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Click here for the full text of this decision FACTS:Johnson was accused of burning three-year-old Christopher’s hand with a lit cigarette. The trial court admitted, over appellant’s objection, 12 pictures of four-year-old Autumn, Christopher’s sister, which showed that she had soft tissue bruises. The court of appeals concluded that the pictures of Autumn’s bruises, as evidence “of a larger pattern of abuse” against both children, were “relevant as to absence of mistake and rebuttal of appellant’s defensive theory.” HOLDING:Affirmed. The CCA finds that these pictures of an extraneous offense were not relevant for a permissible purpose under Rule 404(b), but that their admission was harmless error. Texas Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Extraneous offense evidence may, however, be admissible if is logically relevant to prove some other fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. For extraneous-offense evidence to be admissible under both Rule 404(b) and Rule 403, that evidence must satisfy the following two-prong test: Is the extraneous offense evidence relevant to a fact of consequence in the case apart from its tendency to prove conduct in conformity with character? Is the probative value of the evidence sufficiently strong so that it is not substantially outweighed by unfair prejudice? If the answer to both of these questions is “Yes,” then the extraneous-offense evidence is admissible under both Rules 404(b) and 403. If the opponent invokes only Rule 404, then only the first prong must be satisfied. If both Rules 404 and 403 are invoked, then both prongs must be satisfied. Here, the court only reaches the first prong: relevancy. To be relevant under Texas Rule of Evidence 401, evidence must have some “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it would be without the evidence.” The court notes the state argued the photos of Autumn were relevant 1. to rebut the defensive theory that Crystal Johnson, the children’s mother, had burned Christopher’s palm with her cigarette; and 2. to demonstrate that Christopher’s burn likely was not the result of appellant’s mistake, accident, or inadvertence. Here, the court states the pictures do not go to prove a fact of consequence for which the state offered them: that it was more likely that the children’s mother, not appellant, burned Christopher. The court notes that undisputed evidence showed that both adults beat and injured both children, and both had been convicted of those crimes before the trial began. Appellant, through his direct examination of Crystal, raised the possibility that she, not appellant, had burned Christopher with the cigarette. But the prosecution did not explain how pictures of Autumn’s bruises caused by both adults tend to make it more likely that appellant, not Crystal, burned Christopher with the cigarette. Rather, they go to show a chronic pattern of child abuse, which is precisely the kind of action-in-conformity-with-bad-character evidence forbidden by Rule 404(b). Next, the court states that the photos did not help prove that appellant burned Christopher accidentally or by mistake. Here, the court notes, appellant’s defense was not that he accidentally or mistakenly burned Christopher’s palm, but rather that Crystal did. The state argues that the pictures of Autumn’s bruises showed that Christopher’s burn was not the result of an accident or mistake, but it doesn’t matter whether Crystal caused the burn accidentally or intentionally if appellant did not cause the burn. Appellant’s sole defense was: Crystal burned Christopher with her cigarette, so the evidentiary choices were: 1. Christopher accidentally ran into a cigarette held by Crystal; or 2. appellant knowingly or intentionally held the cigarette to Christopher’s palm and burned him. Pictures of Autumn’s injuries do not tend to prove or disprove either of these options. Given the defendant’s position in this particular case, the state could not offer extraneous offense evidence to rebut the defense of accidental injury by a third person. The court thus finds the court of appeals erred in admitting the evidence, which was irrelevant for the proper purposes of establishing identity or disproving accident/mistake. However, the court finds the admission of the photos to be harmless error, and thus affirms � instead of remanding for a harmless error review � in the interest of judicial economy. The court notes that the impermissible bad-character inference was already in front of the jury, based on appellant’s conviction of injury to a child for beating both children and the testimony of witnesses. Also, photos of Christopher were already in evidence, and his injuries appeared much more severe than Autumn’s. Finally, neither the defense nor the prosecution focused on the photos in their closing statements, arguing rather about the disputed issue of whether appellant was the person who burned Christopher’s palm. OPINION:Cochran, J., delivered the opinion of the court, joined by Keller, P.J., Meyers, Price, Womack, and Holcomb, JJ. Keasler and Hervey JJ., concurred. Johnson, J., filed a concurring and dissenting opinion.

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