Does anyone know of a case or cases that say in no uncertain terms whether judgments showing convictions for extraneous crimes that are on appeal are admissible in the punishment phase of a non-capital trial?

A great many cases, such as theis one - Flores v. State, 102 S.W.3d 336 (Tex.App.-Eastland,2003) Mar 20, 2003 - stand for the proposition that a conviction on appeal cannot from the basis for a revocation of probation. The facts of the conviction on appeal may. I would think the correllary would be that a j&s alone would be irrelevant and 403 at a punishmenthearing on a different case. It seems the safer practice would be to prove up the facts from the previous, on-appael conviction. I can think of some risks, as well.

I agree that, when in doubt, we could just prove up the crime without the judgment, but that is not always possible. So I'm just looking for something to clarify what I think I am reading in article 37.07.

I seem to remember that it used to be only permissible to proove up "final convictions" at punishment. But then, my memory tells me that the Leg. came back in 1993, after Grunsfeld, and started trying to make it clear that it meant what it said when, in the prior session, it amended 37.07 to say "any matter the court deems relevant."

Now the Code, at 37.07, sec. 3(a)(1),says in pertinent part, this:

". . . evidence may be offered . . . as to any matter the court deems relevant . . . and . . . any other evidence of an extraneous crime . . . regardless of whether he has previously been . . . finally convicted of the crime . . .."

This language seems to me to say that a judgment of conviction (i.e., evidence of an extraneous crime) may be admitted regardless of whether a defendant is "finally convicted" (i.e., his case has been affirmed on appeal).

Maybe I am missing something here. I guess that is why I posted this inquiry. I don't want to be misleading anybody about it. And, I don't remember any cases directly on point with the "judgment pending on appeal" scenario.

Please feel free to correct my interpretation or to point out what I am missing, because I just want to know what the right answer is.

Thanks.

Your problem is going to be Rule of Evidence 803(22): "In all cases, pendency of an appeal renders such evidence inadmissible."

Thank you. That helps a lot.

Rule 803 seems to treat the judgment itself as a statement (hearsay). Maybe rather than using the piece of paper to prove the commission of the extraneous offense, you simply call the declarant (i.e., the judge) to prove up the prior statement. Although the phrase "such evidence" in the last sentence of 803(22), broadly refers to all "evidence of a judgment", it cannot be referring to something that is not hearsay. Certainly this would not always be an easier way to prove the extraneous bad conduct, but it could still represent a short-cut in some cases. You might need that witness to prove the identity of the person in the prior proceeding anyway. Of course, I doubt judges would appreciate being used in this capacity.

Maybe you could just use the verdict under 803(8) (which contains no limitation like sudivision 22) or call a juror from the prior case to state the result of the prior proceeding, or better yet use a stipulation of evidence from the prior case under 801(e)(2)(A). There really ought to be a way to avoid having to re-try the prior case when a finding of guilt has already been made. But, perhaps the limitation "is shown beyond reasonable doubt by evidence" requires such a re-trial. The statute would be better worded to say "even if he has not been charged with or finally convicted of the crime or act", since a final conviction comes in as part of "the prior criminal record". The federal rule merely says the pendency of an appeal may affect the weight to be given to the judgment and not its admissibility. That is a better approach, but unfortunately not the one chosen by the Court of Criminal Appeals.

I think the Texas Rule is a reasonable approach. It also protects the proponent of the evidence. If the conviction should be reversed and you used the judgment (or judge) to prove it up, then a writ is likely to follow, reversing that case as well.

On the other hand, if you prove up the extraneous through direct evidence of the crime or bad act, you are safe even if the prior judgment is reversed.

I think it would be a really bad idea to try to weasel around the Rule. It clearly intends to prevent a proponent from using the judicial result as evidence of guilt pending appeal of that case. Just prove it up with the actual witnesses. It is also more probative and likely to be given greater weight by the jury or judge.

You risk the reversal John writes about, even if only as to punishment. I have found that the juror's required level of proof of extraneous acts is a bit more relaxed than in the case in chief, although you will always have to satisfy the court that you have enough to put the acts before the jury. I can imagine a number of reasons why retrying the case on appeal might be dificult or impossible but if you are trying the defendant again while a case is on appeal one would infer the case on appeal didn't bring a big number anyhow. Maybe discretion is the better part of valor this time?

I was merely trying to address the situation where, as you stated, it was not going to be possible to prove up the prior conduct in the normal way. Obviously, if you have that option you should use it. If that is not available, the consensus seems to be to just give up.

But, I must say that if you thought there was any significant chance the earlier judgment was not valid, then you should not seek to rely on the outcome of the prior proceeding. In my experience, however, more than 8 times out of 10 the appeal is not going to ultimately affect the prior finding of guilt, so I would feel relatively comfortable in relying upon the initial result- even if a new punishment phase was being risked. This all assumes the prior conduct is something the judge or jury really needs to know about (i.e., is likely to affect the punishment assessed).