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Criminal Law Click here for the full text of this decision When an extraneous offense is offered, the court should consider: 1. how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable ( a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense; 2. the potential the other offense evidence has to impress the jury in some irrational but nevertheless indelible way; 3. the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; and 4. the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute. FACTS:The state charged Raymond Manning with recklessly causing another’s death “by the consumption of a controlled substance, . . . thereby causing a vehicle to collide with another . . . .” Over Manning’s objections, the judge admitted evidence that Manning had .15 mg/l of a cocaine metabolite in his body an hour and a half after the offense. On appeal, the appellate court held the trial court abused its discretion. HOLDING:Reversed and remanded. The parties disagree as to whether the cocaine metabolite was evidence of an extraneous offense. An extraneous offense is any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. It is an offense that is “extra, beyond, or foreign to the offense for which the party is on trial.” Another way to think of extraneous offenses is in terms of notice. One reason extraneous offense evidence is prejudicial is because the accused has no notice he will be called upon to defend against it. If it is an offense for which the accused had no notice, based on the charging instrument, then it is extraneous. The state charged Manning with manslaughter, and the indictment alleged four different manners and means in which that offense could have been committed. One of the allegations was that Manning’s recklessness was caused “by the consumption of a controlled substance.” So the evidence of a cocaine metabolite in Manning’s bloodstream was not an extraneous offense �- it was evidence of the charged offense. It is shown in the indictment and Manning had notice that such evidence would be offered. The court applies the Montgomery-Mozonfactors to this evidence. Montgomery v. State,810 S.W.2d 372 (Tex. Crim. App. 1991); Mozon v. State, 991 S.W.2d 841 (Tex. Crim. App. 1999). The first factor asks how compellingly the evidence serves to make a fact of consequence more or less probable. Here, the “fact of consequence” is whether Manning had consumed a controlled substance. The evidence of the cocaine metabolite in his blood served to make that fact more probable. It was very compelling evidence because the testimony at trial was that nothing but cocaine or benzoylecgonine could produce benzoylecgonine in the body. This was strong evidence showing that Manning did consume cocaine. The court of appeals found the evidence was not compelling because the state did not extrapolate the evidence back to the time of the accident. But as the state points out, the appellate court confused sufficiency with admissibility. The fact that this evidence may not have been sufficient, by itself, to prove that Manning’s actions were the result of his ingestion of cocaine does not detract from the fact that the evidence of the metabolite was strong evidence that Manning had consumed cocaine. The second factor is the potential the evidence has to impress the jury in some irrational but nevertheless indelible way. The court of appeals concluded the evidence had a “great” potential to impress the jury in this manner. But Rule 403 deals only with the danger of “unfair” prejudice. As explained in Montgomery: “All evidence introduced against a defendant, if material to an issue in the case, tends to prove guilt, but it is not necessarily prejudicial in any sense that matters to the rules of evidence . . . . Evidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence . . . . The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant . . . .” The U.S. Supreme Court recently echoed this sentiment, noting that “[t]he term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged.” Here, the evidence was obviously prejudicial to Manning, but it was not unfairly prejudicial because it pertained to an allegation in the charging instrument. It did not have a great potential to impress the jury in an “irrational” way. Although there was some risk that the jury would convict Manning solely because it believed he was a cocaine user, that risk did not substantially outweigh the probative value of the evidence when the evidence specifically pertained to an allegation in the indictment. The third factor is “the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” The court of appeals concluded that the time spent on this evidence was “significant,” consuming one-fifth of the evidence presented to the jury. Regardless of the length of time spent presenting this evidence, the evidence of the metabolite could not possibly have distracted the jury from the indicted offense because it was proof of the indicted offense. The last factor is “the force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.” The court of appeals found that whether Manning’s consumption of a controlled substance caused him to be reckless was a disputed issue in the case, and the state had no other evidence to establish this fact. The court agrees. But the appellate court seemed unaware that, as a result, this factor weighs in favor of admissibility, not against it. If the issue is disputed and the proponent has no other evidence to prove the fact, then the proponent’s need for the evidence is great, and that weighs in favor of admitting the evidence. All four of the Montgomery-Mozon factors weigh in favor of admissibility. The court of appeals erred in its application of those factors because it erroneously believed that the evidence in this case was extraneous offense evidence. OPINION:Keasler, J.; Keller, P.J., Womack, Hervey and Cochran, JJ., join. CONCURRENCE:Price, J.,; Meyers, Johnson and Holcomb, JJ., join. “I agree with the Court of Appeals that the trial court erred in admitting the evidence. That said, I believe that the Court of Appeals erred in concluding that the appellant was harmed by the trial court’s error. This is nonconstitutional error, and under Texas Rule of Appellate Procedure 44.2(b), reviewing courts should disregard any error that did not affect the appellant’s substantial rights. We have interpreted this to mean that the conviction should not be reversed when, after examining the record as a whole, the reviewing court has a fair assurance that the error did not influence the jury or had but a slight effect. Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).”

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