Plante v. State
Decision Date | 19 June 1985 |
Docket Number | No. 754-84,754-84 |
Citation | 692 S.W.2d 487 |
Parties | Jeffrey D. PLANTE, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Frank Jackson, John H. Hagler, Dallas, for appellant.
Henry Wade, Dist. Atty., Kathi Alyce Drew and Richard Zadina, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted for the felony offense of theft by deception. V.T.C.A. Penal Code, §§ 31.03, 31.01(2)(E), (4). The jury assessed punishment at ten years confinement in the Texas Department of Corrections. The Dallas Court of Appeals reversed his conviction in a published opinion. Plante v. State, 674 S.W.2d 368 (Tex.App.--Dallas 1984). We granted the State's petition for discretionary review to determine whether the court of appeals erred in holding that the trial court committed reversible error in admitting certain extraneous offenses at trial. We reverse.
The facts are set forth in detail in the opinion below and will only be recited in this opinion where necessary to illuminate the legal issues. Appellant was the president of Trinicon, Inc., [Trinicon] a commercial contracting company. The theft charge arose when appellant purchased over ten thousand dollars worth of Mexican adobe tile on credit from Dal-Tile Corporation [Dal-Tile] and subsequently failed to pay for it, despite Dal-Tile's repeated attempts at collection. It was the State's theory that appellant induced Dal-Tile to sell him the tile on credit by promising to pay for it within thirty days from the date of the invoice for the sale (Dal-Tile's standard credit agreement), when, in fact, he never intended to pay for the tile at all. If the State's theory was factually correct, then appellant's conduct was denounced by our theft statute, V.T.C.A. Penal Code, § 31.03. 1
It was uncontested at trial that appellant appropriated the Mexican adobe tile with intent to deprive Dal-Tile of it. The only issue in the case was whether appellant's appropriation was unlawful. This issue turned on his state of mind at the time he ordered the tile. If he did not intend to pay for the tile when he ordered it, his appropriation was accomplished by deception and was thus unlawful. See note 1, supra. Since § 31.01(2)(E), supra, specifically states that intent not to perform cannot be inferred from non-performance alone, it was incumbent upon the State to introduce "other evidence" on this issue to make a prima facia case against appellant.
The State's "other evidence" in this case consisted of the facts and circumstances surrounding appellant's transaction with Dal-Tile 2, and the testimony of thirty-five witnesses who testified to extraneous offenses 3 wherein there was sold, leased, or lent goods or services of value (including money) to appellant or Trinicon based on appellant's 4 unfulfilled promise to have Trinicon pay for those goods and services. It was the State's position at trial, and is on appeal, that appellant's repeated failure to fulfill his promises of payment constituted a scheme which was highly probative on the issue of his intent in the Dal-Tile transaction.
The court of appeals held that "[s]ome of these debts were admissible to show appellant's scheme and criminal intent yet many were not." 674 S.W.2d at 372. The court of appeals correctly held that the State was entitled to introduce other transactions involving appellant in its case-in-chief as circumstantial evidence of appellant's intent, since his intent could not be inferred from his act of non-payment alone. Id. at 373; see § 31.01(2)(E), supra; see also Rogers v. State, 598 S.W.2d 258 (Tex.Cr.App.1980); Crawley v. State, 513 S.W.2d 62 (Tex.Cr.App.1974); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). The court of appeals, after generally discussing the law of extraneous offenses, concluded:
"For the evidence of these other transactions to have been admissible, they must have occurred within a reasonable time frame to the time of the offense for which he stood charged, and they must have shown a similarity of plan, scheme or design consistent with the acts of appellant in the crime charged, or a combination of these similar distinguishing characteristics. 674 S.W.2d at 373.
We believe that in applying this test for determining admissibility, the court of appeals failed to take into account the evidentiary purpose of the offer as well as the balancing test required in determining the admissibility of extraneous transactions. Recently, in Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983), we stated the true "test" of extraneous offense admissibility to be: "extraneous transactions constituting offenses shown to have been committed by the accused [note omitted] may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and the relevancy value of the evidence outweighs its inflammatory or prejudicial potential." Id. at 346 [emphasis in original]. The factors of remoteness and similarity are important, not in and of themselves, but only as they bear on the relevancy and probative value of the offered extraneous offenses. Thus as correctly stated in the court of appeals opinion: "[i]f the State can prove that there are sufficient common distinguishing characteristics between the extraneous offense and the primary offense such that the probative value of the evidence outweighs its prejudicial value, then the court may admit the evidence to prove certain elements of the crime." 674 S.W.2d at 372.
As noted in Williams, supra, ante, the test of admissibility has two steps. First, it must be determined that the extraneous offense evidence is relevant to a material issue in the case other than the defendant's character. 5 Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect.
United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (En Banc).
Where the material issue addressed is the defendant's intent to commit the offense charged, the relevancy of the extraneous offense derives purely from:
[ 7 2 Wigmore, Evidence, § 302 (Chadbourn rev.ed. 1979). [emphasis in original]. Accord, Sewell v. State, 629 S.W.2d 42, 46 (Tex.Cr.App.1982) ( ); 2 Ray, Texas Evidence, § 1521 (3rd ed.1980); Comment, The Admissibility of Other Crimes in Texas, 50 Tex.L.Rev. 1409, 1416-17 (1972). See also Garza v. State, 632 S.W.2d 823 (Tex.App.--Dallas 1982, pet. granted).
In the case sub judice, a limiting instruction, requested by appellant, was included in the jury charge. This instruction limited the jury's consideration of appellant's extraneous debts to the issues of...
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