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EXTRANEOUS OFFENSE EVIDENCE:ERODING THE SIXTH AMENDMENT’S GUARANTEE OF A FAIR TRIAL

Aug 15 2012
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By: Houston Criminal Lawyer John Floyd and paralegal Billy Sinclair

Common law has long recognized the fundamental principle that an accused is entitled to be tried solely on the criminal charge leveled against him by the State; that he should not have to simultaneously defend against other alleged criminal activity or for being a criminal in generally. In 1948, the U.S. Supreme Court observed that “[c]ourts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.”

The Texas Court of Criminal Appeals (“CCA”) in 1972 severely undermined this Supreme Court instruction by reinforcing its view that evidence of “other crimes” committed by a defendant may be admitted against him at trial when that highly prejudicial evidence is shown to be material and relevant to a “contested issue in the case;” put simply, when its probative value outweighs it prejudicial impact. The CCA, in Albrecht v. State, however, cautioned that “before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown. The CCA then set forth the six circumstances that justify the admission of extraneous offense evidence:

  • To show the context in which the criminal act occurred – what has been termed the “res 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.
  • To circumstantially prove identity where the state lacks direct evidence on this issue.
  • 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.
  • 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.
  • 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 part of a continuing plan or scheme of which the crime on trial is also a part.
  • To refute a defense theory raised by the accused.

Put simply, underAlbrecht, the State could use extraneous offense evidence any time it had a weak case on the charged offense and, thus, could tip the scale in its favor by allowing the jury to infer that because the defendantmayhave committed another criminal act, it is more likely than not that he committed the charged offense.

Nearly fifteen years afterAlbrechtthe Texas Rules of Evidence were adopted, and Rule 404(b) codified the circumstances under which other crimes, wrongs or acts may be admissible, stating: “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.”

In other words, when the State does not have sufficient direct or circumstantial evidence to prove the charged offense beyond a reasonable doubt, it can utilize highly prejudicial extraneous offense evidence to allow the jury to infer that the defendant is an “evil character.” The Rules, however, do provide some safeguards against unfettered use of extraneous offense evidence.

Before such evidence can be admitted, the trial judge under Rule 403 may exclude the evidence through a cost/benefit analysis “if its 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.”

In 2006, the CCA in Gigliobianco v. State defined the five “key phrases” in Rule 403:

  • “Probative value” – the inherent force of a piece of evidence that serves to make more or less probable the existence of a fact of consequence to the litigation and a proponent’s need for the evidence.
  • “Unfair prejudice” – a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one, such as evidence that arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.
  • “Confusion of the issues” – evidence that tends to confuse or distract the jury from the main issues of the case, particularly evidence that consumes an inordinate amount of time to either present or refute.
  • “Misleading the jury” – evidence that tends to be given undue weight by the jury on other emotional grounds, e.g., “scientific” evidence the jury does not sufficiently understand.
  • “Undue delay” and “needless presentation of cumulative evidence” – both concern the efficiency of the trial proceeding rather than the threat of an inaccurate decision.

Armed with these clearly defined phrases, the trial court when considering Rule 404(b) evidencemustbalance:

  • The inherent probative force of the proffered items of evidence along with
  • the proponent’s need for that evidence against
  • any tendency of the evidence to suggest decision on an improper basis,
  • any tendency of the evidence to confuse or distract the jury from the main issues,
  • 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
  • the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.

There are two kinds of extraneous offense evidence: same transaction contextual evidence and background contextual evidence. Same transaction evidence is admissible as an exception to Rule 404(b)’s “propensity rule”—evidence tending to show bad character—when the defendant is charged with several crimes or with offenses so connected that one of them cannot be shown without the other. Background evidence, on the other hand, are “facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness.” In the extraneous offense context, background evidence would be acts of misconduct by the defendant which are not necessary to prove the charged offense and “are not exempt under Rule 404(b) from the general prohibition of the admission of character or propensity evidence against the accused.” The most frequent challenge to background evidence is that it is offered only to show the accused as a “bad character.” The challenge is made because if the trial court finds a factual basis in the challenge, it has no discretion and must refuse to admit the evidence.

However, if the trial judge rules that the background evidence is admissible, he/she is under no legal duty to explain that decision—and on appeal the judge’s decision will be reviewed under the “abuse of discretion standard;” namely, a decision to admit or exclude evidence presents nothing to review absent a clear showing by the defendant that one of his substantial rights was violated (a substantial right violation is found only when it has an “injurious affect” on the jury’s verdict).

The latest case handed down by the CCA concerning extraneous offense evidence was last December in Devoe v. State, and it deals with both same transaction and background evidence. There is little doubt that Paul Devoe fits the definition of a “bad” character as envisioned by the Supreme Court in 1948. In fact, one can easily surmise Devoe’s character was nothing short of evil. He was convicted, and sentenced to death, in 2009 for the murders of Haylie Faulkner and Danielle Hensley during the “same criminal transaction.” The following evidence was presented during the guilt/innocence and punishment phases of Devoe’s trial:

  • In august 2007 Devoe stole a Jennings .380-caliber handgun from a friend named Bill Brinlee.
  • On August 24, 2007 Devoe was living in the Llano home of Sharon Wilson in exchange for work he agreed to do around the house. She told Devoe that she did not allow weapons in her home. A short time later she found Devoe looking in her purse. She told him to leave her home. Before leaving he pointed the weapon at Wilson’s head and midsection before turning away and firing the weapon into the living room couch several times. Devoe stole Wilson’s Dodge Dakota pickup truck as well as the money and credit cards she had in her purse.
  • In the evening of August 24 Devoe went to O’Neill’s Sports Tavern where his estranged girlfriend, Glenda Purcell, frequented. He was dressed in his “motorcycle attire”—black leather vest, chaps, a cap, and a jacket. Devoe walked over to where Purcell was sitting, put his hand over her eyes, and placed the gun against her head. He pulled the trigger several times but the weapon jammed. Mike Allred, a friend of Purcell, tried to persuade Devoe to put down the gun at which time Devoe shot him in the chest severing the victim’s aorta. Devoe fled in the Dakota pickup as Allred bled to death.
  • Devoe went to Jonestown where Paula Griffith lived with her 15-year-old daughter, Haylie Faulkner. Devoe had previously had a romantic relationship with Griffith. On this August 24th evening Griffith, Haylie, and Haylie’s friend, Danielle Hensley, and Griffith’s boyfriend, Jay Feltner, were at the Griffith home preparing for a trip to the Fiesta Texas amusement park near San Antonio. On Sunday morning, August 26, the Jonestown police entered the Griffith residence where they found Feltner who had been shot in the back of the head at the kitchen table; Griffith was also shot in the back of the head as she tried to flee from the kitchen into living room; Haylie was on the living room floor with a bullet wound to the head; and Hensley lay on the living room sofa with four bullet wounds, one to the head. The police found Wilson’s Dakota pickup parked in Griffith front yard and Griffith’s Saturn station wagon missing. Feltner’s cell phone was also missing.
  • In the evening of August 24, a Friday, Devoe called his friend Brinlee and told him that he had tried to kill Purcell but Allred had gotten in the way.
  • Feltner’s cell phone records showed that his cell phone had been used Friday evening, the 24th, Saturday, the 25th, and Sunday, the 26th, in Texas, Arkansas, Tennessee, Pennsylvania, and New Jersey. Police theorized Devoe was heading to his mother’s home in Shirley, New York.
  • On August 26, while driving through Pennsylvania, Devoe began having motor trouble with Griffith’s vehicle. He pulled off the Interstate where he saw a “nice car” parked in the driveway of a home in Greencastle. He stole Betty Diehart’s 2006 Hyundai Elantra. Diehart was found lying on her bed in with a bullet wound to the head. Police found a ton of incriminating evidence in the Diehart residence linking Devoe to the Texas killings.
  • On Monday, August 27, Devoe was arrested at the home of a friend and former employer, Gerald Baldoni, and more evidence linking him to the Texas killings was discovered during a search of his person and belongings.

Before this horrific killing spree, Devoe had accumulated an extensive criminal history. He had been confined more than 20 times in New York for misdemeanors; was incarcerated in Texas for various misdemeanors; and spent five years in prison. His offenses included aggravated unlicensed operation of a vehicle, aggravated harassment, criminal trespass, disorderly conduct, endangering the welfare of a child; and he was convicted twice for harassment, three times for assault, and four times for DUI. In addition to these criminal offenses, Devoe had a “lengthy history of abusing women.”

The jury heard all this evidence, including testimony from “numerous witnesses” that Devoe abused alcohol and drugs which caused him to be more violent, during both the guilt/innocence and punishment phases of the trial. Pursuant to Rule 404(b), the State presented evidence at the guilt phase pertaining to the theft of Brinlee’s gun, the aggravated assault of Wilson, the killing of Allred, and the robbery of Diehart in Pennsylvania. While Devoe objected to this background evidence, he conceded that the murders of Griffith and Feltner was admissible as same transaction evidence.

At a pre-trial Rule 403 hearing, the State argued that the charged offenses and the extraneous offenses were part of a single “crime spree.” The State contended the crime spree began with the burglary of Brinlee’s residence and theft of his gun and culminated with the robbery of Diehart. The State argued that since it had no direct evidence that Devoe committed the Jonestown murders, the extraneous evidence was necessary to “explain what happened in Jonestown.” In effect, background evidence was needed to tie Devoe to the charged murders; namely, the same transactional murders of Faulkner, Hemsley, Feltner and Griffith. The trial court agreed, saying the absence of the background evidence would leave a gaping hole in the State’s case.

Devoe, on the other hand, argued that since he was not “challenging the State’s version of the events,” the background evidence was unnecessary to prove identity or any of the other Rule 404(b) exceptions. The CCA found this argument unpersuasive, saying: “Appellant did not plead guilty, and he argued at closing against a finding of guilt. When the identity of the perpetrator can be established by circumstantial evidence only, identity is a contested issue even if the defense rests with the State, puts on no evidence, and raises no defensive theories … We also note that this argument is without merit because, aside from the identity issue, the State needed all of this evidence to give context to [Devoe’s] crime spree as he stole the gun to go after women with whom he had had personal relationships and then to effectuate his flight to his mother’s home.”

We believe there was sufficient independent physical evidence apart from the background evidence to convict Devoe of the same transaction Jonestown crimes. There was DNA evidence linking Devoe to the crime, ballistics matches from the bullets recovered from the murder scene to the weapon in his possession at the time of arrest, the use of Feltner cell phone in Pennsylvania, and the abandonment of Griffith Saturn station wagon in Greencastle, Pennsylvania. Thus, we believe the background evidence was presented for no other reason than to show Devoe as an “evil characters” on a wanton “crime spree.” But bad facts do make bad law…

The use of extraneous offense/bad act evidence is incredibly prejudicial to any defendant sitting before a jury charged with a criminal offense. It is therefore approaching malpractice for a criminal defense attorney to fail to request notice of all 404(b) evidence in advance of every trial. It is only with such notice from the State that the lawyer can be prepared to argue against the admissibility of the extraneous evidence and be prepared to contest the allegations should they be allowed in trial.

By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization

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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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  • Avatar I’m Home ★★★★★ 3 years ago
    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
  • Avatar Tad Nieschwietz ★★★★★ 3 years ago
    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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  • Avatar Maher Abbara ★★★★★ 3 years ago
    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
  • Avatar Thomas McLaughlin ★★★★★ 3 years ago
    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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  • Avatar Zarrie Adkins ★★★★★ 3 years ago
    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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  • Avatar Keisha Gaches ★★★★★ 3 years ago
    He was very truthful and honest with us very great man I would recommend him and we would use him again
  • Avatar Samyra Carrasquillo ★★★★★ 3 years ago
    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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  • Avatar Raul Perez ★★★★★ 3 years ago
    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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  • Avatar Johnny Johnson Jr ★★★★★ 3 years ago
    This law frim was informative,great response time ,and the attorney called back not some secretary or legal assistant thank u guys for all your help wish it was more like youPositive … More
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  • Avatar Dana Adkison ★★★★★ 3 years ago
    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Crecencio Fabian ★★★★★ 3 years ago
    He explained my case better then any other lawyerPositive
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  • Avatar Barry Lewis ★★★★ 3 years ago
    Very informative
  • Avatar Ismael Flores ★★★★★ 3 years ago
  • Avatar Haley Danielle Lummus ★★★★★ 3 years ago
  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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