Punishment for Extraneous Offenses In Texas
In Lomas v. State, 707 S.W.2d 566, 568-69 (Tex. Crim. App. 1986), the court explained that the prosecutor may elicit evidence of extraneous offenses surrounding the commission of the offense, and ask the jury to consider how these facts and circumstances aggravate the offense charged.
The prosecutor may not, however, encourage the jury to include additional punishment for a collateral crime. See id.
The Lomas court stated that "these competing statements of law create a delicate balance between a defendant's right to a sentence aimed at only punishing him for a charged offense and society's interest in punishment that is based upon a complete understanding of a defendant's mens rea regarding that charged offense." Id.
Subsequent to Lomas, in 1993, the Texas Legislature amended article 37.07 3(a) to allow the jury to consider at the punishment phase of a trial extraneous offenses that were not adjudicated, but only if the State proved beyond a reasonable doubt that the offense occurred and that the defendant committed the offense.
See Act of May 29, 1993, 73rd Leg., R.S., ch. 900, 5.05, 1993 Tex. Gen. Laws 3586, (current version at TEX. CODE CRIM. PROC. ANN. art. 37.07 3(a) (Vernon Supp. 1999)); see also Paez v. State, 995 S.W.2d 163, 167 (Tex. App.--San Antonio 1999, pet. ref'd).
An accused may not be tried for a collateral offense or for being a criminal generally. Castillo v. State, 739 S.W.2d 280, 289 (Tex. Crim. App. 1987), cert. denied, 487 U.S. 1228, 101 L. Ed. 2d 924, 108 S. Ct. 2889 (1988).
However, evidence of an extraneous offense may be admissible if it is relevant apart from its tendency to prove character of a person to show that he acted in conformity therewith, and its probative effect is not substantially outweighed by unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 386-87 (Tex. Crim. App. 1990) (opinion on rehearing); TEX. R. EVID. 404(b).