Because I believe that the majority misapplies our precedent in Buchanan v. State, 911 S.W.2d 11 (Tex. Crim. App. 1995), I respectfully dissent.

In Buchanan, we explained that an open file policy was not sufficient to satisfy the 404(b) notice requirement because showing that the State is aware of evidence of extraneous offenses is not the same as showing an intent to introduce evidence of extraneous offenses. We said:

We cannot conclude that the mere opening of its file containing an offense report detailing extraneous evidence satisfies the requirement of giving notice "of intent to introduce" such evidence. The mere presence of an offense report indicating the State's awareness of the existence of such evidence does not indicate an "intent to introduce" such evidence "in [its] case in chief[.]"

Id. at 13 (emphasis added). The witness statements provided by the State ⁽¹⁾ to the appellant in this case did not show an intent to introduce evidence of extraneous offenses any more than the offense reports in Buchanan did in that case. Showing that the State is aware of evidence of extraneous offenses is not the equivalent of showing an intent to introduce evidence in the State's case in chief.

The State failed to provide adequate notice of its intent to introduce evidence of extraneous offenses to the appellant in accordance with Rule 404(b) and Buchanan. The majority's conclusion that the State did is incorrect.

With these comments, I join Judge Meyers's dissent.

Delivered: November 14, 2001.

Publish.

1. There is no indication in the record that the State provided the witness statements for the specific purpose of complying with the Rule 404(b) notice requirement. The State, and not the appellant, should have the burden to show that it complied with the requirement.