We are called upon to decide whether the notice requirement found in Texas Rule of Evidence 404(b) is satisfied when the State gives to the defense copies of witness statements that describe the extraneous offenses later admitted into evidence at trial. We hold that the trial court did not abuse its discretion in concluding that the State could satisfy Rule 404(b) in this manner and reverse the decision of the Court of Appeals. ⁽¹⁾

The defense timely requested from the State notice of extraneous offenses under Rule 404(b). The State served a response designating that a certain witness would testify, but this response did not explain what extraneous offenses would be discussed. The State also gave to the defense copies of several witness statements that involved descriptions of extraneous offenses. The record does not reflect when the State gave copies of these witness statements to the defense. At trial, the following colloquy occurred:

[DEFENSE COUNSEL]: So we object, first, object to any testimony from K.S. because we have no notice under 404(b) with respect to the State's intention. And with respect to any other extraneous offense we have no notice, not even a suggestion.

[PROSECUTOR]: With the exception of the fact we've provided [defense counsel's] office with the statement, complete statement of [K.S.] as well as the statement of [K.R.] which contains the other matters that were talked about in chambers regarding watching of a pornographic movie and the slapping of the child [A.R.] in connection with the request by the Defendant for her to remove her clothing which of course was the method by which the offense was committed, we anticipate the evidence is going to show that in each and every instance, and I think there's going to be evidence that there were probably three incidents where [A.R.] was required to remove her clothing and expose her genitals to the defendant, on two of those occasions he exposed himself, but he did not require [A.R.] and [K.S.] to expose themselves to him in the same manner he had done with [A.R.] on several other occasions. Those full and complete statements were provided to [defense counsel's] office. I think he's clearly had notice of those matters and knew that indeed they were part of the State's case.

[THE COURT]: Okay, anything further from the Defendant?

[DEFENSE COUNSEL]: Nothing with respect to that, Your Honor, and I would suggest that discovery does not satisfy 404(b) and I think the case is pretty clear on that, that when a request for notice under 404(b) or 37.03(3) is made, the Defendant is entitled to a specific response with respect to what the State intends to use in their case in chief under 404(b) and the punishment phase under 37.07.

The trial court overruled appellant's objection. The witness statements referenced by the State were never made a part of the appellate record.

Relying upon "intent to introduce" language found in the rule, the Court of Appeals found that the State had failed to give sufficient notice under Rule 404(b) because giving the defendant witness statements did not inform the defendant of whether the State had any intent to introduce such evidence at trial. ⁽²⁾ The Court of Appeals also held that the State could not rely upon these statements to satisfy the Rule 404(b) notice because the statements were not in the record. ⁽³⁾

Rule 404(b) allows admission of certain extraneous offenses, provided that: "upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction." In Buchanan v. State, we held that an open file policy was not sufficient to comply with the rule. ⁽⁴⁾ Even if the State's open file contains a document describing the extraneous offense in question, we could not conclude that "the mere opening of its file...satisfies the requirement of giving notice 'of intent to introduce' such evidence." ⁽⁵⁾

The question before us is whether the State's delivery to defense counsel of witness statements concerning the extraneous offenses may be sufficient notice of the State's intent to introduce the extraneous offenses in question. The State contends that the act of delivering such statements may be sufficient conveyance of its intent to introduce the evidence. Appellant disagrees. The trial court's ruling that the act of delivery in this particular case constituted "reasonable notice" of the State's intent to introduce evidence of the extraneous offenses is reviewed for abuse of discretion.

The question is one of first impression before this Court, and relevant authority in Texas intermediate appellate courts and in other jurisdictions is sparse and conflicting. In Cole v. State, the Fort Worth Court of Appeals determined that the main purpose of the Rule 404(b) notice provision was to prevent surprise. ⁽⁶⁾ The court found that a witness statement attached to an outcry notice satisfied this purpose where the witness statement detailed the extraneous offenses in question. ⁽⁷⁾ The Austin Court of Appeals held in Roman v. State that, when the State gave a general written notice that referred to a witness statement detailing extraneous offenses, adequate notice was given. ⁽⁸⁾ In Woodard v. State the Waco Court of Appeals held that giving to the defense penitentiary packets that detailed a criminal history was sufficient notice of the extraneous offenses detailed therein where the State told the defense that everything in the documents was subject to introduction. ⁽⁹⁾ The Eastland Court of Appeals held that adequate notice had not been given in Dodgen v. State when the State's notice listed only one offense even though a complete record of the defendant's criminal history was attached. ⁽¹⁰⁾ And finally, there is the present case from the Texarkana court. So, the Fort Worth court's holding appears to support the idea that turning over a witness statement about extraneous offenses would constitute adequate notice, while the Texarkana and Eastland courts hold that it would not be adequate notice, and the holdings of the Austin and Waco courts are consistent with either position.

Out-of-state cases appear to be sparser. Construing similar versions of Rule 404(b) - containing the "intent to introduce" language - the Ninth Circuit has indicated that witness statements are sufficient notice while the District of Columbia Circuit has held to the contrary. ⁽¹¹⁾ And the Supreme Court of Indiana has said that evidence of extraneous offenses is admissible in spite of a challenge to the timeliness of the 404(b) notice, when witness statements were provided in a timely manner, because the defendant was not surprised by the evidence. ⁽¹²⁾

Because the purpose of Rule 404(b) notice is to prevent surprise, we agree with the cases indicating that delivery to the defense of witness statements detailing extraneous offenses may, in an appropriate case, satisfy the notice requirements of Rule 404(b). ⁽¹³⁾ The rule requires "reasonable" notice. Whether the delivery of witness statements constitutes reasonable notice depends in part on the timing of that delivery. If the State gave the statements to the defense shortly after receiving the request for notice, the implicit statement is: "These are the extraneous offenses that we intend to offer in the case-in-chief." The longer the time lapse between the receipt of the notice and the delivery of the witness statements, the less likely that the recipient will conclude, "This is the evidence that responds to my request." Because a reasonable conclusion to be drawn when delivery of witness statements follows upon the heels of a timely request for notice, is that the State intends to use the evidence, "reasonable" notice is implicit in the delivery. The record in this case does not reflect how soon after its receipt of the notice the State responded with its delivery of the witness statements. The State claimed at trial that appellant, "... clearly had notice of these matters and knew in fact that they were part of the State's case." When the trial court asked if there was anything further, defense counsel responded, "Nothing with respect to that, Your Honor." He did not dispute the State's claim that he had actual notice. Instead, his claim was that "discovery doesn't satisfy 404(b)." If the defense did not make the connection between its request and the implicit statement by the State, "These statements are in response to your request," it could have and should have communicated that fact to the trial court. Absent such an objection, we cannot conclude that the trial court abused its discretion on finding that the State had provided reasonable notice. In such instance, the State has done more than simply say, "Look in our file and see what you can find." And in fact, in some respects the State in this case gave the defendant more than he was entitled to, as witness statements are not ordinarily discoverable until after the witness testifies. ⁽¹⁴⁾ The prosecution is not required to make a written response concerning its intent, although this is certainly the recommended procedure. Although the better practice is for the prosecutor to state explicitly the intent to introduce extraneous offense evidence, the trial court did not abuse its discretion in concluding that delivery of witness statements to the defense in this particular case provided appellant with reasonable notice. ⁽¹⁵⁾ Conversely, had the trial judge ruled that the State's notice was not reasonable under these circumstances, that factual determination would not have constituted an abuse of discretion. ⁽¹⁶⁾

As for the Texarkana Court of Appeals's holding that the statements could not be considered because they were not in the record, the State claimed before the trial court that the witness statements described all of the extraneous offenses. Appellant did not dispute this claim and did not attempt to have the witness statements placed in the record. We assume, therefore, that the witness statements are as the State represented them to be. ⁽¹⁷⁾

The judgment of the Court of Appeals is reversed and the judgment of the trial court is affirmed. ⁽¹⁸⁾

KELLER, Presiding Judge

Date delivered: November 14, 2001

Publish

1. Due to our disposition of the State's ground concerning the adequacy of the notice, we need not address the State's other ground claiming that the offenses arose in the "same transaction." Accordingly, the latter ground for review is dismissed.

2. Hayden v. State, 13 S.W.3d 69, 77 (Tex. App.- Texarkana 2000).

3. Id. at 69 n. 7.

4. 911 S.W.2d 11, 14-15 (Tex. Crim. App. 1995).

5. Id. at 15 (ellipsis inserted). Judge Meyers' dissent seems to say that defense counsel in Buchanan admitted that he was aware of the offense report containing the extraneous offense. However, the only thing the opinion reveals in that regard is that counsel had reviewed the State's file totally on several occasions. The opinion does not reflect that counsel was aware of the offense report or of the extraneous offense. The State claimed that defense counsel admitted that he had been given access to the extraneous offense via the open file policy, but this is just an argument that the open file policy sufficed to comply with R. 404(b). The State also argued in Buchanan that counsel's motion in limine showed actual knowledge that the State intended to use the extraneous offense, but the Court did not address that contention.

6. 987 S.W.2d 893, 897 (Tex. App.-Fort Worth 1998, pet. ref'd).

7. Id.

8. 986 S.W.2d 64, 67 (Tex. App.-Austin 1999, pet. ref'd).

9. 931 S.W.2d 747, 749 (Tex. App.-Waco 1996, no pet.).

10. 924 S.W.2d 216, 219 (Tex. App.-Eastland 1996, pet. ref'd).

11. Compare United States v. Erickson, 75 F.3d 470, 478 (9^th Cir.), cert. denied sub. nom., Great Falls Eye Surgery Ctr. v. United States, 517 U.S. 1222 (1996) with United States v. Spinner, 152 F.3d 950, 961 (D.C. Cir. 1998).

12. Hatcher v. State, 735 N.E.2d 1155, 1158-1159 (Ind. 2000).

13. In her dissent, Judge Johnson contends that our interpretation of the rule violates the plain language approach to statutory interpretation set out in Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). However, Boykin does not apply to interpretation of the rules of evidence; although the plain meaning is a good place to begin, we are not bound by an evidentiary rule's plain language and can consider extratextual factors even if the language of the rule appears to be unambiguous. Henderson v. State, 962 S.W.2d 544, 551-552 (Tex. Crim. App. 1997); Ludwig v. State, 931 S.W.2d 239, 241 (Tex. Crim. App. 1996). So, we can legitimately look to the purpose of the rule in construing its meaning. Nevertheless, our interpretation of the rule is consistent with its plain language as we explain below.

14. See Tex. R. Evid. 614(a).

15. In their dissents, Judge Price and Judge Johnson contend that the witness statements do not show the State's "intent to introduce" the extraneous offenses at trial. Judge Price contends that the witness statements that were "provided by the State"did not show intent any more than the offense reports in Buchanan. Judge Johnson contends that the "logical end" of our position is that the State can ignore timely requests for notice on the ground that the appellant had committed the bad acts and knew about them already. The dissents miss the point. It is the fact of delivery, not the content of the statement, that gave the defense notice here but not in Buchanan. Judge Johnson's postulated slippery slope does not occur because the State is required to do something to show its intent to offer extraneous offenses at trial. Neither dissent has explained why this act by the State failed to give reasonable notice of the State's intent.

16. Judge Meyers' dissent refers to "the spirit of Buchanan." The "spirit" of Rule 404(b) is to allow a defendant adequately to prepare to defend against the extraneous offense evidence. Judge Meyers is correct to caution that the rules should not encourage trial by ambush. That caution should apply to both sides. Rule 404(b) does not set forth a formalistic method for conveying notice and does not require a writing. While the State should not be permitted to engage in gamesmanship by finding creative ways to convey "notice" without really informing the defense of its intent to introduce extraneous offenses, the defense should not be permitted to engage in gamesmanship by claiming the notice it received was insufficient when the defense did in fact have actual notice of the State's intent to introduce the extraneous offenses in question. The record in the present case simply does not show all the facts relating to the conveyance of the evidence of extraneous offenses by the State to the defense. What is in the record tends to support the conclusion that the defense did indeed have actual notice of the State's intent to introduce the extraneous offenses, and hence, the trial court's decision to admit the evidence is supported by the record and must be upheld.

17. We accept as true factual assertions made by counsel at trial which could have been, but were not, disputed by opposing counsel. Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996).

18. There are no remaining points of error to be resolved.