Harrell v. State

• Decision Date: 21 September 1994
• Docket Number: No. 1232-92,1232-92
• Citation: 884 S.W.2d 154
• Parties: Wesley HARRELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 154

884 S.W.2d 154

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

No. 1232-92.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 21, 1994.

Odis R. Hill, Longview, for appellant.

David Brabham, Dist. Atty., and C. Patrice Savage, Asst. Dist. Atty., Longview, Robert Huttash, State's Atty., and Matthew W. Paul, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

A jury convicted appellant of engaging in organized criminal activity and sentenced him to fifteen years in prison. TEX.PENAL CODE ANN. § 71.02(a)(5). ¹ Initially, the Twelfth Court of Appeals reversed the conviction. Harrell v. State, 885 S.W.2d 427 (Tex.App.--Tyler 1991) ("Harrell I"). This Court reversed and remanded. Harrell v. State, 820 S.W.2d 800 (Tex.Crim.App.1991) ("Harrell II"). On remand, the Court of Appeals affirmed. Harrell v. State, 885 S.W.2d 433 (Tex.App.--Tyler 1992) ("Harrell III"). We granted appellant's petition for discretionary review to determine, for purposes of admissibility, the standard of proof applicable to the State in proving the defendant committed an extraneous offense. ² We will reverse the judgment of the Court of Appeals.

At the guilt/innocence phase of trial, the State introduced State's exhibit number 76, a ledger depicting drug transactions during February and March of an unspecified year. Although it is unclear, the ledger reflected that someone named Wesley made four four-ounce purchases during March for $27,100. A Texas Ranger testified that the year was 1986 because "the prices of the cocaine at that time were the same as what they would have been in '86." The instant offense was alleged to have occurred in September 1986. Although some of the first names in the ledger, like appellant's, are the same as some indicted for this offense, most of the names are not.

Appellant objected to the admission of State's exhibit number 76 under TEX.R.CRIM.EVID. 401, 403, and 404(a) & (b). He claimed it was an extraneous offense which the State had the burden of proving beyond a reasonable doubt, and that the State had not met that burden because no connection was shown between appellant and the ledger entries other than the name "Wesley." ³ The trial court overruled the objection, stating that the relationship of the parties before the conspiracy was "germane" to whether a conspiracy existed.

Relying upon Turner v. State, 754 S.W.2d 668, 673 (Tex.Crim.App.1988), the Court of Appeals held the trial court erred in admitting State's exhibit number 76 because the evidence did not clearly show that appellant committed the extraneous offenses depicted in the ledger. Harrell I, 885 S.W.2d at 432-33. The Court of Appeals noted that although "the evidence creates a strong suspicion that appellant was the 'Wesley' who was the perpetrator of the extraneous offenses, ... the evidence falls short of a clear showing that he was the perpetrator." Id. at 433. It further held that the error was not harmless. Id. at 433.

The State filed a petition for discretionary review, and we reversed and remanded to the Court of Appeals for reconsideration in light of Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991) (op. on reh'g) (setting forth the proper procedure under the Texas Rules of Criminal Evidence for preserving error in the admissibility of extraneous offenses and the trial court's and appellate court's function in the determination of error). Harrell II. On remand, the Court of Appeals recognized that although Montgomery did not address the issue involved here, it emphasized admissibility. Harrell III, 885S.W.2dat437. Relying upon Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) and Harris v. State, 827 S.W.2d 949 (Tex.Crim.App.), cert. denied, 506 U.S. 942, 113 S.Ct. 381, 121 L.Ed.2d 292 (1992), ⁴ the Court of Appeals held that Texas no longer requires a clear showing that the defendant committed an extraneous offense. Id., 885 S.W.2d at 438. Instead, evidence of an extraneous offense is admissible, according to the Court of Appeals, if a jury could find by a preponderance of the evidence that the defendant committed the extraneous offense. Id. In affirming the conviction, the Court of Appeals held the jury could "justifiably conclude by a preponderance of the evidence that the Appellant committed the extraneous offenses recorded in the ledger." Id. at 438.

Appellant contends the Court of Appeals erred in applying a preponderance of the evidence standard because evidence of an extraneous offense is only admissible if the State "clearly prove[s]" or makes a "clear showing" that the defendant committed such offense. Wyle v. State, 777 S.W.2d 709, 715 (Tex.Crim.App.1989); Turner, 754 S.W.2d at 673. The State ⁵ contends that since the enactment of the Texas Rules of Criminal Evidence, the trial court should admit evidence of an extraneous offense if there is sufficient evidence from which the jury could find the defendant committed the extraneous offense. See TEX.R.CRIM.EVID. 104(b). The State urges us to follow the United States Supreme Court's interpretation of rule 104(b) of the Federal Rules of Evidence that evidence of an extraneous offense is admissible if the jury could reasonably conclude by a preponderance of the evidence that the defendant committed such offense. See Huddleston; FED.R.EVID. 104(b). A review of our caselaw is helpful in resolving this issue.

I

This Court has long required that juries be instructed not to consider extraneous offense evidence unless they believed beyond a reasonable doubt that the defendant committed such offense. See, e.g., Ernster v. State, 165 Tex.Crim. 422, 308 S.W.2d 33, 34-35 (1957); Nichols v. State, 138 Tex.Crim. 324, 136 S.W.2d 221, 221-22 (1940); Vaughn v. State, 135 Tex.Crim. 205, 118 S.W.2d 312 (1938); Miller v. State, 122 Tex.Crim. 59, 53 S.W.2d 790, 791-92 (1932); Lankford v. State, 93 Tex.Crim. 442, 248 S.W. 389, 389-90 (1923); see also 8 MICHAEL J. MCCORMICK & THOMAS D. BLACKWELL, TEXAS CRIMINAL FORMS AND TRIAL MANUAL § 88.05 (Texas Practice 1985).

In many cases where the issue was, as here, the standard of admissibility for extraneous offenses, this Court relied in part upon jury instruction cases requiring that juries be instructed not to consider extraneous offense evidence unless they believed beyond a reasonable doubt that the defendant committed such offense. See, e.g., Tippins v. State, 530 S.W.2d 110, 111 (Tex.Crim.App.1975) (citing Ernster ); Tomlinson v. State, 422 S.W.2d 474, 474 (Tex.Crim.App.1967) (citing Lankford ); Shepherd v. State, 143 Tex.Crim. 387, 158 S.W.2d 1010, 1011 (1942) (citing Nichols ); Wells v. State, 118 Tex.Crim. 355, 42 S.W.2d 607, 608 (1931) (quoting Lankford ); see also Hughitt v. State, 123 Tex.Crim. 168, 58 S.W.2d 509 (1933) (quoting Wells ). Thus, with respect to the State's burden of proof in proving a defendant committed an extraneous offense, this Court has perceived a connection between the standard of admissibility and the jury instruction. ⁶

However, while this Court has remained consistent in requiring that the trial court instruct the jury not to consider extraneous offense evidence unless it believes beyond a reasonable doubt that the defendant committed such offense, we have not been as consistent in our holdings regarding the standard of admissibility of extraneous offenses. ⁷ Almost fifteen years ago, in an attempt to resolve the inconsistencies of our previous holdings, we held that extraneous offense evidence was inadmissible unless:

there [was] a clear showing that: 1) the evidence of the extraneous offense is material, i.e., going to an element of the offense charged in the indictment or information, 2) the accused participated in the extraneous transaction being offered into evidence, and 3) the relevancy to a material issue outweighs its inflammatory or prejudicial potential[.] [citations omitted].

McCann v. State, 606 S.W.2d 897, 901 (Tex.Crim.App. [Panel Op.] 1980) (footnote omitted) (emphasis added). Since McCann, we have required that the State clearly prove or make a clear showing that the defendant committed the extraneous offense sought to be offered against him. E.g., Harris v. State, 790 S.W.2d 568, 583 (Tex.Crim.App.1989); Wyle, 777 S.W.2d at 715; Plante v. State, 692 S.W.2d 487, 494-95 (Tex.Crim.App.1985); Phillips v. State, 659 S.W.2d 415, 418 (Tex.Crim.App.1983); see also McGee v. State, 725 S.W.2d 362, 365 (Tex.App.--Houston [14th Dist.] 1987, no pet.); Pedford v. State, 720 S.W.2d 267, 268 (Tex.App.--Austin 1986, pet ref'd); Newman v. State, 700 S.W.2d 307, 311-12 (Tex.App.--Houston [1st Dist.] 1985), rev'd on other grounds, 743 S.W.2d 641 (Tex.Crim.App.1988). This standard of admissibility of extraneous offense evidence is known as the "clear" proof standard. ⁸ We have never clarified what is meant by "clear" proof, perhaps because most "clear" proof cases involve either no proof or overwhelming proof that the defendant committed the extraneous offense. However, there is some authority for interpreting "clear" proof to mean proof beyond a reasonable doubt. BLACK'S LAW DICTIONARY 250 (6th ed. 1990); see Haley v. State, 84 Tex.Crim. 629, 209 S.W. 675, 677 (1919). We view this as a logical interpretation, and it is consistent with the requirement that the trial court instruct the jury not to consider extraneous offense evidence unless it believes beyond a reasonable doubt that the defendant committed such offense. Indeed, it makes no sense for the trial court to, on the one hand, admit evidence of an extraneous offense using a certain standard for admissibility, but then, on the other hand, instruct the jury not to consider that same evidence unless it uses a different standard. Cf. Geesa v. State, 820 S.W.2d154 (Tex.Crim.App.1991) (special standard of review in circumstantial evidence cases was abolished because jury was no longer instructed on...