Delgado v. State , 2007 Tex. Crim. App. LEXIS 1235 ( 2007 )

KELLER, P.J.,

filed a concurring opinion.

Crucial 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 to 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.

I 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.

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

2 . Court’s op. at 254.

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

4 . 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”).