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Click here for the full text of this decision FACTS:Appellant complained during his capital murder trial that the prosecution did not provide him with adequate notice of its intent to use various extraneous offenses that appellant committed. The court of appeals decided that the prosecution’s failure to comply with the notice requirement of Texas Rule of Evidence 404(b) was harmless because appellant was not surprised by this evidence. The grounds upon which the court granted discretionary review ask: 1. Whether the Texas Rule of Evidence 404(b) notice requirement is a Rule of evidence admissibility. 2. Whether the court of appeals can ignore the impact of evidence on the verdict admitted in violation of the Rule 404(b) notice requirement when evaluating harm under Texas Rule of Appellate Procedure 44.2(b). HOLDING:Affirmed. Since the notice requirement of Rule 404(b) is a Rule of evidence admissibility, then it is error to admit Rule 404(b) evidence when the state has not complied with the notice provision of Rule 404(b). The Rule 44.2(b) harm standard is whether the error in admitting the evidence had a substantial and injurious effect or influence in determining the jury’s verdict. King v. State, 953 S.W.2d 266 (Tex.Cr.App. 1997). The court references the Austin Court of Appeals’ discussion in Roethel v. State, 80 S.W.3d 276 (Tex.App. – Austin 2002, no pet.). The purpose of the Rule 404(b) notice provision of preventing surprise is a valid consideration in conducting a Rule 44.2(b) harm analysis. The court does not agree with appellant that this is inconsistent with King and the usual harm analysis applied to the improper admission of evidence. When an appellate court determines that a jury’s verdict was substantially influenced by the improper admission of substantively inadmissible Rule 404(b) evidence, that influence on the jury’s verdict will always be injurious since there was no proper purpose for the jury to consider the evidence. But, this is not the case when substantively admissible Rule 404(b) evidence is improperly admitted because of the state’s failure to comply with the Rule 404(b) notice provision. Under these circumstances, the error in admitting this evidence may have had a substantial effect or influence on the jury’s verdict, but it cannot be said that this effect or influence was injurious if the defendant was not surprised by the evidence, the court holds. In this case, the appellant primarily complains about the admission of his own audio-recorded statements to the police which contained multiple references to his extraneous cocaine pickups, drug thefts, attempts to sell altered weapons, and shooting of guns. A copy of these audio tapes was given to appellant’s counsel months before he made a Rule 404(b) notice request. Appellant did not make any assertion at trial, or on appeal, that he was surprised by the notion that the state would offer into evidence those six tape-recorded statements which contained his oral admission of numerous acts of extraneous misconduct. OPINION:Hervey, J., delivered the opinion of the court in which PJ., Keller, Meyers, Price, Johnson, Keasler, Holcomb and Cochran, JJ., joined. Womack, J., concurred.

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