A Criminal in General

by Rick Wetzel on February 18, 2011

This morning on the radio I heard a commentator refer to a suspect as “a criminal in general.”  It is true that criminal conduct frequently does not occur in isolation.  Conduct is sometimes part of or connected to a series of crimes.  It is important to remember defendants at trial are not charged and convicted of being a criminal in general.  They are charged with specific crimes.  Opinions from criminal appeals courts are full of instances in which prosecutors have improperly sought to prove defendants guilty of a charged offense simply because they have participated in a series of other crimes.    

          Contextual Evidence 

When other criminal conduct is part of a charged crime, it may be admissible as same transaction contextual evidence.  Opinions from Texas criminal appellate courts make clear such evidence is admissible only to the extent that it is necessary to the jury’s understanding of the charged offense.  McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).  It is admissible only if the charged offense would make little or no sense without also bringing in the same transaction evidence.  Wyatt v. State, 23 S.W.3d 18, 25 (Tex. Crim. App.2000).  

          Factors to Consider 

Factors such as the separability of the uncharged conduct, victim of the uncharged conduct, place of the uncharged conduct, and time of the uncharged conduct are directly relevant in making a same transaction contextual evidence determination.   McDonald, 179 S.W.3d at 578; 1 STEVEN GOODE  ET AL., GUIDE TO THE TEXAS RULES OF EVIDENCE § 404.6.4 n.24 (3d ed. 2002 & Supp. 2010).  

          A Challenge on Appeal

A trial court’s decision to admit evidence is generally reviewed on appeal under an abuse of discretion standard.  As long as the judge’s decision is within a zone of reasonableness, it will probably be upheld by an appellate court.  If the judge unreasonably allowed the prosecutor to paint you as a criminal in general or your lawyer did nothing to try and stop such improper tactics, relief may be available on a criminal appeal or by way of a post conviction habeas corpus application.

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