05/27/2024
Extraneous offense and prior misconduct evidence create what is known as a “propensity inference” of guilt with a jury. This damaging evidence undermines the historical foundation of due process, which states that a criminal defendant should be tried for what he did, not who he is.
Defense counsel must be prepared to do everything possible to keep extraneous evidence out of the trial and, if the evidence is admitted, to do everything possible to minimize its propensity inference before the jury. This includes making a timely request for a limiting instruction instructing the jury to use such evidence only for a limited purpose, even if the skunk is already in the jury box.
More than four decades ago, the First District Court of Appeals, based in Houston, defined an extraneous offense as: “… any act or misconduct, whether resulting in prosecution or not, which is not shown in the charging instrument and which …