I'm planning on getting into evidence of an extraneous offense at the guilt stage of a trial next week. I beleive that the extaneous offense is part of the same criminal transaction as the charged offense but have some questions. Here's my scenario:

Defendant steals a truck, drives the truck about a block, uses the truck to smash the front door of a closed convenience store, then burglarizes the store stealing 18 cases of beer. Police learn of the uumv and burglary within an hour of occurence and go looking for the stolen truck. Luckily, the truck is quickly located with the defendant standing nearby. Defendant is arrested for public intoxication and has two watches stolen from the truck in his pant's pockets. Additionally, there is a witness who will say that Defendant had earlier tried to sell him beer from the back of the stolen truck.

We are trying the burglary case next week. It certainly seems to me that the uumv and facts proving he committed the uumv are so intermingled with my burglary proof that they are part of the same criminal transaction and are admissible at the guilt stage. Is there a better way to approach (frame and argument for) the admissibility of this evidence?

Another question I have is about a limiting instruction. Some caselaw indicates that a limiting instruction is required both at the time the extraneous crime evidence is offered and in the jury charge? Additionally, some of this caselaw states that limiting instructions are not required when the extraneous acts are res gestae of the offense/background. The only limiting instruction I can find in my old McClungs is specifically crafted to fit the specifically enumerated exceptions of 404(b). Do I need a limiting instruction at all? If so, what should it say?

Identity? To show that defendant was the one actually driving the truck during the burglary, and the owner of the truck was not?

Why even mention that the truck was stolen?

A. Store was burglarized by a person who gained entry using this truck.
B. Beer was stolen
C. Defendant was found drunk 1 hour later with the truck.
D. A witness says defendant offered to sell beer from the back of the truck.


Isnt that enough? Only a fool defendant would stand up and say "but that ain't even my truck!" because of course you'd say "thanks for opening the door" ...

Another theory for admission might be "preparation" or "plan." As Judge Cochran says: "if the defendant steals an armored truck on Monday . . . and then robs the bank . . . on Friday all of these extraneous offenses are relevant to prove up the defendant's plan on rob the bank." Cochran, Texas Rules of Evidence Handbook at 298 (5th ed. 2003).

If the evidence that he stole the truck that was used in the burglary is admissible as same transaction contextual evidence, then a limiting instruction is not required. Delgado v. State, 235 S.W.3d 244, 253 (Tex. Crim. App. 2007) ("'Same transaction contextual evidence' refers to those events and circumstances that are intertwined, inseparable parts of an event that, if viewed in isolation, would make no sense at all.FN36 When evidence is admitted on this basis, Rule 404(b) is not implicated and the defendant is not entitled to any limiting instruction concerning the use of that evidence.")

Here are a couple of cases that might support a same transaction admissibility argument.

Camacho v. State, 864 S.W.2d 524, 532 (Tex. Crim. App. 1993) (in capital murder case, evidence of kidnapping and double murder of deceased homeowner's wife and son was � �[s]ame transaction contextual evidence� ... [that] imparts to the trier of fact information essential to understanding the context and circumstances of events which, although legally separate offenses, are blended or interwoven. As such it is admissible, not for the purpose of showing character conformity, but to illuminate the nature of the crime alleged.�)


Maranda v. State, --- S.W.3d ----, 2007 WL 4191711, (Tex.App. - Amarillo, November 28, 2007, pet. filed) (in aggravated robbery prosecution based on theft of carburetor cleaner, fact that defendant huffed the carburetor cleaner shortly after robbery was admissible as same transaction contextual evidence)

Miller v. State, 05-03-00488-CR, 2004 WL 1434549 at *3 (Tex.App. � Dallas June 28, 2004, no pet.) (in prosecution for evading, discovery after arrest that motorcycle defendant was riding was stolen admissible as same transaction evidence)

Potts v. State, 2003 WL 22916003 (Tex.App.-Houston [1 Dist.] December 11, 2003) (stolen van used in offense)

Watchout for Lockhart v. State, 847 S.W.2d 568, 572 (Tex. Crim. App. 1992) (fact that defendant killed police officer with a stolen weapon was not admissible: "although the stolen gun was the murder weapon, the fact that it was stolen was not necessary to the jury's comprehension of this offense; therefore, the bank robbery and the burglary are not 'same transaction' contextual evidence.")