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Wilson v. State6/20/2003
t the State did not include Wilson's act in its written response to his 404(b) request, but merely provided Wilson with an open file that included the medical records detailing Wilson's extraneous act. The State's open file policy did not give Wilson sufficient notice that it intended to introduce the extraneous act in its case-in-chief. See id. Because the State failed to provide proper notice, the trial court erred in admitting Wilson's act of resisting being fingerprinted; however, we must further decide whether such error was harmful.
Rule 44.2(b) provides that non-constitutional errors in criminal cases that do not affect substantial rights are to be disregarded on appeal. Tex. R. App. Proc. 44.2(b). "A substantial right is affected when the error ha a substantial and injurious effect or influence in determining the jury's verdict." King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). "A criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). The presence of overwhelming evidence supporting the finding in question can be a factor in the evaluation of harmless error under Rule 44.2(b). See Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App. 2002).
Although the evidence of Wilson's resistance to being fingerprinted was improperly admitted, our examination of the entire record leads us to conclude that the error was not harmful. See King, 953 S.W.2d at 271. As discussed above, there was substantial evidence of Wilson's attempt to kill Officer Hancock. Several eyewitnesses, including the complainant officer, saw Wilson pull out a gun and shoot at Officer Hancock. He also had a particle of lead and barium on his left hand that was consistent with handling a .22 caliber weapon. Having reviewed the entire record, we conclude that the admission of Wilson's resistance to being fingerprinted did not have a substantial and injurious effect or influence in determining the jury's verdict. We have fair assurance that the error did not influence the jury or had but a slight effect. Therefore, we hold that the failure to provide the notice in view of the totality of the evidence presented with regard to Wilson's identity was harmless. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d at 357.
We must next determine whether the admission of Wilson's act of resistance into evidence
was more prejudicial than probative so as to violate Texas Rule of Evidence 403. Rule 403 states that otherwise relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery, 810 S.W.2d at 389. Unfair prejudice exists when
a jury would be more likely to draw an impermissible character conformity inference than the permissible inference for which the evidence is relevant, or if it otherwise distracts the jury from "the specifically charged offense" and invites them to convict on a moral or emotional basis rather than as a reasoned response to the relevant evidence.
Id. at 395. As stated above, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard and affirm the trial
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