Mitchell v. State

• Decision Date: 02 October 1996
• Docket Number: No. 0300-95,0300-95
• Parties: Willie Ray MITCHELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 950

931 S.W.2d 950

Willie Ray MITCHELL, Appellant, v. The STATE of Texas, Appellee.

No. 0300-95.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 2, 1996.

Dan Parchman, Mount Vernon, for appellant.

Amy M. Smith, Assistant District Attorney, Sulphur Springs, Matthew Paul, State's Attorney, Austin, for State.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

Appellant was charged by indictment with the offense of delivery of cocaine of less than twenty-eight grams pursuant to V.T.C.A. Health & Safety, § 481.112(a), alleged to have been committed on or about February 20, 1992, in Franklin County. In January of 1994, appellant pled guilty, in a trial by jury, to a charge of delivery of cocaine of less than twenty-eight grams and was sentenced to seventy-seven years imprisonment. The Sixth Court of Appeals affirmed the conviction. Mitchell v. State, 892 S.W.2d 213 (Tex.App.--Texarkana 1995). Appellant's Petition for Discretionary Review was granted. ¹

I. STATEMENT OF PERTINENT FACTS

During the punishment phase of appellant's trial, the State offered evidence of four extraneous offenses. Outside the presence of the jury, the trial court determined that the extraneous offenses were relevant, that the State had proved them beyond a reasonable doubt, and therefore ruled them admissible. The extraneous offenses were then presented to the jury by the State. Appellant subsequently requested that the trial court include the following instructions in the jury charge:

(1) instruction on the burden of proof of extraneous offenses required by § 37.07, Annotated Code of Criminal Procedure (Vernon's 1994) (hereinafter V.A.C.C.P.), which requires that the State prove the extraneous offenses beyond a reasonable doubt;

(2) a definition of reasonable doubt; and

(3) a limiting instruction regarding any extraneous offense, instructing the jury that if it believes those offenses have been proven beyond a reasonable doubt, they are not to be used in setting the punishment of this defendant, but rather to determine the proper punishment in this particular case alone.

The trial court denied the entirety of appellant's request for additions to the jury charge, basing its holding on the theory that Art. 37.07, V.A.C.C.P., goes to the admissibility of the evidence, and not to the weight given the evidence by the jury. Appellant made a timely objection to the trial court's denial of his request, and error was preserved for appeal.

II. COURT OF APPEALS' DECISION

The court of appeals held that Art. 37.07, § 3(a), V.A.C.C.P., does not require that the State prove that appellant was convicted of or charged with the extraneous offenses in order to present it to the jury, nor does the statute require that the "[e]vidence conform to the rules governing the admissibility of extraneous offenses or character evidence at the guilt/innocence phase." Mitchell v. State, 892 S.W.2d at 214. Further, the court of appeals held that the "[r]equirement of proof beyond a reasonable doubt is a preliminary requirement for the admissibility of the evidence of extraneous offenses rather than a part of the State's case and that it is the judge rather than the jury who should make that determination at the punishment stage of the trial." Id. at 215.

III. APPELLANT'S CONTENTIONS

In his Petition for Discretionary Review, appellant contends that this Court has yet to decide whether Art. 37.07, § 3, V.A.C.C.P., as amended by the Legislature in 1993, applies similarly in both guilt/innocence and punishment when offering evidence of extraneous offenses. Appellant cites the following language in Art. 37.07, § 3(a) as pertinent to the instant issue:

[E]vidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

(Emphasis added). ²

Appellant contends that Art. 37.07, § 3, V.A.C.C.P., applies the same burden of proof standard for extraneous offenses in both the guilt/innocence and punishment phases of a trial when a defendant requests that an instruction on the issue be given to the jury. Appellant argues that on prior occasions this Court has demonstrated the importance of the use of instructions when offering evidence of extraneous offenses. In George v. State, 890 S.W.2d 73 (Tex.Crim.App.1994), this Court determined that an instruction about the use of extraneous offenses applies during the guilt/innocence phase of non-capital cases. Furthermore, appellant argues that the court of appeals' dissenting opinion below is dispositive, and not giving an instruction on the burden of proof required of the State when offering the evidence in effect allows the trial court to act as the "exclusive finder of fact." Mitchell v. State, 892 S.W.2d at 216 (Grant, J., dissenting).

IV. STATE'S CONTENTIONS

The State has not filed a response to appellant's petition, nor a reply brief to appellant's brief after discretionary review was granted. Before the court of appeals the State argued that the legislative intent of Art. 37.07, § 3 is in favor of the trial court determining the admissibility of evidence of extraneous offenses, as well as determining the weight to be given the evidence by the jury. The State asserted that the Legislature had the opportunity to adopt a definitive policy on the treatment of extraneous offenses during the punishment phase when it added extraneous offenses to the previously enumerated list of offenses that could be brought forth during the punishment phase of a trial. See Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992).

Furthermore, the State contended that the admissibility of extraneous offenses should be viewed in the standard context of Tex.R.Crim.Evid. 404, as applied in the two-prong test set forth in Robinson, where the Court held that (1) an extraneous offense must be relevant to a material issue in the case other than the defendant's character, and (2) the probative value of the evidence must outweigh its prejudicial effect. See Robinson v. State, 701 S.W.2d 895 (Tex.Crim.App.1986). The State contended that the issue complained of is a preliminary question, and has to be determined before the evidence is put before the jury, and the trial court has been vested with that responsibility. Furthermore, the State asserted that the court must also apply "common-sense" rules developed in Ford, where the Court determined that the State must prove beyond a reasonable doubt that the defendant is one in the same person who committed the extraneous act, and there was a distinguishable characteristic or circumstance that is common to the extraneous offense and the current crime. Ford v. State, 484 S.W.2d 727 (Tex.Crim.App.1972). Thus, the State contended that inherent in admissibility is confirmation of the fact that the defendant committed the act; therefore, there is no need for the State to have to prove the evidence a second time. Moreover, the State also asserted that a limiting instruction concerning the use of extraneous offenses during the punishment phase of a trial is unnecessary because the guilt of the person has already been ascertained, and there is no likelihood that the jury could use the extraneous offense evidence to prejudice itself against appellant.

V. ANALYSIS

Under Art. 37.07, § 3(a), the Texas Legislature determined that evidence as to any matter may be offered during the punishment phase of a trial if the trial court deems it relevant to sentencing. Also, the Legislature has determined that evidence of extraneous crimes or bad acts are admissible subject to certain conditions being met. Specifically:

[E]vidence may be offered by the [S]tate and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Article 37.07, § 3(a), V.A.C.C.P. (Emphasis added) We believe that the emphasized portions of the statute are at the crux of the instant issue. A thorough review of the highlighted areas of the statute tells the reader what may be offered, by whom it may be offered, to whom the evidence may be offered, and the standard of proof required in proving that evidence; however, the statute offers no guidance to the reader on whether or not the jury as the sentencing body has a role in evaluating the use of the extraneous offenses offered during the punishment phase of a trial.

We agree with the court of appeals in the instant case when it noted that the statute "is silent as to who decides whether the State has met its burden[,]" i.e. whether or not the jury rather than the trial court determines the weight to be given to the admitted evidence. Mitchell v. State, 892 S.W.2d at 215. However, we do not find the Legislature's silence in this statute to be dispositive, and in light of the jurisprudence of this Court, we find that the jury is the "ultimate finder of fact," even in...