Can You Use Evidence of Extraneous Offenses In a Texas Court ?

Evidence of extraneous offenses is admissible, however, for a number of other purposes, including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. See TEX. R. EVID. 404(b). Therefore, evidence of an extraneous offense is admissible if it: (1) is introduced for a purpose other than character conformity; (2) has relevance to a "fact of consequence"; (3) remains free of any other constitutional or statutory prohibitions. See Rankin, 974 S.W.2d at 709. As long as the trial court's ruling is within the zone of reasonableness, the trial court did not abuse its discretion, and the ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). Under Rule 402 of the Texas Rules of Evidence, all relevant evidence is admissible unless otherwise provided in a constitution, statute, or rule. See TEX. R. EVID. 402; Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996). Relevant evidence is evidence "having any tendency to make the existence of any fact of consequence . . . more probable or less probable than it would be without the evidence." See TEX. R. EVID. 401. One exception to the broad admissibility of Rule 402 is Rule 404(b) which prohibits the admission of extraneous offenses as evidence of a person's character trait to prove the person acted in conformity with that trait. See TEX. R. EVID. 404(b); Rankin, 974 S.W.2d at 709. Under article 37.07, section 3(a) of the code of criminal procedure, evidence of extraneous crimes or bad acts is admissible during the punishment phase to the extent the trial court deems it relevant to sentencing. TEX. CODE CRIM. PROC. ANN. art. 37.07, 3(a) (Vernon Supp. 2000). Evidence of extraneous bad acts and offenses may not be considered in assessing punishment until the fact finder is satisfied beyond a reasonable doubt that such acts or offenses are attributable to the defendant. Id.; Fields v. State, 1 S.W.2d 686, 688 (Tex. Crim. App. 1999). The court of criminal appeals recently held that, although the code of criminal procedure is silent about the submission of a jury instruction to this effect, an instruction is logically required if the jury is to consider the extraneous offense evidence under the statutorily prescribed reasonable doubt standard. Huizar v. State, 12 S.W.3d 479, (Tex. Crim. App. Feb. 23, 2000) (op. on reh'g). The court further held that article 37.07, section 3(a)'s requirement that the jury be satisfied of the defendant's culpability in the extraneous offenses beyond a reasonable doubt is "law applicable to the case" such that, when applicable, the trial court is required to include such an instruction in the punishment charge absent an objection or request. Id. at 12. Accordingly, in this case, the trial court erred in failing to instruct the jury pursuant to article 37.07, section 3(a).