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Click here for the full text of this decision FACTS:Authorities charged Gregory Earl Pollard with retaliation against a witness by threatening to harm or kill Christopher Kirk. Kirk claimed Pollard threatened to have him hurt or killed if he reported Pollard’s alleged sexual assault of a 14-year-old girl. Kirk eventually made four statements either to police investigators or to the defendant’s attorney in which he either described or denied Pollard’s threats against him and the sexual assault of the girl. In his first statement, Kirk described Pollard’s sexual assault of the girl and accused Pollard of threatening to harm or kill him if he told anyone about the assault. In his next two statements, he retracted his accusations. In his fourth statement, Kirk again accused Pollard of the sexual assault against the girl and accused Pollard of making a second threat against him. At trial, Kirk explained his reasons for making the conflicting statements. Kirk testified he made the first statement to police several months after the sexual assault occurred when the victim’s mother learned of the assault. When Pollard again threatened him, Kirk made his second statement to Pollard’s attorney, retracting his accusations against Pollard. His third statement, made to a police investigator, supported his statement to Pollard’s attorney. In his fourth and final statement, made after Kirk was jailed on charges that Kirk sexually assaulted the twin sister of Pollard’s victim, Kirk again accused Pollard of threatening him. The jury heard testimony that Pollard provided alcohol and narcotics to the girl and her twin sister on the day of the alleged sexual assault. Finally, the jury heard evidence that Pollard had been convicted of murder in 1986, for which he served 10 years of confinement. On appeal, Pollard complained that the trial court erred when it permitted the jury to hear evidence of the 20-year-old murder conviction, his sexual assault of one of the girls, and his provision of alcohol and drugs to the girls. HOLDING:Reversed and remanded. In reviewing Pollard’s appeal, the court considered only whether the court erred in admitting Pollard’s previous murder conviction, because Pollard failed to preserve error as to the other extraneous offenses. Pollard complained that the evidence of his 1986 murder conviction was inadmissible character evidence that served only to show he acted in conformity with his past record of bad or illegal conduct. Evidence of previous criminal conduct, the court stated, is inherently prejudicial, tends to confuse the issues and forces the accused to defend himself against charges not part of the present case against him. If the evidence has relevance apart from character conformity, however, Texas Rule of Evidence 404(b) permits the evidence to be admitted. The state argued that the evidence was admissible to show motive. It asserted that because of Pollard’s prior murder conviction and resulting incarceration, he would not want to go back to prison; therefore, he threatened Kirk in order to silence him and avoid returning to prison for the sexual assault. The court rejected this theory as too speculative, because the state presented no testimony or other evidence to support the theory. The state alternately asserted Pollard’s 20-year-old murder conviction was admissible to explain the context for Kirk’s belief that defendant was capable of or willing to kill or harm him. The court stated, however, that Kirk’s state of mind was not an element of the offense of retaliation. Nor did it believe that defendant’s murder conviction or Kirk’s state of mind helped the jury understand the offense of retaliation. Thus, the court concluded that the evidence of Pollard’s murder conviction was inherently prejudicial and forced defendant to defend himself against charges not part of the case against him. Accordingly, the court concluded the trial court erred in admitting evidence of defendant’s previous murder conviction. Turning to the issue of harm, the court noted that the state mentioned the murder conviction not in passing but as a direct link to the charged offense, i.e., defendant threatened Kirk because defendant did not want to return to prison and the knowledge of the conviction frightened Kirk into believing the threat against him. Moreover, the court found that the evidence of defendant’s guilt was not overwhelming. As a result, the court concluded that the state’s emphasis of the murder conviction prejudiced the jury’s decisionmaking, causing a substantial and injurious effect or influence on the jury’s verdict, thereby affecting Pollard’s substantial rights. OPINION:Marion, J.; Marion, Stone and Speedlin, JJ.

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