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Wilson v. State6/20/2003
n that it intended to introduce evidence of Wilson resisting attempts to fingerprint him at the hospital, we must determine whether such evidence falls under the scope of 404(b). Relying on Garza v. State, the State argues that it was not required to give notice of its intent to introduce the evidence of Wilson's resistance to being fingerprinted under 404(b) because it was "same transaction contextual evidence." 2 S.W.3d 331, 335 (Tex. App.-San Antonio 1999, pet. ref'd). "Same transaction contextual evidence" is a recognized exception to Rule 404(b) and refers to other offenses connected with the primary offense and is admissible when the evidence is necessary for the state to logically present evidence of the charged offense. Garza v. State, 2 S.W.3d 331, 335 (Tex. App.-San Antonio 1999, pet ref'd.) (citing Lockhart v. State, 847 S.W.2d 568, 570 (Tex. Crim. App. 1992)). The reason for admitting such evidence is "simply because in narrating the one it is impracticable to avoid describing the other, and not because the other has any evidential purpose." Mayes v. State, 816 S.W.2d 79, 86 n. 4 (Tex. Crim. App. 1991); Garza, 2 S.W.3d at 335.
In the instant case, Wilson's resistance to being fingerprinted at the hospital while receiving treatment for his injuries is not an act that is significantly blended or interwoven with the facts of the charge of attempted capital murder. This evidence is not so connected to Wilson's primary offense that it was necessary for the State to present it along with other evidence of the charged offense. In presenting the evidence of attempted capital murder, it was possible for the State to avoid describing Wilson's act of resistance in the hospital. Therefore, we hold that Wilson's resistance to being fingerprinted at the hospital after he was arrested is not same transaction contextual evidence. Accordingly, we must next address whether the evidence was relevant to show Wilson's consciousness of guilt.
The State next argues that the evidence was relevant to show Wilson's "consciousness of guilt." " riminal acts that are designed to reduce the likelihood of prosecution, conviction, or incarceration for the offense on trial are admissible under Rule 404(b) as showing 'consciousness of guilt.'" Ransom v. State, 920 S.W.2d 288, 299 (Tex. Crim. App. 1994). "Consciousness of guilt" evidence includes an accused who presents false identification to a police officer. See id.; Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992). Such an act is not admissible to prove propensity, but is admissible under 404(b) to prove the accused's knowledge and an awareness that he needed to conceal his identity from law enforcement officials. See Felder, 848 S.W.2d at 98. Consequently, consciousness of guilt evidence is subject to Rule 404(b)'s notice requirement. Tex. R. Evid. 404(b); see Ransom, 920 S.W.2d at 299.
In this case, the evidence that Wilson resisted Dillon's attempt to fingerprint him was not admitted to prove he acted in conformity with the crime. Instead, the evidence tended to show that Wilson wanted to conceal his identity from the police; therefore, it was relevant to show Wilson's "consciousness of guilt." See Ransom, 920 S.W.2d at 299; Felder, 848 S.W.2d at 98. Although we hold that the evidence was relevant to show Wilson's consciousness of guilt, the State was still required to provide notice under rule 404(b). A State's open file policy is not enough to satisfy Rule 404(b)'s notice requirement. See Buchanan v. State, 911 S.W.2d 11, 15 (holding that 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). The record shows tha
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