Montgomery v. State, Nos. 1090-88

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMcCORMICK; BERCHELMAN; CLINTON; TEAGUE; CLINTON; As to Parts I, II, and III, McCORMICK, P.J., and WHITE
Citation810 S.W.2d 372
Decision Date30 May 1990
Docket NumberNos. 1090-88,1091-88
PartiesPatrick Logan MONTGOMERY, Appellant, v. The STATE of Texas, Appellee.

Page 372

810 S.W.2d 372
Patrick Logan MONTGOMERY, Appellant,
v.
The STATE of Texas, Appellee.
Nos. 1090-88, 1091-88.
Court of Criminal Appeals of Texas,
En Banc.
May 30, 1990.
Rehearing Granted Feb. 20, 1991.
On Rehearing June 19, 1991.

Page 374

R.K. Weaver, on appeal only, Dallas, for appellant.

John Vance, Dist. Atty., and Patricia Poppoff Noble, Celia Barr and Karen Becak, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury found appellant, Patrick Logan Montgomery, guilty of two counts of indecency with a child and assessed a sentence of ten years' confinement for each offense.

Page 375

He appealed. The Dallas Court of Appeals held that the trial court did not abuse its discretion in allowing the jury to hear testimony which appellant claimed constituted improper proof of an extraneous offense. Montgomery v. State, 760 S.W.2d 323, 324-325 (Tex.App.--Dallas 1988). We granted appellant's petition to review this holding 1 and now affirm.

During the trial of this case, over appellant's objection, the judge allowed the State to introduce testimony that appellant had on several occasions paraded around in front of his minor daughters, the complainants, in the nude with an erection. Before the Court of Appeals, appellant argued that the trial court erred when it allowed the State to introduce this testimony, arguing that:

"It is well settled that an accused may not be tried for some collateral crime or for being a criminal generally. For this reason, the courts have generally prohibited the introduction of testimony about extraneous offenses ...

"The extraneous offense proffered by the State was prejudicial to the Defendant and was not material or relevant. The extraneous offense should not, therefore, have been admitted in the trial of this cause."

Appellant, citing Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985), and Coleman v. State, 577 S.W.2d 695 (Tex.Cr.App.1978), insisted that the aggrieved evidence, to be admissible, must fall into one of the "six generally accepted exceptions to the rule against admission of extraneous offenses." Appellant specifies these "generally accepted" exceptions as:

"1) [to] show the context in which the criminal act occurred ...; 2) to circumstantially prove identity where the State lacks direct evidence on this issue; 3) to prove scienter, where intent or guilty knowledge cannot be inferred from the act itself; 4) to show malice or state of mind where malice is an essential element of the State's case and it cannot be inferred from the criminal act; 5) to show the accused's motive; or 6) to refute a defensive theory raised by the accused."

Because the aggrieved testimony did not fit snugly into any exception, appellant argued to the Court of Appeals that the trial court erred when it allowed the jury to hear this testimony.

Before this Court, appellant repeats the argument he made before the Court of Appeals and prays that we reevaluate the evidence to find that the trial court erred when it permitted the aggrieved testimony to go before the jury. For the reasons below, we decline appellant's invitation.

THE TRIAL COURT'S ROLE

Initially, we reject appellant's invocation of the common-law's mechanistic rules which tended to favor exclusion of evidence. Appellant was tried after adoption of the Texas Rules of Criminal Evidence. The new rules favor the admission of all logically relevant evidence for the jury's consideration. See Crank v. State, 761 S.W.2d 328, 342 n. 5 (Tex.Cr.App.1988). Finding a piece of evidence to be "relevant" is the first step in a trial court's determination of whether the evidence should be admitted before the jury as "[a]ll relevant evidence is admissible.... Evidence which is not relevant is not admissible." Tex.R.Crim.Evid. 402. "Relevant evidence means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Tex.R.Crim.Evid. 401; Fed.R.Evid. 401. "Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case." Advisory Committee's Note to Fed.R.Evid.

Page 376

401. 2 As this Court said in Waldrop v. State, 138 Tex.Crim. 166, 133 S.W.2d 969 (1940):

"Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis--a pertinent hypothesis being one which, if sustained would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue more or less probable." 133 S.W.2d at 970 (emphasis added).

See also Brown v. State, 757 S.W.2d 739, 743 (Tex.Cr.App.1988) (McCormick, P.J., concurring); Johnson v. State, 698 S.W.2d 154, 160 (Tex.Cr.App.1985); Plante, 692 S.W.2d at 491. Thus, evidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant. Moreover, the evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. See Advisory Committee's Note to Fed.R.Evid. 401 ("The fact to be proved may be ultimate, intermediate or evidentiary; it matters not so long as it is of consequence in the determination of the action").

In deciding whether a particular piece of evidence is relevant, a trial court judge should ask "would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit." See United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir.1976) (rule of thumb is to inquire whether a reasonable man might believe probability of truth of consequential fact to be different if he knew of proffered evidence, quoting Weinstein & Burger, Weinstein's Evidence, p 401, at 401-27 (1985)). If the trial court believes that a reasonable juror would conclude that the proffered evidence alters the probabilities involved to any degree, relevancy is present.

From Tex.R.Crim.Evid. 401, the trial court next moves to Tex.R.Crim.Evid. 402 3 to decide whether the logically relevant evidence should be admitted. Under the rules of evidence, once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible under Rule 402 unless the opponent of the evidence demonstrates that it should be excluded because of some other provision, whether constitutional, statutory, or evidentiary. 4

Page 377

In the case before us, appellant claims that the evidence constitutes proof of an extraneous offense and that its probative value does not outweigh its prejudicial affect. Although not cited in appellant's brief on the merits appellant attempts to invoke Tex.R.Crim.Evid. 404(b). That Rule provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case in chief such evidence other than that arising in the same transaction."

The exclusion of other wrongs evidence under Rule 404 is based, not on its lack of probative value, but rather on its unfair prejudicial effect. See Blakely, Article IV: Relevancy and Its Limits, 20 Hous.L.Rev. 151, 190 (1983). The Advisory Committee's Note to Fed.R.Evid. 404(b) states that the Rule offers "no mechanical solution" to excluding or admitting evidence of other wrongs committed by the defendant. Rather, the Committee indicated that the trial court should assess such evidence under the usual rules for admissibility: "The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of other factors appropriate for making decisions of this kind under Rule 403." 5 In short, Rule 404(b) is simply a specific codification for a general balancing determination under Rule 403. It must also be remembered that the enumerated exceptions to Rule 404(b)--proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident--are "neither mutually exclusive nor collectively exhaustive." Cleary, McCormick On Evidence, section 190 at 558 (3d Ed.1984). "There are numerous other uses to which evidence of criminal acts may be put." Id.

Rule 403 provides that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." It is with the adoption of this rule that Texas evidentiary law has altered. Under the former common-law rules in Texas, the proponent of a piece of evidence was required to show that the probative value of his offered evidence outweighed its prejudicial effect. See Bush v. State, 628 S.W.2d 441, 444-445 (Tex.Cr.App.1982). See also Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1983). Under the new rules, however, there has been a alteration in focus; now it is the opponent's burden to not only demonstrate the proffered evidence's negative attributes but to show also that these negative attributes "substantially outweigh " any probative value. Crank, 761 S.W.2d at 342 n. 5; Rodda v. State, 745 S.W.2d 415, 417-18 (Tex.App.--Houston [14th Dist.] 1988, pet. ref'd). Judge Clinton observed...

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4531 practice notes
  • State v. Houth, No. 788-91
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 25, 1992
    ...that the State may prove an unadjudicated extraneous offense to establish an element of the charged offense. Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Crim.App.1990) (opinion on rehearing). No one thinks that this practice somehow transforms the extraneous offense into a lesser incl......
  • Harrell v. State, No. 1232-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 21, 1994
    ...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 t......
  • Reeves v. State, No. 10-96-196-CR
    • United States
    • Court of Appeals of Texas
    • May 6, 1998
    ...the evidence. TEX.R.CRIM. EVID. 401. The trial court has no discretion to admit irrelevant evidence. Id. 402; Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (opinion on reh'g). As long as the trial court operates within the boundaries of its discretion, we will not disturb its......
  • Michaelwicz v. State, No. 03-04-00019-CR.
    • United States
    • Court of Appeals of Texas
    • February 2, 2006
    ...him the opportunity to present a meaningful defense. We review the trial court's rulings for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App.1991) (op. on reh'g); Patterson v. State, 96 S.W.3d 427, 434 (Tex.App.-Austin 2002, no Through the Sixth and Fourtee......
  • Request a trial to view additional results
4531 cases
  • State v. Houth, No. 788-91
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 25, 1992
    ...that the State may prove an unadjudicated extraneous offense to establish an element of the charged offense. Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Crim.App.1990) (opinion on rehearing). No one thinks that this practice somehow transforms the extraneous offense into a lesser incl......
  • Harrell v. State, No. 1232-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 21, 1994
    ...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 t......
  • Reeves v. State, No. 10-96-196-CR
    • United States
    • Court of Appeals of Texas
    • May 6, 1998
    ...the evidence. TEX.R.CRIM. EVID. 401. The trial court has no discretion to admit irrelevant evidence. Id. 402; Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (opinion on reh'g). As long as the trial court operates within the boundaries of its discretion, we will not disturb its......
  • Michaelwicz v. State, No. 03-04-00019-CR.
    • United States
    • Court of Appeals of Texas
    • February 2, 2006
    ...him the opportunity to present a meaningful defense. We review the trial court's rulings for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 390-91 (Tex.Crim.App.1991) (op. on reh'g); Patterson v. State, 96 S.W.3d 427, 434 (Tex.App.-Austin 2002, no Through the Sixth and Fourtee......
  • Request a trial to view additional results

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