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Click here for the full text of this decision FACTS:Kisha Kennard was shot dead in the kitchen of her family home on September 24, 2001. Her 11-year-old son witnessed the shooting and later identified appellant, whom he had known for years, as the shooter. Hours before the murder, appellant had cut Kennard with a knife and threatened to kill her. Police obtained a warrant and attempted to arrest appellant the next morning at the home he shared with his mother. His mother reported that he had not returned home the night of the shooting. Nor did appellant ever return to his job. Also on September 25, in an attempt to determine appellant’s whereabouts, Arlington Police Detective Jerome Albritton and Kennard’s sister obtained several phone numbers from Kennard’s caller I.D. device. The sister identified one of the numbers as that of a cell phone belonging to appellant. Albritton called the number. A man answered but hung up when Albritton identified himself as a police officer. Albritton determined that the cell phone number was registered to a cell phone account owned by Corie Mills. When he contacted Mills who did not know appellant, Kennard, or other persons involved in the case Mills told him that her purse containing her cell phone and credit cards had been stolen on September 25. Mills called her own cell phone number several hours after her purse was stolen. A man answered the phone, said that he was in Houston, told Mills that he had purchased the phone on the street, and offered to sell it back to her. At trial, Houston resident Dante Leonard testified that on the evening of September 25, he was approached by a man unknown to him who offered to sell a cell phone to him for $20. Leonard bought the phone, but declined to buy the purse the man also offered to him. Leonard testified that the man had a handgun in his car. Police later traced appellant to Louisiana and then to Virginia, where he was arrested. He was tried and convicted of Kennard’s murder, and the trial court sentenced him to 60 years’ confinement. This appeal followed. HOLDING:Affirmed. The trial court abused its discretion by admitting the purse, cell phone and handgun evidence over appellant’s Texas Rule of Evidence 404(b) objection. Appellant’s counsel denied having actual notice of the state’s intent to introduce those offenses. The state did not list the theft of the purse in its detailed recitation of 16 other extraneous offenses it intended to introduce at trial. Under these circumstances, the state’s boilerplate statement that it intended to introduce all extraneous offenses reflected in its open file was nothing more than an invitation to “look in our file and see what you can find” and the sort of gamesmanship disapproved by Hayden v. State, 66 S.W.3d 269 (Tex. Crim. App. 2001). Unlike Hayden, the record in this case compels the conclusion that the defense did not have actual notice of the state’s intent to introduce the extraneous offenses. Therefore, the trial court abused its discretion by admitting the extraneous-offense evidence over appellant’s objection. The court holds that the evidence concerning the handgun and the theft of the purse and cell phone was substantively admissible; that is, it was admissible but for the state’s failure to provide notice to appellant under Rule 404(b). In the context of the entire case against appellant, the trial court’s error in admitting the extraneous-offense evidence relating to the purse, cell phone and handgun did not have a substantial influence on the jury’s verdict. The evidence that appellant murdered Kennard is overwhelming to the extent that it dwarfs the extraneous-offense evidence and renders it insignificant. Because the evidence did not have a substantial influence on the verdict, the court does not reach the question of whether appellant was surprised by the evidence. The court holds that the trial court’s error in admitting the extraneous-offense evidence did not affect a substantial right. Appellant argues that the trial court erred by failing to grant a mistrial when Albritton stated that the man who answered Corie Mills’ cell phone identified himself as “Dwayne” immediately after the trial court instructed Albritton not to do so. Albritton’s testimony that the man who answered the phone said, “This is Dwayne,” implies that appellant answered the phone and, therefore, that appellant stole the phone. The court cannot say that this evidence was 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. There was already evidence before the jury tying appellant to the stolen phone. Moreover, compared with the evidence that appellant murdered Kennard, the theft of the purse and cell phone is trivial, not damning. The court holds that the trial court did not abuse its discretion by denying the appellant’s request for a mistrial. OPINION:Anne Gardner, J.; before Livingston, Holman and Gardner, J.J. CONCURRENCE:Terrie Livingston, J. “I write separately only to disagree with the majority opinion’s analysis on the admissibility of the one statement identifying the person answering the cell phone as”Dwayne.’ . . . “Unlike the majority, I do not believe the statement was hearsay, which was Appellant’s objection. The rules of evidence state that hearsay is a statement made for the purpose of the truth of the matter asserted. TEX. R. EVID. 801(d). Here, the State contends and I would agree that the statement, “This is Dwayne,” was not offered by the State to prove that Appellant had stolen any cell phone; rather, it was offered to show how Albritton’s investigation was proceeding regarding the various phone numbers on the victim’s caller identification. It was not offered to show that Appellant had stolen the cell phone; the jury already knew that. See Head v. State, 4 S.W.3d 258, 259 (Tex. Crim. App. 1999); Enriquez v. State, 56 S.W.3d 596, 600 (Tex. App. Corpus Christi 2001, pet. ref’d). Thus, I would hold that the statement was not hearsay and that the objection should not have been sustained, making the instruction to disregard unnecessary, as well as any mistrial.”

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