By: Houston Criminal Lawyer John Floyd and paralegal Billy Sinclair


Common law has long recognized the fundamental principle that an accused is entitled to be tried solely on the criminal charge leveled against him by the State; that he should not have to simultaneously defend against other alleged criminal activity or for being a criminal in generally. In 1948, the U.S. Supreme Court observed that “[c]ourts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt.”


The Texas Court of Criminal Appeals (“CCA”) in 1972 severely undermined this Supreme Court instruction by reinforcing its view that evidence of “other crimes” committed by a defendant may be admitted against him at trial when that highly prejudicial evidence is shown to be material and relevant to a “contested issue in the case;” put simply, when its probative value outweighs it prejudicial impact. The CCA, in Albrecht v. State, however, cautioned that “before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown. The CCA then set forth the six circumstances that justify the admission of extraneous offense evidence:


  • To show the context in which the criminal act occurred – what has been termed the “res gestae” – under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent  to the commission of that act so that they may realistically evaluate the evidence.
  • To circumstantially prove identity where the state lacks direct evidence on this issue.
  • To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself.
  • To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act.
  • To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is part of a continuing plan or scheme of which the crime on trial is also a part.
  • To refute a defense theory raised by the accused.


Put simply, under Albrecht, the State could use extraneous offense evidence any time it had a weak case on the charged offense and, thus, could tip the scale in its favor by allowing the jury to infer that because the defendant may have committed another criminal act, it is more likely than not that he committed the charged offense.

Nearly fifteen years after Albrecht the Texas Rules of Evidence were adopted, and Rule 404(b) codified the circumstances under which other crimes, wrongs or acts may be admissible, stating: “Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State’s case-in-chief such evidence other than that arising in the same transaction.”


In other words, when the State does not have sufficient direct or circumstantial evidence to prove the charged offense beyond a reasonable doubt, it can utilize highly prejudicial extraneous offense evidence to allow the jury to infer that the defendant is an “evil character.” The Rules, however, do provide some safeguards against unfettered use of extraneous offense evidence.


Before such evidence can be admitted, the trial judge under Rule 403 may exclude the evidence through a cost/benefit analysis “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.”

In 2006, the CCA in Gigliobianco v. State defined the five “key phrases” in Rule 403:


  • “Probative value” – the inherent force of a piece of evidence that serves to make more or less probable the existence of a fact of consequence to the litigation and a proponent’s need for the evidence.
  • “Unfair prejudice” – a tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one, such as evidence that arouses the jury’s hostility or sympathy for one side without regard to the logical probative force of the evidence.
  • “Confusion of the issues” – evidence that tends to confuse or distract the jury from the main issues of the case, particularly evidence that consumes an inordinate amount of time to either present or refute.
  • “Misleading the jury” – evidence that tends to be given undue weight by the jury on other emotional grounds, e.g., “scientific” evidence the jury does not sufficiently understand.
  • “Undue delay” and “needless presentation of cumulative evidence” – both concern the efficiency of the trial proceeding rather than the threat of an inaccurate decision.

Armed with these clearly defined phrases, the trial court when considering Rule 404(b) evidence must balance:

  • The inherent probative force of the proffered items of evidence along with
  • the proponent’s need for that evidence against
  • any tendency of the evidence to suggest decision on an improper basis,
  • any tendency of the evidence to confuse or distract the jury from the main issues,
  • any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and
  • the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.


There are two kinds of extraneous offense evidence: same transaction contextual evidence and background contextual evidence. Same transaction evidence is admissible as an exception to Rule 404(b)’s “propensity rule”—evidence tending to show bad character—when the defendant is charged with several crimes or with offenses so connected that one of them cannot be shown without the other. Background evidence, on the other hand, are “facts that do not bear directly on the purely legal issues, but merely fill in the background of the narrative and give it interest, color, and lifelikeness.” In the extraneous offense context, background evidence would be acts of misconduct by the defendant which are not necessary to prove the charged offense and “are not exempt under Rule 404(b) from the general prohibition of the admission of character or propensity evidence against the accused.” The most frequent challenge to background evidence is that it is offered only to show the accused as a “bad character.” The challenge is made because if the trial court finds a factual basis in the challenge, it has no discretion and must refuse to admit the evidence.


However, if the trial judge rules that the background evidence is admissible, he/she is under no legal duty to explain that decision—and on appeal the judge’s decision will be reviewed under the “abuse of discretion standard;” namely, a decision to admit or exclude evidence presents  nothing to review absent a clear showing by the defendant that one of his substantial rights was violated (a substantial right violation is found only when it has an “injurious affect” on the jury’s verdict).


The latest case handed down by the CCA concerning extraneous offense evidence was last December in Devoe v. State, and it deals with both same transaction and background evidence. There is little doubt that Paul Devoe fits the definition of a “bad” character as envisioned by the Supreme Court in 1948. In fact, one can easily surmise Devoe’s character was nothing short of evil.  He was convicted, and sentenced to death, in 2009 for the murders of Haylie Faulkner and Danielle Hensley during the “same criminal transaction.” The following evidence was presented during the guilt/innocence and punishment phases of Devoe’s trial:


  • In august 2007 Devoe stole a Jennings .380-caliber handgun from a friend named Bill Brinlee.
  • On August 24, 2007 Devoe was living in the Llano home of Sharon Wilson in exchange for work he agreed to do around the house. She told Devoe that she did not allow weapons in her home. A short time later she found Devoe looking in her purse. She told him to leave her home. Before leaving he pointed the weapon at Wilson’s head and midsection before turning away and firing the weapon into the living room couch several times. Devoe stole Wilson’s Dodge Dakota pickup truck as well as the money and credit cards she had in her purse.
  • In the evening of August 24 Devoe went to O’Neill’s Sports Tavern where his estranged girlfriend, Glenda Purcell, frequented. He was dressed in his “motorcycle attire”—black leather vest, chaps, a cap, and a jacket. Devoe walked over to where Purcell was sitting, put his hand over her eyes, and placed the gun against her head. He pulled the trigger several times but the weapon jammed. Mike Allred, a friend of Purcell, tried to persuade Devoe to put down the gun at which time Devoe shot him in the chest severing the victim’s aorta. Devoe fled in the Dakota pickup as Allred bled to death.
  • Devoe went to Jonestown where Paula Griffith lived with her 15-year-old daughter, Haylie Faulkner. Devoe had previously had a romantic relationship with Griffith. On this August 24th evening Griffith, Haylie, and Haylie’s friend, Danielle Hensley, and Griffith’s boyfriend, Jay Feltner, were at the Griffith home preparing for a trip to the Fiesta Texas amusement park near San Antonio. On Sunday morning, August 26, the Jonestown police entered the Griffith residence where they found Feltner who had been shot in the back of the head at the kitchen table; Griffith was also shot in the back of the head as she tried to flee from the kitchen into living room; Haylie was on the living room floor with a bullet wound to the head; and Hensley lay on the living room sofa with four bullet wounds, one to the head. The police found Wilson’s Dakota pickup parked in Griffith front yard and Griffith’s Saturn station wagon missing. Feltner’s cell phone was also missing.
  • In the evening of August 24, a Friday, Devoe called his friend Brinlee and told him that he had tried to kill Purcell but Allred had gotten in the way.
  • Feltner’s cell phone records showed that his cell phone had been used Friday evening, the 24th, Saturday, the 25th, and Sunday, the 26th, in Texas, Arkansas, Tennessee, Pennsylvania, and New Jersey. Police theorized Devoe was heading to his mother’s home in Shirley, New York.
  •  On August 26, while driving through Pennsylvania, Devoe began having motor trouble with Griffith’s vehicle. He pulled off the Interstate where he saw a “nice car” parked in the driveway of a home in Greencastle. He stole Betty Diehart’s 2006 Hyundai Elantra. Diehart was found lying on her bed in with a bullet wound to the head. Police found a ton of incriminating evidence in the Diehart residence linking Devoe to the Texas killings.
  • On Monday, August 27, Devoe was arrested at the home of a friend and former employer, Gerald  Baldoni, and more evidence linking him to the Texas killings was discovered during a search of his person and belongings.


Before this horrific killing spree, Devoe had accumulated an extensive criminal history. He had been confined more than 20 times in New York for misdemeanors; was incarcerated in Texas for various misdemeanors; and spent five years in prison. His offenses included aggravated unlicensed operation of a vehicle, aggravated harassment, criminal trespass, disorderly conduct, endangering the welfare of a child; and he was convicted twice for harassment, three times for assault, and four times for DUI. In addition to these criminal offenses, Devoe had a “lengthy history of abusing women.”


The jury heard all this evidence, including testimony from “numerous witnesses” that Devoe abused alcohol and drugs which caused him to be more violent, during both the guilt/innocence and punishment phases of the trial. Pursuant to Rule 404(b), the State presented evidence at the guilt phase pertaining to the theft of Brinlee’s gun, the aggravated assault of Wilson, the killing of Allred, and the robbery of Diehart in Pennsylvania. While Devoe objected to this background evidence, he conceded that the murders of Griffith and Feltner was admissible as same transaction evidence.


At a pre-trial Rule 403 hearing, the State argued that the charged offenses and the extraneous offenses were part of a single “crime spree.” The State contended the crime spree began with the burglary of Brinlee’s residence and theft of his gun and culminated with the robbery of Diehart. The State argued that since it had no direct evidence that Devoe committed the Jonestown murders, the extraneous evidence was necessary to “explain what happened in Jonestown.” In effect, background evidence was needed to tie Devoe to the charged murders; namely, the same transactional murders of Faulkner, Hemsley, Feltner and Griffith. The trial court agreed, saying the absence of the background evidence would leave a gaping hole in the State’s case.


Devoe, on the other hand, argued that since he was not “challenging the State’s version of the events,” the background evidence was unnecessary to prove identity or any of the other Rule 404(b) exceptions. The CCA found this argument unpersuasive, saying: “Appellant did not plead guilty, and he argued at closing against a finding of guilt. When the identity of the perpetrator can be established by circumstantial evidence only, identity is a contested issue even if the defense rests with the State, puts on no evidence, and raises no defensive theories … We also note that this argument is without merit because, aside from the identity issue, the State needed all of this evidence to give context to [Devoe’s] crime spree as he stole the gun to go after women with whom he had had personal relationships and then to effectuate his flight to his mother’s home.”


We believe there was sufficient independent physical evidence apart from the background evidence to convict Devoe of the same transaction Jonestown crimes. There was DNA evidence linking Devoe to the crime, ballistics matches from the bullets recovered from the murder scene to the weapon in his possession at the time of arrest, the use of Feltner cell phone in Pennsylvania, and the abandonment of Griffith Saturn station wagon in Greencastle, Pennsylvania. Thus, we believe the background evidence was presented for no other reason than to show Devoe as an “evil characters” on a wanton “crime spree.”  But bad facts do make bad law…


The use of extraneous offense/bad act evidence is incredibly prejudicial to any defendant sitting before a jury charged with a criminal offense.  It is therefore approaching malpractice for a criminal defense attorney to fail to request notice of all 404(b) evidence in advance of every trial.  It is only with such notice from the State that the lawyer can be prepared to argue against the admissibility of the extraneous evidence and be prepared to contest the allegations should they be allowed in trial.
By: Houston Criminal Attorney John Floyd and paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization