Grunsfeld v. State

• Decision Date: 28 October 1992
• Docket Number: 1092-91,Nos. 1037-91,s. 1037-91
• Citation: 843 S.W.2d 521
• Parties: Robert Charles GRUNSFELD, Appellant, v. The STATE of Texas, Appellee. Jerred J. HUNTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 521

843 S.W.2d 521

Robert Charles GRUNSFELD, Appellant, v. The STATE of Texas, Appellee.

Jerred J. HUNTER, Appellant, v. The STATE of Texas, Appellee.

Nos. 1037-91, 1092-91.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 28, 1992.

Rehearing Denied Dec. 9, 1992.

John D. Nation, Dallas, for appellant Grunsfeld.

John Vance, Dist. Atty. and Pamela Sullivan Berdanier, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Anthony D. Lyons, Dallas, for appellant Hunter.

Tim Curry, Dist. Atty., and C. Chris Marshall, Betty Marshall & Steven W. Conder, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON PETITIONS FOR DISCRETIONARY REVIEW

MALONEY, Judge.

In separate cases, appellants Robert Charles Grunsfeld and Jerred J. Hunter ¹ were each convicted by a jury of aggravated sexual assault and sentenced to life imprisonment. The Court of Appeals for the Fifth District in Dallas County reversed Grunsfeld's conviction and remanded the case for a new trial. Grunsfeld v. State, 813 S.W.2d 158 (Tex.App.--Dallas 1991). The Fort Worth Court of Appeals affirmed Hunter's conviction in an unpublished opinion. Hunter v. State, No. 2-90-170-CR (Tex.App.--Fort Worth Aug. 30, 1991). We have consolidated these two cases, as they both seek review of the same issue.

We granted the State's Petition for Discretionary Review in Grunsfeld and Appellant's Petition for Discretionary Review in Hunter to determine whether Article 37.07(3)(a) V.A.C.C.P., as amended, allows admission of unadjudicated extraneous offense evidence in the punishment phase of a trial on a noncapital offense. We will affirm the decision of the Court of Appeals in Grunsfeld and reverse the decision of the Court of Appeals in Hunter. We remand both cases to their respective trial courts for a new punishment hearing pursuant to article 44.29(b) V.A.C.C.P. A brief discussion of the facts of each case is helpful in understanding the context and application of article 37.07(3)(a).

The victim testified at appellant Grunsfeld's trial that following a date with Grunsfeld, he took her to his mother's house where he repeatedly raped her. The victim further testified that Grunsfeld assaulted her with a stun gun throughout the alleged offense. In the punishment portion of the trial, the State called a witness who testified that Grunsfeld assaulted her several months prior to the subject offense. The State also called two other witnesses who each testified that they had been raped by Grunsfeld several months after the subject offense. Grunsfeld objected claiming that the witnesses' testimony constituted extraneous offense evidence and did not fall within article 37.07(3)(a). The trial court nevertheless allowed the testimony of these witnesses over Grunsfeld's objection. Grunsfeld's mother testified that Grunsfeld had never been convicted of a felony offense, thus establishing his eligibility for probation. The Dallas Court of Appeals held that the trial court erred in admitting the evidence of the unadjudicated extraneous offenses and reversed and remanded the case to the trial court. Grunsfeld.

During appellant Hunter's trial, the victim testified that she gave Hunter a ride in her automobile after a meeting which they had both attended. Upon arrival at Hunter's supposed destination, a deserted building, the victim testified that Hunter sexually assaulted her and then drove to a second location where he sexually assaulted her again. She further testified that Hunter choked her with his arm, causing her to lose consciousness and that Hunter threatened to kill her if she reported the incident. At the punishment phase of the trial the State called D.B. who testified that on the day before the subject offense she gave appellant Hunter a ride home from a school that they both attended. When they arrived at the designated location, Hunter sexually assaulted her at gunpoint and choked her with his arm. D.B. further testified that Hunter threatened to kill anyone whom she told about the incident. Appellant Hunter timely objected to D.B.'s testimony as inadmissible under article 37.07(3)(a) and as not relevant under the Rules of Evidence. Hunter's mother testified that Hunter had not previously been convicted of a felony, thus establishing his eligibility for probation. The Fort Worth The relevant portion of article 37.07(3)(a), amended effective September 1, 1989, provides:

Court of Appeals affirmed Hunter's conviction, holding that article 37.07(3)(a) was intended to have the same meaning and effect as article 37.071(a) ², consequently permitting evidence of unadjudicated extraneous offenses during punishment of noncapital offenses.

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

Article 37.07(3)(a) V.A.C.C.P. (Vernon Supp.1991) (emphasis on portion added by amendment).

The State contends that the amendment to article 37.07(3)(a) effectuates the legislature's intent to overturn this court's ruling in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1989) (opinion on rehearing) ³, by now allowing the admission of "any matter the court deems relevant to sentencing," including unadjudicated extraneous offenses, consistent with their admission in capital cases. The State argues that the term "including" is one of inclusion, not limitation and therefore, admissible evidence is not limited to a defendant's prior criminal record, general reputation and character, but may include anything the trial court deems relevant, including unadjudicated extraneous offense evidence. Appellants claim that the plain language of the amended provision and the legislative history support a conclusion that evidence of unadjudicated extraneous offenses remains inadmissible under article 37.07(3)(a).

A primary tenet of statutory construction is the importance of legislative intent. Ward v. State, 829 S.W.2d 787, 790 (Tex.Cr.App.1992); Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Cr.App.1991); TEX.GOV'T CODE ANN. § 311.023(3) (Vernon 1988). Such intent may be derived from the language of the statute, its legislative history and the "context of the entire law in which it is written." Grunsfeld, 813 S.W.2d at 168. As pointed out in the State's brief, when examining amendments to existing legislation, it is presumed that the legislature was aware of caselaw affecting or relating to the statute. Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App.--Dallas 1963, no writ).

In light of the legislative history and the timing of the amendment, and in an effort to ascribe meaning to each word contained in the subject provision, as amended, we agree with the Dallas Court of Appeals in Grunsfeld in construing article 37.07(3)(a), to provide that even if deemed relevant to sentencing by the trial court, evidence is not admissible at punishment, unless (1) it is permitted by the Rules of Evidence ⁴, and (2) if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies article 37.07(3)(a)'s definition of prior criminal record. ⁵ We note that these two criteria did not come about as a result of the 1989 amendment, but were in place before the recent amendment. The only change accomplished by the amendatory language is the statutory recognition that evidence other than prior criminal record, general reputation and character is admissible. At the time of the passage of the subject amendment, this issue was questionable under this court's original opinion in Murphy. To that extent, we agree with the State that the subject amendment was very likely directed at this court's opinion in Murphy. ⁶ Although not patently apparent from the face of the original opinion, in separate dissenting opinions thereto, both Presiding Judge Onion and Judge White construed the plurality opinion in Murphy to hold that article 37.07(3)(a), as it then existed, prohibited the admission of any evidence other than prior criminal record, general reputation, and character. ⁷ Based upon this view of the court's original opinion, it is probable that the legislature also reached the same conclusion in reading the original opinion and was prompted to amend article 37.07(3)(a) by insertion of the word "including" to clarify that the article's list of admissible evidence was not exhaustive and other evidence is admissible so long as it is deemed relevant to sentencing.

Although the amendment's embrace of the term "including" renders the list following it nonexclusive ⁸, retention of the The State's further contention that article 37.07(3)(a), should be applied as broadly as article 37.071(a), is also unfounded in light of the retained portions of the provision. The form of the Bill submitted to the Senate by the Senate Committee on Criminal Justice proposed deletion of article 37.07's references to prior criminal record, general reputation and character and the definition of prior criminal record. However, when brought up for consideration by the Senate, a floor amendment was offered and passed which reinstated those references and definition. ¹¹ If the legislature Here, the trial courts allowed evidence of unadjudicated, extraneous offenses during the punishment phase in the trials of two noncapital offenses. ¹² Pursuant to this court's historical construction of the term "prior criminal record" the evidence of extraneous unadjudicated offenses was improperly admitted. Accordingly, we find that the trial courts in both Grunsfeld and...