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

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Friday, September 30, 2011

Going Unnoticed: Court Of Appeals Of Texas Finds Lack Of Notice of Character Evidence Doesn't Support Reversal

Texas Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action 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 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. (emphasis added)

Meanwhile, Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides in relevant part that

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including...evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Finally, Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides that

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.

But what happens if the State violates Article 37.07, but the trial court still allows it to admit character evidence against the defendant at sentencing? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Waco, in its recent opinion in Wham v. State, 2011 WL 4413745 (Tex.App.-Waco 2011).

In Wham, Aaron Clark Wham appealed his 365–day jail sentence assessed by the trial court after a jury convicted him of committing assault-family violence. Before trial, Wham had filed a pretrial request for notice of the State's intent to introduce against him "evidence of an extraneous crime or bad act at the punishment phase of trial." Thereafter, at sentencing, the State asked the complainant about an alleged (unrelated) assault that Wham committed against her in August 2009. Over Wham's objection that the State had not provided pre-trial notice of this evidence, the trial court permitted the complainant to offer a detailed answer to this question.

In addressing Wham's appeal, the Court of Appeals of Texas, Waco found that there was improper notice and that the trial court clearly erred because while "Article 37.07, section 3(g) does not discuss the consequences of the State's failure to provide the required notice,...'[t]he logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible.'" So, where did that leave Wham?

According to Wham, there needed to be a new sentencing hearing because

the trial court's punishment decision was "substantially swayed" by the "erroneous admission into evidence, and subsequent consideration of, the testimony elicited by the State concerning Defendant's alleged commission of extraneous acts of violence against [the complainant]."

The Court of Appeals noted, however, that 

"focusing on the degree of prejudice created by the erroneous admission of the evidence is a different harm analysis employed for violations of the rules of evidence concerning relevancy, and is not appropriate here where our inquiry is limited to the harm caused by the State's inadequate notice.

Instead, the court focused upon "how the notice deficiency affected the appellant's ability to prepare for the evidence." And, in that regard, the court found that the answer was "not very much." Why? Separate charges were brought against Wham based upon the August assault, and defense counsel himself acknowledged "to the trial court that he was 'well aware of the charges' but that he was 'not aware of the State's intent to use that in Punishment.'" 

Thus, the appellate court found that the trial court's error was harmless and affirmed Wham's sentence.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/09/404b-wham-v-statenot-reported-in-sw3d-2011-wl-4413745texapp-waco2011.html

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