NO. 0260-01 - 0264-01








Keller, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY and COCHRAN, JJ., joined. COCHRAN, J., filed a concurring opinion. MEYERS, J., filed a dissenting opinion in which PRICE, and HOLCOMB, JJ., joined. JOHNSON, J., concurred in the result.


We granted review to consider, among other issues, the question of whether Article 37.07 3(g) (1) applies to evidence other than that used during the State's case-in-chief. (2) We will reverse the decision of the Court of Appeals.

A. Background

Appellant was involved in three drive-by shootings in Fort Worth. He plead guilty to five separate indictments charging murder and attempted murder, and he elected to have a jury assess punishment. During its case-in-chief, the State introduced evidence of each of the charged offenses. No evidence of extraneous offenses or bad acts was presented by the State at that time.

In the defense case-in-chief, appellant introduced evidence that, since the crimes, he had rediscovered religion and was wholly reformed. The defense also called witnesses to testify that he was a good child and a well-mannered youth. The State cross-examined these witnesses testified about various extraneous offenses and bad acts appellant had committed, including raping a fellow inmate. The State also produced rebuttal witnesses to testify about the offenses.

The jury assessed one sixty year sentence, one twenty year sentence, and three ten year sentences. On appeal the case was transferred to the Tenth Court of Appeals (the Waco Court). Appellant claimed that his trial counsel was ineffective for failing to request, pursuant to Article 37.07 3(g), that the State give notice of its intent to offer evidence of extraneous offenses or bad acts. The Waco Court, with one justice dissenting, agreed and reversed the judgment of the trial court, remanding the case for a new punishment hearing in accordance with article 44.29(b) of the Texas Code of Criminal Procedure. (3)

B. Analysis

To succeed on an ineffective assistance claim, appellant must show that his attorney's performance was deficient and that the deficient performance prejudiced him. (4) In this case, appellant alleges that trial counsel's conduct was deficient because he failed to request notice of the State's intent to use extraneous bad acts. As a part of establishing this claim, appellant must show that he was entitled to notice of the extraneous offenses introduced at trial.

The present issue is governed by statute, so we resort to the usual rules of statutory construction. We look solely to the plain language of the statute for its meaning unless the text is ambiguous or application of the statute's plain language would lead to an absurd result that the Legislature could not possibly have intended. (5) Article 37.07 3(g) provides, in relevant part:

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 Criminal Evidence.

Under its plain language, then, Article 37.07 3(g) incorporates by reference Rule 404(b)'s manner of giving notice. Rule 404(b) states that certain evidence is admissible under the rule, 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...." (6) Because Rule 404(b)'s notice encompasses only case-in-chief evidence, Article 37.07 3(g)'s notice requirement appears on its face to encompass only case-in-chief evidence.

Even if the statutory language is ambiguous, however, extratextual factors support limiting Article 37.07's notice requirement to case-in-chief evidence. In conducting an extratexutal inquiry, we may consider, among other matters: (1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) legislative history, (4) common law or former statutory provisions, including laws on the same or similar subjects, (5) the consequences of a particular construction; (6) administrative construction of the statute; and (7) the title (caption), preamble, and emergency provision. (7)

The legislative history of Article 37.07 3(g) is detailed in the Fort Worth Court of Appeals' opinion in Washington v. State, (8) which addressed the same issue we consider today. That history indicates that the primary purpose of the statutory amendment was to clarify, after this Court's decision to the contrary in Grunsfeld, (9) that evidence of unadjudicated extraneous offenses and prior bad acts is admissible at punishment. The notice provision was designed to reinforce existing law regarding notice of extraneous offenses, not to create a new and different requirement:

REPRESENTATIVE PLACE: What this is going to do is to clarify the admission of extraneous offenses in a criminal case, and if its going to be done - ah - there will be some notice provision to the defendant and his lawyer that it's going to be done, which I think is just simply a cleanup in that this is strengthening the law because the law we have now on the books is not being used. Or, at least if it is being used, it's being used with some skepticism or reluctance on the part of the State.

REPRESENTATIVE SMITH: So you're not prohibiting it, you're just requiring that the notice be given ten days prior to trial?

REPRESENTATIVE PLACE: No, and I think it's cleaning up the fact that it is our intention that as a legislative body that if there is an extraneous offense - ah - and it can be properly proven, this bill says that it's going to be admitted.

REPRESENTATIVE SMITH: And you're not requiring them to state exactly what that evidence might be, but simply that they would be introducing extraneous evidence?

REPRESENTATIVE PLACE: I'm not changing any of the laws of discovery. I'm simply giving that there be notice - a provision that that's going to be used. Whatever the discovery is now, that's what it will continue to be. (10)

At the time the statute was amended, Rule 404(b) described the existing law regarding notice of extraneous offenses.

Moreover, common law has favored limiting such a notice requirement to evidence introduced in the State's case-in-chief. (11) We have held that, when the State presents extraneous offense evidence in rebuttal to mitigation evidence offered by the defendant, advance notice of intent to offer the extraneous offense evidence is not possible: "In such a situation, the defendant, rather than the State, determines whether a contested issue will be raised, and his determination will not be made known until he presents his case. It would be practically impossible for the State to give notice until that time." (12)

The extraneous offense evidence in this case was introduced during cross-examination and rebuttal testimony, not in the State's case-in-chief. Therefore, appellant was not entitled to notice of the extraneous offenses. (13) The judgment of the Court of Appeals is reversed, and the trial court's judgment is affirmed. (14)

KELLER, Presiding Judge

Date delivered: April 10, 2002


1. All future references to Articles refer to the Code of Criminal Procedure.

2. Due to our disposition of this question, the State's other grounds for review are dismissed.

3. Jaubert v. State, S.W.3d (Tex. App.-Waco 2000).

4. Strickland v. Washington, 466 U.S. 668, 687 (1984)

5. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App.1991).

6. Tex. R. Evid. 404(b)(emphasis added).

7. Tex. Gov't. Code, 311.023; Brown v. State, 943 S.W.2d 35, 38 (Tex. Crim. App. 1997).

8. Washington v. State, 943 S.W.2d 501 (Tex. App.-Fort Worth 1997, pet. ref'd).

9. Grunsfeld v. State, 843 S.W.2d 521 (Tex. Crim. App 1992).

10. Id. at 507 (quoting from debate on Tex. C.S.S.B. 1067, House Floor, 73rd Leg., R.S., May 6, 1993).

11. Gipson v. State, 619 S.W.2d 169, 170 (Tex. Crim. App. 1981).

12. Id. at 170-171.

13. The dissenting opinion would have us duck the underlying issue in this case by addressing only the ineffective assistance claim. We could have chosen that roundabout path. We could also have resolved this case on the interesting issue of which jurisdiction's law applies to tranferred cases. But the lower court's opinion is published, and it is incorrect on the underlying issue. Addressing the underlying issue is the most straightforward manner of resolving the case and, of course, far more helpful to bench and bar than the dissenting opinion's suggested route.

14. There are no remaining points of error to be resolved by the Court of Appeals.