The majority holds that "in an appropriate case," the State may satisfy the requirements of Texas Rule of Evidence 404(b) by turning over a stack of witness statements to the defense. Hayden v. State, No. 610-00, slip. op. at 5 (Tex. Crim. App. Nov. 14, 2001) (hereinafter cited as Majority Op.).

This opinion by the majority can be read in two ways-neither of which comports with the Rules of Evidence or the case law of this Court. On the one hand, the majority's opinion may be read in light of its ostensible holding: that the trial court did not abuse it discretion in admitting the extraneous offenses because the State delivered copies of its witness statements to the defense; and delivery of witness statements may "in an appropriate case" constitute reasonable notice of the State's intent to introduce offenses therein. Majority Op. at 5. The notice may be reasonable if the delivery is made roughly contemporaneously to a defendant's request, so as to imply notice of the State's intent. Id. at 5-6. ⁽¹⁾ If that is truly the majority's holding, the holding stands in direct contravention to this Court's opinion in Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995). ⁽²⁾

On the other hand, if the majority distinguishes Buchanan on the ground that the Buchanan court addressed the issue of whether or not the defendant had any notice of the State's intent to introduce extraneous offense evidence, whereas the case before us addresses the sufficiency of the notice, then the majority's opinion still flies in the face of the logic and spirit of Buchanan. Moreover, it creates a lopsided burden on the defense to propound a specific request for notice of 404(b) evidence, while allowing the State a partial return to "trial by ambush" contrary to our opinions in Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998) and Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993) (per curiam). Because I cannot agree with the majority's reasoning or result, I dissent.

Background

I do not dispute the majority's description of the background of this case. I merely supplement it as follows:

Appellant Bobby Ray Hayden, Jr. was charged with indecency with a child. Initially, appellant was charged in separate indictments for exposing his genitals to two children: A.R. and K.S. The State dismissed appellant's indictment for exposing his genitals to K.S. after learning that appellant was not undressed on the occasion that gave rise to that indictment. At trial, the State called A.R., A.R.'s brother K.R., and A.R.'s friend K.S. to testify. From these witnesses, the State elicited testimony on the following incidents: appellant exposed himself to A.R.; appellant forced A.R. to undress and spread her legs for him; appellant forced A.R. and her friend, K.S., to undress and spread their legs for him; appellant forced A.R. and her brother, K.R., to watch a pornographic film; appellant struck A.R. when she refused to undress for him; and appellant fondled A.R. when he checked to see if she had wet her bed. Hayden v. State, 13 S.W.3d 69, 75 (Tex. App.-Texarkana 2000).

Although the witness statements are not before us, it is undisputed that the statements contained all of the contested extraneous offenses. ⁽³⁾ Majority Op. at 7. It is also undisputed that the State specifically responded to the defendant's request for notice of 404(b) evidence by providing defense counsel with the name of one witness, K.S. Id. at 2. Moreover, although it is unclear when the defense received copies of witness statements from the State, it is clear that at some point, the defense received copies of K.S.'s, A.R.'s and K.R.'s witness statements Id. Finally, K.S., the only witness named in the State's response to the defendant's request for notice of 404(b) evidence, was involved in only one of the complained-of instances of extraneous bad conduct. Hayden, 13 S.W.3d at 75.

Discussion The majority frames the issue in this case as one of first impression in this Court. Majority Op. at 4. According to the majority, this case is not answered by Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995) because the State in this case delivered witness statements to defense counsel, and "[i]t is the fact of delivery, not the content of the statement, that gave the defense notice here but not in Buchanan." Id. at 7, n. 15.

However, it is clear from our opinion in Buchanan that delivery took place in that case as it did in this one. In Buchanan, the State argued specifically that it had met its obligations under Rule 404(b) because the defendant had actual notice of the extraneous offense it sought to introduce. Buchanan, 911 S.W.2d at 15. In support of this argument, the State pointed to its open file policy, defense counsel's admission that he was aware of the offense report containing the extraneous offense, and a motion in limine, which demonstrated defense counsel was aware of the offense and the State's intent to introduce it. Id.

The First Court of Appeals held that the defendant's actual notice of the evidence satisfied the State's obligations under Rule 404(b). Buchanan v. State, 881 S.W.2d 376, 379-80 (Tex. App.-Houston [1^st Dist.] 1994). We overturned this holding by the Court of Appeals. We stated:

We cannot conclude that the mere opening of [the State's] file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice of "intent to introduce" such evidence. The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an "intent to introduce" such evidence in its case in chief.

911 S.W.2d at 15.

Nevertheless, the majority finds our holding in Buchanan inapplicable because the State's delivery of witness statements may constitute reasonable notice of the State's intent to introduce extraneous offenses therein. Majority Op. at 7. There is, however, no tenable argument that delivering witness statements to the defense at an unknown point in the trial proceedings demonstrates the State's intent to introduce certain extraneous offenses any more than the State simply opening its file did in Buchanan. 911 S.W.2d at 15.

In Buchanan we held that the State may not meet its burden of giving notice of its intent to introduce certain extraneous offense evidence by simply opening its file and giving defense counsel actual notice of the evidence. 911 S.W.2d at 15. The majority now holds that the State may meet its burden of giving notice under Rule 404(b) by simply delivering witness statements to the defense-even if the delivery is not in response to the defendant's request-because "the purpose of Rule 404(b) notice is to prevent surprise." Majority Op. at 5. However, permitting the State to satisfy its duty to provide reasonable notice by turning over a pile of witness statements to the defense contradicts the level of specificity we require of defendants in making the request for notice.

In Mitchell v. State, we chided a defendant who attempted to rely on a discovery motion that the trial court had not ruled upon as a request for notice of the State's intent to introduce 404(b) evidence. ⁽⁴⁾ 982 S.W.2d at 427. The defendant argued that a ruling by the trial court was not necessary because the motion also contained a request for the State to indicate whether or not it intended to comply with Article 37.07 § 3(g). We noted that the "motion contained specific language requesting the State to issue a written confirmation of compliance or non-compliance," that the State had been served with the motion, and that the Court of Appeals read the language in the motion as a request for the State to give notice. Id. at 426, 427. We overturned the Court of Appeals, stating:

Pursuant to our recognition…of the distinction between a request for action addressed to the trial court and a request for action addressed to the State, we hold that when a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under Article 37.07, § 3 (g). To hold otherwise would encourage gamesmanship. The opposite rule could encourage defendants to bury requests in voluminous motions, hoping the State would either overlook it or believe it the request [sic] to be contingent on a court order. An ad hoc approach would encourage gamesmanship on the part of both parties.

Id. (relying on Espinosa, 853 S.W.2d at 39). (Emphasis added) (Footnote omitted).

Mitchell stands squarely for the proposition that a defendant's compliance with Rule 404(b) is not based on whether or not the State was aware that the defendant was requesting notice. We held that the defendant had not made a request for notice simply by including the words requesting notice in a motion that was served on the State at some point before trial, and that the request was not effective until the motion had been ruled upon by the trial court. See id at 426. Yet the majority holds that the State's compliance with Rule 404(b) may be measured by the extent the offenses surprise defense counsel. The majority does not even require that the defense be aware of which offenses the State intends to introduce-holding instead that through awareness of the offenses themselves, the defense is implicitly on notice that the offenses are subject to introduction.

Rule 404(b) permits the introduction of extraneous offenses for certain purposes, 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." The majority rewrites the Rule to mean that extraneous offenses may be admissible, provided that upon timely, specific ⁽⁵⁾ request by the defendant, the State gives the defense some documents from which the defense should be able to determine which extraneous offenses the defendant committed and guess which among them the State intends to introduce. The majority not only encourages gamesmanship with respect to Rule 404(b), it gives the State a decided advantage. See Mitchell, 982 S.W.2d at 426. On the one hand, defense counsel may be encouraged not to become intimately acquainted with a client's file in order to argue that the defendant had no actual notice of the offenses. The State, on the other hand, may be encouraged to bury the extraneous offenses it intends to introduce in a voluminous, confusing file and argue that it gave reasonable notice of its intent because it delivered the file on the heels of a timely request for notice by the defendant. There is simply no reason to encourage deception in the State's 404(b) response, while at the same time requiring specificity on the part of the defendant in issuing a request.

The majority does not even make a persuasive attempt to limit its holding to the facts of the case before us, stating:

[T]he trial court did not abuse its discretion in concluding that delivery of witness statements to the defense in this particular case provided appellant with reasonable notice. Conversely, had the trial judge ruled that the State's notice was not reasonable under these circumstances, that factual determination would not have constituted an abuse of discretion.

Majority Op. at 6-7; see also id. at 7-8, n.16. Through this professed deference to the trial court's decision, the majority issues to itself an open invitation to disturb the ruling of the Court of Appeals. There is no indication that the Court of Appeals misapplied the law to the facts of this case. The appeals court may not have reached the same result the majority would have, but this is not the standard by which we review the decisions of our intermediate appellate courts. Arcila v. State, 834 S.W.2d 357, 360-61 (Tex. Crim. App. 1992).

The Court of Appeals held:

Since the precise language of Rule 404(b) specifically requires the State to give notice of its "intent to introduce" the extraneous offense, we find that the better approach is to focus, not only on eliminating the surprise to the defendant, but also whether the State has informed the accused of its intent to introduce these offenses at trial.

Hayden, 13 S.W.3d at 77. The majority overturns this holding by the Court of Appeals because it determines that, despite our holdings in Mitchell and Espinosa, we may measure the State's compliance with Rule 404(b) based on whether or not the defense was surprised by the existence of the offenses. This holding is a misreading of Buchanan, Mitchell, Espinosa and Rule 404(b). I dissent.

Delivered November 14, 2001

Publish

1. The majority's decision to overturn the Court of Appeals in this case based on the notion that well-timed delivery of witness statements may constitute reasonable notice under Rule 404(b) is particularly troubling: in the case before us, there is no record of when the statements were received by the defense. Majority Op. at 7. Indeed, if there is any indication in the record, it is the objection of defense counsel at the beginning of trial that "discovery does not satisfy 404(b)." The State has never argued that the witness statements were delivered in response to the defendant's request. The State argues instead that it provided reasonable notice, because defense counsel was not surprised by the extraneous offenses.

2. The flaws inherent in reasoning that intent may be implied from the fact of delivery of witness statements are readily apparent when the reasoning is applied to other provisions of the Code of Criminal Procedure. If, for instance, a defendant hands the State a stack of documents from psychiatrists and other medical personnel discussing his mental problems, hasn't he implied notice of his intent to prove the insanity defense? According to the majority's logic he has. According to Texas law, he has not. See Tex. Code Crim. Proc. art. 46.02 § 2 (requiring defendant to provide timely notice of his intent to offer evidence supporting insanity defense).

3. In light of the majority's disposition of this case, I similarly decline to address whether or not the Court of Appeals correctly ruled that the incidents were extraneous offenses and not same transaction contextual evidence. See Majority Op. at 7.

4. The motion in Mitchell was one for the trial court to order the State to give notice of extraneous acts under Article 37.07 § 3(g) of the Code of Criminal Procedure. Mitchell, 982 S.W.2d at 426. Article 37.07 § 3(g) outlines the notice requirements for introducing extraneous offense evidence at the punishment phase of a trial. It provides specifically that "notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b)." Therefore, the Mitchell holding applies with equal force to cases that arise under Rule 404(b).

5. Mitchell, 982 S.W.2d at 426.