Several defense attorneys are objecting to the use of extraneous crimes,acts or bad conduct in the punishment phase because our notice of these same acts were listed on a 404(b) response. Does anyone know if the State is required to label the notice 37.07. THis situation has just come up recently - I didn't find any case that specifically said that a 404(b) notice is not sufficient to include these same acts as 37.07 notice. Is there a recent case out there that I have not found that requires the notices to be separate from each other, or at least labeled boty 404(b) and 37.07?

Hate to say it, but it does seem to me that if you give notice of intent to use evidence for one specific purpose and then offer it for another, you are at least creating an argument that no notice was given under art. 37.07 sec. 3(g). I know of no cases dealing with this problem. In my effort to deal with this issue our notice simply says:

"The 220th District Attorney hereby provides notice of our intent to use the following prior convictions or unadjudicated bad conduct as evidence at trial for purposes of: impeaching Defendant's credibility under Tex.R.Evid. 609, or showing a matter as permitted under Tex.R.Evid. 404 or art. 38.37 of the Code of Criminal Procedure, or as a matter relevant to proper punishment under art. 37.07 sec. 3(a) (1) of the Code of Criminal Procedure."

I do not try to predict exactly when or how the evidence may come in. So far, our notice has not drawn any objections.

Here is how we title our notice to cover the bases regardless of if the defense asks for one or all:

"STATE'S NOTICE OF INTENT TO INTRODUCE EVIDENCE
PURSUANT TO RULES 404(b) AND 609(f) OF THE TEXAS RULES OF EVIDENCE AND ARTICLE 37.07 OF THE TEXAS CODE OF CRIMINAL PROCEDURE"

Saves on paper too!

That was my answer to the question - just title the response to include all. However apparently there have been some responses that have not specifically included 37.07. We have given notice of all the acts we plan to introduce, but just not specifically listed when we plan to introduce. My read is that all long as some type of notice was given at least defense can't argue surprise. I hope I can convince everyone the solution to the problem is to do what you say - include it all in the title of the response.

[This message was edited by pkdyer on 10-10-03 at .]

A lot of times the defense will ask for notice under 404(b)and I will offer extraneous offenes that were not listed on my response to his "404(b)" request. My argument always is that I am offering the extraneous offense under a different provision (37.07, 609, 38.37 etc). I have cases that state that a request for notice under 404 "does not" ask for notice of extraneous offenses offered under different/other provisions.

My response to Patricia's question was based on the assumption that defense counsel had requested (separately) notice under 37.07. If not, then Michael you are entirely correct. If notice was never requested, then of course no notice will suffice (even if notice under 404 was properly requested).