Harrell v. State

• Decision Date: 31 July 1992
• Docket Number: No. 12-89-00035-CR,12-89-00035-CR
• Citation: 885 S.W.2d 433
• Parties: Wesley HARRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 433

885 S.W.2d 433

Wesley HARRELL, Appellant, v. The STATE of Texas, Appellee.

No. 12-89-00035-CR.

Court of Appeals of Texas,

Tyler.

July 31, 1992.

Discretionary Review Granted Nov. 4, 1992.

Odis R. Hill, Longview, for appellant.

C. Patrice Savage, Longview, for appellee.

OPINION ON REMAND

BILL BASS, Justice.

We delivered our original opinion in this case on May 17, 1991. The State petitioned for discretionary review contending that we erred in our review of the admission of evidence of an extraneous offense. The Court of Criminal Appeals remanded 820 S.W.2d 800 this case to us to reconsider the admission of the extraneous offense in the light of their subsequent opinion in Montgomery v. State, 810 S.W.2d 372 (Tex.Cr.App.1991), delivered June 19, 1991.

A jury convicted Appellant of engaging in organized crime, and assessed punishment at confinement for fifteen years. At Appellant's trial, the State introduced a ledger apparently recording several cocaine sales made to "Wesley" during February and March of an un-named year. We reversed Appellant's conviction, because we believed that Appellant had not been clearly shown to have been the perpetrator of the extraneous crimes. See Turner v. State, 754 S.W.2d 668 (Tex.Cr.App.1988); McCann v. State, 606 S.W.2d 897 (Tex.Cr.App.1980); Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1974).

Montgomery prescribed a new procedure for adjudicating the admissibility of evidence of "other crimes, wrongs, or acts" under Article IV of the TEXAS RULES OF CRIMINAL EVIDENCE, and pointed to a significant shift from a general rule of exclusion found in case law to the inclusionary approach implicit in the Rules of Evidence.

If evidence of uncharged misconduct is offered, the opponent must challenge the offer under Rule 404(b); an objection that the offer is not relevant or constitutes proof of an extraneous offense will preserve error. Under Montgomery, we must first determine if the offered proof is relevant for any purpose. If not, the evidence is inadmissible and the inquiry ends. TEX.R.CR.EVID., Rule 402. If the answer is "yes," the court must then decide if it has relevance "apart from its tendency 'to prove [the] character of a person in order to show that he acted in conformity therewith.' " Montgomery, 810 S.W.2d at 387. If it is relevant solely because it supports an inference of character conformity, the evidence is absolutely inadmissible under 404(b).

However, it may be admissible if the trial judge is persuaded that the evidence of extraneous offenses tends to establish "some elemental fact such as identity or intent, some evidentiary fact such as motive, opportunity or preparation, or if it tends to rebut a defensive theory." Montgomery, 810 S.W.2d at 387, 388.

If the opponent of the offer has objected only upon the ground that the proffered evidence is of an "extraneous offense" or has no relevance beyond character conformity, the trial judge should admit the evidence if it has relevance apart from character conformity. Id. at 389. The opponent's objection has been fully ruled upon.

Only in the event that the opponent of the offer has raised the further objection under Rule 403 that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, delay, or confusion of the issues, need the trial court proceed further and weigh the probative value of the evidence against its potential for unfair prejudice. An objection that the evidence is inadmissible because it amounts to proof of an "extraneous offense" will no longer suffice to require the trial judge to decide "both that evidence was relevant to a material issue and that its probative value outweighed its prejudicial impact." Once a Rule 403 challenge is leveled at the offer, the trial court must go forward with the balancing process such as its weighing the factors that argue for and against its admission. Id.; 22 WRIGHT & GRAHAM, Federal Practice and Procedure: Evidence, § 5250 at 544-45 (1978). Unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, the trial court may admit it. Montgomery, 810 S.W.2d at 392. The abuse of discretion standard governs appellate review of the trial judge's decision under Rule 403. "But reviewing the trial court's judgment for abuse of discretion requires more of an appellate court than deciding that the trial judge did in fact conduct the required balancing and did not simply rule arbitrarily or capriciously." Id.

The relevance of an extraneous offense necessarily depends upon a showing that the offense actually occurred, and that the defendant committed it. The strength of the evidence showing that the extraneous bad acts occurred and that the defendant was the actor bears upon both the trial court's initial determination of relevance under Rule 404(b) as well as its assessment of probative value under 403. Evidence of another crime can rarely be relevant to prove the accused guilty of the crime charged, unless it is shown that the accused was its perpetrator.

The Montgomery court did not directly address the central question in this case. When the State undertakes to prove other crimes, wrongs, or acts, what is the standard by which the sufficiency of that proof is to be measured? What quantum of evidence must be presented showing that the defendant committed the extraneous crimes, wrongs, or acts before the evidence of that conduct may go to the jury? Given the potential for unfair prejudice that inheres in this kind of evidence, the courts of most jurisdictions have traditionally imposed a higher standard for its admission than that for the admissibility of evidence generally. See 22 WRIGHT & GRAHAM, Federal Practice and Procedure: Evidence, § 5249 at 532. Before the adoption of Rule 404(b), most federal and state courts required such evidence to be "substantial proof" or "satisfactory proof" or "clear and convincing." Id. In an opinion delivered after the adoption of the rules of evidence, the Court of Criminal Appeals reiterated the traditional and more demanding standard required of such evidence in Texas: evidence of another crime "should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator." Turner v. State, 754 S.W.2d 668, 673 (Tex.Cr.App.1988).

Relying on Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the State argues strenuously that no preliminary showing is required before the admission of "other bad acts" evidence. In Huddleston, the petitioner argued that the jury should not be exposed to evidence of extraneous offenses until the trial court had heard the evidence and made a preliminary finding under FED.R.EVID. 104(a) that the defendant had committed the extraneous offense. When the United States Supreme Court granted certiorari in Huddleston, a conflict existed among the Courts of Appeals both as to the necessity of such a preliminary hearing and the level of proof required before the admission of evidence of other acts of misconduct. The Supreme Court concluded that the trial judge was not required to make a preliminary finding that the government had proven the other act by a preponderance of the evidence. Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501. However, although the judge is not required to weigh the evidence in order to make his own finding, he must be satisfied that there is, or will be, sufficient evidence in the record from which the jury may reasonably find by a preponderance of the evidence that the defendant committed the extraneous offense. Id. at 690, 108 S.Ct. at 1501-02. The Huddleston opinion makes clear that this quantum of evidence must be present before the proof of the extraneous offense is relevant under Rule 404(b).

[The] Government may [not] parade past the jury a litany of potentially prejudicial similar acts that have been established or connected to the defendant only by unsubstantiated innuendo.

....

In the Rule 404(b) context, similar act evidence is relevant only if the jury can reasonably conclude that the act occurred and that the defendant was the actor.

Huddleston, 485 U.S. at 689, 108 S.Ct. at 1501. Therefore, even under the relaxed requirements of Huddleston, there remains a threshold of proof that must be crossed before evidence of uncharged misconduct can go to the jury. The judge need not weigh the evidence to determine whether the evidence connecting the defendant to the extraneous offense preponderates, but he must be satisfied that there is sufficient evidence from which the jury could reasonably so find. Once this threshold of relevance is crossed, the strength of the evidence that the defendant committed the extraneous offense may still have an important bearing on the outcome of the judge's decision under Rule 403 weighing probative value against the potential for unfair prejudice.

The pertinent TEXAS RULES OF CRIMINAL EVIDENCE are almost identical to their counterparts in the FEDERAL RULES OF EVIDENCE. Nevertheless, the similarity in wording does not necessarily require a similar interpretation. State courts retain the right to interpret their own constitution and laws, short of subtracting from the rights guaranteed their citizens by federal...