Plante v. State

• Court: Texas Court of Criminal Appeals
• Writing for the Court: CAMPBELL
• Citation: Plante v. State, 692 S.W.2d 487 (Tex. Crim. App. 1985)
• Decision Date: 19 June 1985
• Docket Number: No. 754-84,754-84
• Parties: Jeffrey D. PLANTE, Appellant, v. The STATE of Texas, Appellee.

Page 487

692 S.W.2d 487

Jeffrey D. PLANTE, Appellant, v. The STATE of Texas, Appellee.

No. 754-84.

Court of Criminal Appeals of Texas En Banc.

June 19, 1985.

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

CAMPBELL, Judge.

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.

"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 either more or less probable." Waldrop v. State, 138 Tex.Cr.R. 166, 133 S.W.2d 969, 970 (1940) ⁶

Where the evidence sought to be introduced is an extraneous offense,

"its relevance is a function of its similarity to the offense charged. In this regard, however, similarity means more than that the extrinsic and charged offense have a common characteristic. For the purpose of determining relevancy, 'a fact is similar to another only when the common characteristic is the significant one for the purpose of the inquiry at hand.' Stone, The Rule of Exclusion of Similar Fact Evidence: England, 46 Harv.L.Rev. 954, 955 (1933). Therefore, similarity, and hence relevancy, is determined by the inquiry or issue to which the extrinsic offense is addressed." 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:

"the point of view of the doctrine of chances--the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them.

"...

"It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done,--either because (as usually) it is conceded, or because the jury are [sic] instructed not to consider the evidence from this point view until they [sic] find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their system or scheme, that satisfies our logical demand.

"Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.... In short, there must be a similarity in the various instances in order to give them probative value." [ 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) (and cases cited therein); 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...