Murphy v. State, 102-86

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation777 S.W.2d 44
Docket NumberNo. 102-86,102-86
PartiesGary Lynn MURPHY, Appellant, v. The STATE of Texas, Appellee.
Decision Date06 April 1988

Bradley Lollar, Ruth Lown, on appeal only, Dallas, for appellant.

Henry Wade and John Vance, Dist. Attys., Michael A. Klein, Robert Phillips and Janice Warder, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty. and Carl E.F. Dally, Sp. Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was charged with murder and found guilty by a jury. Appellant filed an application for probation and the jury assessed punishment at life imprisonment and a $10,000 fine. The Dallas Court of Appeals reversed and remanded on the ground that the trial court had erred by admitting evidence of unadjudicated offenses during the punishment phase of the trial. Murphy v. State, 700 S.W.2d 747 (Tex.App.--Dallas, 1985). We granted the State's petition for discretionary review on the following ground for review:

"The trial court properly ruled appellant's extraneous bad acts could be introduced into evidence during the punishment phase of trial in response to appellant's application for probation."

We will affirm the decision of the Court of Appeals.

Prior to trial appellant filed a sworn application for probation pursuant to Art. 42.12 § 3a(a), V.A.C.C.P. During the punishment phase of the trial appellant testified in his own behalf. The following is all the evidence offered by appellant during punishment:

"Q. (by appellant's attorney) State your name for the record, again, please.

A. (by appellant) Gary Murphy.

Q. You are one and the same person who was just found guilty by this jury, just a few minutes ago?

A. Yes, sir.

Q. Have you ever before been convicted of a felony offense in this or any other state or a federal jurisdiction?

A. No.

Q. Have you ever been placed on the felony probation in this or any other state or federal jurisdiction?

A. No."

In rebuttal the State offered five witnesses to testify to unadjudicated offenses committed by appellant prior to the present offense. Gladys Work testified that appellant assaulted her and stole her purse on September 15, 1983. Officer R.W. Dobbs told the jury that he arrested appellant for driving while intoxicated on September 20, 1983. Two days later appellant led state troopers on a 25 mile car chase according to the testimony of Trooper Richard Shea. Marie Holt testified that appellant assaulted her on January 27, 1984. On the same day, Officer I.C. Hale found appellant sitting near his wrecked vehicle sniffing paint. Appellant objected to the preceding evidence because it involved acts of misconduct on the part of appellant that were not final convictions. Appellant's objections were overruled, and the jury was allowed to consider these incidents when assessing punishment.

In its brief in support of its petition for discretionary review, the State attacks the Court of Appeals holding in two respects; that the unadjudicated offenses are independently admissible because they are relevant to show probable future conduct of the appellant, and that Art. 37.07 as interpreted by Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), allows such punishment evidence on the issue of probation.

Taking the second attack first: Allaben, supra, dealt with the admissibility of defensive evidence concerning the defendant's post-offense psychiatric treatment as it related to the defendant's application for probation. The Court held that it was error to exclude such evidence, stating, id. at 519:

"Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon's Ann.C.C.P., is by no means limited to the defendant's prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible."

[emphasis supplied]

At the time of the defendant's trial in Allaben, supra, and more importantly at the time of the writing of the opinion, Article 37.07, Section 2(b), V.A.C.C.P., read:

"(b) If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense charged where the same is not absolutely fixed by law to some particular penalty except when the defendant, upon the return of a finding of guilty, requests that the punishment be assessed by the same jury. In the event the defendant elects to have the jury fix the punishment in cases where the punishment is fixed by law, the court shall instruct the jury that if they find the defendant is the same person who was convicted in the prior conviction or convictions alleged for enhancement, they should set his punishment as prescribed by law.

Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character."

[emphasis supplied]

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

In 1967, the article was amended in one very important aspect, as follows:

Section 2. (b) Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

(c) Punishment shall be assessed on each count on which a finding of guilty has been returned.

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.

(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

[emphasis supplied]

Acts 1967, 60th Leg., p. 1739, ch. 659, § 22, eff. Aug. 28, 1967.

With this amendment a statutory prohibition against the introduction of unadjudicated extraneous offenses during the punishment phase of a trial as proof of prior criminal record was strictly imposed. Elder v. State, 677 S.W.2d 538 (Tex.Cr.App.1984); Ramey v. State, 575 S.W.2d 535 (Tex.Cr.App.1978).

Nevertheless, prosecutors quickly invoked the above quoted and underlined portion of Allaben, supra, whenever they sought to introduce, as punishment evidence bearing upon a question of probation that was before the jury, unadjudicated extraneous offenses. Overlooking the 1967 amendment, as well as the fact that Allaben, supra, dealt with the introduction of evidence other than extraneous transactions which constituted offenses, this Court blindly adhered to the Allaben holding and it became the order of the day in this Court. In Davis v. State, 478 S.W.2d 958 (Tex.Cr.App.1972), we held it was proper to prove the defendant had committed a robbery one month before the charged offense because probation was a question before the jury and that:

"While the general rule is that specific acts of misconduct by the accused which have not resulted in final convictions cannot be admitted, this court has been reluctant to exclude legally admissible evidence which is relevant to a fair determination of an accused application for probation. Allaben v. State, Tex.Cr.App., 418 S.W.2d 517; ..." [further citations omitted as not germane];

See also Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973) (Defendant's prior marijuana purchase admissible on the issue of probation, citing Allaben, supra); McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973) (Permissible to ask defendant if he had ever been addicted to any drug because the issue of probation was before jury, citing Allaben, supra); Holmes v. State, 502 S.W.2d 728 (Tex.Cr.App.1973) (Proper to establish that defendant had been in the drug abuse unit of a Veteran's Administration hospital because probation was before the jury, citing as one justification, the holding in Allaben, supra). See also cases cited in Holmes, supra, at 729.

Although our rationale does not entirely comport with that of the Court of Appeals', 1 we still agree with their initial holding that admission of the extraneous offenses violated Art. 37.07, § 3, V.A.C.C.P. Thus, whatever support Allaben might have given the State's position at the time it was written, the 1967 amendment to Art. 37.07, supra, rendered it of no precedential value on the narrow issue of admissibility of unadjudicated extraneous offenses solely to meet a defendant's application for probation. We find the State's second attack on the Court of Appeals' holding to be without merit.

The State also contends, notwithstanding the provision of Art. 37.07, that the unadjudicated offenses were independently admissible because they were relevant to show probable future conduct of the appellant. We therefore turn to a more traditional treatment of the admissibility of extraneous offenses.

Generally, the admissibility of an extraneous offense is determined by using a two-prong test:

"First, it must be determined that the extraneous offense is relevant to a material issue in the case other than the defendant's character. [Footnote omitted.] Second, the evidence must possess probative...

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