Defendant made a statement to police. In the statement he mentions that he had been in the pen before. Def. objects mid-trial when the whole statement is introduced. We told the judge we could not technically get it off our disc with such late notice of his objection. Judge gave an instruction to the jury that extraneous bad acts must be proven beyond a reasonable doubt. Whole statement went in. The portion making mention of the pen was never brought up or argued by either side.

Defendant did not testify and in fact relied on that statement to get across his version of the facts

Any ideas about how to handle this portion that probably should not have come in. Technical issues seems a little lame as a reason for not redacting this reference to pen time. Optional completeness does not seem to fit very well...any help...thanks

I think you are OK. If you told judge you could not get it out on short notice, Defendant could have requested a continuance to permit adequate time to redact / remove. Failing to seek that relief may be enough to avoid the Defendant having any relief awarded on appeal.

Thanks Larry. I feel (not that that is relevant) I was sort of set up. The attorney knew about this little reference for some time and it seemed like a sort of after thought that he was going to object to it. The judge kind of looked at me like "what now?" The whole case was there attempt to paint the victim as the villain. I don't know whether to concede it probable should not have come in and argue harmless error given the totality of the evidence.

Here's an option that probably *doesn't* work, but is at least worth looking into depending on your facts.

Rule 806 allows for the impeachment of a non-testifying hearsay declarant. This impeachment can be "by any means that could be used if the declarant were a witness." Bee v. State, 974 S.W.2d 184, 190 (Tex.App. - San Antonio 1998, no pet.). This is permissible even if the declarant to be impeached is the defendant (Which I don't have a cite for offhand, but there's substantial caselaw on.).

So. If your defendant relied on the statement to his own benefit in order to avoid having to testify himself, then he's a hearsay declarant under 806 and subject to impeachment. Rule 609(a) states that felony convictions are competent impeachment evidence.

There are some hurdles to overcome, to be sure. 609(a) has a more probative than prejudicial requirement. There's still a valid 404(b) objection if there wasn't notice of intent to introduce. The fact that the State initially offered the statement may take the defendant out of 806 declarant territory. My writing on 806 was in a different context, but you may find some traction there.

From an appellate angle you will need to address factors that minimized the impact of the reference to prior pen time such as whether or not it was mentioned anywhere else at trial (ie: closing argument); whether or not the jury took the recording into the jury room during deliberations; and stress that the evidence of guilt was so overwhelming that the single reference to prior pen time would not have any affect on the verdict of the jury. For future cases it would be good to prepare in advance of trial a version where you have redacted portions you know are inadmissible, then you send a copy of this edited version to the defense counsel inviting them to inform you of any other segments that they consider objectionable. If there is a disagreement then you can make alternate copies, one that they like and one that you like. The judge can rule on which version comes in.

If the statement was inadmissible, then hard to understand why the court gave only a limiting instruction; should have been instruction to disregard, and that would likely have cured any error. Did the court sustain the objection? If so, then maybe all the relief requested was granted.

The very reason for providing a copy of the statement 20 days before trial is to require a timely objection. So, my next question is, was the statement offered (as a whole), admitted on that basis, and then the objection to the pen statement lodged? If so, the objection was too late. If only part of an exhibit is inadmissible, the objection must point out the inadmissible part, or it's waived.

Finally, the statement may have been admissible for some reason other than to prove bad character. If so, then a Rule 403 objection was necessary, not just one based on 404(b) or 402.

Thanks all!