extraneous offense instruction in Texas

2021Therefore, we hold that the trial court erred when it did not include the extraneous- offense instruction in its charge to the jury. 9 If the appellant failed to object to the jury-charge error, as here, we reverse only if the appellant suffered “egregious harm.” Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

2009Almanza v. State , 686 S.W.2d 157, 174 (Tex. Crim.

2024See Martinez, 313 S.W.3d at 368 .

2012A charge that omits the extraneous offense instruction but includes a general instruction on the State‘s burden of proof, as here, ―weighs neither for or against a finding of egregious harm.‖ Id. at 367 .

2007Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999).

2007See Medina v. State, 7 S.W.3d 633, 643 (Tex.Crim.App.1999). 21 .

2006See Escovedo v. State, 902 S.W.2d 109, 114-15 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d) (stating that “one factor to consider is whether there is any actual indication that the jury might have considered the extraneous offense because of the absence of an instruction on the burden of proof, that is, would the jury have disregarded or discounted the extraneous offense if the instruction had been included”).

2006See Escovedo v. State , 902 S.W.2d 109, 114-15 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd) (stating that "one factor to consider is whether there is any actual indication that the jury might have considered the extraneous offense because of the absence of an instruction on the burden of proof, that is, would the jury have disregarded or discounted the extraneous offense if the instruction had been included").

2009Phillips v. State, 130 S.W.3d 343 , 353 n. 11 (Tex.App.-Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex.Crim.App.2006). 7 .

2009Phillips v. State , 130 S.W.3d 343 , 353 n.11 (Tex.App.–Houston [14 th Dist.] 2004), aff’d, 193 S.W.3d 904 (Tex.Crim.App. 2006). 7: Under the Texas Constitution, in order for a jury to return a verdict of guilty, the jury must reach a unanimous verdict on which single, specific criminal act the defendant committed.

2026First, our sister court has noted the absence of cases “holding that a trial court is prohibited from including a limiting instruction in such a situation.” Ferreira v. State, 514 S.W.3d 297, 301 (Tex. App.—Houston [14th Dist.] 2016, pet. 5 ref’d); accord Yepez v. State, 696 S.W.3d 1 , 9 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (“Appellant has not directed us to, nor have we found, any cases holding that a trial court errs by including an extraneous-offense limiting instruction in the jury charge over a defendant’s objection in such circumstances.”).

2023See generally Ferreira, 514 S.W.3d at 301 (“But appellant has not cited, nor have we found, any cases holding that a trial court is prohibited from including a limiting instruction in such a situation.”); Esparza, 513 S.W.3d at 648 (“Delgado does not say, and it does not follow, that trial courts are prohibited from including an extraneous offense instruction raised by the evidence if the defendant objects.

2024See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim.

2014There is no evidence of an extraneous offense committed by appellant in our record warranting an extraneous offense instruction. 3 See id. -, cf. Clark, 365 S.W.3d at 333.

2022Additionally, the prosecutor did not emphasize Simpson’s two prior misdemeanor assault convictions, and immediately at the conclusion of Simpson’s testimony, the trial judge provided an extraneous-offense instruction prohibiting the jury from considering any of Simpson’s prior convictions for any purpose.1 See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim.

2016Moreover, the jury charges also specified that Hodge was "on trial solely on the charges contained in the indictment.” See Thrift v. State, 176 S.W.3d 221, 224 (Tex.Crim.App.2005) (explaining that appellate courts "presume the jury fol lows the trial court’s instructions in the manner presented”). .

2010Assuming without deciding that the district court erred in admitting the first type of evidence, "[t]he erroneous admission of evidence of an extraneous offense in violation of the evidentiary rules does not violate the state or federal constitutions." See Roethel v. State , 80 S.W.3d 276, 281 (Tex. App.--Austin 2002, no pet.).

2010Assuming without deciding that the district court erred in admitting the first type of evidence, “[t]he erroneous admission of evidence of an extraneous offense in violation of the evidentiary rules does not violate the state or federal constitutions.” See Roethel v. State, 80 S.W.3d 276, 281 (Tex. App.—Austin 2002, no pet.).

2004See Wilson , 3 S.W.3d at 226 . [11] For all the offenses, the jury received an A extraneous offense instruction @ informing it that it could not consider any of the offenses unless it found beyond a reasonable doubt that the defendant committed them and even then it could consider them only A in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant . . . in connection with the offense . . . alleged in the indictment . . . . @ This instruction was appropriate, but it did not clear up any confusion on the jury = s

2003See Wilson , 3 S.W.3d at 226 . [10] For all the offenses, the jury received an A extraneous offense instruction @ informing it that it could not consider any of the offenses unless it found beyond a reasonable doubt that the defendant committed them and even then it could consider them only A in determining the motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident of the defendant . . . in connection with the offense . . . alleged in the indictment . . . . @ This instruction was appropriate, but it did not clear up any confusion on the jury = s

2002Avila v. State , 18 S.W.3d 736, 741-42 (Tex. App.--San Antonio 2000, no pet.); see also Tex. R.

2002Avila v. State, 18 S.W.3d 736, 741-42 (Tex.App.-San Antonio 2000, no pet.); see also Tex.R.

2014Huizar v. State, 12 S.W.3d 479 , 484–85 (Tex. Crim.

2014Huizar v. State, 12 S.W.3d 479, 484-85 (Tex.Crim.App.2000).

2025As for Parker’s complaint that counsel rendered ineffective assistance by failing to request an extraneous-offense instruction, the Texas Court of Criminal Appeals has noted that, when it comes to extraneous-offense instructions during guilt/innocence, “a party might well intentionally forego a limiting instruction as part of its ‘deliberate . . . trial strategy to minimize the jury’s recollection of the unfavorable evidence.’” Delgado, 235 S.W.3d at 250 (quoting United States v. Johnson, 46 F.3d 1166, 1171 (1995)).

2020In Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim.

2025As for Parker’s complaint that counsel rendered ineffective assistance by failing to request an extraneous-offense instruction, the Texas Court of Criminal Appeals has noted that, when it comes to extraneous-offense instructions during guilt/innocence, “a party might well intentionally forego a limiting instruction as part of its ‘deliberate . . . trial strategy to minimize the jury’s recollection of the unfavorable evidence.’” Delgado, 235 S.W.3d at 250 (quoting United States v. Johnson, 46 F.3d 1166, 1171 (1995)).

2025“We employ a two-step process in our review of alleged jury-charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.

2025See Pugh v. State, No. 06-14-00066-CR, 2015 WL 1699925 , at *5 (Tex. App.—Texarkana Apr. 15, 2015, pet. ref’d) (mem. op., not designated for publication) (rejecting the argument that a jury charge must 6 See Alvarado v. State, 704 S.W.2d 36 (Tex. Crim.

2025“We employ a two-step process in our review of alleged jury-charge error.” Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim.

2024Accordingly, affording Gonzalez the benefit of the doubt, we will conduct a full extraneous-offense analysis instead of concluding that no extraneous-offense evidence was admitted. 10 We “must review the trial court’s ruling in light of what was before the trial court at the time the ruling was made.” Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim.

2024See id. (citing Dinkins, 894 S.W.2d at 355 ). 2 At closing arguments, the State rhetorically asked, “Do we want our officers to investigate attempted kidnapping of 14-year-old girls?” Defense counsel objected with the statement, “We are so far beyond that, and that was strictly prohibited to the jury trial.” Thus, defense counsel’s objection appears to be similar to the earlier objection to the “scope” of the prosecutor’s questions and not an objection to the reference to an extraneous offense as in violation of any rule of evidence.

2024See id. (citing Dinkins, 894 S.W.2d at 355 ). 2 At closing arguments, the State rhetorically asked, “Do we want our officers to investigate attempted kidnapping of 14-year-old girls?” Defense counsel objected with the statement, “We are so far beyond that, and that was strictly prohibited to the jury trial.” Thus, defense counsel’s objection appears to be similar to the earlier objection to the “scope” of the prosecutor’s questions and not an objection to the reference to an extraneous offense as in violation of any rule of evidence.

2024“An egregious harm determination must be based on a finding of actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim.

2023See Steele v. State, 490 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (discussing cases and presenting analysis). 2 The attorneys and court then continued discussion on the language for the extraneous offense instruction.

2023See generally Ferreira, 514 S.W.3d at 301 (“But appellant has not cited, nor have we found, any cases holding that a trial court is prohibited from including a limiting instruction in such a situation.”); Esparza, 513 S.W.3d at 648 (“Delgado does not say, and it does not follow, that trial courts are prohibited from including an extraneous offense instruction raised by the evidence if the defendant objects.

2022See Gelinas v. State, 398 S.W.3d 703, 709 (Tex. Crim.

2021PROC. art. 38.23 (West 2018). “[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim.

2018See Beam v. State, 447 S.W.3d 401, 405 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“[P]otential that the jury may be unfairly prejudiced by the defendant’s character conformity . . . can be minimized through a -8- 04-17-00230-CR limiting instruction.”); see also Sifuentes v. State, 494 S.W.3d 806, 817 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“We generally presume a jury followed a trial court’s instruction regarding consideration of evidence.”).