain factors must be employed in the balancing test. Appellant Montgomery himself obtained a reversal in his case under Rule 403, even though the extraneous offenses were properly admitted under Rule 404(b). Montgomery v. State, 810 S.W. 2d at 397.

D.

Gigliobianco v. State.

The court outlined Montgomery’s balancing test in Gigliobianco v.State: In summary, a trial court, when undertaking a Rule 403 analysis, must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Of course, these factors may well blend together in practice.

72

210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

E.

Cases Illustrating the Balancing Test.

1.

The court of criminal appeals reversed the court of appeals decision that found that the trial court erred under Rule 403 when it admitted an extraneous handgun possession.

“Any ‘bad character’ inference associated with the handgun would be correspondingly attenuated by any uncertainty regarding appellant's connection to that handgun.” Powell v.

State, 189 S.W.3d 285, 288–89 (Tex. Crim. App. 2006).

2.

The court reversed the court of appeals where both that court and the trial court ignored Montgomery’s “reviewing framework.” Specifically, the court of appeals did not correct discuss “the ‘unfair prejudice’ the admission of this evidence would have caused the State. A discussion of the evidence's prejudice is necessary because Rule 403 creates a presumption of admissibility of all relevant evidence and authorizes a trial judge to exclude such evidence only when there is a ‘clear disparity between the degree of prejudice of the offered evidence and its probative value.’” Mozon v. State, 991 S.W.2d 841, 848 (Tex. Crim. App. 1999).

3.

The court in Gigliobianco was careful to note that its decision was limited to the facts in the case, and that breath test results will not always be admissible under Rule 403.

A different result might be called for if the jury was not given adequate information to evaluate the probative force of the test results. “Similarly, if a breath test was administered to an accused several hours after he was stopped and the results were at or below the legal limit, it might be that a trial court could reasonably conclude that the probative force of the test results was too weak to warrant admission in the face of a Rule 403 challenge.” Gigliobianco v. State, 210 S.W.3d 637, 643 (Tex. Crim. App. 2006).

4.

State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005), was decided a year before Gigliobianco, and focused on four factors — probative value, irrational impression, time to develop, and need for the evidence. Finding that the first three factors favored admissibility, the court ruled that the trial court improperly excluded breath test results simply because no retrograde extrapolation had been done. The court found that the fourth factor – need – favored exclusion since there was other probative evidence showing the appellant’s intoxication. Id. at 440-42.

F.

The Proper Way To Demand A Balancing Test

1.

The balancing test described in Montgomery is mandatory if a proper objection is made. Rankin v. State, 974 S.W. 2d 707, 710-11 (Tex. Crim. App. 1996). A complete 73

balancing test requires inquiry into all the factors set out in Montgomery. "Likewise, we hold that courts of appeals must fully explain their Rule 403 determinations, detailing both the evidence and reasoning used to arrive at those decisions, else we may be unable to discern whether the correct test was used in reaching any given result." Id. at 711. In Rankin, the court remanded the case to the court of appeals for proper analysis under Rule 403.

2.

“Once a Rule 403 objection as to prejudice versus probative value is invoked, the trial judge has no discretion as to whether or not to engage in the balancing test required by that rule. However, a trial judge is not required to sua sponte place any findings he makes or conclusions he draws when engaging in this test into the record, nor did appellant request such to be affirmatively shown. Rather, a judge is presumed to engage in the required balancing test once Rule 403 is invoked and we refuse to hold that the silence of the record implies otherwise.” Williams v. State, 958 S.W.2d 186, 195–96 (Tex. Crim.

App. 1997)(citations omitted).

G.

“Unfairly Prejudicial.”

1. “[T]there is a presumption that relevant evidence is more probative than prejudicial.” Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997) 2.

“To violate Rule 403, it is not enough that the evidence is ‘prejudicial’—it must be unfairly prejudicial. Unfair prejudice occurs when the evidence has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’” Vasquez v. State, 67 S.W.3d 229, 240 (Tex. Crim. App. 2002)(while a potentially improper use of gang affiliation would be to show that appellant was a bad person who acted in conformity with his bad character, the trial court did not abuse its discretion by finding that this potential inference did not substantially outweigh the relevant purpose of showing motive for the robbery and murder).

3.

Although appellant could not be convicted for a bad thought, or a contemplated bad act, such evidence does come within Rule 403, because "the potential for unfair prejudice . . . is quite similar to that of evidence of other crimes, wrongs or acts." Both are objectionable because they "could possibly be used by jurors for the forbidden inference of propensity or character conformity." Moreno v. State, 858 S.W. 2d 453, 464 (Tex. Crim.

App.), cert. denied, 114 S. Ct. 445 (1993)(trial court erred in admitting evidence that appellant once planned to kidnap another person, but the error was harmless);

74

H.

Preserving Rule 403 Error.

An objection to “extraneous matters” was held sufficiently specific to preserve a Rule 404(b) claim, but appellant forfeited her Rule 403 claim because she “did not further object on that basis.” Berry v. State, 233 S.W.3d 847, 857 (Tex. Crim. App. 2007).

I.

Appellate Review Of Rule 403 Issues.

As with other evidentiary rulings made by the trial court, abuse-of-discretion review (not de novo), is the proper standard for Rule 403 issues. The test for abuse of discretion is whether the ruling was “arbitrary or unreasonable.” State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005)(and this is true even if the issue is raised by a pretrial motion to suppress and the trial court specifically concludes that its ruling was not based on witness credibility).

J.

Some Cases Where The Courts Have Found Otherwise Admissible Evidence Inadmissible Under Rule 403.

1.

The trial court erred in admitting 9,900 images of pornography, in violation of Rule 403. “Under these facts, the sheer volume of extraneous-offense evidence was unfairly prejudicial and invited the jury to convict Appellant of sexually assaulting or attempting to sexually assault the victims because Appellant possessed 9,900 images that included homosexual child pornography. Pawlak v. State, 420 S.W.3d 807, 811 (Tex. Crim. App. 2013).

2.

In Templin v. State, 711 S.W. 2d 30 (Tex. Crim. App. 1986), appellant was charged with murdering his wife by electrocution. The trial court admitted evidence that appellant had told two cousins that, when he was ten or twelve years old, some ten to fifteen years prior to trial, he had electrocuted cats and dogs. Appellant had made similar statements to an uncle when he was fourteen or fifteen. The court of criminal appeals found that this evidence was relevant to several issues other than character conformity, and therefore admissible under Rule 404(b). Nonetheless, the court found the evidence inadmissible under Rule 403. It was not so much the length of time that had passed that made it unduly prejudicial. "Rather, it is the fact that appellant was, according to testimony at trial, between the ages of ten and twelve when he was alleged to have committed the acts in question." Id. at 34. The court also rejected the state's argument that its analysis properly went to the weight, not the admissibility of the evidence. "It is the court's duty to determine if the risk to our fundamental scheme of justice is justified by the probative value of the evidence in question. If this evidence is permitted in this case, it would be equally logical to admit into evidence the fact that the defendant in a theft case had stolen 75

property at the age of ten or that the defendant accused of an assaultive offense had struck a playmate as a child." Id. 3.

A defendant who testifies is subject to impeachment just as any other witness is, and, while unadjudicated offenses can be admissible to show bias or interest, care must be taken to avoid unfair prejudice. The trial court abused its discretion under by allowing the prosecutor to show that the testifying appellant was on deferred adjudication. Although this was relevant to his credibility, because, if convicted of the charged offense (misdemeanor DWI), he could be adjudicated and sent to prison, this evidence was substantially more prejudicial than probative, and should have been excluded under Rule 403. Moreno v. State, 22 S.W.3d 482, 489 (Tex. Crim. App. 1999).

4.

“The State did not need the autopsy photographs of the children's dissected internal organs to fully explain the crime scene or to corroborate Beckcom's testimony. Sufficient corroboration was provided by witness testimony, autopsy reports, crime scene photographs, and other autopsy photographs of the children's bodies before their internal organs had been removed. Furthermore, the cause of the children's death was not disputed. Most important, appellant was not charged with murdering them.” Prible v.

State, 175 S.W.3d 724, 736 (Tex. Crim. App. 2005)(harmless error, though it was a “close call”); see also Long v. State, 823 S.W.2d 259, 275 (Tex. Crim. App. 1991)(trial court erred in admitting autopsy photographs that were “entirely cumulative of less gruesome photographs available to the State which were in fact admitted [crime scene photographs]. . . therefore [they had] very little probative value and, considering their gruesomeness, were very prejudicial; error harmless, though); cf., Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999)(no error in admitting autopsy photographs where they were “plainly probative of the manner of the victim's death . . . not . . . particularly horrible. . . [and where] they show no more than the gruesomeness of the crime scene and the nature of the victim's injuries”); George v. State, 959 S.W.2d 378, 381 (Tex .App.–Beaumont 1998, pet. ref’d)(medical records, including an autopsy report, that were laden with evidence of prior injuries to the deceased infant were erroneously admitted under the Rule 403 balancing test as their probative value was substantially outweighed by the prejudical value).

5.

Even assuming the extraneous misconduct evidence would have been admissible a background contextual evidence, or to rebut a defensive theory, in this indecency with a child case, evidence that appellant had physically assaulted the complainant’s sisters “was substantially more prejudicial than probative and, thus, harmful when erroneously admitted.” “Aguillen v. State, 534 S.W.3d 701, 716 (Tex. App.–Texarkana 2017, no pet.).

6.

The court saw no relevance in the fact that a loaded revolver was seized somewhere 76

in the residence where appellant was arrested, but even if this had been relevant, its probative value was substantially outweighed by the danger of unfair prejudice. Alexander v. State, 88 S.W.3d 772, 777 (Tex. App.–Corpus Christi 2002, pet. ref’d).

7.

The State erred in introducing a mug shot from a previous arrest for the purpose of showing he possessed a non-descript leather jacket similiar to one involved in the instant offense some two years later. Alexander v. State, 88 S.W.3d 772, 782 (Tex. App.–Corpus Christi 2002, pet. ref’d).

8.

In Ewes v. State, 841 S.W. 2d 16 (Tex. App.–Dallas 1992, pet. ref’d), following appellant's conviction for unlawful delivery of a controlled substance, the state put on the testimony of a Dallas police officer, David McCoy. After establishing his credentials as an expert, officer McCoy was permitted, over appellant's objections, to testify that "Our Homicide Division roughly estimates that over fifty percent of all the homicides in Dallas are drug-related." Id. at 17. On appeal appellant complained that McCoy's testimony was inadmissible under Rule 403 because it sought to punish him for collateral crimes for which he was not on trial. The court of appeals agreed and reversed the judgment below.

"We . . . hold that the trial court erred in admitting the evidence because its probative value was substantially outweighed by the danger of unfair prejudice and its admission tended to confuse the punishment issues before the jury. Id. at 18.

9.

In Zuliani v. State, 901 S.W. 2d 812, 827 (Tex. App.–Austin 1995, pet. ref’d), the court found that the trial court violated Rule 403 by admitting evidence of appellant's stormy relationship with a live-in girlfriend and all its details in an injury to a child case.

10.

In Castillo v. State, 910 S.W. 2d 124, 128 (Tex. App.–El Paso 1995), the court held that evidence of extraneous offenses was not needed to prove intent because intent was inferable from the acts themselves. Accordingly, the state had not compelling need to prove the extraneous offenses. And, while the evidence was relevant, it had only minimal probative value and was highly inflammatory. "For these reasons, we conclude that the trial court abused its discretion in failing to exclude it under Rule 403." Id. 11.

A trial court can also violate Rule 403 by excluding evidence offered by the defense. See Henderson v. State, 906 S.W. 2d 589 (Tex. App.–El Paso 1995, pet. ref’d).

K.

Oddly enough, evidence can be irrelevant, and inadmissible under Rule 404(b), and substantially more prejudicial than probative, but still harmless.

1.

In Gonzalez v. State, the court of appeals found that evidence that appellant had consumed Ecstasy some 6 to 7 hours before committing a murder was irrelevant, and that 77

it was inadmissible under Rule 404(b), and also that the evidence was substantially more prejudicial than probative. The court of criminal appeals reversed. Agreeing that the evidence was substantially more prejudicial than probative under Rule 403, the court of criminal appeals held that the error was harmless. “[G]iven the nature of the evidence of guilt and the State's lack of emphasis on the evidence, we have fair assurance that the admission of this evidence did not affect Appellant's substantial rights.” 544 S.W.3d 363, 375 (Tex. Crim. App. 2018).

L.

Stipulations.

1.

In a federal case where the defendant was charged with being a felon in possession of a firearm, the Supreme Court held that the trial court abused its discretion when it spurned the defense’s offer to stipulate and admitted “the full record of a prior judgment, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the purpose of the evidence is solely to prove the element of prior conviction. Old Chief v. United States, 519 U.S. 172, 174 (1997).

2.

Texas courts have taken a similar position in felony DWI cases. E.g., Tamez v.

State, 11 S.W.3d 198, 203 (Tex. Crim. App. 2000)(where appellant offered to stipulate that he had been convicted of two prior DWIs, the trial court erred by allowing State to read each of six convictions at the beginning of the case, and then to prove these during the trial); accord, Hernandez v. State, 109 S.W.3d 491, 495 (Tex. Crim. App. 2003)(trial court erred where “appellant's stipulation would have placed the prior convictions into evidence, making the jury aware of their existence [which] would have satisfied the evidentiary requirements regarding stipulations while avoiding the unfair prejudice that would accompany further mention of the convictions”); Hollen v. State, 117 S.W. 3d 798 (Tex. Crim. App.xxx).

3.

Evidence of the existence of prior convictions is unnecessary if the defendant stipulates to their existence because this satisfies the statutory requirement, and if the priors were admitted in the face of a stipulation, the danger of unfair prejudice would be substantially outweighed by its probative value. Robles v. State, 85 S.W.3d 211, 213–14 (Tex. Crim. App. 2002)(rejecting the State’s assertion that the Tamez rule does not apply if only two priors are alleged).

4.

The Court of Criminal Appeals may tell us whether the defense can compel such a stipulation when the prior misconduct is not jurisdictional, but instead offered under Rule 404(b). Perkins v. State, 2020 WL 976941(Tex. App.–Eastland 2020, pet. granted)(not designated for publication). The precise issue presented in Perkins’s petition is: “The Court of Appeals erred in holding the trial court acted within its discretion in allowing the 78

State to introduce extensive details about an extraneous offense during the guilt-innocence phase when Perkins was willing to stipulate to it.”

XI. RULES 401 & 402: RELEVANCY A.

Text.

1.

Rule 401.

Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.

2.

Rule 402.

Relevant evidence is admissible unless any of the following provides otherwise: • the United States or Texas Constitution; • a statute; • these rules; or • other rules prescribed under statutory authority.

Irrelevant evidence is not admissible.

3.

Relevance and Rule 404(b)

a.

The first prong of Rule 404(b)’s test for admissibility requires the court to determine “(a) whether the evidence is relevant at all and (b) whether the evidence is relevant to something other than a showing of character conformity.” Cruz-Garcia v.

State, 2015 WL 6528727, at *18 (Tex. Crim. App. 2015)(not designated for publication)(finding relevant and admissible, evidence of appellant’s failure to appear on another case that was pending at the time of the commission of the instant offense). b.

“Although appellant did not clearly articulate an objection on relevancy grounds at trial, we have held that a Rule 404(b) objection entails a relevancy analysis.”

Santellan v. State, 939 S.W.2d 155, 167 (Tex. Crim. App. 1997).

79

4.

Illustrative cases.

1.

Evidence of appellant’s gang affiliations “had no tendency to make more probable the existence of any fact of consequence; the evidence was not relevant under Rule 401.

This evidence was introduced simply as an attempt to connect appellant to gangs in order to show his bad character. Since this evidence is inadmissible under Rule 401, there is no need for a 403 or 404 analysis.” Pondexter v. State, 942 S.W.2d 577, 584-85 (Tex. Crim.

App. 1996)(harmless error, though).

2.

The victim's knowledge of appellant's violent past was not relevant in this retaliation-by-threat case. Pollard v. State, 277 S.W.3d 25, 26 (Tex. Crim. App. 2009).

3.

The prosecutor’s question, “Are you aware that her [the defendant's] insurance carrier found her at fault?”—was manifestly improper.” Whatever else it might be, this question was clearly barred by Rules 401–403 of the Texas Rules of Evidence. What Ms. Wheeler's insurance carrier concluded has very little probative value on the question of whether she caused the fatal accident. There might be many reasons why the insurance carrier would not dispute liability or would ultimately concede it. . . . Lawyers impeach witnesses with specific facts, not with someone else's legal concession or ultimate factual decision.” Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006).

4.

Acevedo v. State, 255 S.W.3d 162, 169 (Tex. App.–San Antonio 2008, pet. ref’d)(Dr. Arambula did not know enough about the defendant and the quantity of methamphetamine allegedly ingested, and so his “testimony was merely speculative and, thus unreliable and irrelevant”).

5.

That “appellant wanted to engage in a ménage à trois with his ex-girlfriend and his current girlfriend has no bearing on any fact that concerns the ultimate determination of guilt or even on any fact that gives rise to an inference of guilt. Although the court in this death penalty case, “fail[ed] to understand the relevancy of” this testimony, it also failed to find it was harmful, since one of the girlfriends later testified, without objection, to appellant’s desires. Tumblin v. State, 2003 WL 1821467, at *11 (Tex. Crim. App. 2003)(not designated for publication).

XII. DUE PROCESS A.

The Fifth Circuit.

1.

“An extraneous offense may be admitted into evidence without violating the 80

due process clause if the government makes a ‘strong showing that the defendant committed the offense’ and if the extraneous offense is ‘rationally connected with the offense charged.’” Story v. Collins, 920 F.2d 1247, 1254 (5th Cir. 1991)(no due process violation here).

B.

Texas.

1.

The court of criminal appeals seems uncertain whether extraneous offense evidence may violated due process. “Assuming, without deciding, that the Fifth Circuit caselaw is correct, we conclude that the extraneous-offense evidence in the present case meets the articulated due-process standard.” Colone v. State, 573 S.W.3d 249, 268 (Tex. Crim. App. 2019).

2.

Appellant was not imprisoned himself, but he helped his son and others escape, and after they escaped, they committed a number of crimes, including capital murder.

Appellant was charged with escape and providing implements for escape, he pled guilty, and evidence of the crimes committed by the escapees was admitted at punishment over Due Process and Rule 403 objections. The court affirmed. The trial court properly concluded that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. Nor was appellant denied a fair trial or due process of law when the trial court admitted evidence of the crimes of the others. Rodriguez v. State, 203 S.W.3d 837, 844 (Tex. Crim. App. 2006).

2.

So why not federalize your extraneous offense objections by adding Due Process of Law? XIII. NOTICE A.

Rule 404(b).

1.

Rule 404(b) has a notice provision. Accordingly, extraneous misconduct is admissible "provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction." TEX. R. CRIM. EVID. 404(b).

2.

“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).” Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim.

App. 2005)(error harmless, though).

81

3.

In Buchanan v. State, 911 S.W. 2d 11, 15 (Tex. Crim. App. 1995), appellant complained at trial that extraneous offense evidence was inadmissible because the state had not given him notice, as required by Rule 404(b). The state argued that it provided sufficient notice by giving appellant a copy of an offense report which referred to the extraneous offense in question. The court of criminal appeals disagreed. "We cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice 'of intent to introduce' such evidence.

The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an 'intent to introduce' such evidence in its case in chief."

Id. at slip op. 7; see also Neuman v. State, 951 S.W.2d 538, 539 (Tex. App.–Austin 1997)(failure to give notice was not harmless error since Buchanan case had been decided quite some time before appellant’s case and prosecutor should have known of it).

4.

The delivery of witness statements “upon the heels of a timely request for notice”, fairly implies that the State intends to use the evidence. “The prosecution is not required to make a written response concerning its intent, although this is certainly the recommended procedure. Although the better practice is for the prosecutor to state explicitly the intent to introduce extraneous offense evidence, the trial court did not abuse its discretion in concluding that delivery of witness statements to the defense in this particular case provided appellant with reasonable notice.” Hayden v. State, 66 S.W.3d 269, 272-73 (Tex. Crim. App. 2001).

5.

Hayden “modified [the Buchanan] rule somewhat.” McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005). That said, the court distinguished McDonald’s case from Hayden’s for two reasons: “First, the State submitted documents that purported to consist of its notice of intent to offer acts of uncharged misconduct. This appellant was entitled to rely upon the State's notices and to assume that these acts were the only ones that the State intended to offer. Second, the appellant disputed the State's claim that he had received actual notice of the pants incident.” Specifically, the notice in McDonald described touching the complainant’s breast, which was different from what it proved at trial — that he pulled down her pants. “Because of these two circumstances we cannot conclude that the exception we outlined in Hayden applies to the facts of this case.”

McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).

6.

The State’s notice was deficient where it advised counsel of its intent to prove that the appellant touched the complainant’s cousin’s breast, but proved that he pulled her pants down and asked her to touch him. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).

7.

The State's furnishing of a record of the appellant's criminal history was not a 82

sufficient notice of intent to introduce evidence of the appellant's prior convictions during the punishment phase pursuant to 37.07 § 3(g). Dodgen v. State, 924 S.W.2d 216, 219 (Tex. App.– Eastland 1996, pet. ref’d.).

8.

Three days notice of intent to offer extraneous offense evidence was not 'reasonable notice' under rule 404(b). Hernandez v. State, 914 S.W.2d 226, 234 (Tex.AppWaco 1996)(error held to be harmless).

9.

Notice given the morning of trial, when defendant’s request had been on file for six weeks was not timely. Neuman v. State, 951 S.W.2d 538, 540 (Tex. App.–Austin 1997, no pet.).

B.

File a request, not a motion.

1.

Espinosa v. State, 853 S.W. 2d 36 (Tex. Crim. App. 1993), construed the notice requirement of Rule 404(b). Espinosa had made his request for notice long before trial in a general motion for discovery, but it had not been ruled on in advance of trial. The court held that "when a defendant relies on a motion for discovery to request notice pursuant to Rule 404(b), it is incumbent upon him to secure a ruling on his motion in order to trigger the notice requirements of that rule. In this case, appellant's discovery motion did not operate as such a request." Id. at 39. Had the trial court granted appellant's motion for discovery, the state would have been required to give notice. Id. at 39 n.4.

2.

In his concurring opinion in Espinosa, Judge Baird offered the following helpful practice tip: To make an adequate request under Rule 404(b), the better practice is for the defendant to file a document entitled "Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct" and to timely serve the State with a copy of the request. In this situation, the defendant is not required to obtain a ruling from the trial judge. However, if the request is made within a discovery motion, the defendant is compelled to obtain a ruling because the State need not comply with the requests in a discovery motion until the trial judge orders compliance. Finally, a motion in limine is insufficient to invoke the notice provisions of Rule 404(b).

Espinosa v. State, 853 S.W.2d at 39-40 (Baird, J., concurring).

83

3.

Lest anyone miss the crucial distinction drawn in Espinosa, the court has reiterated its holding several times: “[W]e hold that when a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under Article 37.07, § 3(g).3 To hold otherwise would encourage gamesmanship. The opposite rule could encourage defendants to bury requests in voluminous motions, hoping the State would either overlook it or believe it the request to be contingent on a court order. An ad hoc approach would encourage gamesmanship on the part of both parties.” Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); see also Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998)(because appellant’s document was a motion, not a “selfexecuting request, and appellant failed to get a ruling, the rule’s notice requirements were not triggered).

4.

Where the appellant filed a pleading styled Rule 404(b) Request for Notice of Intent to Offer Extraneous Conduct, but it was addressed "to the Honorable Judge of Said Court" and requested the court to order the state to give notice, the pleading was a motion requiring a ruling by the trial judge. President v. State, 926 S.W.2d 805, 808 (Tex. App.– Austin 1996); see also Valle v. State, 950 S.W.2d 413, 414 (Tex. App.–Houston [1st Dist.]

1997 pet. ref’d).

C. Punishment: TEX. CODE CRIM. PROC. ANN. arts. 37.07, § 3(g) and 37.071, § 2(a)(1).

1.

TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(g), provides: On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent 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 of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

2.

TEX. CODE CRIM. PROC. ANN. art. 37.071, § 2(a)(1), provides that: “The introduction of evidence of extraneous conduct is governed by the notice requirements of Section 3(g), Article 37.07.”

3.

“For notice of unadjudicated extraneous misconduct to be ‘reasonable’ for purposes 84

of Section 3(g) of Article 37.07, and hence, Article 37.071, Section 2(a)(1), it must include ‘the date on which and the county in which [the extraneous misconduct] occurred and the name of the alleged victim of the [extraneous misconduct].’” Leza v. State, 351 S.W.3d 344, 359 (Tex. Crim. App. 2011)(notice given 3 weeks prior to trial that provided “where, when, and at whom the extraneous conduct was directed” was sufficient); see also State v.

Sanavongxay, 407 S.W.3d 252, 254 (Tex. Crim. App. 2012)(reasonable notice must include “the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act”).

D.

Preservation Of Error.

1.

“To preserve error regarding the State's failure to provide reasonable notice of its intent to use extraneous offense evidence, the defendant must request a continuance to mitigate the effects of surprise.” Martines v. State, 371 S.W.3d 232, 249 (Tex. App.–Houston [1st Dist.] 2011, no pet.); accord, Knight v. State, 457 S.W.3d 192, 203 (Tex. App.–El Paso 2015, pet. ref’d).

E.

Harm.

1.

Rule’s 404(b)’s notice requirement is a rule of admissibility, so it is error to admit the evidence when notice is not given, and then the question is harm. Under Rule 44.2(b) non-constitutional error is harmless unless it has a substantial and injurious effect or influence in determining the jury’s verdict. Since the purpose of the notice requirement is to prevent surprise, this is a valid consideration when determining harm. When substantively admissible 404(b) evidence is erroneously admitted because notice was not properly given, “it cannot be said that this effect or influence was “injurious” if the defendant was not surprised by the evidence.” Hernandez v. State, 176 S.W.3d 821, 82425 (Tex. Crim. App. 2005).

F.

When Notice Is Not Required.

1.

The State is not required to give notice of extraneous misconduct introduced at punishment to rebut testimony of defense witnesses. Jaubert v. State, 74 S.W.3d 1, 4 (Tex. Crim. App. 2002). Judge Cochran concurred, noting that, although there was no manipulation in this case, “it is possible for prosecutors to manipulate the notice rule's purpose and applicability simply by reserving all extraneous offense evidence until its rebuttal case, when notice is not required. Although this strategy conforms to the letter of the law, it clearly violates the spirit.” To prevent this, Judge Cochran suggested that, for a number of reasons, “it may behoove a prosecutor to voluntarily deliver to the defense a written list of all known incidents which are not explicitly set out in the indictment, but of 85

which the prosecutor is aware and which might become admissible for any reason at any time.” Id. at 6-8.

2.

The State is not required to give pretrial notice of “same-transaction contextual evidence” it intends to offer in the punishment stage of a non-capital trial. Worthy v. State, 312 S.W.3d 34, 35 (Tex. Crim. App. 2010). “That said, prudent prosecutors provide pretrial notice of all evidence that could possibly be considered extraneous to the charged offense so that judges need not ‘engage in a hair-splitting debate’ about whether some specific item is evidence of an extraneous offense or is same-transaction contextual evidence.” Id. at 39. See also TEX. R. EVID. 404(b)(2)(notice not required for evidence “arising in the same transaction”). But see McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005)(notice required, though, when the facts of the primary offense can be understood on their own).

3.

Rule 404(b) does not require the State to give notice of rebuttal evidence that becomes admissible when the defense opens the door. “To hold otherwise would impose upon the State the impossible task of anticipating, prior to the beginning of trial, any and all potential defenses that a defendant may raise.” Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016); Stringer v. State, 845 S.W. 2d 400, 403 (Tex. App.–Houston [1st Dist.] 1992, pet. ref’d)(under the plain reading of the rule itself, notice need not be given when the extraneous offense is offered only for rebuttal purposes); Yohey v. State, 801 S.W. 2d 232, 235 (Tex. App.–San Antonio 1990, pet. ref’d).

4.

In Dabney, the court found “no evidence that the prosecutor willfully violated “a court order.” Id. at 318. Had there been such willful misconduct, the result might have been different. Cf. Oprean v. State, 201 S.W.3d 724, 728 (Tex. Crim. App. 2006)(abuse of discretion to admit videotape where “the prosecutor's conduct here was a calculated effort to frustrate the defense”).

XIV. YOU MIGHT BE INEFFECTIVE IF YOU DO NOT PROPERLY DEAL WITH EXTRANEOUS MISCONDUCT 1.

Appellant pled guilty to the aggravated assault and the attempted aggravated sexual assault of one woman, and at the punishment phase of that trial, the State sponsored the testimony of a different woman who testified to a “very ugly” unadjudicated aggravated sexual assault. Appellant told his trial counsel he did not commit the extraneous offense and urged counsel to check with his parole officer and that he get the monitoring records from an electronic monitor that would show he was in his apartment, miles away when the second woman was assaulted. And there was evidence that he had been excluded as the 86

perpetrator of this offense by DNA evidence. The court of appeals found counsel ineffective for not investigating appellant’s whereabouts at the time of the crime, and presenting this and the DNA exclusion evidence. “Had he presented this evidence, the probative value of her testimony may not have been substantially outweighed by undue prejudice. There is a reasonable probability that the jury would have had reasonable doubt that Applicant committed the extraneous offense.” Ex Parte Rogers, 369 S.W.3d 858, 865 (Tex. Crim. App. 2012).

2.

In Ex parte Varelas, 45 S.W. 3d 627, 632 (Tex. Crim. App. 2001), the court found trial counsel deficient for failing to request that the jury be instructed that they must find beyond a reasonable doubt that applicant committed certain extraneous misconduct before considering it in its deliberations, and for failing to request limiting instructions as to the jury’s use of this extraneous misconduct.

3.

Trial counsel was deficient when he allowed the jury to hear prejudicial and clearly inadmissible evidence of prior convictions. Robertson v. State, 187 S.W.3d 475, 484–85 (Tex. Crim. App. 2006).

4.

See Ex parte Menchaca, 854 S.W. 2d 128, 133 (Tex. Crim. App. 1993)(defense counsel failed to move in limine to exclude an inadmissible prior conviction for rape, which permitted the prosecutor to use this conviction to attack the credibility of appellant in his closing argument); Cude v. State, 588 S.W. 2d 895, 897 (Tex. Crim. App. 1979)(counsel ineffective for failing to object to “numerous and repeated showings of extraneous offenses elicited on direct and cross-examination); Parmer v. State, 545 S.W.3d 724, 733 (Tex. App.–Texarkana 2018, no pet.)(counsel was ineffective for not objecting to the irrelevant and prejudicial evidence in medical records, and for making no effort to redact this inadmissible evidence from the otherwise admissible records); see also Walker v. State, 195 S.W.3d 250, 264 (Tex. App.–San Antonio 2006, no pet.); Brown v. State, 974 S.W.2d 289, 295 (Tex. App.–San Antonio 1998, pet. ref’d); Greene v. State, 928 S.W.2d 119, 126 (Tex. App.–San Antonio 1996, no pet.).

5.

“We note that, in most cases, counsel's failure to request limiting instructions might not constitute ineffective assistance. In the present case, however, it was tantamount to ignoring the proverbial 800–pound gorilla in the room. Given the amount of extraneous-acts evidence that existed, counsel should have asked for an instruction to at least try to limit the amount of what was introduced after the trial court ruled that co-counsel had opened the door to such evidence. Counsel could have asked for this instruction outside the presence of the jury, and thus avoided appearing as an “obstructionist” in front of them.” Ex Parte Aguilar, 2007 WL 3208751, at *14 (Tex. Crim. App. Oct. 31, 2007)(not designated for publication).

87

6. “[C]ross-examination is an art, not a science, and it cannot be adequately judged in hindsight. For example, had counsel so vigorously cross-examined . . . as to raise serious doubts about applicant's identity as the robber-murderer, the State might well have been allowed to offer evidence during the guilt stage about applicant's extraneous Wal–Mart “bank-bag” robbery two months before the capital offense. A defense strategy that avoids the introduction of extraneous offenses under Rule 404(b) is not constitutionally ineffective.” Ex parte McFarland, 163 S.W.3d 743, 756 (Tex. Crim. App. 2005).

XV. RULE 404(b) IS USUALLY BAD FOR US (BUT NOT ALWAYS) 1.

“Nothing in the language of the rule would lead one to believe that it is a rule intended solely as a benefit for the State to be applied against the defendant, despite the fact “the overwhelming number of cases [do] involve introduction of [extrinsic crimes, wrongs, or acts] evidence by the prosecution.” Tate v. State, 981 S.W.2d 189, 193 (Tex. Crim. App. 1998). In Tate, the court held that the trial court erred under Rule 404(b) by excluding evidence in a murder case that the deceased had made an uncommunicated threat against appellant a month before Tate killed Rackley. “A reasonable jury could have believed this evidence shed light upon Rackley's state of mind when he arrived at appellant's house on the night in question, and, as long as it was otherwise admissible, appellant possessed the right to present it for the jury's consideration.” Id; see also Torres v. State, 71 S.W.3d 758, 762 (Tex. Crim. App. 2002)(trial court erred in excluding evidence that, two days before he was killed, the complainant entered the home of another through a window and threatened the homeowner, because this showed both showed a mindset for violence, and intent or motive).

2.

Evidence of a victim’s character for violence is admissible under T EX. R. EVID. ANN. 404(a)(2) to show the victim was the first aggressor, and is relevant even if the defendant is unaware of that character trait. Evidence of the victim’s character for violence is also admissible TEX. R. EVID. 404(b) where a defendant raises self-defense that rests on perceived danger, provided the defendant is aware of that character trait. Rule 404 is not “absolute,” though; the evidence must still pass muster under Rule 403. There is no exception for evidence relevant to a defensive theory. Mozon v. State, 991 S.W.2d 841, 845-46 (Tex. Crim. App. 1999).

3.

“Rule 404(b) explicitly 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.” Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009). In this case, the court held that the trial court 88

abuse its discretion by preventing appellant from cross-examining the complainant about several incidents “to demonstrate her bias against appellant and her possible motive to testify falsely against him.” Id. at 570.

4.

The Constitution mandates that criminal defendants “have “a meaningful opportunity to present a complete defense.’” Miller v. State, 36 S.W.3d 503, 506 (Tex. Crim. App. 2001). Accordingly, the trial court erred in not permitting appellant to offer evidence that shortly after she delivered cocaine to an undercover officer, another person assaulted her, because the appellant had raised the affirmative defense of duress, and she had only delivered the cocaine because of her fear of the person who had assaulted her.

The evidence was relevant under Rules 401 and 402, and could not have properly been excluded under Rule 403. Id. at 508-509.

89

2018-CR-0000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

175TH JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

REQUEST FOR NOTICE OF INTENT TO OFFER EXTRANEOUS CONDUCT UNDER RULE 404(b) AND EVIDENCE OF CONVICTION UNDER RULE 609(f) AND EVIDENCE OF AN EXTRANEOUS CRIME OR BAD ACT UNDER ARTICLE 37.07 TO THE BEXAR COUNTY DISTRICT ATTORNEY'S OFFICE: I. Pursuant to Rule 404(b) of the Texas Rules of Evidence, defendant requests the state to give reasonable notice in advance of trial of its intent to introduce in its case-in-chief evidence of crimes, wrongs, or acts other than that arising in the same transaction.

II. Pursuant to Rule 609(f) of the Texas Rules of Evidence, defendant requests that the state give sufficient advance written notice of its intent to use evidence of a conviction against the following witnesses: Joe Smith III. Pursuant to Article 37.07, § 3(g) of the Texas Code of Criminal Procedure, defendant requests that the state give reasonable notice of intent to introduce against the defendant evidence of an extraneous crime or bad act at the punishment phase of the trial.

Sample 1a

Respectfully submitted:

/s/ MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205 (210) 226-1433 State Bar No. 19184200 Attorney for Defendant CERTIFICATE OF SERVICE I certify that a copy of defendant's original Request For Notice Of Intent To Offer Extraneous Conduct Under Rule 404(b) And Evidence Of Conviction Under Rule 609(f) has been delivered to the District Attorney's Office; Paul Elizondo Tower; 101 W. Nueva; San Antonio, Texas, on the 14th day of February, 2019.

/s/ MARK STEVENS

Sample 1a

NO. 7000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

451ST DISTRICT COURT

JOE SMITH

)

KENDALL COUNTY, TEXAS

DEFENDANT'S FIRST REQUEST FOR DISCOVERY UNDER ARTICLE 39.14(a), NOTICE UNDER ARTICLE 39.14(b), AND NOTICE UNDER RULES 404(b), 609(f), AND ARTICLE 37.07(g) TO ELLEN JONES, KENDALL COUNTY ASSISTANT DISTRICT ATTORNEY: A.

TEX. CODE CRIM. PROC. ANN. art. 39.14 (a) Defendant requests, pursuant to article 39.14(a) of the Texas Code of Criminal

Procedure, that the State of Texas produce and permit the inspection and the electronic duplication, copying, and photographing by counsel, of all of the following, whether collected or created by the Kendall County District Attorney's Office, the Boerne Police Department, the Kendall County Sheriff's Department, the Texas Department of Public Safety, or any other local or State agency: 1.

All offense and crime scene reports.

2.

All written and recorded statements of the defendant.

3.

All written and recorded statements of all witnesses.

4.

All documents, papers, books, accounts, letters, photographs, videotapes, electronic recordings, cell phone records, text messages, voice mails, emails, social media content, objects and other tangible things that constitute or contain evidence material to any matter involved in the action that are in the possession, custody, or control of the state or any person under contract with the state, except as prohibited by article 39.15 of the Texas Code of Criminal Procedure, or section 264.408 of the Texas Family Code.

Sample 1b

5.

B.

The following designated documents and materials: a.

All notes, calculations, diagrams, measurements, logs, photographs, videotapes, records, and reports made by experts and relied upon by the State of Texas in this case..

b.

All lab, toxicology, ballistic, DNA, fingerprint, and trace evidence reports in the possession of the investigating agencies handling this case.

c.

All arrest warrants, search warrants, capiases, supporting affidavits, and returns concerning this case.

d.

All photographs and videotapes and other electronic recordings taken by all local or State agencies or agents or experts involved in this investigation, or employed by the State of Texas.

e.

All employment records, school records, medical records, and mental health records concerning any potential witness or party in this case in possession of the Kendall County District Attorney's Office.

TEX. CODE CRIM. PROC. ANN. art. 39.14 (b) Defendant requests that the State provide to his lawyer notice of the name and address

of each person it may use at trial to present evidence under Rules 702, 703, and 705 of the Texas Rules of Evidence, in either hard copy form or by electronic means, not later than the 20th day before the date that jury selection begins, as required by article 39.14(b) of the Texas Code of Criminal Procedure.

C.

TEX. R. EVID. 404(b), TEX. R. EVID. 609(f), and TEX. CODE CRIM. PROC. ANN. art.

37.07(g) Pursuant to Rule 404(b) of the Texas Rules of Evidence, defendant requests the state

to give reasonable notice in advance of trial of its intent to introduce in its case-in-chief evidence of crimes, wrongs, or acts other than that arising in the same transaction. Pursuant 2

Sample 1b

to Rule 609(f) of the Texas Rules of Evidence, defendant requests that the state give sufficient advance written notice of its intent to use evidence of a claimed conviction of his against him. Pursuant to Article 37.07, § 3(g) of the Texas Code of Criminal Procedure, defendant requests that the state give reasonable notice of intent to introduce against the defendant evidence of an extraneous crime or bad act at the punishment phase of the trial.

DATED: September 22, 2021 Respectfully submitted: /s/ Mark Stevens MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205 (210) 226-1433 State Bar No. 1918420 Attorney for Defendant

3

Sample 1b

NO. 2008-CR-0000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

226th JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

MOTION IN LIMINE TO THE HONORABLE JUDGE OF SAID COURT: Now comes Joe Smith, defendant in the above styled and numbered cause, and moves this Court before trial in limine for an order instructing the District Attorney, his representatives and witnesses to refrain from making any direct or indirect reference whatsoever, at trial before the jury to any of the following matters: I. Defendant moves to exclude all extraneous crime or misconduct evidence which is not alleged in the indictment, unless it can be shown to the Court, outside the presence of the jury by sufficient proof that defendant perpetrated such conduct, that this evidence is relevant to a material issue in the case, other than character conformity, and that its probative value outweighs its potential for prejudice.

II. If the prosecutor is allowed to allude to, comment upon, inquire about, or introduce evidence concerning, any of the above matters, ordinary objections during the course of trial, even sustained with proper instructions to the jury, will not remove the harmful effect of same in view of its highly prejudicial content.

Sample 2

WHEREFORE, PREMISES CONSIDERED, defendant, prays that this Court order and instruct the District Attorney, his representatives and witnesses, not to elicit or give testimony respecting, allude to, cross-examine respecting, mention, or refer to any of the above matters until a hearing has been held outside the presence of the jury at which time this Court can determine the admissibility of these matters.

Respectfully submitted:

MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1505 San Antonio, TX 78205 (210) 226-1433 State Bar No. 19184200 Attorney for Defendant

CERTIFICATE OF SERVICE I hereby certify that a copy of defendant's Motion in Limine was delivered to the Bexar County District Attorney's Office, Bexar County Justice Center, 300 Dolorosa, San Antonio, Texas, on this the 1st day of April, 2013.

MARK STEVENS

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ORDER On this the

day of

, 2014, came to be considered

defendant's Motion in Limine, and said motion is hereby (GRANTED)

(DENIED)

JUDGE PRESIDING

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NO. CR 2008-000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

IN AND FOR

JOE SMITH

)

COMAL COUNTY, TEXAS

DEFENDANT'S OBJECTIONS TO EVIDENCE PURSUANT TO RULE 103(a)(1) TO THE HONORABLE JUDGE OF THE COURT: Joe Smith objects prior to trial, under Rule 103(a)(1) of the Texas Rules of Evidence, to certain evidence he believes the state may offer at trial.

I. Rule 103(a)(1) Rule 103(a)(1) of the Texas Rules of Evidence provides that : “When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.” In this document, the defense reurges all objections it has previously made, and makes further objections to evidence discussed herein, also under Rule 103(a)(1).

II. Extraneous Misconduct Mr. Smith moves to exclude all extraneous crime or misconduct evidence which is not alleged in the indictment in this case, unless it can be shown by sufficient proof that he perpetrated such conduct. In deciding whether to admit such evidence, this Court 1

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“must, under rule 104(b) (of the Texas Rules of Evidence), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.” Harrell v. State, 884 S.W. 2d 154, 160 (Tex. Crim. App. 1994). Additionally, the state must prove that this extraneous evidence is relevant to a material issue in the case other than character conformity; and that its probative value outweighs its potential for prejudice. In this case, such “evidence” includes, but is not limited to, the following, as alleged by the state in its notices of intent to offer evidence, dated September 9, 2008, and April 8, 2009: 1.

“On or about June 2, 2018 the Defendant committed an assault against Alicemanda Johnson.”

2.

“On or about November 2018, Ann White Culpepper was on the phone with James Jones, while on the phone, Ann stated that the Defendant was drunk/intoxicated and lunged toward her in anger after she picked up his dog.”

3.

“On or about November 2018 , the Defendant told Ann White that he had a video of the incident involving Susan Williams, but deleted it because it made him look bad.”

The state cannot prove beyond a reasonable doubt that Mr. Smith perpetrated any

of these transactions. Mr. Smith has not been convicted of any offense concerning these transactions, as required by Rule 609 of the Texas Rules of Evidence. These transactions are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). These transactions are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

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(GRANTED)

(DENIED)

III. The Court Must Make A Preliminary Determination Of The Admissibility Of Extraneous Evidence Texas law favors a preliminary presentation of questionably admissible evidence outside the presence of the jury. Specifically, Texas Rule of Evidence 103(c) states that [i]n jury cases, proceedings shall be conducted to the extent practical, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury. Similarly, Texas Rule of Evidence 104(c) allows for hearings in criminal cases outside “the hearing of the jury when the interests of justice so require . . . .”

In deciding whether to admit evidence of alleged extraneous misconduct, this Court “must, under rule 104(b) [of the Texas Rules of Evidence], make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense.” Harrell v. State, 884 S.W. 2d 154, 160 (Tex. Crim. App. 1994). Extraneous misconduct is irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence unless it can be shown by sufficient proof that the defendant perpetrated such conduct. And Rule 403 limits the admissibility of such evidence “when it is doubtful that the defendant committed the extraneous offense.” Id. (GRANTED)

(DENIED)

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III. Extraneous Misconduct Not Timely Disclosed Mr. Smith also moves to exclude all extraneous crime or misconduct evidence, notice of which was requested by defendant, but not provided by the state as required by Rules 404(b) and 609(f) of the Texas Rules of Criminal Procedure, and article 37.07 of the Texas Code of Criminal Procedure.

(GRANTED)

(DENIED)

IV. Polygraph Examination In an interview on April 28, 2011, Carol Thomas of the Kerr County Sheriff’s Department asked Mr. Smith if he was willing to take a polygraph test and a discussion was had. Later, witness Larry Glavin was also asked to take a polygraph. Any mention of a polygraph in Texas is absolutely prohibited, and, among other things, would be contrary to Rules 401, 402 and 403 of the Texas Rules of Evidence, and to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. See also Crawford v. State, 617 S.W.2d 925

(Tex.Cr.App.1981); Fernandez v. State, 564 S.W.2d 771 (Tex. Crim. App.1978); Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973).

(GRANTED)

(DENIED)

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V. Hearsay And Unauthenticated Documents Mr. Smith objects to any documentary evidence that constitutes or contains hearsay, inadmissible under Rules 801 and 802 of the Texas Rules of Evidence, or which is not properly authenticated, as required by Rule 901 of the Texas Rules of Evidence, or which has not been maintained with the proper chain of custody to insure its evidentiary integrity.

(GRANTED)

(DENIED)

VI. Inadmissible Opinion Testimony Mr. Smith objects to anyone giving expert opinion testimony unless that person is qualified under Rule 702 of the Texas Rules of Evidence, and their testimony is not unfairly prejudicial, confusing, misleading, or confusing, under Rule 403. Specifically, Mr. Smith objects to opinion testimony from Kenneth Crawford concerning the alleged authorship of writing or printing on two subscriber cards. A Daubert hearing was held on November 25, 2009, and the state failed to carry its burden of proving that Mr. Crawford’s testimony was either relevant or reliable as required by Rule 702 of the Texas Rules of Evidence. See Daubert v. Merrell Dow Pharamaceuticals, 509 U.S. 579, 589 (1993); see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); Hartman v.

State, 946 S.W.2d 60, 62 (Tex. Crim. App. 1997).

(GRANTED)

(DENIED)

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VII. Untimely Designated Expert Witnesses Mr. Smith objects to any expert witness testifying for the state unless that person was timely designated as a witness.

(GRANTED)

(DENIED)

VIII. Undisclosed Witnesses Mr. Smith filed a motion for discovery of state’s witnesses, and that motion was granted on July 7, 2008. Mr. Smith objects to any witness testifying for the state who has not already been named as a possible witness by the state.

(GRANTED)

(DENIED)

IX. Victim Impact Evidence Mr. Smith objects to the admission of any victim impact or victim character evidence at the first phase of the trial. Mr. Smith objects to the admission of any victim impact or victim character evidence at the first phase of the trial. Evidence of the physical or psychological impact on crime victims or their families is irrelevant and therefore inadmissible at the guilt/innocence phase of the trial. Miller-El v. State, 782 S.W.2d 892, 895 (Tex. Crim. App. 1990).

(GRANTED)

(DENIED)

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X. Untested Character Evidence The defense objects to the presentation of any evidence by the state concerning his character through character witnesses who have not been previously examined outside the presence of the jury. The defense objects to the presentation of any evidence by the State concerning Mr. Smith's character through character or reputation witnesses who have not been previously examined outside the presence of the jury. Additionally, the defense objects to any "have you heard" or "did you know" type questions of any character or reputation witness put on by the defense until the foundation for the proposed questions first be established and ruled permissible by the Court, outside the jury's presence. The proper foundation requires a showing that any questions be asked in good faith, that they are relevant to the character traits at issue, and that they not seek to impeach the character witness based on the facts of the instant case. Wilson v. State, 71 S.W.3d 346, 351 (Tex. Crim. App. 2002); Stephens v. State, 80 S.W.2d 980, 982 (Tex. Crim. App. 1935).

(GRANTED)

(DENIED)

XI. The Right To Silence Mr. Smith objects to any testimony or allusion to his exercising his constitutional right to remain silent when confronted by the police or agents of the state. Texans have the constitutional right to remain silent in the face of questioning by the police. Mr. Smith objects to the state eliciting evidence before the jury that he invoked his

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constitutional right to remain silent. Eliciting this sort of evidence would violate the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. See also Doyle v. Ohio, 426 U.S. 610 (1976); Sanchez v. State, 707 S.W. 2d 575 (Tex. Crim. App. 1986). And this evidence is irrelevant, in violation of Rules 401 and 402 of the Texas Rules of Evidence.

Additionally, whatever marginal relevance the evidence has is substantially outweighed by its potential for unfairly prejudicing the jury, in violation of Rule 403 of the Rules of Evidence.

(GRANTED)

(DENIED)

XII. The Right To Counsel Mr. Smith moves to exclude any reference to his having requested to speak to a lawyer before speaking to officers or agents of the State of Texas, and to his refusal to speak to said officers and agents until being allowed to do so. Such references would be contrary to article 38.38 of the Texas Code of Criminal Procedure, Rules 401, 402 and 403 of the Texas Rules of Evidence, and to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. See also Doyle v. Ohio, 426 U.S. 610 (1976); Sanchez v. State, 707 S.W. 2d 575 (Tex. Crim. App. 1986). And this evidence is irrelevant, in violation of Rules 401 and 402 of the Texas Rules of Evidence. Additionally, whatever marginal relevance the evidence has is substantially outweighed by its potential for unfairly prejudicing the jury, 8

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in violation of Rule 403 of the Rules of Evidence.

(GRANTED)

(DENIED)

XIII. The Privilege Against Self-Incrimination At the insistence of his attorney, Mr. Smith invoked his privilege against selfincrimination, guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, § 10 of the Texas Constitution during a deposition conducted by opposing parties in civil litigation. Eliciting this sort of evidence would violate the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. And this evidence is irrelevant, in violation of Rules 401 and 402 of the Texas Rules of Evidence. Additionally, whatever marginal relevance the evidence has is substantially outweighed by its potential for unfairly prejudicing the jury, in violation of Rule 403 of the Rules of Evidence.

(GRANTED)

(DENIED)

XVI. 911 Calls Numerous persons made 911 calls reporting this accident on October 1, 2020, shortly after 10:00 am. These reports are hearsay, inadmissible under Rules 801 and 802 of the Texas Rules of Evidence. Additionally, this information denies Mr. Samsun his right to confront and cross-examine witnesses against his, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas 9

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Constitution. And contents of these calls are unreliable, and their admission would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution and the Due Course of Law Provision of Article I, §§ 13 and 19 of the Texas Constitution. This content is also substantially more prejudicial than probative, and would likely confuse and mislead the jury if admitted, in violation of Rule 403 of the Texas Rules of Evidence.

(GRANTED)

(DENIED)

XVII. Previously Urged Objections On October 21 – 23, 2021, pre-trial hearings were held on various motions filed by the defense and on that date and shortly thereafter, this Court ruled. Mr. Smith lodged numerous objections to admission of certain evidence, and he reurges those objections at this time. If those objections are again overruled, the defense requests that the Court consider the objections as having been made if the state offers the evidence at trial, and that the defense not be required to make the objections again, as is provided by Rule 103(a)(1).

(GRANTED)

(DENIED)

XVIII. The Attorney-Client Privilege The state has listed two of Mr. Smith’s attorneys as potential witnesses – Gordon Jones and Martin Brown. Confidential communications between Mr. Smith and his

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attorneys are privileged and inadmissible against Mr. Smith. See TEX. R. EVID. 503(b)(1).

Additionally, any fact that came to the knowledge of either attorney by reason of the attorney-client relationship is privileged and may not be disclosed in Texas. See TEX. R. EVID. 503(b)(2). No evidence should be elicited from either attorney until this Court has determined, outside the presence of the jury, that they have unprivileged evidence to give.

Mr. Smith should not be required to assert the attorney-client privilege in the presence of the jury. See TEX. R. EVID. 513. And the fact that Mr. Smith contacted or retained attorneys may not be used against him or commented on by the prosecutors or the Court.

See TEX. CODE CRIM. PROC. ANN. art. 38.38.

(GRANTED)

(DENIED)

IXX. Hearsay From The Complainant The discovery provided the defense in this case is filled with references allegedly made by the complainant about Mr. Smith to third parties. We move to exclude any reference to hearsay testimony from the complainant because said testimony is inadmissible under Rules 801, 802 and 803 of the Texas Rules of Evidence, and the Confrontation Clauses of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution.

(GRANTED)

(DENIED)

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XX. Divorce Documents On Computer The state seized a number of computers and computer equipment from Mr. Smith’s home and effects. We have previously objected to the admission of any evidence from the computers because that evidence was illegally obtained, for a number of reasons.

Recently, the state has notified the defense that it intends to attempt to prove that certain evidence purportedly relating to Mrs. Smith’s intention to divorce Mr. Smith was found on one of the computers seized, and this evidence was viewed by someone, was sent off to a storage facility, and later deleted. Besides being inadmissible because it was illegally obtained, this evidence is inadmissible for the following reasons: A.

The computer in question was one of several owned by the Smith family and it cannot be proven that Joe Smith viewed the evidence in question, or that he sent it to the storage facility, or that he deleted it. Absent such proof, the evidence is irrelevant under Rules 401 and 402, and whatever marginal relevance it may have is substantially outweighed by its potential for prejudice.

B.

The divorce information in question is hearsay, inadmissible under Rules 801, 802 and 803 of the Texas Rules of Evidence, and the Confrontation Clauses of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution.

C.

The divorce information in question, some of which purportedly comes information provided by the complainant to her divorce attorney, contains a number of damaging and unsupported claims which would be highly prejudicial to Mr. Smith. Such information is entirely irrelevant to this prosecution and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. Whatever marginal relevance it might have is substantially outweighed by its potential for prejudice, making it irrelevant under Rule 403.

(GRANTED)

(DENIED)

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XXI. Transcripts of Recorded Conversations The state has tendered to the defense transcripts of certain conversations purportedly between Mr. Smith and others. The prosecutors advise the defense that they want the jury to use these transcripts. Respectfully, the defense disagrees that the transcripts thus far provided by the state fully and accurately capture the recorded conversations. The defense maintains that the tapes themselves are the best evidence of the content of the conversations, and that the transcripts will not assist the jury in learning the true evidence. Allowing the jury to use these transcripts will deny Mr. Smith the right to confront and cross-examine witnesses against him and the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution.

(GRANTED)

(DENIED)

XXII. Personal Writings Various writings were seized from Mr. Smith and his home and vehicles and computers pursuant to several search warrants. The state maintains that some of these documents were written by Mr. Smith and some were not. Those personally written by him are inadmissible under article 18.02 (10) of the Texas Code of Criminal Procedure.

Those not personally written by him are irrelevant, unfairly prejudicial, and inadmissible under Rules 401, 402, and 403 of the Texas Rules of Evidence.

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(GRANTED)

(DENIED)

XXIII. Hearsay And Unauthenticated Documents Mr. DeVoll objects to any documentary evidence that constitutes or contains hearsay, inadmissible under Rules 801 and 802 of the Texas Rules of Evidence, or which is not properly authenticated, as required by Rule 901 of the Texas Rules of Evidence, or which has not been maintained with the proper chain of custody to insure its evidentiary integrity.

(GRANTED)

(DENIED)

XXIV. The Behavior Of Others Cannot Fairly Be Attributed To Joe Smith The Notice Of State’s Intent To Introduce Extraneous offenses Or Acts Pursuant To T.R.E. 404(b), 609, and C.C.P. 38.37 makes several references to Warren Jones.

Specifically, it identifies Warren Jones as one of “the FBI’s Ten Most Wanted Fugitive List.” It mentions weddings allegedly performed or entered into by Warren Jones with persons other than Joe Smith. It refers to persons “ordered out of the FLDS by Warren Jones.” It asserts that Joe Smith “aided and abetted and conspired with Warren Jones” and that he failed to turn Warren Jones in to authorities. It names as relatives of Warren Jones persons Mr. Smith allegedly married. Many of the items enumerated on the State’s Draft Exhibit list refer directly to Warren Jones, or, we believe, are claimed to have been authored or dictated by him.

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It is apparent that the state wants to taint Joe Smith with Warren Jones’s notoriety.

The indictment in this case, however, does not allege a conspiracy, and, in fact, says nothing at all about Warren Jones. It is fundamentally unfair, in violation of the Due Process Clause of the Fourteenth Amendment, and the Due Course of Law Provision of Article I, §§ 13 and 19 of the Texas Constitution, for the prosecutors to attempt to convict Mr. Smith, or to prejudice his case in any way, because of the actions of any other person, including, but not limited to, Mr. Jones.

(GRANTED)

(DENIED)

XXV. Allegations, Findings, Or Conclusions

By TDFPS The defense objects to the presentation of any evidence by the state that the Texas Department of Family and Protective Services made any allegations, findings, or conclusions that the complainant or any other persons in this case were the victims of abuse or neglect. Such allegations, findings, or conclusions are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). And they are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Due Course of Law Provision of Article I, §§ 13 and 19 of the Texas Constitution.

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(GRANTED)

(DENIED)

XXVI. Claims Of Privilege Are Not The Proper Subject Of Comment Various witnesses have invoked claims of privilege in this case. Rule 513(a) of the Texas Rules of Evidence prohibits both Court and counsel from commenting on a witness’s claim of privilege, “whether in the present proceeding or upon a prior occasion,” and mandates that “no inference may be drawn therefrom.”

(GRANTED)

(DENIED)

XXVII. The Admissibility Of Statements Allegedly Made By Mr. Smith Must Be Determined Outside The Presence Of The Jury Counsel for Mr. Smith is unaware of any statements – written or oral – that the state claims that Mr. Smith made to law enforcement officers or its agents in this case. If there are such statements, Mr. Smith is entitled to a hearing, outside the presence of the jury, to determine their admissibility. See Jackson v. Denno, 378 U.S. 368 (1964); TEX. CODE CRIM. PROC. ANN. art. 38.22, § 6; TEX. R. EVID. 104(c).

(GRANTED)

(DENIED)

XXVIII. Improper “Outcry” Testimony The defense objects to so-called “outcry” testimony from persons other than the complainant who might claim that complainant told them of offenses allegedly committed

by Mr. Smith, because such testimony is hearsay, inadmissible under Rules 801, 802 and

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803 of the Texas Rules of Evidence. Additionally, admission of such testimony would deny Mr. Smith his right to confront and cross-examine witnesses against him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, § 10 of the Texas Constitution.

1.

“On or about June 2, 2018 the Defendant committed an assault against Alice Johnson.”

2.

“On or about November 2018, Ann White was on the phone with James Jones, while on the phone, Ann stated that the Defendant was drunk/intoxicated and lunged toward her in anger after she picked up his dog.”

3.

“On or about November 2018 , the Defendant told Ann White that he had a video of the incident involving Susan Williams, but deleted it because it made him look bad.”

XXIX. Defendant’s Objections To Admissibility of Videotape Of Joe Smith On April 28, 2020 Previously Mr. Smith filed two written documents styled “Motion To Suppress

Written Or Oral Statements Of Defendant,” and “Defendant's Objections To Admissibility of Videotape Of Joe Smith On April 28, 2020.” On February 9 and 16, 2021, hearings were held on these matters, outside the presence of the jury, and Mr. Smith made specific objections that any statements he allegedly made to law enforcement, including statements made on April 28, 2020, are inadmissible because they were involuntary, in violation of article 38.21 of the Texas Code of Criminal Procedure, the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, §10 of the Texas Constitution. Alternatively, Mr. Smith also objected to specific portions of his

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videotaped interview on April 28, 2020 with Carol Thomas, including that statements by Carol Thomas and others violated the Hearsay Rule and his rights to confront and cross-examine; that the videotape contained evidence of extraneous misconduct inadmissible under Rules 401, 402, 403, and 404(b) of the Texas Rules of Evidence; that the videotape contained inadmissible comments on credibility; and that the videotape contained inadmissible references to a polygraph examination. Mr. Smith reurges those objections at this time and requests a ruling on them before this inadmissible evidence is in any way brought to the attention of his jury.

(GRANTED)

(DENIED)

XXX. Business Records The state has filed business records affidavits and purported business records from Tivy High School and the Columbus Independent School District. Admission of these records would deny Mr. Smith his rights to confront and cross-examine witnesses against

him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution. See Crawford v. Washington, 541 U.S. 36 (2004); Russeau v. State, 171 S.W.3d 871, 880-81 (Tex. Crim. App. 2005); See also Porter v. State, 578 S.W.2d 742, 746 (Tex. Crim. App. 1978)(business records not admissible if they do “not have the indicia of reliability sufficient to insure the integrity of the fact finding process commensurate with the constitutional rights of confrontation and cross-examination”).

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(GRANTED)

(DENIED)

XXXI. The State Should Not Refer To The Complainant As A “Victim” No one, including the prosecutor or any witness should refer to the complainant as a “victim.” Mr. Smith is presumed innocent in this case and will enter a plea of “not guilty” before the jury. Referring to the complainant as a victim is improper and denies him his constitutional presumption of innocence, in violation of the Fourteenth Amendment to the United States Constitution. Cf. Talkington v. State, 682 S.W. 2d 674, 675 (Tex. App.–Eastland 1984, pet. ref’d)(improper to refer to complainant as “victim in court’s charge).

(GRANTED)

(DENIED)

XXXII. Unauthenticated Electronic Communications Purported electronic communications, including text messages, emails, or Facebook communications are inadmissible unless properly authenticated. The proponent of such evidence must make a prima facie case of authoriship before the trial court, which serves as the gatekeeper, before same can be admitted before the jury. See Tienda v.

State, 2012 WL 385381(Tex. Crim. App. 2012).

(GRANTED)

(DENIED)

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XXXIV. All Evidence Illegally Seized At 7200 Burns Lane Mr. Smith has filed a motion to suppress physical evidence and a supplemental motion to suppress physical evidence in which he has demonstrated that the evidence seized from 7200 Burns Lane, and subsequently, from computers taken from that address were illegally seized, in violation of the Fourth and Fourteenth Amendments to the United States Constitution, Article I, § 9 of the Texas Constitution, and articles 18.02 and 38.23 of the Texas Code of Criminal Procedure. Accordingly, these items should be suppressed, and neither testimony nor photographs of these items should be admitted.

(GRANTED)

(DENIED)

XXXV. The Discovery Of Non-Criminal Materials At 7200 Burns Lane On January 24, 2020, officers with the San Antonio Police Department obtained and executed a search warrant on a residence at 7200 Burns Lane and photographed or seized a large amount of non-criminal material, including photographs, books, videotapes, CDs, DVDs, floppy disks, cards, notes, writings, audio cassettes, a pistol, ammunition, a stun gun, and video games. These non-criminal materials are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). And they are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403, the Due Process Clause of the Fourteenth Amendment to 20

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the United States Constitution, and the Due Course of Law Provision of Article I, §§ 13 and 19 of the Texas Constitution.

(GRANTED)

(DENIED)

XXXVI. Gang-Related Activity, Murder, Drugs, And A Neighborhood Living In Fear At the motion to suppress hearings, officers Vasquez and Flores both testified that they are members of the gang unit, and that they were in the area where they arrested Mr. Smith because, among other things, they were investigating gang-related activity. Officer Vasquez mentioned murders, drugs, and said that the neighborhood was living in fear. In fact, as officer Vasquez admitted, Mr. Smith is not a gang member, and he was not engaged in gang activity that night. The state cannot prove beyond a reasonable doubt that Mr. Smith perpetrated any gang-related behavior. Mr. Smith has not been convicted of any offense concerning these transactions, as required by Rule 609 of the Texas Rules of Evidence. These transactions are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). These transactions are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

(GRANTED)

(DENIED)

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XXXVII. Testimonial Aids Should Be Prohibited The complainant should be prohibited from bringing anything to the witness stand with her when she testifies, such as animals, stuffed animals, or dolls. Such materials would arouse sympathy from the jury in violation of Rule 403 of the Texas Rules of Evidence, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Due Course of Law Provision of Article I, §§ 13 and 19 of the Texas Constitution.

(GRANTED)

(DENIED)

XXXVIII. Prior Pleas, Plea Discussions, And Related Statements Mr. Smith objects to any suggestion by any person, direct or indirect, that he entered or attempted to enter into a plea bargain with the state. or that he had any plea discussions, written or oral, or that he made any statements, written or oral, in connection with plea bargaining, or that he withdrew from a plea bargain in this case. T EX. R. EVID. 410 strictly prohibits any mention of such matters. Additionally, any mention of such matters would be irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence, and would also be unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

(GRANTED)

(DENIED)

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XXXIX. Strong And Early Admonitions About Publicity Are Needed During the trial of Mark Garcia, the local media regularly noted that Mr. Smith had first accepted, then later withdrawn from a plea bargain. Counsel expects similar reporting during Mr. Smith’s trial. Such coverage, if consumed by any juror, would impair Mr. Smith’s constitutional presumption of innocence, and would deny him his right to a fair and impartial trial and due process and due course of law, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. We request that this Court give a strong admonishment to the jury panel, at the very beginning of the voir dire process, that they are not to read or listen to any accounts of this trial in the media, or anywhere else, and that they are not to seek out or receive any information in oral, written or electronic form, at any time before or during this trial. We further request that similar and regular admonishments be given throughout the trial, and at the close of every day of trial.

(GRANTED)

(DENIED)

XXXX. Alleged Nicknames At the trial of Mark Garcia, unsubstantiated allegations were made that Mr. Smith has been known by derogatory nicknames. He objects to any suggestion by anyone at this trial that he has been known by derogatory nicknames. These nicknames are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If

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relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). Furthermore, they are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

(GRANTED)

(DENIED)

XXXXI. Allegations Of Gang Involvement From discovery and reviewing the witness lists, the defense believes that state might attempt to offer evidence that Mr. Smith is, or that he has in the past been, associated with gangs. The state cannot prove beyond a reasonable doubt that Mr. Smith is or has been involved with any gangs or gang-related behavior. Mr. Smith has not been convicted of any offense concerning gangs, as required by Rule 609 of the Texas Rules of Evidence. These allegations are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). These allegations are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

(GRANTED)

(DENIED)

XXXXII. Handcuffs Mr. Smith was handcuffed, arrested, and taken to an interrogation room at the San Antonio Police Department. He was forced to remain in handcuffs throughout most of

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the interview, which was videotaped by the police department. Showing Mr. Smith in handcuffs will impair his presumption of innocence, in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Due Course of Law Clause of Article I, §§ 10, 13 and 19 of the Texas Constitution. Cf. Shaw v. State, 846 S.W. 2d 482, 487 (Tex. App. -- Houston [14th Dist.] 1993, pet. ref'd)(reversible error to shackle defendant in jury’s presence, absent compelling need to do so). See also Estelle v. Williams, 425 U.S. 501 (1976); Long v. State, 823 S.W.2d 259, 283 (Tex. Crim. App. 1991); Cooks v. State, 844 S.W. 2d 697, 722-23 (Tex. Crim.

App. 1992). Additionally, this evidence is irrelevant, and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. Finally, whatever arguable relevance this portion of the videotape has is substantially outweighed by its potential to unfairly prejudice Mr. Smith, and therefore inadmissible under Rule 403 of the Texas Rules of Evidence.

(GRANTED)

(DENIED)

XXXXIII. Miscellaneous Irrelevant And Prejudicial Evidence The defense knows from discovery that various items of evidence have been examined in this case. Several things have been disclosed to the defense that apparently have no even arguable connection to this alleged offense. Admission of these unrelated items would violate Rules 401, 402, and 403 of the Texas Rules of Evidence, and we object: 25

Sample 3

1.

A baseball bat discovered in a room long after Mr. Smith had been in the room.

2.

A .380 caliber handgun, with ammunition, found in Mr. Smith’s home, and an unidentified metal fragment found in the trailer at 9394 S. W.W. White Road.

3.

Various ordinary household items purchased at Home Depot on November 16, 2002.

4.

Information that Mrs. Smith was going to inherit a sum of money from the death of a relative.

(GRANTED)

(DENIED)

Respectfully submitted:

MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1505 San Antonio, TX 78205-3192 (210) 226-1433 State Bar No. 19184200 Attorney for Defendant CERTIFICATE OF SERVICE I certify that a copy of Defendant's Objections To Evidence Pursuant To Rule 103(a)(1) has been delivered to the Bexar County District Attorney's Office on this the 13th day of April, 2021.

MARK STEVENS 26

Sample 3

ORDER On this the

day of

, 2021, came on to be

considered Defendant's Objections To Evidence Pursuant To Rule 103(a)(1), and said Objections are hereby granted or denied as indicated in the body of this document JUDGE PRESIDING

Sample 3

NO. 2021CR10000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

226TH JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

DEFENDANT'S SPECIAL REQUESTED JURY [EXTRANEOUS MISCONDUCT] During the trial, you heard evidence that the defendant may have committed wrongful acts not charged in the indictment. The state offered the evidence to show that the defendant had the intent to commit the offense charged in the indictment, capital murder. You are not to consider that evidence at all unless you find, beyond a reasonable doubt, that the defendant did, in fact, commit the wrongful act. Those of you who believe the defendant did the wrongful act may consider it.

Even if you do find that the defendant committed a wrongful act, you may consider this evidence only for the limited purpose I have described. You may not consider this evidence to prove that the defendant is a bad person and for this reason was likely to commit the charged offense. In other words, you should consider this evidence only for the specific, limited purpose I have described. To consider this evidence for any other purpose would be improper.

Sample 4

Respectfully submitted: MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205-3192 (210) 226-1433 State Bar No. 19184200 By MARK STEVENS Attorneys for Defendant CERTIFICATE OF SERVICE I certify that a copy of Defendant's Special Requested Jury Instruction [Extraneous Misconduct] has been delivered to the District Attorney's Office, Bexar County Justice Center, San Antonio, Texas, on November 7, 2021.

MARK STEVENS ORDER On this the

day of November, 2017, came to be considered Defendant's

Special Requested Jury Instruction, and said Instruction is hereby (GRANTED)

(DENIED)

JUDGE PRESIDING

Sample 4

NO. 0000 STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

186TH JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

DEFENDANT'S OBJECTIONS TO ADMISSIBILITY OF VIDEOTAPE OF JOE SMITH ON NOVEMBER 30, 2017 TO THE HONORABLE JUDGE OF THE 186TH JUDICIAL DISTRICT COURT: Introduction The law permits the introduction of a defendant’s oral statements if certain conditions are satisfied. First and foremost, before “the defendant’s statement” can be admitted against him, it must at least be his statement. In this case the videotape in question lasts more than three hours, beginning at 12:43 pm with Mr. Smith sitting silent and alone in an interrogation room at the San Antonio Police Department, and concluding at 3:57 pm, well after he has been removed from the room. Although Mr. Smith does make some statements during this time, as we show in detail in this motion, the overwhelming majority of words on the videotape are spoken by others – the two interrogating detectives, unidentified persons, Deserae Jones, various medical doctors, and police officers. By far the largest part of this videotape contains evidence that is either wholly irrelevant to Mr. Smith, or highly and unfairly prejudicial to him, or both, and which is inadmissible for various reasons, including that it is hearsay and denies him

1

Sample 5

the constitutional right to confront and cross-examine witnesses against him, that it refers to inadmissible extraneous misconduct, that it violates his constitutional and statutory rights to hire and consult with counsel, and that if violates his constitutional rights to privacy and the presumption of innocence.

This motion points out in detail that evidence that the defense has so far been able to identify as inadmissible. Removing all the inadmissible evidence, then introducing the redacted version will reduce the original videotape to a peculiar looking skeleton, whose emaciated existence will necessarily confuse and mislead the jury, and prejudice Mr. Smith, and deny him his evidentiary right to effectively assert “the rule of optional completeness,” and prevent him from mounting a defense, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution, and Article I, §§ 10, 13, and 19 of the Texas Constitution.

The only proper remedy is to suppress the entire videotape. The defense made various arguments for broader suppression on February 6, 2018 at the evidentiary hearing, on various constitutional and statutory grounds, and he reurges those objections at this time.

Should his objections to the entire videotape be overruled, Mr. Smith makes the following objections to specified portions of the videotape:

2

Sample 5

I. Statements By Detectives Dubs And Hines, Deserae Jones, Doctors, And Others That Violate The Hearsay Rule And Mr. Smith’s Rights To Confront And Cross-Examine

On their face it is clear that the following are out-of-court statements that meet the definition of inadmissible hearsay under Rule 801, and are therefore inadmissible under Rule 802 of the Texas Rules of Evidence. Additionally, admitting these statements against Mr. Smith would violate his right to confront and cross-examine witnesses against him, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Texas Constitution. See also Crawford v.

Washington, 541 U.S. 36 (2004). The beginning and end of the videotaped portion at issue are found atop the pertinent written transcriptions.

[12:53:38 – 1:02:25] Dubs:

Joe: Dubs:

Joe:

Okay. So that’s Wednesday. Okay. Umm. In front of uh, Deserae here just a little while ago. I wrote it down on one of these pieces of paper. I talked to Doctor Conner. Pediatric ICU physician over at University Hospital. Okay?

Um hmm.

Thank you sir. And here’s what we know, for a fact.

Jonathan’s injuries, there’s a lot of them. Cast, splint, bruises everywhere, contusions, uh. Trauma to the brain. Are all not, non-accidental trauma. Understand what that means? You understand what non-accidental trauma means? What does that mean to you?

It means not a, not accidental.

3

Sample 5

Dubs: Joe:

Okay, so, if, if it’s not an accident, that means it’s on purpose.

Um hmm.

Dubs: Joe:

Right? Just by mere definition.

Right.

Dubs: Joe:

If something’s not an accident, it’s on purpose.

Right.

Dubs:

Joe:

Okay. So, um, his exact words were non-accidental trauma, uh, consistent with child abuse. Umm. Jonathan has got bruises, scratching, and swelling of his genitals and anus area.

Consistent with sexual assault. They’re examining him, a sexual assault examination is being conducted as we speak.

Umm. Deserae spent our time at the hospital telling me lies.

Some of the lies she told me were kinda consistent with some things you told the patrolman this morning. Such as that you guys both heard a loud bump, and went to, you went to see what was wrong and Jonathan was on the floor in the bedroom. Deserae has since told me that the story that she told the story at the hospital, and that you agreed to at the hospital, about how Jonathan broke his leg is also not the truth. And has told me her version of the truth, anyway. I, I’m not going to call what she told me the second time the truth. . . .

Um hmm.

Dubs:

Joe: Dubs:

until I get enough of a consistent story out of her to match what I know is facts. See, the medical evidence are facts.

Because I’ve got an expert at the hospital . . . .

Umm. that can say, these are the injuries, and they could or could not be happened according to what the two people that are in this child’s life are telling us.

4

Sample 5

Joe:

Umm.

Dubs:

Joe:

Okay. That’s not possible. Or that is possible. So, uh, for me to be able to say that everything she has told me is the truth, is, would be incorrect. But what she has described to me is you abusing Jonathan.

Me abusing Jonathan?

Dubs: Joe:

Yes. How?

Dubs:

Joe:

Some pretty specific cases where she’s heard slapping, where she’s heard hitting, where she’s heard crying and screaming.

And there’s always been, been, according to her, there’s always been a, what she considered, because she didn’t want to think differently . . . .

Uh huh.

Dubs:

Joe:

a good explanation, or a evil laugh, as she put it, as you tormented Jonathan, which she said happened frequently. Not necessarily torture as in, you know, snapping his bones in half, but just tormented him. She’s also mentioned to me how when you guys first got together, the children were not living with her, things were a lot different. Because now its two single people without kids, that are able to go do things like go to the Gruene Dance Hall, and get drunk, and you beat the hell out of her at two o’clock in the morning. She actually gave me the date of that. Do you have your cell phone with you?

Do I have it with me?

Dubs: Joe: Dubs:

Yeah.

Yeah.

Okay. Umm, she’s also described the naked pictures of her 5

Sample 5

son in the bathtub that you have on your cell phone. Umm. Didn’t say whether she knows whether their there now or not.

It, it, it was just a question. Umm. Said that you’ve actually shown them to people that she knows, that I can verify. Uh, she has described you sitting naked in the bathtub with the shower running, which normally somebody takes a bath, they’re in the bath and the water’s running, and the shower’s running, sitting naked Indian-style, which means bottom half of your legs are folded, him sitting naked on your lap, while you smoked a cigarette.

Dubs:

Joe: Dubs:

No. Uh. With a child in the room that has asthma. Umm, she also described how you didn’t want to call 911 this morning, and when she handed you the, or when you grabbed the phone, how she had to grab the phone from you because you weren’t dialing 911, because you were asking, “are you sure.” She described that, what you describe as, asleep with her, that you never came to bed until 15 minutes before she found out that Jonathan was injured this morning. You weren’t in bed with her. That she was at one location sleeping, and she heard you get in bed for the first time, and it was about 10 or 15 minutes before you, “Did you hear that,” and she didn’t hear anything.

And that all of a sudden you find the child injured, and are making things up as you go in order to fit the story that you want her to believe. Now, this wasn’t a constant, this is everything that happened that I know bad that happened that I’ve seen him do. This was a long, painstaking, “what did you do this day, what did you do this day, what did you do this day, what did you do this day, now let’s go back in and fill in the blanks. According to what the doctors, along with three, three phone calls to the doctors, so that I can get timelines on injuries, and so on and so forth. Umm, kids weren’t jumping on the couch. You were in the room with Jonathan when he broke his leg. She heard a loud slapping noise, and she went in there, you told her the baby’s foot was caught in the futon.

She never saw it. She wasn’t there when you picked the baby up. She walked in the room and you were holding the baby.

Now. That’s a lot of inconsistencies. Before I left the office 6

Sample 5

a couple of minutes ago, my sergeant told me exactly what she wants to do. You see these cases on the news, I’m sure.

Okay. She told detective Hines and I a little while ago, you will be diligently working this case until its conclusion today, I take it. And somebody will be going to jail today, I take it.

Joe:

Um hmm.

Dubs: Joe:

What part of this is true, and what part of this is not true? [unintelligible]

Detective:

I already told him somebody was gonna go to jail, it was gonna be him or Deserae.

Dubs:

What part of this stuff is true, what part is not.

[GRANTED]

[DENIED]

[ 1:11:23 – 1:12:49]

Dubs:

Joe: Dubs: Joe: Dubs: Joe: Dubs:

And a lot harder than what I did, but I like him, so I didn’t [unintelligible] Convince me you don’t go to jail. Defend yourself. Or admit that you really fucked up, and convince me that my report needs to say that you’re not really a bad guy, you just need some counseling. [unintelligible] I’m sorry.

I don’t know what to think about this whole thing.

Well, I, I’m not sure of the confusion. Did I, is there something I didn’t explain properly?

No, you did sir. But I just can’t take it all in because I can’t believe that this is, all those things that she said. And they’re not true.

Okay, so if . . . .

7

Sample 5

Joe: Dubs: Joe: Dubs:

I was in bed. I did go to bed last night. She was the one that woke me up.

She woke me up first.

Okay. And what time?

I don’t know, I don’t know when it was, six?

She was at the hospital already by six.

[GRANTED]

[DENIED]

II. Extraneous Misconduct Throughout the videotape Detectives Dubs and Hines accuse Mr. Smith of various acts of misconduct that are not alleged in this indictment. The asserted misconduct is detailed below, and its location on the videotape is bracketed. The state cannot prove beyond a reasonable doubt that Mr. Smith perpetrated any of these transactions. Mr. Smith has not been convicted of any offense concerning these transactions, as required by Rule 609 of the Texas Rules of Evidence. These transactions are irrelevant and therefore inadmissible under Rules 401 and 402 of the Texas Rules of Evidence. If relevant to anything, they are relevant only to character conformity, and therefore inadmissible under Rule 404(b). These transactions are unfairly prejudicial, confusing and misleading, and therefore inadmissible under Rule 403.

[12:55:20 – 12:55:43] •

“Jonathan has got bruises, scratching, and swelling of his genitals and anus area.

Consistent with sexual assault. They’re examining him, a sexual assault examination is being conducted as we speak.”

8

Sample 5

[GRANTED]

[DENIED]

[12:56:20 – 12:57:17] •

“Deserae has since told me that the story that she told the story at the hospital, and that you agreed to at the hospital, about how Jonathan broke his leg is also not the truth. And has told me her version of the truth, anyway. I, I’m not going to call what she told me the second time the truth. . . until I get enough of a consistent story out of her to match what I know is facts. See, the medical evidence are facts.

Because I’ve got an expert at the hospital . . . that can say, these are the injuries, and they could or could not be happened according to what the two people that are in this child’s life are telling us. That’s not possible, or that is possible.”

[GRANTED]

[DENIED]

[12:57:28 – 12:58:18] •

“But what she has described to me is you abusing Jonathan. Some pretty specific cases where she’s heard slapping, where she’s heard hitting, where she’s heard crying and screaming. And there’s always been, been, according to her, there’s always been a, what she considered, because she didn’t want to think differently . . . . a good explanation, or a evil laugh, as she put it, as you tormented Jonathan, which she said happened frequently. Not necessarily torture as in, you know, snapping his bones in half, but just tormented him.”

[GRANTED]

[DENIED]

[12:58:18 – 12:58:43] •

“She’s also mentioned to me how when you guys first got together, the children were not living with her, things were a lot different. Because now its two single people without kids, that are able to go do things like go to the Gruene Dance Hall, and get drunk, and you beat the hell out of her at two o’clock in the morning.

She actually gave me the date of that. Do you have your cell phone with you?

[GRANTED]

[DENIED]

[12:58:48 – 12:59:07] 9

Sample 5

•

“She’s also described the naked pictures of her son in the bathtub that you have on your cell phone. Didn’t say whether she knows whether their there now or not.

Said that you’ve actually shown them to people that she knows, that I can verify.”

[GRANTED]

[DENIED]

III. Statements By Persons Other Than Mr. Smith: Bolstering, Self-Serving, Unqualified-Expert, Or Argumenative Testimony By The Police [1:02:25 – 1:03:05]

And for God sakes man, if you had the, the illusion when you walked into the police station today, that there was a chance that this was gonna be a happy family later . . . .

Dubs:

Joe:

Uh huh.

Dubs:

Joe: Dubs:

Joe: Dubs: Joe: Dubs:

Joe:

You can just put that out of your head. Because, if we don’t find the exact truth, we don’t know who to protect the child from, the child goes wherever CPS thinks the child is safe.

Right.

And obviously, its not gonna be if we don’t, back into that home if we don’t know who did it. That just makes common sense. Don’t have any authority . . .

Um hmm. to remove children, because that’s not what I do.

Um hmm.

But just from past experience I can tell you they’re not going to put the baby back in the house and say, “well, they say they didn’t do it.

Um hmm.

10

Sample 5

[GRANTED]

[DENIED]

[1:03:57 – 1:04:25]

Dubs:

I’ll show you where I wrote this stuff down, because I don’t want you thinking I’m coming in here lying to you because I, the facts are the facts. I don’t want, I don’t want somebody to come in and, and, just so I can clear a case, so I can satisfy that boss over there. Because I got news for you. If I don’t know who did it, I’m not going to arrest somebody just to arrest somebody. Okay. That’s not what this is about. My job is to find the facts. Period.

[GRANTED]

[DENIED]

IV. Mr. Smith’s Right To Counsel After he was informed he was under arrest, Mr. Smith expressly inquired about his right to counsel. Such references would be contrary to article 38.38 of the Texas Code of Criminal Procedure, Rules 401, 402 and 403 of the Texas Rules of Evidence, and to the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I, §§ 10, 13 and 19 of the Texas Constitution. See also Doyle v. Ohio, 426 U.S. 610 (1976); Sanchez v. State, 707 S.W. 2d 575 (Tex. Crim. App. 1986). And this evidence is irrelevant, in violation of Rules 401 and 402 of the Texas Rules of Evidence.

Additionally, whatever marginal relevance the evidence has is substantially outweighed by its potential for unfairly prejudicing the jury, in violation of Rule 403 of the Rules of Evidence.

[2:22:35 – 2:23:17]

11

Sample 5

Joe: Dubs: Joe: Dubs:

Joe: Dubs:

[unintelligible] So now is it past the time too to talk to a lawyer, or anybody like that.

I’m sorry?

Now is it past the time to talk to a lawyer?

Oh no. Now would be pretty good time probably to talk to a lawyer. I mean, because you supposedly have told me everything you can tell me. And if you want a lawyer now, I’m not even allowed to talk to you anymore I’m not allowed to ask any questions.

Really?

Yeah. So. If, if, if you don’t have a lawyer when your first court date comes up, they’ll appoint a lawyer for you. When you get over to the jail, all the phones there, you have to make collect calls. Cause he’s gonna take your cell phone from you.

[GRANTED]

[DENIED]

[2:37:18 – 2:38:37]

Joe

Am I able to talk to a lawyer right now?

Dubs:

Um. No.

Joe: Dubs: Joe: Dubs:

I’m not?

I mean, there are no lawyers in the building. Well, there are, but they work for us.

Uh huh.

Basically, when your rights are read to you, it says that a lawyer will, that you don’t have to speak to anybody, that you can have a lawyer appointed to you, and you ask for a lawyer, we just have to stop talking to you. Nobody from the state, 12

Sample 5

the district attorney’s office or the police department, will speak to you unless the lawyer calls them. So, you have asked for a lawyer a couple of minutes ago, so I haven’t asked you any questions. I can’t talk to you about it. I mean, I can talk to you about where you’re going, and stuff like that, but I can’t ask you anything about this case, any more, because you’ve asked for a lawyer. But, we don’t have a lawyer out standing waiting for you to. But, if you go, when you go to jail, they’re gonna ask you if your family’s hired you an attorney.

Joe:

Umm.

Dubs:

Joe: Dubs:

If they haven’t then the court, they will appoint a lawyer from San Antonio to represent you, and he will contact you from jail, and there’s rooms, there are conference rooms where you can actually go sit and talk to him.

Yeah.

That answer your question?

[GRANTED]

[DENIED]

V. Mr. Smith’s Right To Privacy At 2:27:10, Mr. Smith asked if he can use his cell phone, and Detective Dubs permitted him to do so. Dubs then asked: “Do you want me to close the door?” and Mr. Smith said, “please.” Mr. Smith had a reasonable expectation of that his the several phone calls he made thereafter would be private, and the recording of these calls therefore violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and Article I, §§ 8 and 10 of the Texas Constitution. The phone calls he made on his cell phone – to his mother, his father, and his lawyer – after he had been arrested and advised 13

Sample 5

by the police that he had an expectation of privacy, must be suppressed in their entirety.

[2:27:10 – 2:37:25] •

Joe:

Dubs:

Joe:

Dubs: Joe:

Uh, please. Mom? Hey, it’s Joe. I am in , at the San Antonio Police Department, and they have me detained for sexual abuse and beating Jonathan. So, uh, I am going to jail, to Bexar County. Umm, I guess you need to come here from McAllen just as soon as you can.

So we can clear all this up. Okay? I love you. Call me back. Fast, if you can. Bye-bye.

Just checking. We’ve had people that like tried to use the phone cord to hang themselves. Just checking.

Dad. Dad, I, I need your help, bad. I am being detained in the San Antonio Police Department. They are saying that there is, there’s from Jonathan, they’re saying that I beat him and that I sexually abused him. It just happened. Last night.

Because Jonathan just woke up. He. I went to him to go check on him, and he was just, he was on the ground. He had fallen off, jumped off the bed, done something. I don’t know. And he was knocked out. Just go to the San Antonio Police Department.

Keep it open so I can keep my eye on.

What? Deserae’s here and she’s telling them stuff that, that, that’s not right. She’s making, just making things up as it goes along. And I don’t know, I don’t know what to do.

They’re asking me questions. They’re asking me stuff, signed statements, what happened last night, tell them, they’re saying that it’s not matching up. That I’m not telling the right story, that she is. Some of the things match, some of them don’t. [background chatter] Yeah. Hmm. No, I haven’t. Um hmm. She’s telling them that she has seen me act that way before. Yeah. That she was asleep, and that I was awake, that it seemed like I slipped in the bed. [chatter] Um hmm. Well, I’m calling on my cell phone right now. To find out anything about me, I don’t know. Hold on just a 14

Sample 5

minute. Sir? I have a, I have a question. About, I need to give a number to my parents. unidentified: There is none. It’s gotta be a collect call from there. From you to them.

Joe:

I know. To where they can find out where I’m being held at.

Dubs:

Bexar County Sheriff’s Department.

Hines:

Bexar County Jail. 335-6000.

Joe:

335-6000. Bexar. Bexar County Jail. No. Uh huh. Right.

Yeah. Yeah. Okay. Yeah. Yeah. Yeah, I’m about to be.

I’m going to be. Okay. Yeah. It’s at the apartment. No, an officer has ‘em.

[GRANTED]

[DENIED]

[2:35:55 – 2:37:21] •

Joe:

Okay. Okay. Yeah. Well, she’s here too. They’re asking her questions, if she did it. Yeah. Yeah. Um hmm. Right. Right.

Right. Right. Um hmm. Right. [chatter] Um hmm. Okay. I already did. I already called her. I already did. I already did call her and I left her a message. All right, just remember just to come down to the San Antonio Police Department, or the Bexar County Sheriff.

Um hmm. Or the Bexar County Jail. [chatter] Can I? Am I able to talk to a lawyer right now?

[GRANTED]

[DENIED]

[2:50:37 – 3:01:03] Joe:

Hi mom. Yeah. I don’t know mom. Yeah. I don’t know. I don’t know what’s going on. I’m in San Antonio. At the San Antonio Police Department. Downtown. I got over here with an officer. They gave me a ride over here. Huh? It happened, uh, last night, I guess, during the night.

I woke up this morning and walked in and found Jonathan on the floor, neck up to the wall, like he had fallen out of the bed and he was just laying 15

Sample 5

there. He wasn’t moving. And so I picked him up and rushed him in and that was pretty much it. Now they’re saying I rushed him in, I picked him up, and I took him back in the living room where we were sleeping, and laid him down, and gave him his nebulizer and called 911, and then the cops came and everything, and thought I was gonna go to the hospital, and the cop started asking questions and then I said that I was in the room and that was it. And the guy said they had to bring me and her down for questions. No, she was, she was there. She was there. I woke up. I heard it. I heard a big bang. Nobody. Yeah. On the futon in the living room.

Because we were watching TV. She is. She’s here too. She is here. Yeah.

She’s just throwing. She’s just throwing everything against me, so she doesn’t go to jail, I’m sure, like I was when I would drink, and I’d get mean, and do stuff like that, that’s what she’s telling them, and they’re like, more favorable on her side than yours, and you can’t really tell us what’s going on. And I keep denying everything, and tell them I didn’t do that. I didn’t do that. There’s no way, there’s no way. No, no. And then finally at the end. Hello. Okay. So then finally at the end I just made up. I just said, well yeah, I dropped him accidentally. Why did I do what? No. I didn’t. I mean, I did. Well, that’s kind of unny all of a sudden you bring it up like that now. [chatter covers up phone call] Just come up here. Right now. Come and then, get a lawyer, bail me out. Do whatever you can. As soon as you can. Four hours. Okay.

Yes, I dropped him accidentally. Cause I already told them that and they don’t believe it. [unintelligible due to laughter and chatter of police] Yeah, I did drop him on accident. He was squirming. I grabbed him by the cast, and he squirmed it out, and I had one arm and his head hit the ground. I don’t know, they won’t tell me. I think he has like a contusion, or hematoma, I don’t know, something. Pretty bad. And then all that stuff.

And they were playing. And, you know. Playing, and wrestling, and the bruises, and they’re using that and saying that the bruises. I don’t know if they’re making it up and saying that his anus has been messed with. Yeah.

Yeah. Okay. Soon as you get off work? Come up here now. Oh. The card is on the refrigerator. At grandpa’s house. I don’t have his number here with me. Uhh. One hundred, something. Yeah. The card is on the refrigerator at grandpa’s house. Leonard Whittaker. Whittaker. Look it up in the phone book. It’s in the phone book. I know it is. Leonard Whittaker. Attorneys at law. Child abuse, yeah, attempt. I don’t know. I really don’t know. Child abuse, sexual abuse. Yeah. Because the whole thing. His butt is black and blue, or something. I am telling you. They’re 16

Sample 5

like right out the door. I can’t talk very loud. I’m still in the sex crimes, child abuse, murder, homicide, wing, division. Yes. There’s no precinct.

It’s just downtown. Yeah. The jail downtown. Because he said its about 20 minutes away from here, and I know you’ve seen this place. I know you’ve passed by it. It’s right by Bill Miller’s barbeque. I don’t know mom. I don’t know why. I don’t know. She’s turning all. She’s turning all stuff against me. Everything that I could have done, and. I don’t know she told them about the time, one time that he was sick, and I even asked her before if I go ahead could get in the bathtub, and he wants me to hold him and so I did, and he ended up going to the bathroom in the bathtub, and I took him out and gave him a shower. And she’s telling them that, and she’s telling them just a bunch of other stuff. Here. I have it right here. Law offices of Leonard K. Whittaker. And Leonard’s cell phone is 821- ... I might be able to. I might be able to. Hmm. All right. [chatter] Okay. 821-9918. 821-9918. They’re gonna take me now. officer: Joe:

Hop off the phone when you’re ready.

Okay. 821-9918. Yes. All right, I’m not gonna be able to. The officer’s already here. They’re gonna take me. All right. Love you.

[GRANTED]

[DENIED]

VI. Irrelevant Chatter Between Police Officers, Most Of Which Appears To Have Nothing To Do With This Case Portions of the videotape contain irrelevant chatter between police officers, obviously outside Mr. Smith presence, concerning matters that plainly have nothing to do with his case. This chatter is irrelevant under Rule 401, and therefore inadmissible, under Rule 402 of the Texas Rules of Evidence. It is also has a substantial likelihood of confusing and misleading the jury, and prejudicing it against Mr. Smith, and is therefore inadmissible under Rule 403 of the Texas Rules of Evidence. Furthermore, it is hearsay

under Rule 801, and are therefore inadmissible under Rule 802 of the Texas Rules of 17

Sample 5

Evidence. Additionally, admitting these statements against Mr. Smith would violate his right to confront and cross-examine witnesses [12:43:45 -- 12:51:50] The beginning of the videotape shows Mr. Smith sitting alone room 4 at the police department. In the background several people, apparently police officers, can be heard talking about subjects that seem to have nothing at all to do with the case against Mr. Smith. Among other things, the officers discuss their policies for submitting cases and making recommendations to the district attorney’s office, an unidentified woman who questioned the officer’s artistic abilities, Area 51, electromagnetic waves, the length of time they have served on the police department, how time flies, and their own children.

[GRANTED]

[DENIED]

[2:08:21 – 2:13:23] The two detectives leave the interrogation room, saying, “we’re done,” leaving Mr. Smith sitting alone. Meanwhile, a conversation outside Mr. Smith presence, between several people, some of it not completely audible, and most, if not all of it having nothing to do with Mr. Smith.

[GRANTED]

[DENIED]

VII. Violation Of The Presumption Of Innocence Beginning at 3:06:08 the videotape shows Mr. Smith being searched and

18

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handcuffed, in violation of his constitutional right to be presumed innocent under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Due Course of Law Provision in Article I, §§ 13 and 19 of the Texas Constitution. See Estelle v. Williams, 425 U.S. 501 (1976). Nothing of even arguable relevance happens after this time.

Respectfully submitted: MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205-3192 (210) 226-1433 mark@markstevenslaw.com State Bar No. 19184200 ______________________________________ MARK STEVENS Attorney for Defendant CERTIFICATE OF SERVICE I certify that a copy of Defendant's Objections To Admissibility Of Videotape Of Joe Smith On November 13, 2017 has been delivered to the Bexar County District Attorney's Office, 191 W. Nueva St. San Antonio, Texas, 78205, on this the 14th day of July, 2018.

MARK STEVENS

19

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ORDER On this the

day of

, 2018, came on to be

considered Defendant's Objections To Admissibility Of Videotape Of Joe Smith On November 13, 2017, and said Motion is hereby granted and denied as indicated in the body of this motion

JUDGE PRESIDING

Sample 5

NO. 2019CR0000B STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

437th JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

MOTION TO INSPECT FILES OF THE BEXAR COUNTY DISTRICT ATTORNEY'S OFFICE AND THE SAN ANTONIO POLICE DEPARTMENT TO THE HONORABLE JUDGE OF SAID COURT: Joe Smith moves to inspect all files – Adult and Juvenile – in the possession of the Bexar County District Attorney's Office and the San Antonio Police Department concerning Alonzo Garcia and Jose Barrios III, and co-defendant Jose Saucedo, and shows the following in support of this motion: I. Mr. Smith has been indicted for the capital murder of Alonzo Garcia and Jose Barrios III, during the same criminal transaction. Mr. Smith’s co-defendant is Jose Saucedo. Garcia and Barrios are suspected of having participated in a drive-by shooting of the residence of Jose Saucedo less than one hour before they themselves were killed by gunfire outside the same residence.

1

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II. Alonzo Garcia’s SID number is 107000. An examination of the Bexar County District Clerk’s website reveals the following criminal cases where he was the defendant: Cause No.

Type of Case

Disposition

2019CR3000

Murder

397001

Evading arrest/ detention; w/veh

527002

POM 0-2 oz

Deferred adjudication, term unsat. 03/20/2019

563211

POM 0-2 oz

Dsmd-other; 02/20/2018

Pending trial; dismissed following his death.

Dsmd-other; 12/07/2018

III. Jose Barrios's JID number is 0200001. He was 16 years old and a juvenile when he died, but, given that he had a JID number, it is reasonable to believe that he had a juvenile record, which, under law, would be sealed unless this Court orders it opened.

Discovery in this case reveals that Barrios was a witness to a capital murder case, investigated under SAPD 18161049, and that, because of this, he “was constantly alert because he thought people were always looking for him because of this case.” The defense moves to inspect the files of the San Antonio Police Department and the Bexar County District Attorney’s Office concerning the investigation of this capital murder case as these may provide a motive for the killing of Jose Barrios on April 9, 2019, and, in doing so, may be exculpatory as to Joe Smith.

2

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IV. Co-defendant Jose Saucedo’s SID number is 1106531. He is presently under indictment in cause number 2019CR0000A as Mr. Smith’s co-defendant, charged with the capital murder of Garcia and Barrios. Initially Saucedo told the police he was the only one who shot at Garcia and Barrios. When challenged, he continued to admit that he had fired a number of shots at or in the direction of Garcia and Barrios, but now he added that Mr. Gonzales had fired a few shots in the air, intent on scaring off the two men who were attacking Saucedo. Counsel are unaware, based on the discovery provided at this time, of any evidence proving that Joe Smith is guilty either as the one who shot either Alonzo or Barrios, or who intended or caused their deaths as a party. Nor did Mr. Smith have any motive to shoot at these two men.

The Bexar County District Clerk’s website reveals the following cases where Jose Saucedo is the defendant: Cause No.

Type of Case

Disposition

2020CR2967

Viol bond/prot order-assault/s

Awaiting trial on charges that arose while on bond for capital murder.

512216

Poss w/I del cs pg1 4g - 200g

Awaiting indictment.

602921

Assault bodily injury- fam/hou

Awaiting hearing.

631881

Assault bodily injury-married/

Awaiting trial on charges that arose while on bond for capital murder.

V. 3

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Pursuant to Rule 404(a)(2) of the Texas Rules of Evidence, evidence of a pertinent character trait of the alleged victim of the crime offered by the accused is admissible. Any evidence that Alonzo Garcia or Jose Barrios have been convicted of, or committed, any crime of violence is evidence of a pertinent character trait and therefore admissible under Rule 404(a)(2). See Mozon v. State, 991 S.W.2d 841, 845-46 (Tex. Crim. App. 1999)(evidence of a “victim’s” character for violence is admissible to show he was in fact the first aggressor). It is likely that some or all of the case files involving these two men will contain evidence of their character for relevant character traits. Such evidence must be disclosed to the defense because it will tend to show the innocence of Joe Smith. Brady v.

Maryland, 373 U.S. 83, 87 (1963); U.S. CONST. Amend. XIV; TEX. CONST. Art. I, §§ 13 and 19; see TEX. CODE CRIM. PROC. ANN. art. 39.14(h)(“the state shall disclose to the defendant any exculpatory, impeachment, or mitigating document, item, or information mitigating document, item, or information in the possession, custody, or control of the state that tends to negate the guilt of the defendant or would tend to reduce the punishment for the offense charged”); see also Schultz v. Commission For Lawyer Discipline Of The State Bar Of Texas, 2015 WL 9855916 *10-11 (State Board of Disciplinary Appeals December 17, 2015)(in making the decision to disclose or not, Texas Rule of Professional Responsibility 3.09(d)’s “clarity . . . is a safeguard for prosecutors and citizens alike: if there is any way a piece of information could be viewed as exculpatory, impeaching, or mitigating—err on the side of disclosure.”).

4

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VI. Given the nature of the charges now pending against co-defendant Saucedo, it is likely that the prosecution’s files will contain information that is – or that will lead to – evidence that is exculpatory, mitigating, or impeaching on behalf of Mr. Smith, or that is relevant and admissible against Mr. Saucedo under Rule 404(b)(2) of the Texas Rules of Evidence. See Brady v. Maryland, 373 U.S. at 87; U.S. CONST. Amend. XIV; TEX. CONST. Art. I, §§ 13 and 19; see TEX. CODE CRIM. PROC. ANN. art. 39.14(h); see also Schultz v. Commission For Lawyer Discipline Of The State Bar Of Texas, 2015 WL 9855916 *10-11 (State Board of Disciplinary Appeals December 17, 2015).

VII. There was much talk by officers at the scene of this case on April 9, about two separate shootings on Hays and Burleson Streets, on April 3 and 4, 2019, that injured two young girls. Undoubtedly the police department has reports, statements, and video evidence about this case, and this has likely been turned over to the Bexar County District Attorney’s office. If Garcia, Barrios, or Saucedo are suspects in, or witnesses to, the shootings on Hays and Burleson Streets, or if these earlier shootings were in any way connected to the instant shooting on April 9, the files compiled by law enforcement on these shootings would contain material evidence relevant to both the character of those involved, and it would be mitigating, exculpatory, or impeaching on behalf of Joe Smith.

Indeed, if Garcia, Barrios, or Saucedo were regarded by the San Antonio Police Department or the Bexar County District Attorneys Office as suspects in any other murder or crime of violence at the times of their deaths, that evidence should also be 5

Sample 6

disclosed to the defense.

VIII. Two months before the instant shooting on Virginia Street, on or about February 8, 2019, someone fired four .40 caliber rounds that struck the windshield of a vehicle located at 1033 Oak Drive, San Antonio, Texas. The four shell cases recovered at that shooting were later forensically determined to have been fired from the same handgun that Garcia and Barrios used to shoot at and in the direction of Saucedo’s house, Saucedo, and Mr. Barrios on April 9, 2019. At least two different case numbers are associated with the investigation of the February shooting: SAPD 19028216, and SAPD2019-0159337. The defense moves that it be allowed to inspect all files concerning this shooting in possession of the Bexar County District Attorney’s Office, the San Antonio Police Department, and any other law enforcement agency in Texas or the United States.

IX. The cases specifically enumerated in this motion are only those known to the defense at the present time. Given the quantity and quality of those cases, though, there is good reason to believe even more exist that contain relevant and exculpatory evidence that are essential if Joe Smith is to receive the effective assistance of counsel, to prepare a meaningful defense to this capital charge, and to confront and cross examine witnesses against him – rights he is guaranteed under the United States and Texas Constitutions.

We have no access to the prosecution’s or police department case files unless this the prosecutors provide it, or the Court orders it. We therefore move that this Court order the State 6

Sample 6

to make available all case files it has on Garcia, Barrios, and Saucedo, and permit the defense to examine these files and to make copies of all exculpatory and relevant evidence they contain.

Respectfully submitted: /s/Mark Stevens MARK STEVENS 310 S. St. Mary's Street Tower Life Building, Suite 1920 San Antonio, TX 78205 (210) 226-1433 State Bar No. 19184200 Attorney for Defendant CERTIFICATE OF SERVICE I certify that a copy of Defendant’s Motion To Inspect Files Of The Bexar County District Attorney’s Office and the San Antonio Police Department has been electronically served on the Bexar County District Attorney’s Office on May 13, 2020. /s/ Mark Stevens

7

Sample 6

NO. 2019-CR-7000B STATE OF TEXAS

)

IN THE DISTRICT COURT

VS.

)

437th JUDICIAL DISTRICT

JOE SMITH

)

BEXAR COUNTY, TEXAS

ORDER On the _____ day of ________, 2020, the Court having heard Defendant’s Motion To Inspect Files Of The Bexar County District Attorney’s Office and the San Antonio Police Department, the motion is (GRANTED)

(DENIED)

_________________________ JUDGE PRESIDING

8

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Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross of the Accident Reconstruction Detective/Expert in Vehicular Manslaughter Speaker:

Gene Anthes

600 W 9th St Austin, TX 78701-2212 (512) 476-2494 Phone (512) 476-2497 Fax gene@GBAfirm.com email www.GBAfirm.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examination Seminar December 2-3, 2021 Round Rock, Texas

Topic: Cross Examination of the State’s Accident Reconstruction Expert

Speaker: Meril “Gene” Anthes, Jr. Gunter, Bennett & Anthes, P.C. 600 West 9th Street Austin, Texas 78701 512-476-2494 (w) 512-413-3755 (c) Gene@GBAFirm.com

I. The Accident In early October 2017, a horrific accident happened on a small county road.

The accident occurred on a Monday morning at 7:41. as Matt1 was on his way to work.

The roadway was a typical Texas hill country four-lane road: two lanes traveling east to west and two lanes traveling west to east with no center turn lane. Traffic was light to moderate as Matt traveled between two small towns. Matt was driving a large pickup truck and traveling about 65 miles per hour which was the speed limit for the roadway.

Prior to the accident, Matt, a middle-aged construction superintendent, had a full night’s sleep. He woke that morning around 5:30 which was his normal waking time. He had a cup of coffee before he left that morning and was also drinking a cup of coffee as he drove to work. That morning he was traveling to another town where he was planning to stay for a week while working at a jobsite. He was thirty minutes into what was supposed to be a three-hour drive when the accident occurred.

About 10 minutes before the accident another driver, Amanda, noticed Matt’s truck. She saw his truck stopped at a stoplight as the two vehicles were headed out of one small town on the way to another small town. She was stopped directly behind his truck at the last stoplight out of town. Amanda testified that prior to the stoplight, Matt’s truck was traveling a safe speed and didn’t notice anything usual about his driving. After leaving the stoplight Matt’s truck traveled in the fast (inside lane) of the highway. She noticed the truck drift to the left toward the inside dividing stripe a couple of times and then move slightly onto the outside part of the yellow line dividing the roadway: Amanda said that he never went into the opposite lane of travel but drove on the yellow line. His driving was such that she decided to pass his truck.

As she was passing his truck she heard a tremendous crash.

A second witness, Scott, had been stopped right next to Matt’s truck at the last stoplight leaving the small town. They were the first two vehicles leaving the town.

Matt was in the inside (fast) lane and Scott was in the outside (slow) lane. Scott said that Matt’s truck also started to weave but contrary to what Amanda said, Scott claimed that the truck weaved to the right into the outside (slow) lane a few times.

Scott never said that Matt’s truck went towards oncoming traffic. Instead of passing Matt like Amanda, Scott slowed down.

Both Amanda and Scott saw what Matt did not. Stopped in the fast lane waiting to turn left was a small car. Scott remembers thinking to himself, “please see it, please see it.” As Amanda passed the stopped car, she looked in her rearview mirror and remembers seeing what she describes as an explosion. Matt’s truck slammed into the back of the smaller stopped car at nearly 65 miles per hour. The impact pushed the stopped car into oncoming traffic where it collided with another smaller SUV going the opposite direction. The driver of the SUV died instantly. The driver of the smaller car was flown to a hospital where she died a few hours later.

Matt was flown to a hospital as well. His injuries consisted of a concussion, a laceration, and neck issues.

1

Though public record, the names in this fact scenario have been changed.

Crossing the State’s Accident Reconstruction Expert Page 1 of 12

Matt does not remember much about the accident. He told officers he looked up and there was a car stopped. He told another officer he may have dozed off and yet another officer there was a car in front of him who moved out of the way suddenly to reveal the stopped car. Matt testified he didn’t know what happened and had been speculating about dozing off or another car moving out of the way to reveal the stopped car. Cell records indicated he was not on his phone and he testified he wasn’t reading anything or on any other device. He remembers listening to the news and drinking his coffee before the accident happened. There were no illegal drugs or intoxicating substances in his blood.

Almost a year after the accident the State charged Matt with two counts of manslaughter and two counts of criminaly negligent homicide. For unknown reasons, the State did not allege that a deadly weapon was used. In this case, the State filed a notice of expert witnesses that named just about everyone involved in the investigation. For the purpose of this paper, we will focus on the experts the State called regarding the accident reconstruction. This paper will also assume the State has properly qualified their witness as an expert.2 II. The best defense is a good offense Every lawyer has their own strategy when preparing for cross examination. In a case like this it’s best to get your own expert on board as fast as possible. Use your expert to help develop your theory of the case. We were lucky that the client could afford an expert; in this case, we hired Dr. Eric Moody.3 Dr. Moody was involved pretty much from day one. An additional benefit—at least from a defense attorney prospective—was that because Matt was on his way to work, the families of the deceased sued his company and they had deeper pockets than Matt. Matt’s company also employed an accident reconstruction expert. Since Matt and his company’s interests were in line, this meant we had the benefit of two experts.

A. Learn as much as you can about the State’s Expert 1. Civilian Experts As soon as you’re noticed about the State’s experts began collecting as much information as possible. In Matt’s case the State gave us notice that they were going to call Tim Lovett as their expert. Mr. Lovett has been around for a long time. By using the TCDLA listserv we were able to speak with several attorneys who had If you can keep the State’s expert out by all means do. There is a wealth of information on TCDLA and in the Voice magazine regarding challenging the State’s expert. Since the focus of this paper is specifically on crossing the State’s expert, we will assume that after a valiant fight while making a clean appellate record the judge has overruled our objections to the State’s expert.

2

While the names of the parties involved have been changed the names of experts have not.

We hired Dr. Moody and I highly recommend him. His website is moodyengineering.com.

3

Crossing the State’s Accident Reconstruction Expert Page 2 of 12

questioned Mr. Lovett and we were able to obtain transcripts of his testimony. When we were first provided notice that he would be an expert we called Mr. Lovett to discuss his findings. He was unaware that he had been noticed as an expert in the case and did not have any information on the case. We called Mr. Lovett a second time when the trial was a few weeks away. Again, he had no knowledge of the case (though he was very nice on the phone). Now confident that he wasn’t going to be a witness in the case we turned our attention to the law enforcement “experts.”

2. Law Enforcement Experts The State will undoubtably notice a few officers as expert witnesses. Officers can be tough to cross examine as their position (and uniform) automatically gives them extra credibility. Unlike a civilian expert witness, the issue of payment doesn’t seem to be that important to juries. Nevertheless, it’s important to do an open records request for the officer’s salary history. While you’re at it, make sure you get the officer’s personnel record and disciplinary records. Finally, get the officer’s TCOLE4 records. You may do so via an open records request to: open_records@tcole.texas.gov.

TCOLE responds very quickly and the records will contain information on formal education and law enforcement courses completed. The list of law enforcement courses completed will also list the date the class was completed.

Most law enforcement experts have little traditional education. That is, the training they receive comes from other law enforcement officers and classes. A good line of initial questions should pick at the officer’s lack of education. If you’re fortunate enough to have an expert of your own with formal education, questioning the officer about his lack of education will bolster your expert when you cover your expert’s credentials. For example, you should consider asking the office the following: • • • • • • • • • • •

Did you graduate from College? If so, what was your degree? Was it a liberal arts degree or a science degree?

When was the last time you took a physics class (most will say high school)?5 Have you written any papers on accident reconstruction?

Have you personally conducted any studies on accident reconstruction?

Have you personally conducted any studies on reaction time?

Have you personally conducted any studies on driver attention?

Have you personally conducted any studies on perceptual factors in rear end crashes?

Your TCOLE records indicate you took a course on Crash Investigation, do you recall who your instructor was?

How long ago was your class (the TCOLE record will have the date)?

Did your instructor have a degree?

Was your instructor a law enforcement officer?

4

TCOLE refers to the Texas Commission on Law Enforcement.

5

If you have the officer’s transcripts, consider asking about their grades.

Crossing the State’s Accident Reconstruction Expert Page 3 of 12

Another downside of law enforcement experts is that they are not as well-read as civilian experts. Those of you who try a lot of DWI cases are probably familiar with Garriott’s Medicolegal Aspects of Alcohol. A common tactic in a DWI case with breath or blood evidence is to ask the State’s expert if they are familiar with Garriott’s and if it’s a learned treatise.6 The goal is to then use favorable statements in the treatise to make your defensive point. In the case of law enforcement crash experts, they likely have not read any studies or authorities you want to use as a defense. Consider mailing a copy of the studies or authorities you intend to ask the expert about via certified mail. The State’s expert will still probably deny that the authority is an actual authority, but you’ll score some points with the jury when you make a show out of showing the State’s expert the authority. If you have your own expert, you’ll score again when your expert (who hopefully has a few degrees) recognizes the authority. A word of caution, any communication you have with the State’s expert will likely be communicated to the State. If you ask them about any studies or authorities (or any other theories) you can bet the expert will tip the State off.

3. ALWAYS have a 705 hearing Part of learning as much as you can about the State’s expert is learning as much as possible about what their testimony will be. Hopefully, the State has complied with your notice request and provided you with their expert’s contact information. Article 39.14(b) of the Texas Code of Criminal Procedure doesn’t require the State to provide you with the telephone number of their witness, but it does require that they provide an address. If the State’s expert is a civilian, it’s usually pretty easy to find their telephone number online and contact them. If it’s a law enforcement officer it’s more difficult to do so. Consider sending a certified letter to the State’s law enforcement officer asking them to contact you. If they don’t contact you, question the officer about the signed green card where you asked them to give you a call. If you can make contact over the phone with the State’s expert you should do so to ask them their theory of the case.

In addition to contacting the State’s expert by phone in advance of trial, you should file a motion for a hearing pursuant to Rule 705 of the Texas Rules of Evidence.

This is the proper place to challenge the State’s expert and it’s yet another way to learn what the State’s expert will testify to.

B. Visit the Scene This probably goes without saying, but you should visit the scene of an accident as soon as possible. When you visit the scene, try to do so under the same conditions that the accident occurred (same day, time, weather, etc.). You should also consider visiting the scene during different times to see if it makes conditions worse or better.

Is it easier to see when it’s cloudy versus clear? Are conditions better heavy traffic or 6

See TEX. R. EVID. 803(18).

Crossing the State’s Accident Reconstruction Expert Page 4 of 12

light traffic? Visiting the scene can often help you look at things from a different angle and help develop questions for the State’s expert.

• • • • • • •

Did you visit the scene?

When did you visit the scene (i.e. the day of the accident or months later)?

Did you visit the scene under similar circumstances as when the accident occurred?

Did you visit the scene under different circumstances?

How many times did you visit the scene?

Did you take any measurements?

Did you take any pictures?

Recently, State experts have been using drones in their investigation. Figure 1 is an image taken from the State’s drone.7

Figure 1 - Drone picture of accident location

The State also attempted to admit video footage from the drone as it was flying down the road towards the accident location. In this case, the State’s goal was to show that the road Matt was traveling on was straight and flat. The drone flew about 20 feet above the roadway and traveled much slower than Matt had been driving. The judge overruled my objection to the video and it was admitted. It was important to

All images contained in this paper are taken from exhibits admitted at trial and are a matter of public record.

7

Crossing the State’s Accident Reconstruction Expert Page 5 of 12

question the State’s expert as to the differences between the drone footage and Matt’s viewpoint.8 • • • • •

How fast does the drone travel (the expert usually doesn’t know the answer to this question)?

You would agree that the drone was flying higher than my client would have been traveling in his truck?

Because it was higher, the drone would have a better/longer view of the road?

The drone was also traveling slower than my client?

Because it was traveling slower it would have more time to see things in the roadway?

C. Accident Reports—past, present and future

Matt wasn’t charged with a crime until almost a year after the accident. During this time, we were working behind the scenes to gather evidence. One thing we were able to get very quickly is the collision report. This report is also referred to as a CR3 or crash report. You can request a copy of your client’s CR-3 here: https://cris.dot.state.tx.us/public/Purchase.9 A certified copy of the report costs $8.00 and an uncertified report is $6.00. Figure 2 is the CR-3 for Matt’s accident.

Figure 2 - CR-3 from Matt's accident

One of the videos provided by the drone shows it crashing into a tree which was fun to question the expert about.

8

For DWI cases involving a collision but no arrest on scene it’s also wise to get a copy of the CR-3. Occasionally, you may get hired on a case where the client was in an accident, taken to a hospital, had a blood draw done, but not arrested. The client questions whether a DWI charge will be filed. The CR-3 will list contributing factors (see Figure 2). If one of those contributing factors is alcohol, then there is a good chance DWI charges may be filed at some point in the near future.

9

Crossing the State’s Accident Reconstruction Expert Page 6 of 12

In addition to your client’s accident report you should also get past accident reports from the area where the accident occurred. You may do so via an open records request to the Crash Data Analysis and Statistics division of the Texas Department of Public Safety. The website for the division is: https://www.txdot.gov/government/ enforcement/crash-statistics.html. From here you can run a slew of different queries.

Figure 3 is a screenshot from TxDOT’s crash query tool. From here, you can search crash records throughout the state based on different parameters.

Figure 3 - Crash Query Screen from TxDOT

It took 2.5 years to get to trial in Matt’s case. Right before trial we made one more request to see if any additional accidents had occurred. From reviewing all of the crash reports we learned there had been many accidents in the same area. In the last ten years there had been five accidents that were nearly identical to Matt’s. This information helps lay the groundwork for questions of the State’s expert that hint at the dangerousness of the accident location.

• • • • •

Have you investigated any prior accidents at this location?

Have you investigated similar accidents?

Did you look at past crash reports for this location?

You would agree that XX accidents happened in the last XX years?

You would agree that XX accidents were nearly identical to my clients?10

Watch out for asking one too many questions. Don’t try to get the State’s expert to agree that it’s a dangerous location. If he disagrees, you’ve just undone some of your work. Instead, get your expert or another witness to agree that it’s a dangerous location.

Watch out for a relevancy objection on some of these questions. We were able to ask the State’s expert about accidents that were nearly identical to Matt’s accident but not all of the other accidents. The Judge kept us on a short leash, but the point was still made to the jury.

10

Crossing the State’s Accident Reconstruction Expert Page 7 of 12

Use what’s not listed on the CR-3 to your advantage. The CR-3 uses various codes for what might be contributing factors. See Figure 4 for the CR-3 codes regarding factors and conditions that may have contributed to an accident.

Figure 4 - Texas Peace Officer's Crash Report (Code Sheet)

Compare the contributing codes listed in Figure 2 on page 6 supra to the codes listed in Figure 4. In Matt’s case the State’s expert listed the following codes on the CR-3: Followed Too Closely (44), Failed to Control Speed (22), Faulty Evasive Action (41), and Driver inattention (20). Also, recall that two civilian witnesses claimed that Matt appeared to weave.11 With these tools, you can quickly see a line of questioning for the State’s expert about what were not contributing factors. For example: • • • • • •

You didn’t find that he was districted in the vehicle (19)?

You didn’t find that he failed to drive in a single lane (23)?

You didn’t find that he was fatigued or asleep (40)?

You didn’t find that he was drinking (45)?

You didn’t find that he was under the influence of alcohol or drugs (67 & 68)?

You didn’t find that he was using his cell phone (72)?

D. Pay attention to local media (and social media) outlets

Be on the lookout for future crashes and issues if the area is particularly dangerous. Google news is an excellent resource. By setting up a Google news alert you can select key terms and Google will email you anytime those terms appear in news article. In Matt’s case, citizens of Burnet county went to a TxDOT meeting very shortly after the crash to ask TxDOT to add a center lane to the highway. This allowed us to ask the State’s expert if he was aware that the local citizens have been complaining about the dangerousness of the road in question. While not an expert, one of the people who spoke to TxDOT was a victim’s husband. The only question asked of him on cross examination was if he spoke at the TxDOT hearing. The 11

One witness said Matt weaved to the left and the other said that Matt weaved to the right.

Crossing the State’s Accident Reconstruction Expert Page 8 of 12

husband testified before the State’s expert and in addition to asking the expert if he was aware that local citizens had been complaining about the road, we were able to ask if he was aware that one of the victim’s husband also spoke at the TxDOT hearing.

Figure 5 - Article on dangerousness of HWY 29

We would not have known about the citizens of Burnet County speaking to TxDOT had we not subscribed to the local media on various social media platforms and Google news. The same day the article was published about citizens speaking out the local newspaper ran a separate story about another person dying on Highway 29. See Figure 6.

Figure 6 - Burnet Bulletin 10/25/17

Crossing the State’s Accident Reconstruction Expert Page 9 of 12

III. Human Factors, Unexpected Conditions & Perception Times Our case wasn’t a case of fault. It was clear that our client caused the accident.

What we had to show was that while our client may have caused the accident, he wasn’t criminally culpable. Negligent, yes; criminally negligent, no. Like any accident reconstruction case, we questioned the State’s exerts about the measurements they took, the tools they used, drag factor, friction co-efficient, skid marks, yaw marks, etc.

Our defense was that this was just a horrible accident and that the State failed to prove the requisite mental state.

The leading researchers on driver response times are Jeffrey Muttart and Rudolf Mortimer.12 They both have vast bodies of work pertaining to driver response times in rear-end collisions.13 The general consensus is that driver’s have difficulty discerning their closing speed with a lead vehicle. This in conjunction with unexpected conditions on a highway can lead to accidents. The term “unexpected condition” speaks for itself, but generally it’s the concept that our perception and reaction time increase if we don’t expect something to happen. If a driver sees flashing lights or a sign that says “stop ahead” that alerts the driver to something ahead of their vehicle and helps decrease perception and reaction time. However, if a driver is driving down a straight boring road (especially for a longer period of time) a type of road hypnosis kicks in and the driver’s perception and rection time greatly increases.

Our expert was going to walk the jury through the studies but in order to do so, we had to lay some groundwork with the State’s expert. We first questioned the State’s expert on the route Matt took from Bertram to Burnet.

Figure 7 - Google Map of Highway 29 between Bertram and Burnet

The National Highway Traffic Safety Administration (“NHTSA”) has a library of searchable research articles. You may find that library here: https://www.nhtsa.gov/research. Often, the State’s Expert will at least recognize NHTSA as a leading authority. You can often find a few favorable articles that you can then use in your cross examination.

12

See R. Mortimer, Perceptual Factors in Rear-end Crashes, Proceedings of the Human Factors Society 34th Annual Meeting (1990); and J. Muttart et al., Relationship Between Relative Velocity Detection and Driver Response Times in Vehicle Following Situations (2013).

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Crossing the State’s Accident Reconstruction Expert Page 10 of 12

Thinking it was hurting our case, the State’s expert was more than happy to agree that Highway 29 between the two towns is a pretty straight shot.

Figure 8 - Scene Diagram by Defense Expert Dr. Moody

Next, the State’s expert agreed that the area were the accident occurred was pretty level and straight. Since we wanted to emphasize the unexpectedness of a small car stopped to turn left we had to question the State’s expert about other characteristics of the road.

• • • • • • •

There were no flashing lights at the intersection?

There was no sign that said intersection ahead?

The road that was intersecting Highway 29 was a much smaller road?

The road that was intersecting Highway 29 did so at an angle?

The road that was intersecting Highway 29 was behind a business?

The small car that was stopped didn’t have a turn signal on?

The small car that was stopped didn’t have her brake lights on?14

By getting the State’s expert to agree to all of these questions we were able to lay the groundwork for our expert to discuss the unexpected nature of a small car being stopped in the middle of the road and how that impacted Matt’s perception and reactionl.

We posited that the driver of the small car may have taken her foot off the brake as she was slowly rolling forward waiting for a car to pass so she could make her turn. None of the black boxes from any of the vehicles were secured so we’ll never know. The failure of the State’s expert (or anyone) to collect the black boxes was the subject of a lot of questioning.

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Crossing the State’s Accident Reconstruction Expert Page 11 of 12

IV. Closing Thoughts At the end of the trial Matt was acquitted of the higher manslaughter charges but was convicted of two state jail felony offenses of criminally negligent homicide.

After speaking to some of the juries they just could not get over the fact that there were two dead women. They were also tired of accidents occurring on that part of Highway 29. During Voir Dire, all of the jurors were familiar with that stretch of road and all agreed that it was dangerous. The jurors were also not happy with the lackluster investigation performed by the State’s expert. Matt’s case is currently on appeal.

Crossing the State’s Accident Reconstruction Expert Page 12 of 12

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross When Race is an Issue Speaker:

Monique Sparks ADDRESS 1 ADDRESS 2 (000) 000-0000 Phone (000) 000-0000 Fax EMAIL@EMAIL email WEB.COM website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Cross Examination on Race Introduction There was a time when we were taught there were certain things were not polite to discuss. Surely, discussing topics such as bias, race, or discrimination were not great places to start off a conversation when the goal was to win friends and influence people. Who wants to make people feel uncomfortable, or singled out? Race is a tough topic that can bring out interesting, and divisive, perspectives in people. Talking about discrimination can also be uncomfortable for those with privilege because it requires them to acknowledge the advantages they gain from that privilege. Even if they consider themselves unbiased, they must acknowledge they benefit from the system that keeps discriminatory practices in place. On the other hand, talking about

discrimination can be just as uncomfortable for those who don’t have privilege.

The most used criticism used against those that address race is they are accused of the playing the “race card.” Knowing that race can be an isolating topic, how do we address race as an issue in our cases? Do we ignore it, or do we face it?

Why do we address race in our case?

We face it. The truth is there is no avoiding it. Whether we address it or not, the jury sees our client, they see our client’s race, they will find out the race 1

of the complaining witness or the race of the officers. It is unavoidable. Jurors notice race. Pretending to be color blind and acting as if race does not matter may seem like the safer course of action. However, the problem with color blindness is that it ignores reality.

Cynthia Lee, a professor at George

Washington University, explores the idea of making race salient. Professor Lee’s publication uses the Trayvon Martin case to discuss implicit bias in a not yet post-racial society. Her quote below highlights the need for us to address race in trial: “Even if we believe that race should not matter, the fact is that it does matter. . . Pretending that race does not matter . . . only exacerbates the problem of implicit bias. When individuals are not cognizant of their implicit biases, those biases can automatically trigger stereotypes and prejudice. It is conscious awareness of racial bias, not blindness to race, that encourages one to correct assumptions that one might otherwise make about others because of their race. If we really want to counter racial bias, we should be race-conscious, not color blind.”1 By failing to confront the issue of race at trial, criminal defense attorneys risk allowing “unconscious racial bias to act as an invisible witness against the African American or minority defendant, buttressing the prosecution’s claims concerning his incorrigibility and undermining his case.”2

1 2

https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2023&context=faculty_publications https://researchrepository.wvu.edu/cgi/viewcontent.cgi?article=1194&context=wvlr

2

Research suggests that one route in reducing discrimination may be increasing individuals’ internal motivation to eliminate prejudice. 3 Increased motivation, coupled with an awareness of implicit biases, can lead to the consistent effort necessary to reduce one’s discriminatory behaviors and prejudicial attitudes.4 Within the last 20 years there have been so many cases that bring race to the forefront-especially in criminal justice. From Rodney King, OJ Simpson, Trayvon Martin to George Floyd, each case can be used as a springboard to discuss race in trial. Using high-profile cases will help you address the issues that are in your case and lay the foundation for you to tell your story or dismantle the state in cross examination.

Ways race can be addressed on cross A. Stereotypes and Prejudices Now that we know we have permission to address race, how should we do it? Race shows up in many different forms in our cases.

Stereotypes and prejudices are undesignated extraneous acts that we must fight and address in our cases. We must remove our rose-colored glasses and note the things that people make up or believe about the group our client comes from.

What does society say about your client? What are the stories on the news? Is your

3 4

https://www.apa.org/topics/racism-bias-discrimination/keita https://www.apa.org/topics/racism-bias-discrimination/keita

3

client someone we should fear? Will the stereotypes be based on your client’s neighborhood? Is it a common assumption that if he is black and lives in a certain low-income neighborhood, he is a gang member, thug, or drug dealer? It could be the flawed social science that connects African Americans with greater propensity to violence. Addressing those issues head on and showing that your client is in fact

the opposite of the perceived stereotype or prejudgments in cross examination has been found to be effective. Analyze the causes of stereotypes that may be at play and obtain information about your client to effectively differentiate him or her from the negative stereotype. One study concluded that exposure to people who do not conform to stereotypes can reduce biases by more than half. 5 With this mind, there are not enough cross questions that we can use to cleave or client from the labels that society has placed on them. Let us use cross examination as an opportunity to tell a different story. Hopefully, a story that shows triumph. That gives details of what your client had to overcome. A cross that shows what type of man, father worker this person is. Although cross is not punishment we need to get out as much as we can about our client that makes him relatable as a human. The more we emphasize the redeeming qualities

5

https://www.brown.edu/Departments/Economics/Faculty/Glenn_Loury/louryhomepage/teaching/Ec%20137/Kan g%20Trojan%20Horse%20of%20Race.pdf

4

about our client, we lessen the blow of stereotypes played upon by the state/ government.

B. Racial Profiling “The practice of racial profiling has no place in law enforcement.

It is an activity that undermines the public trust vital for an effective community policing organization. Police must be perceived as both providers of public safety and deferential to the civil liberties of those they have sworn to protect and serve. While the majority of police officers serve their communities in a professional and ethical manner, the debate over the reality of racial profiling as a practice in law enforcement is loudest on the side of its existence on a national level.”6 Another ripe area for cross examination on race is cases that are a result of racial profiling. Have you read reports that stated that the defendant was stopped due to driving a “too clean car”,” looking forward” or wearing a clothing item that is “associated criminal activity”? These descriptors can be red flags for racial profiling. If your client was racially profiled, cross on how many whites drive clean cars. Subpoena the statistics on the officer’s traffic stops to show the disproportion between white and black and brown drivers that he stops. How many whites look straight ahead while driving etc. Show the bias, in why your client was singled out amongst hundreds of drivers. Was your client a black or brown in a nice car? Was that what really caught the officer’s

6

Protecting Civil Rights: A Leadership Guide for State, Local, and Tribal Law Enforcement (theiacp.org)

5

attention? Continue to bring to the juror’s attention through your questions the need for us to have a fair system. An unbiased system. A system not based on discrimination. Also remind officer through cross examination how racial profiling goes against their pledge and oath to seek justice.

C. Defendant is a different race from the complaining witness The color of a defendant and victim's skin plays a crucial and unacceptable role in a jury trial case. This is illustrated in the data reviewed from capital litigation. As of October 2002, twelve people have been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims.7

This disparity highlights why it is so important to interrogate how race impacts our criminal justice system. We do not want to believe that how we see race would play a role in who gets executed. We have been taught that the justice system is a meritocracy: that people get what they deserve, no matter what their color or creed. Based on the facts, that is obviously not true, and we need to do everything in our power to ensure our clients

7

Race and the Death Penalty | American Civil Liberties Union (aclu.org)

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are judged by the facts, and not their skin color. It is a truly a matter of life or death.

Conclusion Talking about race is an uncomfortable, yet necessary, part of being a criminal defense lawyer at the present time. These days, the concept of racial bias and injustice are at the forefront, and while we are making progress, there are still people who have never recognized the nature and character of their bias. It is important to get in front of that and to make sure that the issue of racial bias is confronted early and often. Using cross examination to gently prod at the issues of race during trial is crucial to ensure that all parties involved are aware of the possible race-based crutches used by law enforcement and by individuals.

For us, it is an uncomfortable topic we steer away from to avoid conflict but for our clients, their liberty hangs in the balance. Failure to make sure that the jury or the factfinder is aware of their biases and constantly checking them is a failure to our clients. We must do right by them and do the difficult things necessary to effectively represent them.

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Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Cross of “Soft-Science” Expert Speaker:

Sarah Roland

903 N Elm St Ste 101 Denton, TX 76201-6926 (940) 323-9305 Phone (940) 312-6830 Fax sarah@sarahroland.com email www.sarahroland.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

1. What’s the difference between a consulting expert and a testifying expert?

Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006) is the leading case on the distinction between consulting and testifying experts. The difference is major, and it matters. Everyone should read Pope.

The identity, mental impressions, and opinions of a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert are not discoverable. A consulting expert is not designated as a defense expert witness under Article 39.14 of the Texas Code of Criminal Procedure. Pope v. State, 207 S.W.3d 352 (Tex. Crim. App. 2006). Information regarding a consulting expert is subject to the attorney-client privilege and work product privilege. Id. If you designate a consulting expert as an expert under Article 39.14, the expert’s identify and qualifications are not protected by the work product privilege,

and the State may comment on your failure to call this witness to testify at trial. Id. “If a party might call an expert whom he has consulted as a witness at trial and the opposing side has requested designation of any potential experts, the party must designate that person as a testifying expert. A party who has designated a person as a potential testifying expert must be willing to divulge his name, address, telephone number, resume, and the subject matter on which he will testify.” Pope v. State, supra.

2. What if my court-appointed client doesn’t have any money to hire an expert, and we need one?

Ask the court for money. Do not be timid to ask for the money necessary to defend the case. Always make the requests ex parte and sealed and always included in the record. See Williams v.

State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). The State can-

not get a copy of your ex parte sealed request for expert assistance nor can the State be at any hearing for requested assistance. Also, there is no canned request for expert assistance. Each request should be appropriately tailored to the specific facts of the case.

The authority for requesting necessary expert (investigative and/or mental health) assistance comes directly from the Code of Criminal Procedure, case law, the State Bar Guidelines, and the American Bar Association Guidelines for representation.

Article 26.05 and 26.052 of the Code of Criminal Procedure. Article 26.05(d) provides that in non-capital cases counsel

perts without first obtaining court approval. It is arguably better to obtain prior court approval, though, for a few reasons. For starters, you will have an order in advance for payment. Also, if a correct, credible showing is made that the expert is necessary and the Court denies the request, there is already potential error built in the case.

Additionally, case law is well-established and clear that the trial court must provide sufficient funding for necessary defense expert assistance. The defense expert must “play a partisan role in the defense, providing defense counsel with the ‘tools’ to challenge the State’s case.” Taylor v. State, shall be reimbursed for reason“The trial attorney’s failure to request 939 S.W.2d 148 (Tex. Crim. App. able and necessary expenses, additional funding in order to replace 1996) (citing DeFreece v. State, 848 including expenses for investian expert he knew to be inadequate S.W.2d 150 (1993)). “In this context, gation and for mental health and because he mistakenly believed that he due process, at a minimum, requires other experts. Expenses incurred had received all he could get constituted expert aid in an evaluation of a defenwith prior court approval shall deficient performance.” dant’s case in an effort to present it in be reimbursed in the same manthe best possible light to the jury.” Id. ner provided for capital cases by The seminal case for expert assistance, of course, is Ake v.

Article 26.052(f) and (g), and expenses incurred without Oklahoma, 470 U.S. 68 (1985), which held that indigent defenprior court approval shall be reimbursed in the manner dants in criminal cases have a due process right to state-provided provided for capital cases by Article 26.052(h).” expert assistance when an ex parte showing is made to the trial judge. Ake involved a psychiatric expert. However, according Article 26.052(f) indicates that to the Court of Criminal Appeals, Ake also applies to non-psy[a]ppointed counsel may file with the trial court a pretrial ex chiatric experts. Rey v. State, 897 S.W.2d 333 (Tex. Crim. App. parte confidential request for advance payment of expenses 1995). If an indigent defendant establishes a substantial need for to investigate potential defenses. The request for expenses an expert, without which the fundamental fairness of the trial must state: will be called into question, Ake requires the appointment of an (1) The type of investigation to be conducted; expert, regardless of the field of expertise. Id. (2) Specific facts that suggest the investigation will result Furthermore, on January 28, 2011, the Texas State Bar Board in admissible evidence; and of Directors adopted the “Performance Guidelines for Non-Cap(3) An itemized list of anticipated expenses for each in­ ital Criminal Defense Representation” (hereinafter “Guidelines”). ves­tigation.”

Performance Guidelines for Non-Capital Criminal Defense Representation, available at https://www.texasbar.com/AM/ Article 26.052(h) states that Template.cfm?Section=Texas_Bar_Journal&Template=/CM/ ContentDisplay.cfm&ContentID=14703. “The guidelines were “[t]he court shall grant the request for advance payment of drafted by the State Bar Committee on Legal Service to the Poor expense in whole or in part if the request is reasonable. If in Criminal Matters to encourage defense attorneys to perform to the court denies in whole or in part the request for expenses, a high standard of representation and to promote professionalism the court shall: in the representation of citizens accused of crime.” Blackburn, (1) State the reasons for the denial in writing; J., and Marsh, A., The New Performance Guidelines in Criminal (2) Attach the denial to the confidential request; and Cases: A Step Forward for Texas Criminal Justice, 74 Texas Bar (3) Submit the request and denial as a sealed exhibit to Journal 7 (July 2011). “They represent an effort to ‘hold the line’ the record. for criminal defense practitioners against a host of financial and political pressures.” Id. According to Guideline 4.1, B.9 Article 26.052(h) provides that [c]ounsel may incur expenses without prior approval of the court. On presentation of a claim for reimbursement, the court shall order reimbursement of counsel for the expenses, if the expenses are reasonably necessary and reasonably incurred.”

Thus, the Code makes clear that it is permissible to hire ex-

Counsel should consider whether expert or investigative assistance, including consultation and testimony, is necessary or appropriate. Counsel should utilize ex parte and in camera procedures to secure the assistance of experts when it is necessary or appropriate to: a. The preparation of the defense; b. Adequate understanding of the prosecution’s case;

c. Rebut the prosecution’s case or provide evidence to establish an available defense; d. Investigate the client’s competence to proceed, mental state at the time of the offense, or capacity to make a knowing and intelligent waiver of constitutional rights; and e. Mitigate any punishment that may be assessed after a verdict or plea of guilty to the alleged offense.

Additionally, Guideline 7.1, C.3 provides the following: Counsel should complete investigation, discovery, and research in advance of trial, such that counsel is confident that the most viable defense theory has been fully developed, pursued, and refined. This preparation should include consideration of: Obtaining funds and arranging for defense experts to consult or testify on evidentiary issues that are potentially helpful (e.g., testing of physical evidence, opinion testimony, etc.).

3. What if I run out of money from the court for my expert?

We have all been in situations like this—where, for example, we ask for $2,500 for expert assistance, and the court authorizes $500 in funds. Ask for more money. Ask even after you’ve been told no or given insufficient funds. Keep asking. Do another ex parte, sealed motion. Do not use your same motion from before.

Make this a second request. (Then when you get another $500 and use it, make a third request, and so on.) Outline for the court that the previously allocated funds have been depleted, how they were depleted, that more work needs to be done, that you have no expertise in the field, what that specific work entails, and more money is necessary to perform the additional work.

Hinton v. Alabama, 134 S.Ct. 1081 (2014), is an ineffective assistance of counsel case based on the lawyer’s failure to obtain sufficient funding for a qualified expert who was necessary to rebut the State’s case.

Hinton was a death penalty case. The physical evidence consisted solely of a revolver and six bullets. The State’s case turned on whether its expert witnesses could convince the jury that the six recovered bullets had indeed been fired from the Hinton revolver. Id. at 1084. Recognizing that Hinton’s defense called for an effective rebuttal of the State’s expert witnesses, Hinton’s attorney filed a motion for funding to hire an expert witness of his own. In response, the trial judge granted $1,000 with this statement: “I don’t know as to what my limitations are as for how much I can grant, but I can grant up to $500.00 in each case [that is, for each of the two murder charges, which were tried together] as far as I know right now and I’m granting up to $500.00 in each of these two cases for this. So if you need additional experts I would go ahead and file on a separate

form and I’ll have to see if I can grant additional experts, but I am granting up to $500.00, which is the statutory maximum as far as I know on this, and if it’s necessary that we go beyond that then I may check to see if we can, but this one’s granted.” ___ So.2d ___, ___, 2006 WL 1125605, *59 (Ala.Crim.App., Apr. 28, 2006) (Cobb, J., dissenting) (quoting Tr. 10).

Hinton’s attorney did not take the judge up on his invitation to file a request for more funding. Id. With the limited funding provided by the court, Hinton’s lawyer found a woefully underqualified expert who testified at trial. The USSC ultimately held that “[t]he trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Id. at 1088.

4. What if I am retained and we need an expert but my client doesn’t have any more money?

The Court of Criminal Appeals answered this very question in Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005), a child death case. Quite simply, as retained counsel, you may not put off investigating medical issues or put off consulting with necessary experts until your client pays you money for experts. Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005). In Briggs, the Court of Criminal Appeals spelled out three options if your client cannot afford experts: (1) Subpoena to testify at trial the experts who treated your client, introduce at trial the records through these experts, and have these experts provide their expert opinions; (2) Withdraw from the case after proving to the judge your client’s indigence; or (3) Remain on the case and take a reduced fee but request an investigator and experts from the trial judge for a nowindigent client pursuant to Ake. Id. at 468.

Importantly, the Court of Criminal Appeals further recognized this: If any reasonable attorney appointed to represent an indigent defendant would be expected to investigate and request expert assistance to determine a deceased infant’s cause of death, a privately retained attorney should be held to no lower standard. As the Supreme Court has explained, “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection. . . . [W]e see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.” Id. at 468–469 (internal citations omitted).

5. What do I need to give my expert?

Communication with your expert is key. Prior to obtaining funding or paying for expert assistance, you will have already talked preliminarily with your expert. Begin to set expectations at that time.

Once the expert is officially hired or appointed, he or she becomes part of the defense team. Send an engagement letter to your expert so that the expert will know what is expected.

Also, in the engagement letter, make sure the expert knows that he or she is part of the defense team, and that all information the expert receives is privileged and confidential. Finally, let the expert know that he or she is being retained (at least initially) as a consulting expert. As a practice point, wait until the expert has done all the necessary work in the case before designating the expert as a testifying expert.

Make certain your expert has as much information as possible to form a credible and reliable opinion. The expert needs to know the worst fact of the case. Providing the expert with a copy of the discovery that is provided to you by the State is a must. The expert must have a working knowledge of the facts of the case. Obviously, the type of expert dictates what information is necessary. For instance, a false confession expert needs to have reviewed in detail every statement the accused has made whether that be in writing or recorded. You do not want to put your expert, your client, or yourself in the position where your expert learns about crucial information for the first time on cross-examination.

6. Do I have to provide notice to the State that I have an expert?

Yes, if notice is requested by the State or ordered by the trial court. If neither of those conditions precedent are met, then we are not obligated to provide such notice—and should not do so.

However, we should always request notification of experts in our Article 39.14 requests regardless of whether we think the State may have an expert. Be sure to request copies of the expert’s report, curriculum vitae, underlying facts or data relied upon, bench notes, diagrams, etc. Subpoena a copy of the expert’s entire file. It is often different than what the State may have provided.

Article 39.14(b) of the Texas Code of Criminal Procedure states: “On a party’s request made not later than the 30th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin, the party receiving the request shall disclose to the requesting party the name and address of each person the disclosing party may use at trial to present evidence under Rules 702, 703, and 705, Texas Rules of evidence. Except as otherwise provided by this subsection, the disclosure must be made in writing in hard copy form or by electronic means not later than the 20th day before the date that jury selection in the trial is scheduled to begin or, in a trial without a jury, the presentation of evidence is scheduled to begin. On motion of a party and on notice to the other parties, the court may order an earlier time at

which one or more of the other parties must make the disclosure to the requesting party.”

7. Do I need to have my expert make a report?

Not necessarily. There is no requirement for a written report. In some cases, it is better to have a report and others it is not. There is no right or wrong answer for this question. It just depends on the facts of the case.

The key to answering this question in your specific case is communication with your expert. Find out what the expert would include in the report before you request a report. Ask your expert—after he/she has reviewed everything, met with client, etc.—what the worst thing is about the case. We have to know the answer to the “worst” question so that we can address it at trial or plan a way around it, if possible. Also, that will normally dictate whether you want a written report or not.

8. Can I talk to the State’s expert?

Rule 4.02(b) of the Texas Disciplinary Rules of Professional Conduct discusses “Communication with One Represented by Counsel” and states as follows: “In representing a client a lawyer shall not communicate or cause another to communicate about the subject of representation with a person or organization a lawyer knows to be employed or retained for the purpose of conferring with or advising another lawyer about the subject of the representation, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.” Comment 3 to this rule states as follows: “Paragraph (b) of this Rule provides that unless authorized by law, experts employed or retained by a lawyer for a particular matter should not be contacted by opposing counsel regarding that matter without the consent of the lawyer who retained them. However, certain governmental agents or employees such as police may be contacted due to their obligations to the public at large” (emphasis added). The medical examiner and State crime lab scientist also fall under the umbrella of having an obligation to the public at large so may be contacted. However, if the State’s expert doesn’t fall within this umbrella, then be sure to get permission to speak to the expert ahead of time.

Talk to the State’s expert every time. There is no reason not to talk to the State’s expert. Remember it’s a time to gather information and share information but only if it is necessary or helpful.

Take someone with you when you talk to the State’s expert. Never talk to the State’s expert alone. You will be surprised what you learn and how accessible they are most of the time. Remember, real scientists are advocates for the science not the side.

9. Should I request a hearing on the State’s expert prior to the expert’s testimony?

Yes. Rule 705(b) of the Texas Rules of Evidence provides that “[b]efore an expert states an opinion or discloses the underlying facts or data, an adverse party in a civil case may—or in a criminal case must—be permitted to examine the expert about the underlying facts or data. This examination must take place

outside the jury’s hearing.” With exceptionally limited circum- witnesses.” Daubert, 509 U.S. 579, 592–93.; see also Emerson v. stances, we should be requesting hearings on every expert every State, 880 S.W.2d 759, 763 (Tex. Crim. App. 1994). time. Those limited circumstances are case, witness, and strategy dependent. The hearing is conducted to test the admissibility of 10. Do I need to have my expert testify at trial? the expert’s opinion, obtain discovery, ensure you have copies Not necessarily. Just because you have an expert and have even of everything the expert has used to form the opinion, to get a designated an expert doesn’t mean you have to call the expert. record of what the expert has to say, and gain knowledge about Sometimes you know going in that your expert will need to tesfruitful grounds for cross-examination. tify. Other times, it’s not so clear, and you must gauge whether it’s Texas Rules of Evidence 104, 401, 402, and 702 provide worth it—a judgment call. As with every witness, there are points the basic conditions precedent for expert testimony. See Vela to be gained and points to lose. It’s always a question of whether v. State, 209 S.W.3d 128 (Tex. Crim. the net will be positive. However, be App. 2006). Rule 104 requires that Experts employed or retained by a lawyer sure to prepare your expert for the “[t]he court must decide any prefor a particular matter should not be possibility that he/she may not actuliminary question about whether a contacted by opposing counsel regarding ally testify depending on the ebb and witness is qualified . . .” and that “[t] that matter without the consent of the flow of trial. he court must conduct any hearing As a practice point, though, lawyer who retained them. on a preliminary question so that the don’t promise or mention your exjury cannot hear it if . . . just so repert in jury selection or in opening. quires.” Rules 401 and 402 render testimony admissible only if On the other hand, if you promise expert testimony in openit “tends to make the existence of any fact that is of consequence ing be sure to deliver in order to maintain credibility with the to the determination of the action more probable or less prob- jury. Also, always be on guard for any argument or question(s) able than it would be without the evidence. Rule 702 permits that may (attempt to) shift the burden or proof or undermine expert testimony only “if the expert’s scientific, technical, or the presumption of innocence, as such seems to be the default other specialized knowledge will help the trier of fact to under- argument from the State when defense has an expert. Prepare stand the evidence or to determine a fact in issue.” Accordingly, the jury for any such attempt by the State in jury selection. Be expert testimony that would only serve to confuse the issue or sure to educate the jury on the presumption of innocence, get evidence for the trier of fact should not be admitted. The expert everyone on “team innocent,” and indoctrinate them to the “take should be able to clearly explain the scientific, technical, or other a knee” philosophy. Then, to bring it full circle, when it is time specialized knowledge in a manner that lay, non-experts, i.e. the to rest confidently say, “Your honor, based on the law and the jury or the judge, can understand, and it must in some way be state of evidence we rest.” relevant to the case.

According to the Court of Criminal Appeals, “[t]hese rules 11. Can an expert comment on truthfulness? require a trial judge to make three separate inquiries all of which The short answer is no. This is a hard issue to determine or recmust be satisfied before admitting expert testimony: (1) the wit- ognize in the middle of trial at times. If you think you should ness qualifies as an expert by reason of his knowledge, skill, object, object. You can usually assume in a child abuse case that experience, training, or education; (2) the subject matter of the the State may have the expert do exactly that, though. Therefore, testimony is an appropriate one for expert testimony; and (3) it is advisable to litigate this issue pretrial through a motion in admitting the expert testimony will actually assist the fact-finder limine. Remember, though, to object during trial because moin deciding the case.” Rodgers v. State, 205 S.W.3d 525, 527 (Tex. tions in limine do not preserve anything for appeal.

Crim. App. 2006); see also Malone v. State, 163 S.W.3d 785 (Tex. In Salinas v. State, 166 S.W.3d 368 (Tex. App.—Fort Worth App.—Texarkana 2005, pet. ref ’d), and TRE 702. “These condi- 2005, pet. ref ’d), a pediatrician testified she diagnosed sexual tions are commonly referred to as (1) qualification, (2) reliability, abuse based solely upon the history provided by the child comand (3) relevance.” Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. plainant. The appellant claimed that such evidence was impropApp. 2006); Escamilla v. State, 334 S.W.3d 263 (Tex. App.—San erly admitted expert testimony that directly commented on the Antonio 2010, pet. ref ’d). credibility of the complainant. The appellate court held that beIt is worthwhile to remind the trial court consistently of its cause there was no physical evidence of digital penetration, the gatekeeping function—and that it shouldn’t operate as a rubber doctor’s “testimony could only be seen as an attempt to directly stamp. It is common knowledge that junk science is a leading bolster the credibility of the complainant and a direct comment cause of wrongful convictions. After all, “[e]xpert evidence can on the complainant’s truthfulness.” “The trial court abused its be both powerful and quite misleading because of the difficulty discretion in admitting the pediatrician’s testimony that she had in evaluating it. Because of this risk, the judge in weighing pos- diagnosed sexual abuse based on the child’s medical history.” sible prejudice against probative force under [FRE] 403 of the Pediatricians have been recognized as expert witnesses in present rules exercises more control over experts than over lay sexual abuse cases provided they do not testify that such children

are truthful. Yount v. State, 872 S.W.2d 706 (Tex. Crim. App. 1993).

Rape crisis counselors have been recognized as expert witnesses in sexual abuse cases provided they do not testify that the child is telling the truth. Black v. State, 634 S.W.2d 356 (Tex. App.—Dallas 1982, no pet.); Miller v. State, 757 S.W.2d 880 (Tex. App.—Dallas 1988, pet. ref ’d).

The moral of the case then is communication with your expert such that allows you to elicit necessary defensive expert testimony.

Clearly, the opinion indicates that Dr. Gottlieb provided testimony at trial and at the habeas hearing on the same subject. Remember, the witness can only answer the questions that are asked. It is not enough to just have an expert witness. Be prepared to fully use the expert witness to the greatest extent possible.

12. How do I know what to ask my expert?

Communication with your expert is key. You must talk to your expert long before he or she testifies. Know what information you need to get out of your expert. Make sure your expert can adequately and clearly explain the scientific—whether hard or soft science—issues to you. Ask your expert questions. If you do not understand what the expert is telling you, there is no way the jury will understand what the expert is saying.

In Ex parte Ard, No. AP-75,704 (Tex. Crim. App. 2009) (per curiam) (not designated for publication), an aggravated sexual assault of a child case, the Court of Criminal Appeals held that trial counsel’s performance was deficient in that counsel failed to adequately prepare and present expert testimony concerning memory implantation.

The applicant’s defensive theory at trial was that the complainant’s accusations were a result of suggestion and coaching, which tainted the complainant’s memory. Trial counsel even had an expert witness—psychologist—testify. However, the Court of Criminal Appeals noted: Though Dr. Michael Gottlieb, an expert on the subject, was ready and able to explain how false memory may be implanted by repetitious suggestion, trial counsel failed to adequately elicit testimony from the doctor that the theory is the subject of many treatises and is widely accepted by the scientific community, to explain how and why it can occur, and to enumerate those facts which, in his opinion, made the testimony of the alleged victim in the case suspect and unreliable. This failure on the attorney’s part fell below any objective standard of reasonableness, and there is a reasonable probability that, but for it, the result of the trial would have been different. This court finds that the inadequate presentation of such evidence, crucial to Applicant’s defense, was, under the standard of Strickland v. Washington, 466 U.S. 668 (1984), ineffective assistance of counsel. Considering the deficiencies in the presentation of Dr. Gottlieb’s testimony, based on a comparison of his trial testimony and his writ hearing testimony, it is the opinion of this court that there can be no confidence in the outcome of the trial. Id. …

Dr. Gottlieb’s trial testimony before the jury differed markedly from his writ-hearing testimony, not only in scope but in substance as well. In general, Dr. Gottlieb’s writ testimony was far more comprehensive than his trial testimony. The differences between the two cannot be attributed to counsel’s trial strategy. Id.

13. Can an expert testify about diminished capacity due to mental illness or disease?

No. There is no diminished capacity defense in Texas. “The Texas Legislature has not enacted any affirmative defenses, other than insanity, based on mental disease, defect, or abnormality. Thus, they do not exist in Texas.” Ruffin v. State, 270 S.W.3d 586, 594 (Tex. Crim. App. 2008).

However, “such expert evidence might be relevant, reliable, and admissible to rebut proof of the defendant’s mens rea.” Id. at 595. The leading case on this topic is Ruffin v. State, 270 S.W.3d 586. Be sure to read, study, and have this case on hand for any trial in which your client has a mental illness, disease, or defect that is just shy of insanity. In Ruffin, the Court of Criminal Appeals “repeat[ed] and reaffirm[ed] our holding in Jackson that ‘relevant evidence may be presented which the jury may consider to negate the mens rea element. And this evidence may sometimes include evidence of a defendant’s history of mental illness.’ ” Id. at 596.

As a cautionary tale, the State will typically try to keep expert testimony about mental illness out if it falls short of insanity.

This is obviously because the nature of this evidence tends to mitigate and be beneficial to the defense. Again, this is where it is key to have an open line of communication with your expert.

Knowing there is no diminished capacity defense in Texas and that the State will inevitably try to limit the expert’s testimony, just means that you and your expert have to game-plan and prepare proper questions in advance.

Sarah Roland grew up always wanting to be a criminal defense lawyer like her dad.

She has a criminal trial and appellate practice in which is she fortunate enough to practice with her brother, George Roland. She has been a member of TCDLA since 2001 and serves on the Board of Directors. Sarah is the editor of the Voice. She has served as chairperson of CDLP and is an active speaker and author on criminal law topics throughout the state.

She is a past president of the Denton County Criminal Defense Lawyers Association and received the first annual Hal Jackson Award in 2014. She has been selected as a Rising Star and a Super Lawyer for multiple years. Most importantly, though, she is Josh’s wife and Ellie and Sam’s mom! She can be reached at sarah@sarahroland.com.

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Speaker:

Topic: Utilizing Technology in Cross Jeep Darnell 310 N. Mesa Street, Ste 212 El Paso, TX 79901 (915) 532-2442 Phone (915) 532-4549 Fax jedarnell@jdarnell.com email www.jdarnell.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

UTILIZING TECHNOLOGY IN CROSS-EXAMINATION CROSS-EXAMINATION AND EFFECTIVE USE OF THE RULES OF EVIDENCE SEMINAR TEXAS CRIMINAL DEFENSE LAWYERS ASSOCIATION Thursday, December 3, 2021 Round Rock, Texas

Jeep Darnell jedarnell@jdarnell.com Jim Darnell, P.C. 310 N. Mesa St., Ste. 212 El Paso, Texas 79901 Phone: (915) 532-2442 Fax: (915) 532-4549

Practical Considerations for Cross-Examination Evidence While a piece of evidence is a piece of evidence, that does not mean it can only be presented to a jury in one form. A picture can be passed around a jury box, presented by way of an ELMO, projected via a document camera, or it can be shown to a jury by way of a computer screen through a court’s evidence presentation hardware. Making sure you know how to get your story to the jurors by way of the evidence you need is a critical consideration that must considered long before the jury is sworn. This is especially true for evidence you intend to use during cross-examination and means

that

you

prepare

far

in

advance

of

an

off-the-cuff

presentation in trial. Being prepared to not only get your evidence admitted, but also know the medium by which you will present that evidence can be the difference between a sleeping jury and a jury that walks your client out the door.

1.

Know how to admit evidence The first step to having a piece of evidence admitted is

authenticating the evidence. Tex. R. Evid. Rule 901 is the rule regarding the authentication of evidence. Rule 901(a) states that A[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it

2

is.@

Rule 901(b) then gives a non-exhaustive list of examples of

how to authenticate specific types of evidence. For instance, photographs

are

a

common

type

of

evidence

and

in

order

to

authenticate a photograph, Athe predicate . . . requires proof of (1) its accuracy as a correct representation of the subject at a given time, and (2) its material relevance to a disputed issue.@ Cotlar

v.

State,

558

S.W.2d

16,

18

(Tex.

Crim.

App.

1977).

Authentication does not require a witness to have ever seen the photograph. While the photographer may authenticate a photograph, A[a]ll that is required of a witness who observed the object or scene depicted with his naked eye is testimony that the photograph truly and accurately represents that object or scene.@

Id. This

method of authentication complies with Rule 901(b)'s requirement that a witness be able to testify Athat an item is what it is claimed to be.@

After authenticating the evidence, offer the item

into evidence and deal with any objections as to its relevance or admissibility.

2.

Know your jurisdiction While authenticating your evidence may not be difficult,

determining the medium by which you want to present your evidence can be more challenging. There are quite a few challenges that must be considered when preparing for trial. The form of your 3

evidence will change between state and federal court. Most, if not all, federal courts require all, or almost all, evidence to be provided

electronically

compatible

with

the

in

JERS

a

specified

(Jury

format

Evidence

so

that

Recording

it

is

System). 1

Compliance with the use of that system requires that each piece of evidence be submitted electronically and in a certain format. State courts, on the other hand, have no common evidentiary formatting system and the presentation of any piece of evidence is predicated on an individual court’s own technological capabilities. While a specific

court

may

not

have

all

of

the

latest

and

greatest

technology, a specific judge may or may not allow you to use your own technology to present your evidence.

3.

Know your court If you are practicing in federal court, then court to court

the system should be consistent according to the JERS. However, from state court to state court the technological ability to use evidence can be extremely limited. Courts in Houston, Dallas and Austin will differ from the courtroom in Sierra Blanca, Texas in the various methods by which physical evidence can be presented and utilized. Be wary of a court’s capabilities long before you

1A

sample copy of the JERS submission requirements is included with this paper.

4

show up to pick a jury and try your case. Some judges may not look kindly on you bringing in your own presentation system, i.e., elmo, flip chart, sponge board, or document camera.

4.

Know your judge Federal

judges

who

use

the

JERS

system

have

little

interference in the technological character of the evidence that may be admitted in their respective courts because the JERS has specific rules that must be complied with in order for the evidence to be provided to the jury. On the state side, trial judges are given very wide latitude in the evidence that can be admitted, and they may have their own rules on what is allowed and not allowed in their courtrooms. What methods of presentation may be perfectly fine in one court can be refused in another and there is often no recourse available. Be able to think on the fly and be able to use most of your evidence in either electronic or hard copy form.

5.

Know your jury While planning ahead and having your exhibits ready in the

form you think you want is always wise, be adaptable. The dynamics of your jury should dictate the form of your evidence. Individual jurors and juries as a whole may not be receptive to an entirely electronic-based evidence presentation. Similarly, other juries may look down on traditional or antiquated methods of evidence

5

presentation. Age and location can often dictate the form of the evidence that you should use, but you will likely not know your jury until you are in trial. So, it’s good practice to have all of your exhibits in hard copy form just in case your jury is not receptive to a computer produced evidence presentation.

6

Top Tips for PowerPoint Presentations Effectively using computers to present your case at trial has become more and more critical. Pursuant to the Michael Morton Act, Tex. Code Crim. Proc. art. 39.14, District Attorneys’ offices are tasked with turning over a treasure trove of evidence to the defense in each case. Oftentimes the evidence is provided via electronic means, either through an online portal, via e-mail or via a portable storage device like a USB drive or a CD. Having the evidence in an electronic format already should prove easier for presentation purposes if used properly.

Additionally, speaking to jurors, and potential jurors, in multiple

mediums

increases

the

chances

of

allowing

them

to

understand the intended information. In each jury panel, and thus in each jury, there will be a mixture of auditory and visual learners. There is also some evidence to support the belief that jurors learn differently depending on their age. 2

In order to

reach the greatest number of potential jurors during voir dire and jurors during the trial, it is best to appeal to the greatest number of senses, i.e., sight and hearing.

2

Accordingly, using a

Janet E. Truluck, Bradley C. Courtenay (1999) LEARNING STYLE PREFERENCES

AMONG OLDER ADULTS, Educational Gerontology, 25:3, 221-236, DOI: 0.1080/036012799267846

7

visual presentation to compliment your spoken message can always make your presentation more effective. However, the challenge is developing a visual presentation that compliments your spoken message and does not distract the audience from the message. In order to develop a visual presentation that will assist you, follow these tips.

1.

Keep slides to a minimum3 There is not a set number of slides that you must stick to in

your presentation, but it should be kept to as few as possible to effectively assist you in presenting your voir dire, opening, case, or closing. A good rule of thumb to go by is to use one slide per topic. In some cases, it may be necessary to have a developing slide, for instance while explaining reasonable doubt, but the topic of reasonable doubt should not need multiple slides or images to compliment your spoken explanation and questioning of the panel.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

3

8

2.

Start with a summary slide4 Every defense voir dire begins with an explanation of what

the process is and why it is important. Every opening statement and closing argument have a statement that is intended to capture the audience and give them a theme to remember. There should be an image somewhere that exemplifies your theme or the liberty that is at stake in picking a jury. Have that image up on the screen behind you while you begin your voir dire, opening or closing and let that image burn in the jurors’ minds so that they remember what you said and what they thought when they go through the trial process. If you explain, and let jurors see, that their honest answers to your voir dire questions are critical for the process to work and that they may not be the perfect juror for the case going to trial, you are more likely to elicit the answers you need to strike jurors for cause or appropriately use your peremptory strikes.

4

Ravilious, Ben. A28 Great PowerPoint Presentation Tips.@

https://www.participoll.com/powerpoint-presentation-tips/. September 16, 2016. October 14, 2018.

9

3.

Your slides stories5

should

assist

you

in

telling

your

story

or

Your visual presentation should not be disconnected from the story or stories you are telling during your trial. From the story of who you are to the story of who your client is to the story of what happened, your visual presentation should always be viewed ultimately through the lens of whether it is aiding in telling those stories. If the visual presentation is a story unto itself or does not help you tell the stories necessary to win, then it is not being used correctly.

4.

Look at your slides and presentation from the jury panel’s perspective6 Whenever lawyers present to a jury, they cannot overuse

legalese or over-complicate the subject matter. The concepts of the law are always difficult, but good lawyers always find a way to make the difficult concepts understandable for lay people on the jury. Visual presentations should not be any different. The point of your visual aids, whether the slide shows a piece of evidence

or

presents

a

concept,

is

to

assist

the

jury

in

understanding your theory of the case. The slides should not be a

5

6

Id. Id.

10

crutch

and

should

not

replace

your

explanation

or

effective

examination of a witness. Ultimately, the jury should be listening to what you are saying and looking at the visual aid to help them understand better, not one or the other. Remember not to overwhelm the jurors, or potential jurors, with too much information all at once.

5.

Care about your presentation and your client 7 This concept should not need much explanation, but regardless

of who your client is or what he or she is accused of doing, every defense lawyer should believe in the protections afforded in the United States Constitution and the Constitution of the State of Texas.

At

the

very

least,

defending

those

principles

should

engender passion in the presentation of the defense. Remember when you are developing your themes, your stories, and your slides that the jury will be able to tell if you don’t care about your client or the subject matter. In short, you’ve got to believe.

7

Id.

11

Avoid using too much text on your slides 8

6.

Your slides should not replace your verbal presentation, regardless of whether it is voir dire, opening statement, cross examination, direct examination, or closing argument. As has been mentioned previously, the visual presentation is simply an aid to your

verbal

presentation

and

should

not

detract

from

your

presentation nor should it cause your audience to stop paying attention to what you are saying. By limiting the text on the screen, your audience should be able to focus on what you are saying and not on reading the screen. Your visual presentation should not be a script from which you read or just the same thing that you are saying. APowerPoint is a visual medium@, not a textual medium.9

Id. Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

8

9

Earnest, William. Save Our Slides, Third Ed. Dubuque, IA, Kendall Hunt

Publishing Company, 2013, p. 22.

12

Use images instead of text to assist your story 10

7.

A picture is worth a million words, so use pictures and not a

million

words.

By

giving

the

audience

a

visual

image

to

accentuate the message you are telling them you are appealing to multiple

senses

thereby

(hopefully)

leaving

a

more

memorable

impression. Think of reading a child’s book; the pictures draw kids’

visual

attention

and

the

words

then

impress

on

their

imagination to explain the picture. The same is true with a visual presentation, the image should capture their imagination while your explanation gives the image context, or a story. Once that story is accepted by the jury, both visually and audibly, then your chances of success increase because the juror members have learned the story you are telling and will remember it when they go back to deliberate.

Ravilious, Ben. A28 Great Powerpoint Presentation Tips.@ https://www.participoll.com/powerpoint-presentation-tips/. September 16, 2016. October 14, 2018.

Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

10

13

8.

Don’t use animations11 Animations are the graphic shift from one visual slide to

another. They are generally viewed as cheesy and will not serve a purpose. In fact, it is likely that the use of such transitions will serve to distract the juror members from the developing story that you are trying to tell them. You are aiming for the trance of a child listening to and looking at the pictures in his or her favorite book, not the disconnected break of a fading image.

9.

Present your data clearly12 If the subject matter or topic or type of case absolutely

requires that you present data to the jurors then keep it clear, clean, and simple. To reiterate, too many words on a slide is bad, so don’t use words unless you must. Present graphs, or charts, or

Ben. A28 Great Powerpoint Presentation Tips.@ https://www.participoll.com/powerpoint-presentation-tips/. September 16, 2016. October 14, 2018.

Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

11Ravilious,

Ben. A28 Great Powerpoint Presentation Tips.@ https://www.participoll.com/powerpoint-presentation-tips/. September 16, 2016. October 14, 2018.

Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

12Ravilious,

14

data using images if at all possible. The explanation of reasonable doubt is a good example that is often used by criminal defense attorneys. Showing the increasing burdens as a graph with only minimal levels not only gives the jury panel a visual stimulus to reinforce what you are telling them, but it should also be used to drive home the undefinable, yet daunting proof required to exceed reasonable doubt.

10.

Use color well13 Cool colors, like blue and green, work best as background

colors, while warm colors, like red and orange, work best as text or images. 14

Regardless of what colors you use, however, you

should make sure to give them as much contrast as possible because it is easier for your audience to see. 15

Using two (2) colors

keeps the slide simple and complimentary to your message, while a

Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

13

Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

14Reynolds,

Earnest, William. Save Our Slides, Third Ed. Dubuque, IA, Kendall Hunt Publishing Company, 2013, p. 56.

15

15

barrage of color can distract the people you are trying to reach (your jury or potential jurors).

It is also a good idea to use

the same background color throughout your presentation. The tidier the package, the more impressive it is to the recipient.

11.

Choose fonts well16 If you must use text, choose sans serif fonts that are not

silly.17 fonts

Helvetica and Arial fonts are often suggested as the best

for

a

visual

presentation. 18

Sans

serif

fonts,

like

Helvetica and Arial, are easier to read yet are not cheesy or unprofessional like Comic Sans.

Ravilious, Ben. A28 Great PowerPoint Presentation Tips.@ https://www.participoll.com/powerpoint-presentation-tips/. September 16, 2016. October 14, 2018.

Reynolds, Garr. ATop Ten Slide Tips.@ http://www.garrreynolds.com/preso-tips/design/. October 14, 2018.

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

16

Earnest, William. Save Our Slides, Third Ed. Dubuque, IA, Kendall Hunt Publishing Company, 2013, p. 38.

17

Feloni, Richard. A8 insights that will change the way you give PowerPoint presentations.@ https://www.businessinsider.com/8-tips-for-great-powerpoint-presentations-201 5-1. January 30, 2015. Business Insider. October 14, 2018.

18

16

12.

Check spelling and grammar19 This should be a no-brainer, but there is no easier way to

distract your audience than to have a giant misspelled word sitting right in the middle of the slide hitting them right in the face.

Check your slides and have someone else check your slides as well.

Don’t be in a hurry to get them done and go through an appropriate review prior to using them. Once you have created a voir dire template, for instance, then you can build off that template depending on the case and your experiences. Keeping a good working base presentation will help to alleviate problems like misspelled words.

ATips for creating and delivering an effective presentation.@ https://support.office.com/en-us/article/Tips-for-creating-and-delivering-aneffective-presentation-F43156B0-20D2-4C51-8345-0C337CEFB88B?ui=en-US&rs=en-US &ad=US. Microsoft. Oct. 16, 2018.

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Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Speaker:

Topic: Cross of the SANE Expert Heather Barbieri 7000 Preston Rd Ste 700 Plano, TX 75024-2573 (972) 424-1902 Phone (972) 208-2100 Fax hbarbieri@barbierilawfirm.com email www.barbierilawfirm.com website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

CROSS EXAMINATION December 2-3, 2021 Kalahari Resort

Topic: Cross of the SANE Expert

Heather J. Barbieri hbarbieri@barbierilawfirm.com Kristen E. Gavigan kgavigan@barbierilawfirm.com BARBIERI LAW FIRM, P.C. 7000 Preston Road, Suite 700 Plano, Texas 75024 Tel. (972) 424-1902 Fax (972) 208-2100

CROSS EXAMINING THE SANE NURSE 1. SANE: SEXUAL ASSAULT NURSE EXAMINER a. A SANE is a registered nurse (RN) who has specialized forensic training in treating sexual assault victims. b. Purpose: Prior to SANE nurses, sexual assault victims were examined by on-duty medical personnel. SANE nurses are trained in sensitivity, and proper evidence collection. c. SANE nurses understand the legal proceedings that follow the exam, their job is to collect evidence with the ultimate goal of prosecution.

2. EDUCATION AND QUALIFICATIONS OF SANE NURSES1 a. Obtain Nursing Licensure i. Registered Nurse (RN) licensed by the Texas Board of Nursing (BON) b. Experience: At the time of the application, the nurse must have two years minimum experience with direct patient contact. c. The Office of the Attorney General (OAG) Approved SANE Training Course i. Before submitting an application, the individual must complete an OAG approved SANE Training Course ii. Individual choses which type of SANE certification they want to pursue d. Types of OAG SANE Certifications: i. CA-SANE: Certified Adult/Adolescent SANE ii. CP-SANE: Certified Pediatric SANE iii. CA-CP SANE: Dual Certified SANE in Adult/Adolescent and Pediatric. e. Clinical Training Requirements i. Depending on which type of certification, clinical requirements must be met prior to applying.

1. Basic Requirements: Pelvic Examinations and Well-Child Examinations 2. Advanced Requirements: Sexual Assault Medical Forensic Examinations f. Courtroom Observation i. At least 12 hours of observing courtroom testimony. ii. Professional State’s Witnesses: SANE Nurses learn how to testify for the State and how to handle cross-examination. g. Application

OAG Sexual Assault Nurse Examiner (SANE) Initial Certification Application Guide, August 2020.

1

3. CROSS-EXAMINATION OF STATE’S WITNESSES a. Rule of Thumb i. “Never, never, never, on cross-examination ask a witness a question that you don’t already know the answer to . . . do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.” – Harper Lee b. Pre-Trial Considerations i. File Request for State’s Witness List ii. Investigate the Expert Witness 1. Obtain curriculum vitae (CV) a. What certifications does the expert have? b. What qualifications does the expert lack? c. Employment History d. Education 2. Career State’s Witness a. Testified as an expert for the defense? b. How many times has the witness testified for the State? c. Research whether the expert was found unqualified to testify as an expert d. Review the expert’s testimony in other cases 3. Google and Social Media iii. Gather impeachment evidence 1. Hire/appoint investigator 2. Criminal background check 3. Explore motives 4. Gather/subpoena all supportive documentary evidence 5. Gather/subpoena all extrinsic evidence c. Cross Examining the SANE Nurse i. In cross-examining a SANE Nurse, the goal is to neutralize and bring out a slight motive by demonstrating: 1. Signs or symptoms of abuse mirror non-abuse 2. Lack of personal knowledge 3. Natural motive – Career State’s Witness a. Law enforcement-based b. Overly sympathetic 4. Adherence to Forensic Evidence Collection Protocols 5. Proper Documentation 6. Chain of Custody

d. The Law Governing Cross-Examination a. Need for Personal Knowledge2 i. A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

Evidence to prove persons knowledge may consist of the witness’s own testimony. ii. This rule does not apply to a witness’s expert testimony under Rule 703. b. Who May Impeach a Witness3 i. Any party, including the party that called the witness, may attack the witness’s credibility. c. A Witness’s Character for Truthfulness or Untruthfulness 4 d. Reputation or Opinion Evidence i. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. e. Specific Instances of Conduct i. Except for a criminal conviction under Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific instances of the witness’s conduct in order to attack or support the witness’s character for truthfulness. f. Mode and Order of Examining Witnesses and Presenting Evidence 5 i. A witness may be cross-examined on any relevant matter, including credibility. ii. Ordinarily, the court should allow leading questions on cross-examination. g. Witness’s Prior Statement and Bias or Interest 6 h. Witness’s Prior Inconsistent Statement. i. Laying the foundation: When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness: ii. The contents of the statement; 2

Tex. R. Evid. 602.

Tex. R. Evid. 607.

4 Tex. R. Evid. 608.

5 Tex. R. Evid. 611.

6 Tex. R. Evid. 613.

3

1. The time and place of the statement; and 2. The person to whom the witness made the statement.

3. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.

4. A witness must be given the opportunity to explain or deny the prior inconsistent statement. iii. Evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement. iv. The above does not apply to an opposing party’s statement under Rule 801(e)(2)

7

i.

Witness’s Bias or Interest i. When examining a witness about the witness’s bias or interest, a party must first tell the witness the circumstances or statements that tend to show the witness’s bias or interest. If examining a witness about a statement—whether oral or written—to prove the witness’s bias or interest, a party must tell the witness: ii. The contents of the statement; 1. The time and place of the statement; and 2. The person to whom the statement was made. iii. If a party uses a written statement to prove the witness’s bias or interest, a party need not show the statement to the witness before inquiring about it, but must, upon request, show it to opposing counsel. iv. A witness must be given the opportunity to explain or deny the circumstances or statements that tend to show the witness’s bias or interest.

And the witness’s proponent may present evidence to rebut the charge of bias or interest. v. Extrinsic evidence of a witness’s bias or interest is not admissible unless the witness is first examined about the bias or interest and fails to unequivocally admit it. vi. Unless Rule 801(e)(1)(B) provides otherwise, a witness’s prior consistent statement is not admissible if offered solely to enhance the witness’s credibility.

j.

Excluding Witnesses7 i. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. ii. This does not authorize excluding:

Tex. R. Evid. 614.

1. A party who is a natural person and, in civil cases, that person’s spouse; 2. After being designated as the party’s representative by its attorney in a criminal case, a defendant that is not a natural person; 3. A person whose presence a party shows to be essential to presenting the party’s claim or defense; or 4. The victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial. k. Testimony by Expert Witnesses8 i. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. l.

Bases of an Expert’s Opinion Testimony9 i. An expert may base an opinion on facts or data in the case that the expert has been made aware of, reviewed, or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need to be admissible for the opinion to be admitted.

m. Disclosing the Underlying Facts or Data and Examining an Expert About Them 10 i. Unless the court orders otherwise, an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on crossexamination. ii. Before an expert states an opinion or discloses the underlying facts or data, an adverse party in a criminal case must be permitted to examine the expert about the underlying facts or data. This examination must take place outside the jury’s hearing. iii. An expert’s opinion is inadmissible if the underlying facts or data do not provide a sufficient basis for the opinion. n. The Rule Against Hearsay11 i. Hearsay is not admissible unless any of the following provides otherwise: 8

Tex. R. Evid. 702.

Tex. R. Evid. 703.

10 Tex. R. Evid. 705.

11 Tex. R. Evid. 802.

9

1. A statute; 2. The Texas Rules of Evidence; or 3. Other rules prescribed under statutory authority ii. Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay. o. Exceptions to the Rule Against Hearsay—Regardless of Whether the Declarant Is Available as a Witness12 i. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: 1. Present sense impression – A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.13 2. Excited utterance – A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.14 3. Then-existing mental, emotional, or physical condition – A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. 15 4. Statement made for medical diagnosis or treatment – A statement that:16 a. Is made for—and is reasonably pertinent to—medical diagnosis or treatment; and b. Describes medical history; past or present symptoms or sensations; their inception; or their general cause ii. Recorded recollection – A record that:17 1. Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; 2. Was made or adopted by the witness when the matter was fresh in the witness’s memory; and 3. Accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness.

12

Tex. R. Evid. 803.

Tex. R. Evid. 803(1).

14 Tex. R. Evid. 803(2).

15 Tex. R. Evid. 803(3).

16 Tex. R. Evid. 803(4).

17 Tex. R. Evid. 803(5).

13

iii. Records of regularly conducted activity – A record of an act, event, condition, opinion, or diagnosis if: 18 1. The record was made at or near the time by—or from information transmitted by—someone with knowledge; 2. The record was kept in the course of a regularly conducted business activity; 3. Making the record was a regular practice of that activity; 4. All of these conditions are shown by the testimony of the custodian or another qualified witness, or by an affidavit or unsworn declaration that complies with Rule 902(10); and 5. The opponent fails to demonstrate that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. iv. Absence of a record of a regularly conducted activity – Evidence that a matter is not included in a record described in paragraph (6) if: 19 1. The evidence is admitted to prove that the matter did not occur or exist; 2. A record was regularly kept for a matter of that kind; and 3. The opponent fails to show that the possible source of the information or other circumstances indicate a lack of trustworthiness. p. Public records – A record or statement of a public office if: 20 i. It sets out: ii. The office’s activities; 1. A matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel; and 2. The opponent fails to demonstrate that the source of information or other circumstances indicate a lack of trustworthiness.

3. Public records of vital statistics – A record of a birth, death, or marriage, if reported to a public office in accordance with a legal duty.21 q. Absence of a public record – Testimony—or certification under Rule 902—that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:22 i. The record or statement does not exist; or 18

Tex. R. Evid. 803(6).

Tex. R. Evid. 803(7).

20 Tex. R. Evid. 803(8).

21 Tex. R. Evid. 803(9).

22 Tex. R. Evid. 803(10).

19

r.

s.

t.

u.

23

ii. A matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind.

Records of religious organizations concerning personal or family history – A statement of birth, legitimacy, ancestry, marriage, divorce, death, relationship by blood or marriage, or similar facts of personal or family history, contained in a regularly kept record of a religious organization.23 Certificates of marriage, baptism, and similar ceremonies – A statement of fact contained in a certificate:24 i. Made by a person who is authorized by a religious organization or by law to perform the act certified; 1. Attesting that the person performed a marriage or similar ceremony or administered a sacrament; and 2. Purporting to have been issued at the time of the act or w/in a reasonable time after it.

Family records – A statement of fact about personal or family history contained in a family record, such as a Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker. 25 Records of documents that affect an interest in property – The record of a document that purports to establish or affect an interest in property if: 26 i. The record is admitted to prove the content of the original recorded document, along with its signing and its delivery by each person who purports to have signed it; ii. The record is kept in a public office; and 1. A statute authorizes documents of that kind in that office.

2. Statements in documents that affect an interest in property – A statement contained in a document that purports to establish or affect an interest in property if the matter stated was relevant to the document’s purpose—unless later dealings with the property are inconsistent with the truth of the statement or the purport of the document27

Tex. R. Evid. 803(11).

Tex. R. Evid. 803(12).

25 Tex. R. Evid. 803(13).

26 Tex. R. Evid. 803(14).

27 Tex. R. Evid. 803(15).

24

SANE EXAM CONSISTENCY CHART BODY PART EXAMINED

FINDINGS

Labia Majora

NO observable injury

Labia Majora Labia Majora Labia Majora Labia Minora Labia Minora

Observable injury NO observable erythema Observable erythema NO observable injury Observable injury

Labia Minora

NO observable erythema

Labia Minora

Observable erythema

Clitoris

NO observable injury

Clitoris

Observable injury

Clitoris

NO observable erythema

Clitoris Clitoral Hood

Observable erythema

Consistent with nonconsensual sex

Consistent with consensual sex

Consistent with no sex

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

NO observable injury

SANE EXAM CONSISTENCY CHART Clitoral Hood Clitoral Hood Clitoral Hood Posterior Fourchette Posterior Fourchette Posterior Fourchette Posterior Fourchette

Observable injury NO observable erythema Observable erythema NO observable injury Observable injury NO observable erythema Observable erythema

Urethra

NO observable injury

Urethra

Observable injury

Urethra

NO observable erythema

Urethra

Observable erythema

Fossa Navicularis Fossa Navicularis Fossa Navicularis

NO observable injury Observable injury NO observable erythema

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

SANE EXAM CONSISTENCY CHART Fossa Navicularis Perineum Perineum Perineum Perineum Hymen Hymen

Observable erythema NO observable injury Observable injury NO observable erythema Observable erythema NO observable injury Observable injury

Hymen

NO observable erythema

Hymen

Observable erythema

Urethral Meatus

NO observable injury

Urethral Meatus

Observable injury

Urethral Meatus Urethral Meatus

NO observable erythema Observable erythema

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

SANE EXAM CONSISTENCY CHART Introitus Introitus Introitus Introitus

NO observable injury ✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

✅

NO observable injury NO observable erythema Observable erythema

Texas Criminal Defense Lawyers Association

Cross-Examination and Effective Use of the Rules of Evidence Seminar December 2-3, 2021

Topic: Mistakes Criminal Defense Attorneys Make in Cross Speaker: Hon. Audrey Moorehead ADDRESS 1 ADDRESS 2 (000) 000-0000 Phone (000) 000-0000 Fax EMAIL@EMAIL email WEB.COM website

6808 Hill Meadow Dr :: Austin, Texas :: 512.478.2514 p :: 512.469.9107 f :: www.tcdla.com

Mistakes Judges See Attorneys Make On Cross Audrey Moorehead, Judge, Dallas County Criminal Court #3 The judge’s first concern and highest priority is, or should be, the Constitution of the United States. Cross- examination is fundamentally based on and should be driven by the Confrontation Clause.

The Confrontation Clause, found in the Sixth Amendment, provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Clause was intended to prevent the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that defendant having an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury. In Mattox v. United States, 156 U.S. 237 (1895), the Supreme Court enunciated the three fundamental purposes that the Confrontation Clause was meant to serve: 1. To ensure that witnesses would testify under oath and understand the serious nature of the trial process; 2. To allow the accused to cross-examine witnesses who testify against him; and 3. To allow jurors to assess the credibility of a witness by observing that witness’s behavior.

It should be no surprise that cross-examination is the most challenging part of the trial. It is this area where the development of the attorney’s skills will have the biggest impact. The ability to control the admission of certain fact and force the admission of other facts, is, indeed a skill. The Judge is constitutionally driven. The Judge is thinking about Findings of Fact and Conclusions of Law. Every answer on leading should be a finding fact or conclusion of law.

Failure to Prepare for War Cross-examination is the questioning of an adverse or hostile witness. Defense attorneys often forget that the prosecution witness is 1

the enemy of their case. Trial is war and attorneys are at all times in a fight – a fight for justice. While an attorney may have a casual and folksy demeanor, it must be remembered that the prosecution witness is not a friend. They are the enemy of your case. The jury must never mistake kindness for weakness in your attack and attack you must.

Preparation requires investigation, goal setting, strategizing and planning. You can tell the good from the great litigators because failure to do these things are painfully obvious on cross. Investigation is an investment. Know your client. It is imperative to take the time to develop a relationship with your client. This relationship allows the attorney to elicit all the information about the case and witnesses whether that information is good or bad. It requires knowing your client’s version of events, the State’s version of events and the truth.

These may be three entirely different things. You must know who the State is going to call as a witness before trial. It is not enough to know which witnesses are going to called but for what purpose. What element is this witness going to be used to prove? A great attorney will not only know which witnesses were interviewed, but also by whom and how many times. The great attorney will know not just that the story changed but when and what happened to inform the new version of events. The great attorney will be aware of ulterior motives and biases of the prosecution’s witnesses. Investigation includes a detailed evaluation of the evidence. The great attorney will not only know if the evidence was tested but who did the testing and if anything strayed from standard operating procedure. The great attorney will investigate the State’s expert and will not be afraid to challenge the State’s expert. The attorney cannot adequately raise a challenge when unprepared.

Failure to Plan A great litigator has a theme, goal, strategy and a plan. A goal is not a theme and a strategy is not a plan. A strategy identifies what you need to do to meet one or more objectives. A strategy should be detailed but it’s visionary. A plan explains in detail how the strategy will be 2

executed. All attorneys, in some form or fashion, have been taught to have a theme. Themes are not novel and law students are taught to use themes because they work. The human brain processes and compartmentalizes information in such a way that makes themes the most effective way to send a message. Cross-examination should support your theme. If your theme is “If it doesn’t fit, you must acquit” and the State’s witnesses are going to testify that it was a specific glove found at the scene and that glove belonged to your client, then what do you want to do with the State’s witnesses? Impeach? Attack their credibility? Do you wait and put on your case and show how the glove doesn’t fit and then nail them in closing? The plan and the strategy inform each other.

A key part of your strategy is determining what in your version of the events you can get the prosecution’s witness to say in court. It is entirely easier to find reasonable doubt when you are not asking the judge or the jury to believe your version of events as told by your witnesses. It is far more powerful when you can say, “ The prosecution witness told you she didn’t actually see the defendant hit Ms. Jones” or “The State’s own expert admitted that he didn’t have all the information necessary to make his conclusion.” It is always better to prove your case through the State’s witness. Develop a plan and execute it.

Failure To Identify the Audience The Judge does not need the climatic build-up or theatrics. They know or should know the law. Repetitive questions may be fun for the attorney but it is usually annoying to the judge. Direct and cross conducted before the judge should be succinct and the judge should be prepared for the hearing by a timely filed motion.

The jury is very different. The jury will respond to the theme developed in voir dire and in opening. Judges are watching the jury, primarily because they see you all the time. Judges see the nod of recognition or the raised eyebrow when they hear something familiar.

3

That nod of agreement when they hear confirmation of something they heard earlier is very often predictive of a trial outcome.

Failure to Differentiate Between Direct and Cross Direct examination is where the witness has information to provide and it is the State’s job to elicit that information. It is the defense attorney’s job to listen. Attorneys often miss critical information because they are not listening. Defense attorneys are often taking notes, looking down or so married to their pre-planned questions that they miss nuggets dropped on direct. Judges agree that it is annoying to listen to direct exam and then have the defense attorney repeat the entire thing, point by point on cross-examination. The defense attorney is giving a hostile witness an opportunity to reiterate their testimony. Repetition in front of a jury can be very detrimental to your theory of the case if the information be repeated is not squarely in the favor of the defense.

Defense attorneys often fail to ask leading questions. The ability to lead is the most powerful weapon in your arsenal. The attorney gets to tell their story out of the mouth of the prosecution’s witness.

Structuring the question should be part of preparation. There should be one new fact per question. Compound questions water down the impact of cross. It is risky to ask a compound question and expect confirmation of all – especially from a hostile witness.

Sentence structure is also determined by whether or not the attorney asks a traditional question or makes a declaratory statement. An attorney may ask, “ Isn’t it a fact that the traffic light was red?” or an attorney may state, “The traffic light was red.” Which the attorney chooses may be based on the how hostile the witness is or the fact of the case. There are many instances where several questions build to one declaratory statement.

4

Do not ask a witness how they feel about anything. Lawyers, by their very nature, do not care about feelings. It is dangerous and the answer often humanizes a witness and makes them look vulnerable. It often gives a jury the opportunity to excuse or minimize bad behavior.

The Cross-Examination There are some things that should be consistent with every crossexamination. The great lawyer will remember that the answer to every question (at least series of questions) should be an admission or finding of fact.

The witness must have a clear purpose. Is the witness being impeached and shown to lack credibility? Is he or she being used to create doubt or support some element of the Defense’s version of events? If there is no definitive use to the witness to the defense than the strategy should be evaluated in terms of questioning the witness. My prayer: God please deliver me from doing efficiently, effectively and with great excellence that which need not be done at all.

Witness control is an area of growth for most attorneys. When a witness will not answer the question, often the most effective thing to do is just repeat the question. This tactic is usually more impactful than asking the judge to instruct the witness to answer to the question. There should be some purpose to asking the Court for help.

The attorney must know how to properly impeach the witness.

How is the attorney planning to use a prior inconsistent statement? Is the attorney attempting to show the earlier statement is to believed over the later version? Does the attorney need to make the State’s witness a great witness on the earlier version if that is the version in the defendant’s best interest? Is the attorney attempting to show that every statement is equally plausible? If each statement is plausible then the jury doesn’t know which one to believe.

5

Failure To Consider Cross In Voir Dire, Opening or Closing Voir Dire affords you the opportunity to interact one on one with the jury. Voir Dire is the opportunity to reveal the core issues and educate the jury on the tasks you are assigning to them. That task may range from finding a key witness lacks credibility to identifying holes in the prosecution’s case.

An opening statement is more than a speech given at the start of a trial. It is the moment that the attorney gets to clearly communicate their theme give the jury the road map to not guilty. The opening should not be thrown together before trial in the hopes the attorney can pull it together in closing. A widely cited study found that 80-90 percent of jurors come to a decision about the case immediately after opening statements. The attorney road map should prepare the jury to listen for admissions the attorney will draw out on cross. Opening should empower the jury to make determine that a witness lacks credibility.

Some jurors need to permission to go against the natural inclination to determine that where there is smoke there is fire. One of best acronyms is from Windle Turley: Start and end strong Tell a story Address weaknesses Picture/visual aids Law: briefly discuss Eye contact Closing occurs after all the evidence has been submitted and is built on the facts elicited at trial. If you are behind in closing then expect to stay there. It is too late to win on close. It is not impossible but usually the only way an attorney thinks they won in closing is because they won on cross. Use the admissions you obtained in cross to tie your case together in close. It is powerful to say: the prosecution witness told

6

you; the state’s witness confirmed. The attorney is going to highlight the important testimony and evidence presented during the trial.

Did you ask the jury at the beginning of trial to be fair? To keep an open mind? Do not assume that is going to occur. That is like asking people to wait until the credits roll on a movie to decide if they liked it or not. Arm the jurors that you have already convinced the information they will use to apply in the deliberation room. Remind the jury you have proven everything you promised in opening and through the state’s witnesses if that is the truth. The attorney is in the persuasion business.

Always remember that upholding the Constitution is the judge’s first priority. The judge is typically listening and looking for the opportunity to accomplish this task. No judge enjoys being reversed. Remember the probability of success at trial is closely correlated to the amount meticulous preparation before trial. Opening argument is where you give your roadmap to the jury and empower them to find in your client’s favor. Closing is a victory lap but the most important thing you can do to weaken the State’s case and strengthen yours is: become an advocate for your client on cross-examination.

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OUR HISTORY

Since 1971, Texas Criminal Defense Lawyers Association has provided a statewide forum for criminal defense lawyers. TCDLA is the only voice in the legislature interested in basic fairness in criminal cases.

From its beginning as a small association of 260 members, to today with a full staff, officers, board members and more than 2,500 members, TCDLA has played an important role among criminal defense lawyers, providing assistance, support and continuing education.

TCDLA has developed a number of affiliations over the last few years which provided a presence and eagerness to help criminal defense lawyers across the state of Texas.

TCDLA continues to foster these relationships and develop additional affiliations.

As part of this association you share a voice with 2,500 like mind individuals in more than 150 counties across the state.

The Texas Criminal Defense Lawyers Association strives to protect and ensure by rule of law those individual rights guaranteed by the Texas and Federal Constitutions in criminal cases; to resist the constant efforts which are being made to curtail these rights; to encourage cooperation between lawyers engaged in the furtherance of these objectives through educational programs and other assistance; and through this cooperation, education and assistance, to promote justice and the common good.

The Criminal Defense Lawyers Project strives to improve the competency of defense lawyers through designing and promoting a series of continuing legal education seminars and producing legal publications available at low cost to attorneys throughout the state.

The Texas Criminal Defense Lawyers Educational Institute is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staffs.

For more information about the association, or to learn about upcoming CLE seminars and events, please visit www.tcdla.com.

WWW.TCDLA.COM

2021–2022 TCDLA Committee Expression of Interest TCDLA is seeking enthusiastic and motivated individuals for upcoming openings to its 2021–2022 committees. Committee descriptions and mission statements are listed on the website. Complete the form below and check one or more of the committees that you would be interested in serving on.

Responsibilities of a TCDLA Committee Member: 1. Member of TCDLA. 2. Committees will provide advice, guidance and recommendations to the TCDLA President and/or Board of Directors on relevant matters related to their particular committee.

3. Committees will have assigned responsibilities associated with TCDLA’s strategic plan and objectives.

4. Meet throughout the year via conference call and/or at quarterly board meetings.

5. Members are expected to review and respond to email requests in a timely fashion.

6. Committee Chairs are expected to prepare a written report for inclusion in the board packets for each board meeting. Any items requiring a decision of the Board should be included on agenda.

Committee members will assist chairs in the preparation of reports.

Your information Last name

First name

Law school

Years in practice

Primary areas of practice

Contact information Work phone

Cell phone

Email

Committee preference: Select up to three committees. Place a “1” next to your first choice, followed by “2”and “3,” if desired. ❏ Amicus (Brief) Curiae ❏ Bylaws ❏ Cannabis ❏ Capital Assistance ❏ Client Mental Health ❏ Corrections & Parole ❏ Diversity & Inclusion ❏ DWI Resource ❏ Ethics ❏ Indigent Client Defense

❏ Judicial Conduct ❏ Juvenile ❏ Law School Students ❏ Listserve ❏ Long-Range Planning ❏ Media Relations ❏ Membership ❏ Memo Bank ❏ New Lawyers ❏ Prosecutorial Conduct

❏ Public Defender ❏ Rural Practice ❏ Strike Force ❏ Technology & Communications ❏ Veterans Assistance ❏ Women’s Caucus ❏ Wellness

Email this completed form with a brief resume. Form may include a personal statement describing your interest in serving on the committee to ksteen@tcdla.com no later than July 1, 2021.

TEXAS INDIGENT DEFENSE COMMISSION – ATTORNEY CASELOAD REPORTING & WEIGHTED CASELOAD STUDY HB 1318 was the most significant bill related to indigent defense passed by the 83rd Texas Legislature. It includes significant new reporting requirements related to caseloads handled by attorneys providing representation to indigent defendants. Commission staff met with a variety of stakeholders, including court and county officials, criminal defense practitioners, legislative staff, national authorities, and others to find ways to effectively implement HB 1318 in a seamless manner while providing meaningful information to policymakers.

New Attorney Reporting – HB 1318 included the following provision in Article 26.04, Code of Criminal Procedure: An attorney appointed under this article shall: … not later than October 15 of each year and on a form prescribed by the Texas Indigent Defense Commission, submit to the county information, for the preceding fiscal year, that describes the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in the county under this article and Title 3, Family Code.

Beginning October 15, 2014, the bill requires all attorneys handling indigent defense cases to annually report to the county for the preceding fiscal year (October 1st - September 30th) the percentage of the attorney's practice time that was dedicated to appointed 1) criminal cases (trial and appeals) and 2) juvenile work (trial and appeals) in the county. This report should not include work on other types of appointed work such as CPS or guardianship cases, nor should it include practice time devoted to federal criminal appointments. Attorneys must submit this report to each county in which they accept appointments.

With significant input from TCDLA leadership, the Commission adopted this form and reporting instructions. The Commission is working with our partners at Texas A&M’s Public Policy Research Institute (PPRI) to create an electronic attorney reporting portal. This will permit attorneys to report their work in all counties at the same time directly to the Commission, with the report viewable by the counties. The judges in each county may specify through their indigent defense plan the method for attorneys to use for submitting their report (online or paper form).

Attorneys are not required to use a particular methodology to complete the practice time report. Some may do so by using time records, if they keep such records. Other attorneys may use a case counting methodology. The reporting form will ask the attorney to note what method(s) they used to calculate the percentage figures reported.

The Commission is working with TCDLA to develop a worksheet(s) that attorneys may use to help calculate the practice time percentages. The worksheet will help an attorney allocate their practice time among various case types and counties. Use of the worksheet is strictly voluntary and will not be submitted to the county or Commission.

Penalties for failing to submit a required practice time report by the October 15th due date may be prescribed by the judges handling criminal or juvenile cases in each county. Many judges have already chosen to amend their indigent defense plans to provide for an attorney’s removal from the list of attorneys eligible to receive future court appointments until they complete the report. This is similar to current enforcement of the annual CLE requirements.

Please review your local plan available at: http://tidc.tamu.edu/public.net/Reports/IDPlanNarrative.aspx

New County Reporting of Attorney Caseloads – HB 1318 included the following provision in Section 79.036, Government Code: Not later than November 1 of each year and in the form and manner prescribed by the commission, each county shall prepare and provide to the commission information that describes for the preceding fiscal year the number of appointments under Article 26.04, Code of Criminal Procedure, and Title 3, Family Code, made to each attorney accepting appointments in the county, and information provided to the county by those attorneys under Article 26.04(j)(4), Code of Criminal Procedure.

In addition to the attorney reporting requirements above, starting November 1, 2014 the bill requires each county to submit to the Commission annually the information provided to the county by the attorneys described above, along with information that describes for the preceding fiscal year the number of appointments made to each attorney accepting appointments in the county.

As to the new county reporting of case and fee data by attorney, the Commission decided based on its consultation with stakeholders to build on the existing reporting infrastructure in the annual Indigent Defense Expenditure Report (IDER). The IDER already requires county auditors (or treasurers) to report the aggregate number of cases paid by case type (Juvenile, Capital Murder, Adult Felony, Adult Misdemeanor, Juvenile Appeals, Felony Appeals, and Misdemeanor Appeals) and by court along with the amount paid each year by November 1st (the same date as the new reporting requirement). The new report will require this information to be broken down by attorney. County auditors have indicated that they already collect this information as part of the attorney payment process.

Weighted Caseload Study – HB 1318 included the following provision: Not later than January 1, 2015, the Texas Indigent Defense Commission shall conduct and publish a study for the purpose of determining guidelines for establishing a maximum allowable caseload for a criminal defense attorney that, when the attorney's total caseload, including appointments made under Article 26.04, Code of Criminal Procedure, appointments made under Title 3, Family Code, and other work, is considered, allows the attorney to give each indigent defendant the time and effort necessary to ensure effective representation. The study must be based on relevant policies, performance guidelines, and best practices. In conducting the study … the commission shall consult with criminal defense attorneys, criminal defense attorney associations, the judiciary, and any other organization engaged in the development of criminal indigent defense policy that the commission considers appropriate.

The goal is to provide policymakers with an objective analysis of the time required to represent different types of court-appointed cases. This kind of study has not been done in Texas before, but jurisdictions around the country have undertaken similar research because they have recognized the value of understanding data and its power to help improve their justice systems. The Commission is working with PPRI to conduct the weighted caseload study.

Attorneys have been recruited to document and categorize their time spent on cases for twelve weeks using simple timekeeping software developed by JusticeWorks. At the conclusion of the data collection phase, a panel of experts will review the time data together with survey data and make recommendations regarding the time demands of various types of cases.

While this study will not be the last word on indigent defense needs in Texas, it will be an evidence informed starting point to demonstrate what is necessary to provide appropriate representation in various types of cases.

The information learned through the study may serve as a management tool to guide decision making for public defenders and managed assigned counsel systems. For assigned counsel systems, the study will provide objective information to the courts about the resources different types of cases typically demand. This study will also provide policymakers at the state and local level with objective information upon which to base funding decisions.

To learn more about this research please visit the study website at http://texaswcl.tamu.edu.

WWW.TIDC.TEXAS.GOV

MARCH 2014

WWW.TCDLA.COM

Texas Criminal Defense Lawyers Educational Institute Make a Difference Support an Attorney The Texas Criminal Defense Lawyers Education Institute (TCDLEI) is committed to ensuring the fair administration of justice in Texas through the continuing legal education of criminal defense lawyers and their staff. Your generous tax-deductible contribution to the Texas Criminal Defense Lawyers Educational Institute can be applied in several ways to fund a variety of legal and educational services for our membership.

Deserving members without the wherewithal to attend our seminars can get financial aid to help in their continuing legal education.

Pledge Options Choose a fund that’s near and dear to you: For the q ASSOCIATE FELLOWS FUND ($750)

q FELLOWS FUND ($1500) q SUPER FELLOWS FUND ($3000)

q In one lump sum q Quarterly q Monthly q In ____ payments of $________.

I would like to designate this donation for use on these specific funds: q

CHARLES BUTTS Law Student Scholarship in the amount of $_________

q

Financial CLE SCHOLARSHIPS $___________

q

For the COMANCHE CLUB in the amount of $_________ q For CHRISTINE S. CHENG MEMORIAL Asian-American Scholarship & Travel fund in the amount of $___________

q BERTHA MARTINEZ TRIAL COLLEGE Travel Scholarship in the amount of $___________ q KELLY PACE MEMORIAL NEW LAWYER TRAVEL FUND in the amount of $___________ q CLIFTON "SCRAPPY" HOLMES MEMORIAL INDIGENT DEFENSE SCHOLARSHIP FUND in the amount of $___________

Contact Information _________________________________________________________________ Name

__________________________________________________________________ Bar Card Number/Date

_________________________________________________________________ Street

__________________________________________________________________ City, State, Zip

_________________________________________________________________ Phone

__________________________________________________________________ Email

Payment Method q Check payable to TCDLEI

q Credit Card (Visa, Mastercard, Amex, or Discover)

_________________________________________________________________ Credit Card Number

__________________________________________________________________ Expiration Date

_________________________________________________________________ Name On Card

__________________________________________________________________ Signature

Mail completed pledge form with payment to TCDLA • 6808 Hill Meadow Drive • Austin, Texas 78736 TCDLA Office Use Only Amount:_____________________________ Check/cc: _______________________________ Entered By: _____________________________ Date: __________________________

You can also return by email to mrendon@tcdla.com or fax to 512.469.9107.

Texas Criminal Defense Lawyers Association Membership Application (Effective 4/2019)

Contact Information Your membership is effective upon approval of application and receipt of annual membership dues. q Mr. q Ms. q Mrs.

______________________________________________________

__________________________ __________________________

______________________________________________________

______________________________________________________

Name (first, middle, last) Address

Date of Birth*

Ethnicity*

City, State, Zip

___________________________ ___________________________ ___________________________ ___________________________ County

Phone

Cell phone

Fax

_____________________________________ ____________________________________ ____________________________________ Business Email Website

______________________________________________________ Bar Card Number/Date Licensed

______________________________________________________ Member of Local Bar

New-Member Endorsement (must be completed for new members) As a current member of TCDLA, I believe this applicant to be a person of professional competency, integrity and good moral character.

______________________________________________________ Printed Name of Endorser

______________________________________________________ Signature of Endorser

* These questions are optional and for internal statistics only. The information provided will not be distributed at any time.

Membership Fees Membership Category and Yearly Fees: $_______ $100 First-time ($100 for each of the first two years) $_______ $180 Regular member $_______ $60 Public defender (must be a PD employee) $_______ $330 Voluntary sustaining (required for TCDLA officers and directors) $_______ $100 TCDLA past president $_______ $80 Distinguished member (70+ years old) $_______ $20 Law student (not auto-renew) $_______ $80 Affiliate (: q Paralegal q Investigator q Expert q Other (law professors & others

approved by board) I prefer not to participate in auto-renewal

$_______ Total

Get Involved: Committees/Lawyer Locator q I’m interested in serving on a committee—send information. q Send me a Board application. q Yes! Include me in the online Lawyer Locator.** You may list up to three areas of specialty in criminal defense law for public access (example: DWI, sexual assault, appeals).

_________________ __________________ ________________

**Disclaimer: Provider makes no promises, guarantees, or warranties regarding the attorneys listed on its Lawyer Locator. Said attorneys are TCDLA members who have requested inclusion on provider’s website to provide the public with choices for possible legal services. Provider expressly disclaims all warranties, including the warranties of merchantability, fitness for a particular purpose, and non-infringement. Moreover, content contained on or made available through this website is not intended to and does not constitute legal advice, and no attorney-client relationship is formed. The accuracy, completeness, adequacy, or currency of the content is not warranted or guaranteed. Your use of information on the website or materials linked from the website is at your own risk.

q I would like to donate to the TCDLEI scholarship fund, 501(c)(3) organization, in the amount of $__________________________________.

Payment Method For your convenience, TCDLA uses AUTO RENEWAL for all membership dues, using your checking account or credit card. You will be automatically enrolled in the autorenewal program so you do not have to do anything while continuing to enjoy membership benefits every year! You can always opt out of auto-renewal anytime by simply contacting TCDLA by emailing mrendon@tcdla.com or by checking the opt-out option above.

As the account holder at the financial institution I have designated for Automatic Draft, I authorize TCDLA to automatically draft the account I have designated and I authorize my financial institution to debit my payments automatically from the Draft Account on the date the payment is due. I further understand and agree as follows: • This authorization will remain in effect until TCDLA receives a written notification of cancellation at least 10 business days in advance of the next payment due date.

____________________________________________________

______________________________________________________

Type Name to Authorize Payment Date

q C hecking Account Name of Institution* _____________________________ Financial Institution 9-Digit Routing # __________________________ Account # __________________________

q Credit card (Visa, Mastercard, Amex, or Discover)

______________________________________________________ Credit Card Number

______________________________________________________ Expiration Date

Tax Notice: $36 of your annual dues ($19 if a student member) is for a one-year subscription to the Voice for the Defense. Dues to TCDLA are not deductible as a charitable contribution but may be deducted as an ordinary business expense. The non-deductible portion of regular and initial membership dues is $39 in accordance with IRC sec. 6033.

Information will be used for TCDLA communication (legislative, SDRs, seminars, events, and other announcements related to criminal defense). Contact office to opt out. For refunds please note credit cards may take 2-5 business days, checks may take longer. Contact mrendon@tcdla.com for any questions or concerns.