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235 S.W.3d 244

Delgado v. State

Court of Criminal Appeals of Texas

Decided September 26, 2007

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Court of Criminal Appeals of Texas · decided 2007-09-26

Key passage — most relied on by later courts

“[I]f a defendant does not request a limiting instruction ... at the time that evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge. This doctrine is a sensible one because otherwise a jury might sit through most of a trial under the mistaken belief that certain evidence is admissible for all purposes when, in fact, it is not. Once evidence has been admitted without a limiting instruction, it is part of the general evidence and may be used for all purposes.... Taking the cases together, then, a limiting instruction concerning the use of extraneous offense evidence should be requested, and given, in the guilt-stage jury charge only if the defendant requested a limiting instruction at the time the evidence was first admitted. [[Image here]] ... Because the trial judge had no duty to give any limiting instruction concerning the use of an extraneous offense in the guilt-phase jury charge, it naturally follows that he had no duty to instruct the jury on the burden of proof concerning an extraneous offense.”

quoted by 1 later decision, including Gunter v. State

Relies on Kutzner v. State · Castaldo v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2007-09-26

How this case has been cited

Cited by 70 later decisions — most recently March 2021 · most notably Oursbourn v. State (2008), Taylor v. State (2011)

70 state decisions

560200720102020decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

KELLER, P.J.,

¶1filed a concurring opinion.

¶2Crucial to the Court’s analysis is its determination that the evidence at issue constituted “same transaction contextual evidence” 1 and a party is not entitled to a limiting instruction with respect to that type of evidence. Because the trial judge had no duty to give a limiting instruction for that type of evidence, the Court concludes that he also had no duty to give a burden of proof instruction.2 That conclusion, however, does not depend upon whether appellant requested the instruction; limiting instructions are never required for same transaction contextual evidence.3 If entitlement to a burden of proof instruction depends upon entitlement *255to a limiting instruction,4 and a party is never entitled to a limiting instruction for same transaction contextual evidence, then, necessarily, a party is never entitled to a burden of proof instruction for same transaction contextual evidence. Consequently, the Court does not really resolve the issue framed at the beginning of its opinion and articulated in appellant’s ground for review: whether an instruction on burden of proof for extraneous offenses admitted at the guilt phase must be included sua sponte or only upon request.

¶3I do not disagree with the Court’s ultimate resolution of the case, and the issue addressed is one we have also not resolved, but it is not the issue squarely presented in appellant’s petition.

¶4.This type of evidence has also historically been referred to as “res gestae.”

¶5. Court’s op. at 254.

¶6. Castaldo v. State, 78 S.W.3d 345, 347-48, 352 (Tex.Crim.App.2002)(limiting instruction not required despite request).

¶7. The explanation for the Court’s link of limiting instructions and burden of proof instructions is not clear to me. The question that comes to my mind is: Even if appellant is not entitled to a limiting instruction, how does that prevent him from being entitled to a burden of proof instruction? The answer to that question in the context of same transaction contextual evidence is that that type of evidence is treated like any other fact relating to the offense charged. A burden of proof instruction with respect to the elements of the charged offense suffices to cover the broad range of subsidiary facts that might be elicited during the prosecution of that offense. The capital sentencing context is analogous in this regard. See Kutzner v. State, 994 S.W.2d 180, 188 (Tex.Crim.App.1999)(‘‘so long as the jury has been properly instructed concerning the burden of proof with regard to the special issues, the trial court does not err in failing to submit in the punishment jury charge a separate instruction on the burden of proof on extraneous offenses”).

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