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Click here for the full text of this decision FACTS:Dwayne Mesiah Allen shot Kisha Kennard to death in her home on Sept. 24, 2001. Kennard’s 11-year-old son witnessed the shooting. Police got an arrest warrant for Allen the next morning, but when officers went to the home he shared with his mother, his mother said Allen had not come home the night before. Allen did not show up at his job, either. Also on Sept. 25, Jerome Albritton and Kennard’s sister looked up numbers on Kennard’s caller I.D., then called one of the numbers the sister identified as being Allen’s cell phone number. When Albritton called the number and identified himself as a police officer, the person on the other end hung up. Albritton tracked the cell phone to a woman named Corie Mills who did not know Allen, but who said that he purse and cell phone had been stolen on Sept. 25. Mills said that when she called her own cell phone number after the theft, a man answered who said he was in Houston, that he had purchased the phone on the street and then offered to sell the phone back to Mills. Police later traced Allen to Louisiana, then to Virginia, where Allen was arrested and charged with murder. At his trial, police offered into evidence the fact that Mills’ purse and cell phone were stolen the day after Kennard’s murder. Albritton testified that the man who answered the phone identified himself as “Dwayne” before hanging up. Also at trial, Dante Leonard testified that on the night of Sept. 25, an unknown man approached him and offered to sell him a cell phone for $20. Leonard bought the phone, but not the purse the man also offered to sell him. HOLDING:Affirmed. On appeal, Allen complains that the trial court wrongly allowed the state to introduce extraneous-offense evidence of Mills’ purse being stolen because the state did not give proper notice to Allen that it was going to introduce this evidence, as is required by Texas Rule of Evidence 404(b). The court notes that this case falls somewhere in between two main cases: Buchanan v. State, 911 S.W.2d 11 (Tex.Crim.App. 1995), and Hayden v. State, 66 S.W.3d 269 (Tex.Crim.App. 2001). In the former, the court held that the mere opening of a defendant’s file to inspection does not satisfy Rule 404(b)’s notice requirement. In the latter, the court held that delivery of a file to the defendant did satisfy the rule because it was more that simply saying, “Look in our file and see what you can find.” In this case, the state told Allen it was going to introduce evidence on 16 extraneous offenses, though none of those offenses included the purse-stealing, and that the file was open for inspection in the district attorney’s office. The notice also included Albritton’s write-up of his tracking of the cell phone and purse. Allen acknowledged having actual notice of Albritton’s report, but not that he had actual notice that the state was going to use the report as proof of an extraneous offense. The court concludes that the trial court abused its discretion in admitting this evidence. The state did not include the offense in its list of 16 offenses, and its “boilerplate statement” that it intended to offered evidence on all offenses was “nothing more than an invitations to”look in our file and see what you can find’ and the sort of gamesmanship disapproved by Hayden. The court nonetheless finds that but for the error, the evidence was substantively admissible, and the trial court’s error ultimately did not have a substantial influence on the jury’s verdict. The evidence that Allen murdered Kennard is “overwhelming to the extent that it dwarfs the extraneous-offense evidence and renders it insignificant.” The court next addresses Allen’s argument that the trial court should have granted a mistrial when Albritton stated that the man who answered the phone identified himself as “Dwayne” before hanging up; Allen points out that the trial court sustained his objection to the evidence, which Allen said was hearsay, and gave the jury an instruction to disregard the comment. The court agrees with Allen that Albritton’s statement implies that Allen answered the phone and, consequently, that Allen stole the phone. The court nonetheless finds the wrongfully admitted evidence was not “so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind with an instruction to disregard.” OPINION:Gardner, J.; Livingston, Holman, and Gardner, J.J. CONCURRENCE:Livingston, J. The concurrence disagrees only with the majority’s conclusion that Albritton’s statement was hearsay. The concurrence says the statement was no offered to show that Allen had Mills’ cell phone because the jury was already aware of that fact.

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