CCP Art. 37.07, Sec. 3(a)(1) says you can use any evidence the court deems relevant to sentencing, if it is "shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been chargd with or finally convicted of the crime or act."

Would this include evid. from a crime the defendant was tried for, and acquitted? Someone in our office thinks there is a case out there that says it's admissible. So far I have been unable to find any case on that issue.

My crook was acquitted of Agg. Robbery, in which the victim was shot. Perhaps I can proceed on the claim that we are proving up Agg. Assault with a deadly weapon instead.

At least one court has said punishment evidence is available even if a grand jury declined to indict. Rachal v. State, 917 WW2d 799.

It certainly should be available if you take the position that you are not necessarily seeking to prove a crime, only to provide evidence of a bad act. Avoid creating an expectation that you have to prove a series of elements of an offense. Call it a bad act, which doesn't have elements.

In addition, such punishment evidence is not subject to the various rules regarding accomplice witnesses and corpus delicti.

Just be careful not to suggest that the defendant is being punished for this evidence. The purpose of the evidence is to help the jury understand the seriousness of the crime for which the defendant has been convicted.

It was recently noted that what you'd like to do would be ok in federal court because extranoues offenses don't have to be proven beyond a reasonable doubt at sentencing phase in federal court. Ex parte Taylor, 101 S.W.3d 434, 440 n.17 (Tex. Crim. App. 2002) (discussing United States v. Watts, 117 S.Ct. 633 (1997)). Taylor seems to say that you have collateral estoppel problems. See also Craig v. State, 82 S.W.3d 451, 456 (Tex.App. -- Austin 2002, pet ref'd) (rejecting complaint because prior offense that defendant had been acquitted of was not presented to the jury).

OTOH, you don't have to prove any elements for an extraneous offense at punishment so it's a little hard to see what you could be estopped from re-litigating. Taylor v. State, 970 S.W.2d 98, 101-02 (Tex.App. -- Fort Worth. 1998, pet. ref'd).

I tried a capital case and used the facts from a crime the defendant had been acquitted of in Louisiana. Check out Powell v. State, 898 S.W.2nd 821.

We recently successfully offered a previous acquittal during punishment in a child abuse case. The only colorable claim we anticipate in the pending appeal is collateral estoppel, but I'm not sure the claim was properly preserved . . . .at any rate, I plan to attempt to distinguish Taylor, because in Taylor, the two crimes arose from one incident whereas in our situation, the two crimes were completely unrelated. I hope that works, because I have no harm argument.

Is anyone aware of any updates in this area? I have a case in which the defendant pled guilty to 1 count of delivery and not guilty to 6 others. I dismissed and we went to punishment. Defense counsel argued against the admission of evidence regarding the other offense at punishment. The judge allowed. I think I'll be ok but if there is any guidance I would appriciate.

I tried a capital case several years ago and offered an acquittal, relying solely upon Paul's Powell case.
It was upheld on appeal, but not published (drats).
Reed v. State, No. AP-73,135 (Tex.Crim.App. Dec. 6, 2000)(not designated for publication).

I don't think there have been any subsequent cases calling Powell into question.

I forgot to mention,
I think Powell is pretty much restricted to death cases, so I would not try to offer an acquittal in any other type of case.

I have a rough copy of my brief on the subject if anyone is interested.

You people must be reading my mind. I just came to post this very question, and you already have an answer. I would be very interested in the brief. My email is stephanie.stephens@co.nacogdoches.tx.us

Thanks.

My case on this was affirmed by the 12th Court of Appeals on January 31st. I talked to the defense counsel and he'll probably file a pdr as this is a 2-1 decision. I have a copy of the decision but no case number as of yet.

I had a case affirmed out of the 3rd court last week in which I offered at guilt-innocence the fact that the defendant had been a fugitive for two years, over objection that he had been acquitted of the bail jumping charge. The argument is essentially that the only thing you are estopped from proving is the crime alleged in the indictment under which the defendant was acquitted. Anything that was not necessarily decided adversely to you in the prior trial is still fair game. My case was Garza v. State, 2007 WL 283037 (slip op. 03-05-00519-CR)(Tex.App.-Austin, 2/1/2007)

So, for example, in a robbery case, you might get an acquittal because you failed to show an assault in the course of theft. Doesn't mean no assault occurred, necessarily, so you shoul dbe allowed to prove it up, as long as you don't then argue that the defendant is guilty of the robbery for which he was acquitted.