Montgomery v. State, s. 05-87-00677-C

• Decision Date: 05 October 1988
• Docket Number: 05-87-00678-CR,Nos. 05-87-00677-C,s. 05-87-00677-C
• Parties: Patrick Logan MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 323

760 S.W.2d 323

Patrick Logan MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-87-00677-CR, 05-87-00678-CR.

Court of Appeals of Texas,

Dallas.

Oct. 5, 1988.

R.K. Weaver, Dallas, for appellant.

Patricia Poppoff, Dallas, for appellee.

Before HOWELL, LAGARDE and KINKEADE, JJ.

OPINION ON RECONSIDERATION ON PDR

LAGARDE, Justice.

Our opinion of September 6, 1988 is withdrawn. The following is now our opinion.

Patrick Logan Montgomery appeals from two convictions for indecency with a child. Punishment was assessed for each offense at ten years confinement in the Texas Department of Corrections. We affirm.

In his first point of error, ¹ appellant contends that the trial court erred in admitting into evidence, over appellant's objection, testimony concerning an extraneous offense. At trial, the State elicited testimony that appellant had walked around nude with an erection in front of his daughters, the complainants.

Generally, evidence of an extraneous offense is inadmissible unless it is relevant to a material issue, and its probative value outweighs the value of unfair prejudice. Mannie v. State, 738 S.W.2d 751, 755 (Tex.App.-Dallas 1987, pet. ref'd), citing Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1984). In cases involving the sexual assault of children, this balancing test has been used to admit evidence of "acts which occurred between the minor complainant and the defendant so as to explain the charged act in light of the relationship of the parties as well as to make a child's accusation more plausible." Boutwell v. State, 719 S.W.2d 164, 175 (Tex.Crim.App.1985). We must be careful however, to avoid "automatic exceptions" to the general rule against the admissibility of extraneous transactions in cases involving sexual abuse of children. Boutwell teaches that a mechanistic approach is inappropriate:

Every case must be examined on its own facts, strengths, and weaknesses to determine whether the extraneous transaction is relevant to a material issue, and whether the relevancy value outweighs the prejudicial potential.

Boutwell, 719 S.W.2d at 174.

In the present case, evidence of Montgomery's inappropriate sexual conduct directed toward his children was relevant to place the charged offense in the context of the relationship between Montgomery and the children. The evidence was admissible to "aid the jury in properly evaluating the inherently questionable testimony of a minor against an adult responsible for his welfare or in a position of authority or control over the minor." Boutwell, 719 S.W.2d at 178-179.

The relevancy of this evidence must be balanced against its potential for prejudice. The general rule is that an accused may not be tried for some collateral crime or for being a criminal generally. Williams, 662 S.W.2d at 346. The possibility that the jury convicted Montgomery for indecent exposure rather than indecency with a child does not outweigh the probative value of the evidence. The contested evidence did not establish a pattern of chronic child abuse such as would cause the jury to convict Montgomery of general criminality while maintaining reasonable doubts as to the specifically charged offense. Rather, the evidence served its proper function of revealing the familial relationship which provided the context of the charged offense. We conclude that the probative value of the extraneous evidence outweighed any possibility of prejudice. We overrule Montgomery's first point of error.

In his second, third, fourth, and fifth points of error, appellant complains of the submission to the jury, over his objection, of the instructions concerning parole laws mandated by article 37.07(4)(c) of the Texas Code of Criminal Procedure.

In his second point of error, appellant contends that the instructions concerning parole should not have been given because article 37.07 mandates the giving of the instructions "unless the offense is listed in section 3f(a)(1) [of] article 42.12 ... or the judgment contains an affirmative finding under section 3f(a)(2) article 42.12." Appellant argues that because article 42.12 does not contain a section 3f(a)(1) or 3f(a)(2), the statute is unconstitutionally vague. This contention is without merit. Article 37.07 was amended by the legislature, effective May 6, 1987, to correctly refer to sections 3g(a)(1) and 3g(a)(2) of article 42.12. Act of May 6, 1987, ch. 66, § 1, 1987 Tex.Sess.Law Serv. 349 (Vernon). Appellant's trial began on June 15, 1987; thus, the asserted error did not exist at the time he was tried. We overrule appellant's second point of error.

In his third, fourth, and fifth points of error, appellant contends that the instructions concerning parole contained in article 37.07 violate the separation of powers doctrine, denied him due process of law, and "denigrates the jury's role in setting appellant's punishment."

The Court of Criminal Appeals recently declared these instructions unconstitutional. Rose v. State, 752 S.W.2d 529, 552 (Tex.Crim.App.1987). As the Court of Criminal Appeals stated, appellate review of error in criminal cases is conducted in a two-step process. The first step is to determine what, if any, error occurred in the trial. The second step requires us to evaluate the error to determine whether it calls for reversal of the conviction. Rose, 752 S.W.2d at 553. The Court of Criminal Appeals in its opinion on rehearing specifically determined the standard to be used for a harm analysis in cases, such as this one, in which the constitutionally infirm parole instructions were used at trial. Retreating from its position on original submission, the Court held that the Almanza ² two-tiered harm analysis was inappropriate and, instead, held that the general harmless error test provided by Rule 81 of the Texas Rules of Appellate Procedure is applicable. Rule 81(b)(2) provides as follows:

If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.

The burden placed upon the State to show harmless error under 81(b)(2) is substantial. The State must prove beyond a reasonable doubt that the error did not contribute to the punishment. See Hargraves v. State, 738 S.W.2d 743, 749 (Tex.App.-Dallas 1987, no pet.). In Rose the Court of Criminal Appeals determined that the State had met that burden. In making that determination, the Rose court placed great emphasis on the "curative instruction" given by the trial court in addition to the statutory parole instructions. The trial court's final instruction in Rose was as follows:

You are further instructed that in determining the punishment in this case, you are not to discuss among yourselves how long the defendant will be required to serve any sentence you decide to impose. Such matters come within the exclusive jurisdiction of the Board of Pardons and Paroles and the Governor of the State of Texas and are no concern of yours.

The presumption that the jury followed the trial judge's final instruction to totally disregard parole, coupled with the heinous facts in Rose and the admission during the punishment phase of five prior felony convictions led the Court of Criminal Appeals to the conclusion that the statutory parole instruction did not affect Rose's sentence even though he was sentenced to life imprisonment, the maximum sentence.

In the present case, appellant was charged with two offenses of indecency with a child. The complainants, ages seven and ten at the time of trial, were appellant's daughters. At the punishment phase of trial, the State rested without producing any evidence. Appellant and his wife were the only witnesses for the defense. Appellant's wife testified that she did not work and that if the jury granted appellant probation "its support for me and the kids ³ and that's the only thing I have coming in right now." She conceded, however, that there was no reason why she could not work. Appellant's wife further testified that she would "do all within [her] power to see that [appellant] abides by the conditions of probation."

Appellant testified that he had never been convicted of a crime, that he is an attorney, and that because of the conviction his right to practice law may be in jeopardy. He testified that he would abide by the terms of probation and that he would not attempt to see the complainants.

During cross-examination, appellant testified that "I will do [psychological] therapy" but that "my ex-wife ... has a problem, not me." ⁴ Appellant also testified that "I don't know. I really don't know" whether there is a situation in which incest is "all right." When asked whether "you can think of a circumstance in which incest between a child and her father would be okay," appellant replied:

I wouldn't know how old the child would have to be, how long it had happened, how many times it had happened, all these things would bear, plus the character and background of the individual. If this person was a hardened criminal and had been down this road before I'm sure that this is something that might affect that child.... I really don't know. There are really too many factors to consider. As you are telling me, the child under these charges could be as old as 17 and it could have happened one time and the person could have been a very sterling father and the charges in this case could be true or they could be false. I don't know. It's a hard position. It's a hard job to be a juror and I'm telling you, I don't know. You are asking me to evaluate something. I honestly can't. I'm not a psychologist.

During jury argument, pursuant to an order from the court, neither the State, nor appellant referred to parole eligibility.

In its charge to the jury, the trial court informed the jury that appellant had filed an...