I think extraneous offenses are admissible to prove identity even if they are not signature crimes. I usually rely on the argument that Rule 404(b) does not contain a "signature crime" caveat; that the rule is an old common law leftover. So, an extraneous that helps prove the identity of the defendant should be admissible even if it is not "similar to" the charged offense (assuming it does not offend R. 403).

Unfortunately, I've never really found good case law for this argument, aside from a few COA cases that imply I'm correct. A colleague of mine thinks he has read a paper on this topic. Can anyone help me out here?

Hi Kim,

I'm trying to think about a case to help you, but I find myself wondering: in what circumstances will an extraneous show identity if not by a "similar offense?" Help me out a little.

If you don't have a signature crime, and you want to use an extraneous offense as proof that the defendant committed the charged offense, wouldn't you be talking about, (1) motive, (2) opportunity, or (3) rebuting a defensive theory.

Bisby v. State, 907 S.W.2d 949, 959 (Tex.App. -- Fort Worth 1995, pet. ref'd) (murder prosecution; defendant's prior bad acts toward victim admissible to show he had motive to kill victim);
Williams v. State, 948 S.W.2d 954, 958 (Tex.App. -- Waco 1997, pet. ref'd) (in arson prosecution, where building was locked, State allowed to show that defendant had previously twice gotten into the building through a skylight);
Jones v. State, 119 S.W.3d 412, 420-21(Tex.App. -- Fort Worth 2003, no pet.) (extraneous offenses were admissible to rebut defensive theory that victim framed defendant)

Here are some examples:

Garcia, 893 S.W.2d 17 (Corpus 94, pr) - holding that evidence that the defendant rode a stolen bicycle to a burglary (the extraneous) would have been admissible to prove identity if the State could have tied the baseball cap worn by the burglar to the baseball cap worn by the bicycle rider

Esteves, 845 S.W.2d 291 (1st Dist. 92) rev'd on other grounds - holding that evidence of extraneous criminal mischief and car theft was admissible to prove identity in robbery case

Vasquez, 814 S.W.2d 773 (14th Dist. 91, pr) - holding that evidence of purse snatching committed from D's car was relevant to prove D's identity in prosecution for vehicle homicide, committed while fleeing police pursuit

What about this example: D is found in illegal possession of a gun that was used as a murder weapon. We offer it to prove he's the murderer. Technically, that's an extraneous crime that we use to prove id., isn't it? Or does a DW allegation in the indictment make it not extraneous?

In my case, the court excluded evidence that D possessed cocaine (found in another room in a drug house) because it "differed" from the charged offense of delivery of cocaine.

It just does not seem right to me that there is this limit on use of extraneouses to prove identity when no such limit exists in the evidence rules.

Kim,

I think I know what you are saying. I found one case that may help:

Johnson v. State 68 S.W.3d 644 (Tex Crim. App. 2002).

Here is an excerpt:
Ordinarily, to be admissible to show identity, an extraneous offense must be so similar to the charged offense as to mark the offenses as the defendant's handiwork. n22 For such evidence to be admissible, identity must be an issue in the case. n23 In determining similarity of the offenses for the purpose of establishing identity, appellate courts should take into account both the specific characteristics of the various offenses and the time interval between them.
Here, the time interval was very short. If the offenses were not "same transaction contextual offenses" they came very close to being such. The exactness that might be required of an offense committed at a more remote period of time might not necessarily be required for an offense committed within a very short period of time. n25 The offenses presented here were committed within a few hours of each other, directed at lone women, and involved the victim's red Ford Taurus. Wilson and Byers specifically identified appellant as the driver of the victim's car on the occasions in question. Even without other similarities, possession of the victim's car is a significant piece of evidence tying appellant to the victim's death. And identity was the only disputed issue in the case. Though appellant's challenges on the identity issue may not have been persuasive, that was nevertheless his only defense. He did not attempt to show consent, self-defense, duress, necessity, or any other defensive theory. Appellant challenged the voluntariness of his confession and attempted to minimize the eyewitness testimony and the physical evidence.

The rule is only that you can't offer the extraneous acts to show character conformity. Aside from that, the only reason to keep out an extraneous offense would be due to unfair prejudice. Since the "other purposes" is not an exhaustive list, all you should have to do is show that the extraneous offense is relevant to the current crime in some way other than showing the defendant's propensity to commit it. Then the only issue left is whether that probative value is outweighed by the prejudicial effect of the evidence. There is nothing that requires that identity can only be proved by "signature crimes."

Thanks, Kev. I know the case, and it does help. It aptly demonstrates that the similarity between the offenses is a 403 issue, not a 404(b) issue. And since my guy didn't make a 403 objection, I should win! I think that is how the evidence rules accommodate the common law sigature crime rule - in rule 403. What do you think?

Kim,

Excellent. I agree with you. Don't you love this forum thing?

I just discovered I could use it a few weeks ago and I really like it.

I do love it. It's like having your finger on the pulse of the prosecutor's world.

Hey, there is no touching on this forum. See other threads.

I never have any fun.

Seriously, Wes, I agree completely with you. Thanks for the reassuring words. Now if the CCA will agree with me . . .