EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, May 25, 2008

Constructive Criticism: Court of Appeals of Texas Hints That Constructive Notice Might Be Sufficient Under Rule 404(b)

The Court of Appeals of Texas' recent opinion in Freeman v. State, 2008 WL 2122419 (Tex.App.-Tyler 2008), raises the specter that the court may only require constructive notice in Rule 404(b) criminal cases.  In Freeman, Kenneth D. Freeman appealed his conviction for delivery of a controlled substance.  Freeman conviction was based upon his sale of cocaine to a confidential informant at a Denny's restaurant.  At trial, the prosecution entered against Freeman:

     -evidence of a second drug transaction at the Denny's restaurant; and

     -evidence that Appellant's house was a place where crack cocaine could be purchased.

This evidence was admitted under Texas Rule of Evidence 404(b), which states in relevant part that "[e]vidence of other crimes, wrongs or acts...may...be admissible for...purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, 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."

On appeal, Freeman claimed, inter alia, that the State failed to provide him with the "reasonable notice" required under Rule 404(b) of its intent to introduce the above evidence.  The Court of Appeals of Texas noted that in the State's discovery compliance, its only reference to the above evidence was a single sentence, which read:

     "State intends to offer extraneous offenses or bad acts included in attached documents, including defendant's prior criminal history as well as any bond violation committed by the defendant while on bond for this offense, under [Texas Rule of Evidence 404(b) and 609[,] rules of criminal [sic] evidence[,] and 37.07(3)(G)[,] code of criminal procedure.

The Court of Appeals of Texas then indicated that Freeman "does not deny that this provides some kind of constructive notice, but argues that it did not give him 'reasonable, specific notice' of what it was that the State intended to offer. [Freeman] argues further that he was not prepared to defend against the additional information because of the deficiency of the notice." (emphasis added).  The Court of Appeals noted that its function on appeal was to determine whether Freeman was harmed by the State's allegedly deficient notice, with Rule 404(b) only being violated if the State's notice was "injurious."

It then found that the problem with Freeman's claim was that his counsel admitted to the judge, "Judge, I didn't say I was surprised or I was disadvantaged. All I'm saying is it didn't meet the requirements of 404(b), Judge."  The Court of Appeals thus found that it did not need to "decide whether the notice was sufficient to apprise [Freeman] of the evidence because his counsel was not surprised by the extraneous information."

Well, let me answer that question by concluding that the "constructive notice" allegedly provided by the State was insufficient under Rule 404(b) and should have formed the basis for a reversal if it were indeed injurious.  According to the Advisory Committee's Note to the 1991 amendment to Federal Rule of Evidence 404(b) (which added the notice requirement and upon which Texas Rule of Evidence 404(b) is based) indicates that the notice requirement "is intended to reduce surprise and promote early resolution on the issue of admissibility." (emphasis added).  The Notes further state the notice provision "requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts."

The questions, then, seem to be (1) whether the State's notice was calculated to promote early resolution of the issue of admissibility, and (2) whether the State's notice was calculated to apprise the defendant of the general nature of the evidence of the extrinsic acts it sought to admit?  I would argue that it was calculated to do neither.  The one sentence "notice" neither indicated the specific acts (nor their general nature) the State sought to introduce against Freeman, nor did it even hint at the purpose for which the State sought to introduce those acts.  Thus, the State's "notice" was not in compliance with the goals behind Rule 404(b)'s notice requirement.



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