Opinion issued September 17, 2009
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00681-CR
NO. 01-07-00682-CR
DAVID ASHIRE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause Nos. 1110302 & 1110303
CONCURRING OPINION
I concur, and make the following observations.
I read the colloquy between the bench and counsel for Defense and State to have included a properly preserved Rule 403 objection that extraneous-offense evidence of the 1995 hit-and-run collision should not have been admitted at the punishment phase of the trial because the probative value of such evidence was significantly outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403. Such an objection is distinct from that of whether the evidence met the requirements of Code of Criminal Procedure article 37.07[1] to be relevant for admission at punishment, which objection appellant also made at trial. See Henderson v. State, 29 S.W.3d 616, 626 n.11 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d) (noting that even if evidence is relevant at punishment, it is still subject to a Rule 403 analysis).
Despite the preservation of such an objection at trial, on appeal, we have been presented with a complaint only that the trial court improperly admitted this evidence under the standards of article 37.07 because the State failed to show that appellant had committed the extraneous offense beyond a reasonable doubt. Although appellant cited cases in his brief relating to a Rule 403 objection, all of the cited authorities dealt with the admission of extraneous offenses at the guilt-innocence phase of trial, under Texas Rule of Evidence 404(b), rather than at the punishment phase of trial under article 37.07. Appellant also made no argument on appeal that this evidence should not have been admitted at punishment because the probative value of such evidence was significantly outweighed by the danger of unfair prejudice. See Tex. R. App. P. 38.1(i). Therefore, such a contention was not before us on appeal, and we have not reviewed it. See Jones v. State, 119 S.W.3d 766, 784 (Tex. Crim. App. 2003) (holding that when appellant did not present any authority or argument in support of complaint on appeal, issue was inadequately briefed).
Jim Sharp
Justice
Panel consists of Justices Bland, Sharp, and Taft.
Justice Sharp, concurring.
Publish. See Tex. R. App. P. 47.2(b).
1 “[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.” Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2008).