By Britt Houston Lindsey
Chief Appellate Prosecutor in Taylor County
Character and bad acts evidence is tricky. On the one hand, “[i]t is a well-established and fundamental principle in our system of justice that an accused person must be tried only for the offense charged and not for being a criminal (or a bad person) generally.”[1] We nonetheless do allow character and bad acts evidence for other purposes, such as the defendant’s motive for committing the offense, modus operandi, lack of mistake, and all the other purposes allowed in Texas Rule of Evidence 404(b). We also allow propensity evidence in certain very limited circumstances involving the sexual abuse of children and child molestation cases under Texas Code of Criminal Procedure Art. 38.37 and its federal counterpart, Federal Rule of Evidence 414. At punishment, character and bad acts evidence is much fairer game: “The jury is concerned … with evaluating a defendant’s background and character independent of the commission of the crime on trial.”[2]
There is a line, however. As an evidentiary issue, the trial court’s rulings on admissibility of character and bad acts evidence are subject to an abuse of discretion standard, and harm is analyzed under a non-constitutional error standard,[3] as is the analysis of admissible but unfairly prejudicial evidence under Texas Rule of Evidence 403. In Andrew v. White[4] the Supreme Court of the United States (SCOTUS) tells us that there is also a Fourteenth Amendment Due Process Clause aspect to undue prejudice in what we generally consider evidentiary issues, both in the guilt–innocence and punishment stages. This broadly applies to all evidence admitted, but it is of particular concern in character evidence admitted under 404(b) and Art. 38.37.
Background
Brenda Evers Andrew was charged with first-degree (malice) murder and conspiracy to commit first-degree murder in Oklahoma District Court for the shooting death of her husband, Rob Andrew, which occurred on November 20, 2001. The two were separated at the time and Rob had come to the home where Brenda still lived to pick up their two minor children for the Thanksgiving holiday. Ordinarily Brenda would take the children to the car, but this time she asked Rob to come to the garage to relight the pilot light on the furnace. Brenda’s version of events was that as Rob was trying to light the furnace, two masked men entered the garage and shot him twice with a 16-gauge shotgun, as determined by the spent shells that were found. Shells from the same manufacturer were found in the home. Brenda had a superficial gunshot wound on her arm that she said was a graze from the second shot.
When police arrived, the children were in a bedroom watching television with the volume turned up very high, oblivious to the murder. Rob had told several friends that Brenda had refused to let him take his 16-gauge shotgun with him when he moved out. A witness had seen her eight days prior at an area near the Andrew’s country home used by locals for target practice and found 16-gauge shotgun shells there afterwards. Brenda’s superficial arm wound was found to be caused by a .22 caliber bullet fired at close range rather than shotgun pellets fired at medium range. James Pavatt, whom Brenda met at church when they taught Sunday School together and with whom she later began an affair, had purchased a .22-caliber handgun about a week before the murder. Pavatt was a life insurance agent and had assisted Rob in setting up an $800,000 life insurance policy around the same time the affair began. You see where this is going.
A jury found Brenda Andrew guilty on both counts and found true two aggravating factors: murder for remuneration and murder that was especially heinous, atrocious, or cruel. She was sentenced to death for the murder and to 10 years and a $10,000 fine for conspiracy. The Oklahoma Court of Criminal Appeals (OCCA) upheld her convictions and sentence on June 21, 2007. The OCCA concluded that the trial court hadn’t abused its discretion by admitting the majority of the challenged evidence, because it was used to show her motive, intent, preparation, and “the schemes she used to enter into a conspiracy with Pavatt to kill Rob Andrew.” The evidence of Brenda Andrew’s other, unrelated extramarital affairs, for example, the OCCA found proper as it showed that “her co-defendant [Pavatt] was just the last in a long line of men that she seduced.”
Other evidence, however, found the OCCA “struggling to find any relevance to this evidence, other than to show [Brenda Andrew’s] character,” such as testimony of another man with whom Brenda had had an affair that she had “come on to” his two adult sons; that she was dressed provocatively in a dress that was “very tight,” “very short,” and exposed “a lot of cleavage” when the Andrews and another couple went to dinner together six to eight weeks before the murder; that someone in that restaurant had called her a “hoochie”; that she had made inappropriate talk about a trip to Mexico; that she changed her hair color to red the day after hearing Rob’s best friend say that the friend preferred redheads. The State admitted that this evidence was not relevant but argued that it was nonetheless harmless, and the majority of the OCCA had agreed.
OCCA Judge Johnson dissented and would have vacated the sentence and remanded for a new hearing on punishment. He stated that although the evidence of her guilt was overwhelming, the prosecution engaged in an “egregious … pattern of introducing evidence that has no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman. The jury was allowed to consider such evidence, with no limiting instruction, in violation of the fundamental rule that a defendant must be convicted, if at all, of the crime charged and not of being a bad woman. … I believe one effect was to trivialize the value of her life in the minds of the jurors.” OCCA Judge Chapel wrote a separate brief dissent saying that he would remand altogether for a new trial.
Her state remedies exhausted, Andrew then began her climb through the federal system with a petition for writ of habeas corpus. Among the claims brought to the U.S. Tenth Circuit Court of Appeals was the impermissible introduction of personal and sordid evidence about Brenda Andrew’s sex life admitted as evidence of “bad acts,” which she claimed violated the Due Process Clause in both the guilt–innocence and punishment phases. The Tenth Circuit, with Judge Bacharach dissenting, held in a divided opinion that it could not grant relief on this claim under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).[5] The AEDPA presents three independent prongs for federal habeas relief by showing that a state court decision that was adjudicated on the merits was:
1) “contrary to” or
2) “involved an unreasonable application of” federal law that was clearly established by the Supreme Court, or
3) that “a state court decision was based on an unreasonable factual determination.”[6]
Andrew had argued, and the lower federal district court had agreed, that the U.S. Supreme Court case of Payne v. Tennessee[7] met the “clearly established law” requirement, but the Tenth Circuit did not see it that way. Payne had broadly announced that improperly admitted evidence may be so unduly prejudicial that it renders the trial fundamentally unfair under the Due Process Clause of the Fourteenth Amendment, but the Tenth Circuit had previously held[8] that Payne was limited to the issue that that case had addressed, namely victim impact statements before the jury in the punishment phase of a capital trial. The Tenth Circuit observed that Andrew was raising a claim challenging a state court’s evidentiary rulings, and the Court’s own precedent meant that Payne was not “clearly established law” that produces a framework for due process violations arising from ordinary evidentiary rulings at trial.
As the judges saw it
The U.S. Supreme Court reversed in a 6–1–2 ruling, rejecting the Tenth Circuit interpretation that limited Payne to its facts. The per curiam opinion of the Court stated bluntly that “the Court of Appeals rejected [Andrew’s] claim because, it thought, no holding of this Court established a general rule that the erroneous admission of prejudicial evidence could violate due process. That was wrong. By the time of Andrew’s trial, this Court had made clear that when ‘evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief,’” citing Payne.
The Court noted that Payne had overruled a line of cases that had barred victim impact evidence entirely from the punishment phase of a capital trial. Payne had observed that in many circumstances, “victim impact evidence serves entirely legitimate purposes,” although it may be prejudicial in others. Payne concluded that a per se rule was not necessary to protect against risk of prejudicial testimony because “the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief” against the introduction of evidence “that is so unduly prejudicial that it renders the trial fundamentally unfair.” In other words, the Court removed the protection of a per se rule because the Due Process Clause was sufficient protection against evidence that is so unduly prejudicial that it renders the trial fundamentally unfair. The language from Payne that the Due Process Clause “pro- vides a mechanism for relief” when the introduction of unduly prejudicial evidence “renders [a] trial fundamentally unfair” was not mere dicta or a “pronouncement,” as the Tenth Circuit has said; it was central to the holding. In support the Court cited numerous other cases prior to Payne holding that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair.[9]
Addressing the facts of Andrew’s case, the Court observed that some evidence should have been analyzed under Payne, quoting in particular Judge Bacharach’s dissent in the Tenth Circuit case that the State’s focus “from start to finish on Ms. Andrew’s sex life,” in which he argued “portrayed Ms. Andrew as a scarlet woman, a modern Jezebel, sparking distrust based on her loose morals … plucking away any realistic chance that the jury would seriously consider her version of events,” the cumulative effect of which “deprived Ms. Andrew of a fundamentally fair trial.”[10] The Court held that the lower court erred in refusing even to consider whether the OCCA unreasonably applied established due process principles to Andrew’s case and held that the Tenth Circuit must on remand determine “whether a fairminded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.’” The Court directed that the Tenth Circuit must make that determination separately as to both guilt–innocence and punishment, considering for each the relevance of the disputed evidence to the charges or sentencing factors, the degree of prejudice Andrew suffered from its introduction, and whether the trial court provided any mitigating instructions.
Justice Alito concurred with the judgment, writing simply, “I concur in the judgment because our caselaw establishes that a defendant’s due-process rights can be violated when the properly admitted evidence at trial is overwhelmed by a flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair. … I express no view on whether that very high standard is met here.”[11]
The dissent
Justice Thomas dissented, joined by Justice Gorsuch, on both the majority’s recitation of facts and its application of the AEDPA to Payne, saying that the Court “summarily vacates the opinion below for failing to elevate to ‘clearly established’ law the broadest possible interpretation of a one-sentence aside in Payne” and observing that the Court just months after Payne reserved the very question that it now says Payne resolved, in Estelle v. McGuire.[12] Justice Thomas faulted the majority for its characterization of the trial proceedings, citing the overwhelming evidence of guilt that rendered the irrelevant evidence harmless, and arguing that some of the character evidence was either admissible to show motive or was legitimately rebutting points that Andrew herself had placed at issue.
Justice Thomas points out that the Court’s precedent held that “holdings that speak only at a high level of generality … cannot supply a ground of relief under the AEDPA,”[13] instead requiring lower courts to evaluate whether Supreme Court precedent supplies a specific rule.[14] Thomas further faults the majority for finding a clearly established rule when the holding of the precedent at issue is debatable. Because “fairminded jurists” could disagree with the majority’s reading of Payne, it cannot in Justice Thomas eyes be clearly established.
The takeaway
It is very likely that we will hear and see Andrew v. White in the trial courts and appellate briefs cited as new authority for a constitutional right of exclusion of evidence by the defendant, so it is important to be familiar with it. Remember that due process arguments to evidentiary issues are not new to Andrew; these arguments have been made in state courts of appeal previously. Texas courts will likely continue to hold that the normal rules of admissibility sufficiently protect against due process violations in all but the most grievous cases, particularly cumulative, repetitive, and egregious errors such as Alito’s “flood of irrelevant and highly prejudicial evidence that renders the trial fundamentally unfair.” Remember that even the State on appeal admitted that much of the evidence complained of in Andrew was simply irrelevant “bad person” evidence.
The best preparation we can make is to continue to rigorously observe best practices as to our theory of admissibility for each piece of evidence that we put in, particularly when it comes to character evidence under 404(b) and CCP Art. 38.37 and potentially inflammatory evidence under 403. For character evidence we seek to admit under 404(b), be able to articulate exactly why it has relevance apart from propensity and that you are not trying to enter it to show that the defendant is simply a bad person who does bad things. Propensity evidence under Art. 38.37 has been repeatedly held constitutional by the courts, but we shouldn’t be taking that as an invitation to overwhelm the jury with inflammatory evidence about a defendant. The same goes to an unfair prejudice analysis of all other evidence we seek to enter. Don’t merely think of the 403 balancing test as a trial court hurdle to overcome; be consciously aware of the strength and importance of the evidence weighed against the danger of unfairly prejudicing the jury or inflaming jurors’ passions. If you anticipate where you will see those objections and are able to articulate how the evidence weighs for admissibility under the Gigliobianco/Montgomery[15] factors, the due process argument will likely take care of itself.
I suspect we will have to see how things shake out in the lower courts, but there’s no reason to panic. Be aware that there is a due process line for admissibility, and stay well on the correct and fair side of it. Andrew should serve as a reminder of what we are (let’s hope) already doing.
[1] Templin v. State, 711 S.W.2d 30, 32 (Tex. Crim. App. 1986); see also United States v. Foskey, 636 F.2d 517, 523 (1980) “[i]t is fundamental to American jurisprudence that ‘a defendant must be tried for what he did, not for who he is’”) (quoting United States v. Myers, 550 F.2d 1036, 1044 (5th Cir. 1977), cert. denied, 439 U.S. 847 (1978).
[2] Sparkman v. State, 580 S.W.2d 358, 360 (Tex. Crim. App. 1979); see also Tex. Code Crim. Proc. Art. 37.07, §3.
[3] See Tex. R. App. P. 44.2(b).
[4] 220 L.Ed.2d 340 (U.S. 2025).
[5] 28 U.S.C. §2254.
[6] Andrew v. White, 62 F.4th 1299, 1311, 1355 (10th Cir. 2023) reversed, 220 L.Ed.2d 340 (U.S. 2025); 28 U.S.C. §2254(d)(1)-(2).
[7] 501 U.S. 808 (1991).
[8] See Holland v. Allbaugh, 824 F.3d 1222, 1228 (10th Cir. 2016).
[9] Donnelly v. DeChristoforo, 416 U.S. 637 (1974) (observing that prosecutor’s misconduct during trial and closing argument could “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process”); Caldwell v. Mississippi, 472 U.S. 320, 338-340 (1985) (applying Donnelly to reverse death penalty where prosecutor’s remarks were unambiguous and uncorrected by the trial court); Darden v. Wainwright, 477 U. S. 168, 179-183 (1986) (applying standard in Donnelly).
[10] Andrew, 220 L.Ed.2d at 345 (quoting Andrew, 62 F. 4th, at 1366).
[11] Andrew, 220 L.Ed.2d at 348 (Alito, J., concurring) (internal citations omitted).
[12] 502 U.S. 62, 67 (1991) (reversing when the court of appeals granted habeas relief on the ground that the admission of irrelevant and prejudicial prior-bad-act evidence had helped render the prisoner’s trial “fundamentally unfair in violation of due process”).
[13] Andrew, 220 L.Ed.2d at 353 (Thomas, J. dissenting) (quoting Brown v. Davenport, 596 U.S. 118, 136 (2022)).
[14] Andrew, 220 L.Ed.2d at 353 (Thomas, J. dissenting) (quoting Lopez v. Smith, 574 U.S. 1, 6 (2014)).
[15] Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006); Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh’g).