Are ''Extraneous Offense'' Evidence Admissible In Texas ?

The general rule is that an accused may not be tried for being a criminal generally. Couret v. State, 792 S.W.2d 106, 107 (Tex. Crim. App. 1990); Dabney v. State, 816 S.W.2d 525, 527 (Tex. App.--Houston [1st Dist.] 1991, pet. ref'd). Evidence of other crimes, wrongs, or acts is not admissible if it does nothing more than establish the bad character of an accused person in order to show action in conformity therewith. TEX. R. EVID. 404(b). The trial court has no discretion to admit such evidence over objection. Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (opin. on reh'g). Extraneous offense evidence may be relevant apart from its tendency to show character conformity, such as for purposes of proving motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b). Evidence is "relevant" that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." TEX. R. EVID. 401. All relevant evidence is admissible except as otherwise provided by the rules. Evidence which is not relevant is inadmissible. TEX. R. EVID. 402. It is incumbent upon the proponent of the evidence to satisfy its relevance in order to allow the trial court to determine if its probative value substantially outweighs the inflammatory aspects of unfair prejudice caused by the introduction of the damaging evidence. TEX. R. EVID. 403. If the proof necessary to establish an elemental fact of the primary offense cannot be inferred from the act itself, or if the accused presents evidence to rebut the inference of such fact, evidence of extraneous offenses can be admissible if they are relevant to the issue and their prejudice does not outweigh the probative value of the evidence. Johnson v. State, 932 S.W.2d 296, 302 (Tex. App.--Austin 1996, pet. ref'd); Hurtado v. State, 722 S.W.2d 184, 188 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). However, when the elemental fact can be inferred from the act itself and the defense does not contest this element, admission of an extraneous offense oftentimes is cumulative of the proof established and serves only to demonstrate the accused's bad character. See Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972); Jones v. State, 481 S.W.2d 900, 902 (Tex. Crim. App. 1972).