Judge Cochran's dissenting opinion does an excellent job of explaining how the two cases ⁽¹⁾ on which both the Court of Appeals and the majority rely are not dispositive of the appellant's complaint. It is disappointing that the majority has clung to such tenuous and inapposite authority to almost summarily dismiss a question of law which has huge repercussions on the introduction of extraneous offenses at the guilt stage of a trial.

While the proposition does exist that the State may introduce, for the charged crime, a separate instance of identical conduct by the defendant, it should only be considered when the record reflects that there is uncertainty as to the exact date on which the State is relying for conviction. Obviously this was not the case here. It's amazing how easily the trial court and the Court of Appeals bought into the State's request to avoid the Rule 404(b) prohibition. It seems apparent that the prosecution introduced the testimony herein to overwhelm the defendant with allegations that it had no ability or desire to adequately prove. Its proposed remedy of allowing an election was a disingenuous gesture which had no real effect in curing the extremely prejudicial testimony erroneously allowed in. Unfortunately, in the whole process, the majority has now adopted this proposition and, as a consequence, has literally rendered meaningless the protections and methodologies of Rule 404.

Rule 404(b) embodies the fundamental concept of our criminal justice system that an accused may be tried only for the charged offense and not his criminal propensities. Thus, the Rule sets out the procedure for the use of extraneous offense evidence in limited situations. If the State intends to introduce evidence of other crimes, wrongs, or acts, then the defendant must be provided reasonable pretrial notice. ⁽²⁾ This notice allows the defendant time to prepare a defense against the allegations. Additionally, limiting instructions given in accordance with Rule 404 explain how the jury may or may not consider the evidence. A defendant is entitled to an instruction limiting the jury's use of an extraneous offense for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The jury should be told, both at the time the evidence is admitted and in the jury charge, that the extraneous offense evidence should not be used to prove the character of a person in order to show conformity therewith.

In its haste to nearly repeal the Rule, the majority has also overlooked other protections which are normally afforded to each defendant. These protections include the right to only be held for trial and eventually convicted, either by plea or by trial, based upon the indictment handed up by a grand jury. The majority also disregards the usual requirements for the sufficiency of the evidence offered and what is necessary for its introduction and review on appeal.

The Texas Constitution Article I §10 and Texas Code of Criminal Procedure Article 1.05 require a grand jury indictment in order for a defendant to be convicted. The indictment serves both to provide pretrial notice to the defendant and to delineate the elements of the offense that the State must prove. In this case, for the offense of delivery of a controlled substance to a child, the State must prove that the defendant acted knowingly, that he delivered or transferred the substance, that the substance was a controlled substance, and that the person to whom it was delivered was a child. The grand jury will not indict unless sufficient probable cause exists and there is enough evidence to formally charge a person with an offense. Thus, for this type of crime, the testimony of K.R. that appellant gave her cocaine on 20 or 30 occasions would not alone be sufficient to obtain a grand jury indictment. For the offense that was alleged in the indictment, occurring on or about September 9^th, there was the additional evidence of K.R.'s positive urine test for cocaine, which proved the controlled substance element of the offense and provided the probable cause necessary to indict.

Even though our caselaw has given the State latitude in presenting evidence, it is not intended to provide a way of introducing evidence concerning offenses for which it would not otherwise independently be able to seek a conviction. When introducing evidence, there must be more than a mere allegation that the offense occurred within the statutory time frame. The State is still required to provide sufficient evidence to support a conviction. In other words, the State must provide enough proof to satisfy the allegations of the indictment. K.R.'s testimony that her father delivered cocaine to her on 20 or 30 occasions would not pass a sufficiency test for a motion for directed verdict or a sufficiency review on appeal. This statement by the victim comes nowhere close to proving the essential elements of the case, and thus would be insufficient to support a conviction. The only evidence that the State presented was K.R.'s vague testimony that appellant provided her with cocaine "maybe 20 or 30 times." However, the State did not provide any evidence to corroborate the statement and there was no proof that the substance that K.R. said she received from appellant on those occasions was even cocaine. In order to satisfy its burden of proof for this type of crime, the State would be required to introduce testimony identifying the substance that appellant delivered to K.R as a controlled substance. The majority's holding allows the State to allege offenses subsumed in the indictment without offering any proof to support the allegations. This now sets a much lower standard for evidence sufficient to convict someone of a crime.

If evidence that the State seeks to introduce constitutes evidence of another crime, wrong or act, its admissibility is governed by Rule 404. This is so for offenses that happen only once as well as for offenses that take place over the course of several years.

In the absence of proof to support the allegation that specific acts occurred that would fall under the indictment, the offenses were extraneous and the admissibility of the testimony should be governed by Rule 404.

Filed: March 26, 2003

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1. Sledge v. State, 953 S.W.2d 253 (Tex. Crim. App. 1997) and Rankin v. State, 953 S.W.2d 740 (Tex. Crim. App. 1996)

2. Notice is required under Rule 404(b) when the State intends to introduce extraneous offense evidence in its case-in-chief. In this case, however, the testimony regarding extraneous offenses was used as rebuttal to the defense argument that other family members may have provided K.R. with cocaine on the occasion alleged in the indictment.