                 IN THE COURT OF CRIMINAL APPEALS
                             OF TEXAS
                                         NO. PD-0924-09



                            ROBERT LEE WORTHY, Appellant

                                                  v.

                                    THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                 FROM THE ELEVENTH COURT OF APPEALS
                            BROWN COUNTY

                  K ELLER, P.J., filed a concurring opinion in which M EYERS, J., joined.


       Evidence of a bad act is “same transaction contextual evidence” when the bad act is “so

intermixed or connected” with the charged offense “as to form a single, indivisible criminal

transaction, such that in narrating the one, it is impracticable to avoid describing the other.”1 It is

not enough for the bad act to be intermixed with the charged offense; the bad act must be “necessary

to the jury’s understanding of the [charged] offense.”2 Although the bad act of bringing a child to



       1
           McDonald v. State, 179 S.W.3d 571, 577 (Tex. Crim. App. 2005).
       2
           Id.
                                                                    WORTHY CONCURRENCE – 2

a registered sex offender’s apartment occurred during the same transaction as the sexual assaults3

that occurred at that same apartment, it is not at all clear whether this bad act was necessary to

understanding those offenses. The trial court did not think so; it admitted the evidence on a different

basis.4

          We need not decide whether this evidence was same transaction contextual evidence because

appellant has not challenged the court of appeals’s determination that it was. His only challenge is

to the court of appeals’s determination that same transaction contextual evidence is exempt from the

article 37.07 notice provision. Rather than imply that such evidence is admissible as same

transaction contextual evidence, I would refrain from addressing the issue.



Filed: June 9, 2010
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          3
         The indictment alleged two sexual assault offenses, but the evidence showed more than two
offenses conforming to the indictment allegations—including those occurring at the registered sex
offender’s home. “[I]f the State presents evidence of multiple criminal acts conforming to the
indictment, and no election is made, then all of the acts are considered as the charged offense.”
Campbell v. State, 149 S.W.3d 149, 156 (Tex. Crim. App. 2004) (Keller, P.J., concurring) (citing
Ex parte Goodbread, 967 S.W.2d 859, 860-861 (Tex. Crim. App. 1998)).
          4
              The trial court found that the notice requirement was met. That issue is not before us here.
