No Warning Required

As most of us are aware, whenever the State plans to offer evidence of extraneous offenses (a.k.a. Bad Acts Evidence) under Rue 404b during the guilt-innocence phase*, it must give pretrial notice to the defense.  Similarly, when the State plans to offer extraneous offense evidence during the punishment phase of the trial, it must provide the defense with notice under Article 37.07, Section 3(g) of the Texas Code of Criminal Procedure.

As the Court of Criminal Appeals recently explained:

The two notice rules serve the same purpose.  They guard against 'surprise and promote early resolution on the issue of admissibility' of uncharged misconduct, conduct that the defendant would not otherwise know might be offered at trial, either during the guilt of punishment phase.

But what about same-transaction contextual evidence?  You know, evidence that is somewhat inflammatory and not completely germane to the real issues, but is inextricably intertwined with the case.  If you don't know what I mean by "same-transaction contextual evidence" read the recent CCA opinion in Worthy v. State.  Does Same-transaction contextual evidence require notice of the State's intent to introduce such during the punishment phase of the trial?

In Worthy the CCA answered this question in the negative.

Building upon our prior opinion in Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002), we hold that Article 37.07, § 3(g), which explicitly states that the notice requirement applies 'in the same manner required by Rule 404(b),' refers to the scope of the evidence offered as well as to the timing of the evidence offered.  Therefore, because pretrial notice of 'same-transaction contextual evidence' is not required under Rule 404(b), it is also not required under Article 37.07, § 3(g).

Explaining its reasoning, the Court went on:

Furthermore, “same-transaction contextual evidence” is intrinsic to the offense; it is not “an extraneous crime or bad act” to which Article 37.07, § 3(g), explicitly refers. Under the common law, this contextual evidence was treated as a distinct class–“res gestae” evidence–under the reasoning that the criminal act does not occur in a vacuum, and the jury has a right to hear the contextual evidence.

However, this doesn't exactly signal a free-for-fall for the State, the Court admonished:

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.

We'll see how the State plays it, but as the title says "No Warning Required."

*The asterisk in the first paragraph it to express my disdain for the term "guilt-innocence phase."  Since when is anyone proven "innocent" at trial?  In fact, as litigators, we should all try to abolish the term innocent (in all forms) for it places an unfair (and unconstitutional) burden on a defendant.  If a jury was faced with the two options of guilty or innocent, 9.99 times out of 10 they're going to find your client guilty of something.  But, when the choices are guilty or not guilty, it makes life a lot simpler.  As we all know, most defendants aren't exactly innocent, but you can always make the argument that they're "not guilty."