Evidence of escape or flight is an exception to Rule 404(b)'s admissibility prohibition because such evidence is admissible as a circumstance from which an inference of guilt may be drawn. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); Cantrell v. State, 731 S.W.2d 84, 93 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim App. 1982); Valdez v. State, 623 S.W.2d 317, 321 (Tex. Crim. App. [Panel Op.] 1981); Holloway v. State, 525 S.W.2d 165, 167-68 (Tex. Crim. App. 1975). Before the evidence of escape from custody or flight is admissible, it must pertain to and have some legal relevance to the offense under prosecution.
Evidence of flight or escape is admissible as a circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845, 859 (Tex.Crim.App. 1989), cert. denied, 494 U.S. 1039, 110 S.Ct. 1505, 108 L.Ed.2d 639 (1990); Cantrell v. State, 731 S.W.2d 84, 93 (Tex.Crim.App. 1987) (evidence of bond forfeiture may be admissible as tending to show flight); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex.Crim.App. 1982); See Tex.Crim.R.Evid. 401. To support the admission of evidence of escape from custody or flight it must appear that the escape or flight have some legal relevance to the offense under prosecution.
"To support the admission of evidence of escape from custody or flight[,] it must appear that the escape or flight have some legal relevance to the offense under prosecution." Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); see Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); see also Carvajal v. State, No. 04-00-00132-CR, 2001 Tex. App. LEXIS 1670, at **6-7 (Tex. App.—San Antonio Mar. 14, 2001, pet. ref'd) (not designated for publication). "To have such evidence excluded under relevancy challenges, the burden shifts to the defendant to show affirmatively the escape and flight directly connected to some other transaction and further that it was not connected with the offense at trial."
Evidence of flight is admissible as a circumstance from which an inference of guilt may be drawn. Foster v. State, 779 S.W.2d 845 (Tex.Cr.App. 1989); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App. 1982); Valdez v. State, 623 S.W.2d 317 (Tex.Cr.App. 1981). Before such evidence is admitted, however, it must appear that it has some relevance to the offense under prosecution.
Bailey v. State, 532 S.W.2d 316, 322 (Tex.Cr.App. 1975). See also, e.g., Thomas v. State, 701 S.W.2d 653, 660 (Tex.Cr.App. 1985); Rumbaugh v. State, 629 S.W.2d 747, 755 (Tex.Cr.App. 1982). We find that these photographs had some probative value and were not introduced solely to inflame the jury.
As the Court explained, Art. 37.071(a), V.A.C.C.P., provides that during the punishment phase of a capital murder case "evidence may be presented as to any matter that the Court deems relevant to sentence." Numerous cases have interpreted this to mean that evidence of unadjudicated extraneous offense are admissible. Santana, supra; Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App. 1982); Smith v. State, 683 S.W.2d 393 (Tex.Cr.App. 1984). The Court in Santana, supra, pointed out that the defendant was adequately protected by the other portions of the charge which required the jury, based on the evidence presented, to believe beyond a reasonable doubt that the defendant would commit future criminal acts of violence before they could answer the second special punishment issue affirmatively.
Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968); Paprskar v. State, 484 S.W.2d 731, 737 (Tex.Cr.App. 1972).Kolb v. State, supra. Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App. 1982). The burden requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.
It has been consistently held that evidence of unadjudicated extraneous offenses are admissible at the penalty stage of a capital murder trial absent showing of unfair surprise. Quinones v. State, 592 S.W.2d 933 (Tex.Cr.App. 1980), cert. den. 449 U.S. 893, 101 S.Ct. 256, 66 L.Ed.2d 121; Crawford v. State, 617 S.W.2d 925 (Tex.Cr.App. 1980); Rumbaugh v. State, 629 S.W.2d 747 (Tex.Cr.App. 1982). And such admission does not render the proceedings fundamentally unfair or deprive an accused of due process and equal protections of the laws.
Also, Texas law has long recognized that evidence of a defendant's flight or escape is a circumstance from which an inference of guilt may be drawn. See e.g., Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994); Burks v. State, 876 S.W.2d 877, 903 (Tex. Crim. App. 1994); Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim. App. 1989); Cantrell v. State, 731 S.W.2d 84, 92 (Tex. Crim. App. 1987); Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); McWherter v. State, 607 S.W.2d 531, 535 (Tex. Crim. App. 1980). C. Application of the Law to the Facts
To support the admission of evidence of escape from custody or flight, it must appear that the escape or flight pertains to the offense under prosecution. Rumbaugh v. State, 629 S.W.2d 747, 752 (Tex. Crim. App. 1982); Wockenfuss v. State, 521 S.W.2d 630, 632 (Tex. Crim. App. 1975) (evidence of flight, in bail-jumping, may be construed as evidence of guilt); Hodge v. State, 506 S.W.2d 870, 873 (Tex. Crim. App. 1974). To have such evidence excluded under relevancy challenges, the burden shifts to the defendant to show affirmatively that the escape and flight directly connected to some other transaction and that it was not connected with the offense at trial.