I join the majority opinion. I add this concurrence simply as a reminder that the letter of the law is not always a perfect reflection of the spirit of the law. The spirit of Rule 404(b), ⁽¹⁾ article 37.07, §3(g), ⁽²⁾ and article 38.37 ⁽³⁾ is to ensure that Texas criminal proceedings are not a contest of clever gamesmanship or trial by ambush. ⁽⁴⁾ There is very little formal pretrial discovery mandated in Texas criminal proceedings, but our Rules of Evidence are drafted to ensure that Texas criminal practitioners remain gentlemen and gentlewomen who do not spring evidentiary surprises on their adversaries.

A number of our Rules of Evidence require advance notice when practicable and reasonable. ⁽⁵⁾ Rule 404(b) is one of those rules. It requires that the prosecution give the defense reasonable notice of its intent to offer extraneous offense evidence in the State's case-in-chief. Article 37.07, §3(g) is built upon that same foundation. This requirement of advance notice, upon timely request, applies only to the State's case-in-chief because prosecutors are no more clairvoyant than the rest of the world. They cannot, and thus should not be required to, predict precisely what evidence the defense will introduce or what rebuttal evidence might be relevant as a result of a particular defense. Our law has long recognized this fact. ⁽⁶⁾

On the other hand, it is possible for prosecutors to manipulate the notice rule's purpose and applicability simply by reserving all extraneous offense evidence until its rebuttal case, when notice is not required. Although this strategy conforms to the letter of the law, it clearly violates the spirit.

I do not suggest that any such manipulative strategy occurred in this particular case. Quite the contrary. This record supports the conclusion that both the defense and prosecution conducted themselves effectively, fairly, and in accord with the spirit, as well as the letter, of the law.

Here, appellant, James Harmon Jaubert, Jr., also known as "Big Jube" or "J.J.," pled guilty to a jury of one count of murder and four counts of attempted murder resulting from three separate "drive-by" gang shootings in Fort Worth. During the punishment trial, the State presented evidence regarding all three events in its case-in-chief. The first "drive-by" shooting resulted in one victim being shot twice. The second "drive-by" shooting resulted in one victim being shot in the rear, and the bullet lodged so close to his spine that it could not be removed. In the third "drive-by" attack, which occurred only a few minutes after the second, two people were shot and a third was killed. Although the State presented many witnesses, the evidence was limited solely to the specific offenses charged in the indictment. No mention was made of any extraneous offense.

During its punishment case-in-chief, the defense offered numerous witnesses to testify that the defendant had found religion, changed his ways, and was, by the time of trial, a wholly repentent and reformed young man. The defense called appellant's retired pastor, a high school assistant principal, a second cousin who knew appellant through church, and a civil rights investigator who had worked with appellant's mother. These witnesses had known appellant before he became involved in gangs and testified to his prior law-abiding and peaceful nature. The State did not cross-examine any of them concerning extraneous offenses.

Then the defense called witnesses who testified to appellant's changed nature after he had been arrested, charged with these offenses, and placed in jail. These witnesses included another cousin, who had received a call from appellant in jail. She testified that appellant lead her in prayer. Another was a lawyer whose son was also in the Tarrant County Jail and who had met appellant's parents during jail visitation. Another was appellant's uncle, who was a minister. Appellant's parents both testified and told of appellant's recent repentance and changed nature. Finally, appellant testified to his jailhouse transformation.

The State first referred to an extraneous offense during its cross-examination of appellant's minister-uncle. On direct, this witness concluded his testimony by stating that appellant's father had told him that appellant had turned his life around while in jail and had "become closer to the Lord." On cross-examination, the State established that appellant's uncle knew very little about either the offenses appellant had committed or his conduct while in jail. The State asked one question about the witness' knowledge of appellant's role in a jailhouse rape. The witness knew nothing of it.

During the direct examination of appellant's father, defense counsel himself brought up the subject of the jailhouse rape and appellant's father testified that appellant was not involved in that event. On cross-examination, the State tested appellant's father's knowledge of his son's involvement in the rape. This was proper impeachment.

Appellant's testimony on direct was to the effect that he was "coming clean" with the jury about his past misdeeds, which were all the result of gang involvement. He voluntarily confessed to an uncharged drive-by shooting. He testified to two "conflicts" he had been involved in while in jail, one a fight with other inmates, and the other, a confrontation with a guard. He denied any involvement in the jailhouse rape incident, testifying that he had slept through it and had only heard about it from another prisoner. On cross-examination he continued to deny any personal knowledge or involvement in the rape.

Then came the State's rebuttal. Seven witnesses testified that appellant had not changed at all and that he was not a good candidate for community supervision. One of those witnesses was a lieutenant from the Tarrant County jail who testified generally about the jail rape, but who was not permitted to testify to what the rape victim had told him about appellant's role in that event because that was hearsay.

After the State's rebuttal case, appellant once more took the stand to rebut the impeachment evidence and reassert his innocence of the jail rape. He testified on direct examination that, in fact, there had been multiple jailhouse rapes, but that he was not involved in any of them. On cross-examination, his testimony changed more: his position was no longer that he slept through the rapes, and he also stated that at least one of them occurred in an open cell close by while he was in the day room able to observe the event.

The jury, apparently rejecting appellant's theory that he had changed his ways and found religion, sentenced him to sixty years for the murder, twenty years for one of the attempted murder charges, and three ten-year sentences for the others.

Several facts are apparent from this brief recitation of the evidence: 1) the State did not offer any evidence of any conduct other than that concerning the charged offenses during its punishment case-in-chief; 2) appellant's defense was "I've found religion in jail and changed my ways"; 3) appellant's witnesses validated that defense and testified to appellant's good character before he joined a gang and to his reformation in jail; 4) these witnesses did not know about appellant's purported involvement in a jailhouse rape; 5) the State was entitled to test their knowledge of appellant's conduct while in jail and specifically concerning the jailhouse rape; ⁽⁷⁾ 6) appellant testified that he was very much aware of this incident but had no involvement because he was asleep; 7) the State was entitled to call rebuttal witnesses to directly contradict appellant's testimony concerning a fact independently relevant to punishment; ⁽⁸⁾ 8) appellant was entitled to, and did, testify in sur-rebuttal to deny or explain the testimony of the State's rebuttal witnesses.

The State did not start this character ball rolling. Nor did it hide the ball, simply saving up evidence of extraneous offenses to spring on rebuttal. Appellant opened the door to evidence of the jailhouse rape by his defense strategy based upon a religious reformation while in jail, and thus the State was entitled to walk through that open door. The State violated neither the spirit nor the letter of the notice requirement in article 37.07, § 3(g), nor was the defense surprised. It had a ready answer to the jailhouse rape evidence. Thus, appellant's counsel could not be deemed ineffective for not requesting written notice of extraneous offenses because: 1) the law does not require notice of true rebuttal evidence; and 2) the evidence indicates that both appellant and his trial counsel were well aware of the rape allegation and had a response formulated.

Many cases, however, are not so clear cut. Thus, it may behoove a prosecutor to voluntarily deliver to the defense a written list of all known incidents which are not explicitly set out in the indictment, but of which the prosecutor is aware and which might become admissible for any reason at any time. This self-imposed duty has several beneficial aspects: 1) it assures that no conviction will be reversed for the failure to give reasonable notice, should the prosecutor decide that he needs to use what he had originally thought might be rebuttal extraneous offense evidence during his case-in-chief; 2) if the prosecution discovers additional extraneous offense evidence on the eve of trial or even during trial, he has shown good faith in revealing all of the evidence he was aware of well before trial; 3) if the list is titled "potential intrinsic and extrinsic act evidence," neither the parties nor the trial judge need engage in a hair-splitting debate concerning whether the specific evidence is evidence of other acts under Rule 404(b) or is "same transaction" evidence not subject to Rule 404(b) notice requirements; 4) a defense attorney avoids any possible allegations of ineffective assistance of counsel claims for failing to file a written request for notice; 5) a trial judge need not grant a mid-trial continuance for the defense to investigate "surprise" extraneous offense evidence; 6) such an exercise requires both the prosecutor and defense to focus on the entire body of potentially admissible evidence well before the trial, and either or both may revise their original positions based upon that review; finally, and most importantly, 7) it is fair beyond all measure.

With these comments, I join the majority opinion.

Cochran, J.

Filed: April 10, 2002

Publish

1. Tex. R. Evid. 404(b) reads:

(b) Other Crimes, Wrongs or Acts. Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction.

2. Tex. Code Crim. Proc. Art. 37.07, § 3(g) reads:

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Criminal Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. The requirement under this subsection that the attorney representing the state give notice applies only if the defendant makes a timely request to the attorney representing the state for the notice.

3. Tex. Code Crim. Proc. art. 38.37, §3, provides:

On timely request by the defendant, the state shall give the defendant notice of the state's intent to introduce in the case in chief evidence described by Section 2 in the same manner as the state is required to give notice under Rule 404(b), Texas Rules of Criminal Evidence.

4. "It shall be the primary duty of all prosecutors . . . not to convict, but to see that justice is done." Tex. Code Crim. Proc. art. 2.01. This duty falls upon the prosecutor in his capacity as the State's representative in criminal matters. As a trustee of the citizens' interest in providing fair trials, the prosecutor is obliged to always be forthcoming as well as honest, to ensure that the truth will always prevail and the judge and jury may properly render justice. Thus the prosecutor is more than a mere advocate, but a fiduciary to fundamental principles of fairness. See Berger v. United States, 295 U.S. 78, 88 (1935), in which the Supreme Court eloquently set out this duty:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor -- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.

Our Texas criminal justice system works well only because prosecutors do take this obligation seriously.

5. For example, Rule 201(c) entitles either party to be heard as to the propriety of taking judicial notice. So does Rule 202, as do Rules 203 and 204. Under Rule 412, the defense must give advance notice of its intent to offer evidence of a victim's previous sexual conduct and make a proffer of that evidence in camera. Rule 609(f) requires both the prosecution and defense to give advance notice of their intent to use prior convictions to impeach a witness. Rule 705(b) entitles either the prosecution or the defense to voir dire a proposed expert concerning the underlying facts and data he relied upon in forming his opinion before the witness testifies before the jury.

6. See, e.g., Elkins v. State, 543 S.W.2d 648, 649 (Tex. Crim. App. 1976) (State is not required to disclose the identity of rebuttal witnesses); Hoagland v. State, 494 S.W.2d 186, 189 (Tex. Crim. App. 1973) (noting that the State cannot intend to introduce true rebuttal evidence before trial because the State does not know what theories the defendant will advance); Washington v. State, 943 S.W.2d 501, 506 (Tex. App. - Fort Worth 1997, pet. ref'd) (to hold that State is required to give advance notice of rebuttal extraneous offenses under art. 37.07 "would require the State to predict all possible arguments that a defendant might raise and then notify the defendant of the evidence that would rebut those possible arguments"); Doyle v. State, 875 S.W.2d 21, 22 (Tex. App. - Tyler 1994, no pet.) (concluding that it is not reasonable for the State to anticipate needing undisclosed witness to rebut defense testimony that it could not foresee); Stringer v. State, 845 S.W.2d 400, 403 (Tex. App. - Houston [1^st Dist.] 1992, pet. ref'd) (Rule 404(b) notice requirement not applicable to rebuttal evidence); Yohey v. State, 801 S.W.2d 232, 235 (Tex. App. - San Antonio, 1990, pet. ref'd) ("[b]y its very terms the notice requirements [of Rule 404(b)] are not applicable to rebuttal evidence").

7. See Tex. R. Evid. 405(a) ("[i[n all cases where [character] testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct").

8. See generally Goode, Wellborn & Sharlot, Texas Rules of Evidence: Civil and Criminal §607.3 ("Impeachment by Contradiction") (2d ed. 1993).