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Criminal Law No. 2093-01, 5/21/2003. Click here for the full text of this decision FACTS: The appellant was charged with the offense of bribery. Texas Penal Code �36.02(a)(1). A jury found him guilty and punishment was assessed at five years imprisonment, probated and a fine of $800. The appellant appealed the trial court’s admission of extraneous offense evidence. The court of appeals held that the testimony regarding extraneous offenses was improperly admitted and reversed the judgment of the trial court. The court granted review to determine whether the court of appeals erred in holding that an extraneous offense was not admissible to rebut the defensive theory that police officers fabricated the existence of the charged offense to retaliate against appellant for his role in a controversy involving other police officers. HOLDING: Reversed and remanded. There appear to be two different theories regarding the retaliation defense. One is that the charges against appellant were false, made up or fabricated in retaliation for his wife’s complaint. The other is based on the timing of the charge – that the charge was retaliatory because no charges were filed against appellant until after his wife accused some members of the precinct of mishandling the wrecker call procedure. The trial court found that the extraneous offenses were admissible to rebut the appellant’s claim that “they retaliated because we got some deputies in trouble.” The court of appeals found that the prior offenses did not explain the delay in filing the charges until after appellant’s wife’s complaint. In other words, the fact that appellant had committed two prior uncharged acts of bribery did not rebut the defense contention that the timing of the bribery charge indicated that it was brought due to appellant’s wife’s complaint against members of the precinct. The trial court, however, allowed the extraneous offenses under the theory that the charges for the May 12 incident may have been brought because it was appellant’s “third time to do a similar thing,” which explains why charges were not filed for the two prior offenses. Evidence at trial indicated that on May 13, after a deputy filed the report documenting the April 7 and May 12 incidents, the Internal Affairs Division began a general investigation of the bribery attempts. The March 6 incident between the appellant and a deputy was also part of the Internal Affairs investigation. Thus, the delay in filing may also be explained by the ongoing investigation. The trial court’s reasoning explains why charges were not filed for the two previous extraneous offenses but were filed for the May 12 offense, thus rebutting the defense theory that the charges were retaliatory. As a result, the trial court found that the extraneous offenses had relevance apart from showing character conformity. Because the trial court’s decision to admit the extraneous offense evidence is within the zone of reasonable disagreement, there was no abuse of discretion. OPINION: Meyers, J.; Keller, P.J., Price, Womack, Johnson, Hervey, Holcomb and Cochran, JJ., join. Keasler, J., concurs.

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