D I S S E N T I N G O P I N I O N
I respectfully dissent. The majority chooses to emphasize the words "reasonable notice" to the extent that the rest of the language setting out the requirements for admission of extraneous offenses, "of intent to introduce," is rendered null. Ante, at ___ (slip op. at 5-6). The conclusion of the majority thereby violates our long-standing procedures for statutory interpretation.
The basic rules for statutory interpretation require that effect be given to all words and phrases unless to do so would lead to absurd results which the legislature could not possibly have intended. Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991). We first give effect to the plain meaning of the statute, and "[w]here the statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Id. (emphasis added and internal quotation marks omitted) (citing Coit v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991) and Ex parte Davis, 412 S.W.2d 46, 52 (Tex. Crim. App. 1967)).
Of course, it is a court-made rule, rather than a statute passed by the legislature, that is at issue in this case. However, the reasons for applying a plain-language approach to statutes are no less persuasive than when interpreting rules made by us pursuant to the authority granted by the legislature. See Boykin, 818 S.W.2d at 786; Tex. Gov't Code § 22.109; see also 3A Sutherland Stat. Constr. § 67.10, at 87 (5th ed. 1992) (noting that "in one form or another almost every rule of construction for statutes finds application in the interpretation of the rules of practice"). There is no contention here that the rule is ambiguous, so we must depend on its plain language. The plain language says "reasonable notice . . . given in advance of trial of intent to introduce . . . ." Tex. R. Evid. 404(b). The simplest reading of that plain language is "reasonable notice . . . of intent to introduce." That is, not reasonable notice of the fact that the state is aware of the other bad acts, but reasonable notice of the state's intent to introduce a particular extraneous act at trial.
In the case at bar, the state provided to appellant witness statements which described extraneous acts, but did not indicate which, if any, the state intended to introduce at trial. The state thus revealed to appellant its knowledge of the extraneous offenses, but not its intentions as to use of those bad acts at trial. This is not the required "reasonable notice of intent to introduce." Taken to its logical end, the position of the majority, that the point of the rule is notice, would allow the state to completely ignore timely requests under Rule 404(b) and justify its actions by saying that no notice was necessary, as appellant had committed the bad acts and therefore knew about them already.
By the plain language of Rule 404(b), the point of the rule is "reasonable notice of the intent to introduce." The court of appeals correctly determined that such notice of intent was not given; that determination should be affirmed.
Johnson, J.
Date Delivered: November 14, 2001
Publish