Rankin v. State

• Decision Date: 10 April 1996
• Docket Number: No. 0374-94,0374-94
• Citation: 974 S.W.2d 707
• Parties: Randall Allen RANKIN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 707

974 S.W.2d 707

Randall Allen RANKIN, Appellant, v. The STATE of Texas, Appellee.

No. 0374-94.

Court of Criminal Appeals of Texas En Banc.

April 10, 1996.

Opinion Withdrawing Decision in Part on

Grant of Reconsideration July 8, 1998.

M. Catherine Clarkson, Houston, for appellant.

Julie Klibert, Asst. Dist. Atty., Houston, Matthew Paul, State's Atty., Austin, for State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

A jury found appellant, Randall Allen Rankin, guilty of aggravated sexual assault and assessed a sentence of fifty years confinement. The evidence at trial indicated that complainant, her sister and three of their friends were swimming and playing at one of their friends' house when appellant offered them a chance to ride on his horse. Appellant took complainant, her sister Wendy and complainant's friend Linda for a ride. Both Linda and Wendy testified that appellant fondled their "privates" during their respective rides. Complainant also testified that appellant had touched her "privates," as well as her breasts. She went on to state that this unsolicited touching culminated in appellant's painful insertion of his finger in her "private."

Appellant, pursuant to Rule 404(b) and Rule 403, objected to both Linda and Wendy's testimony as inadmissible extraneous offense evidence. The trial judge overruled this objection, allowing the testimony. Tex.R.Crim.Evid. 404(b) & Tex.R.Crim.Evid. 403. Appellant then asked the judge to deliver a limiting instruction as to the extraneous offense testimony. The judge declined to give the limiting instruction at that time, but delivered the instruction, instead, at the time of the final jury charge.

The Houston Court of Appeals, Fourteenth Supreme Judicial District, affirmed, concluding that the trial judge properly admitted the extraneous offense testimony to show a common scheme or plan, that the probative value of such evidence outweighed its prejudicial effect, and that the trial judge acted within his discretion when he administered the limiting instruction during the jury charge instead of when the evidence was admitted. Rankin v. State, 872 S.W.2d 279 (Tex.App.--Houston 1994). We granted discretionary review to determine whether the Fourteenth Court of Appeals erred in its determinations.

I.

A. Rule 404(b)

Rule 401 defines relevancy ¹ and Rule 402 states:

All relevant evidence is admissible, except as otherwise provided by constitution, by statute, by these rules or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is inadmissible. Tex.R.Crim.Evid. 402.

Pursuant to the above Rule, even when no statute or rule exists barring the admissibility of relevant evidence, a court may deny its admission because of a constitutional impediment. However, when the admission of relevant evidence stands unobstructed by a constitution, statute or rule, then the judge must allow it in.

Rule 404(b) exemplifies an exception as contemplated by Rule 402. Rule 404(b) exists, in large part, to counter the possibility that evidence may be admitted to show a defendant's corrupt nature from which the jury may then render a verdict not on the facts of the case before them, but, rather, on their perception of the defendant's character. Goode, Wellborn & Sharlot, Texas Practice: Texas Rules of Evidence: Civil and Criminal Sec. 404.2 (1988), at 106. Rule 404(b) reads, in pertinent part:

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 ...

Under this rule, extraneous evidence introduced solely to show character conformity is inadmissible. But, reading Rule 404(b) in light of Rule 401 and Rule 402, if evidence 1) is introduced for a purpose other than character conformity, 2) has relevance to a "fact of consequence" in the case and 3) remains free of any other constitutional or statutory prohibitions, it is admissible.

If we view the above sentence as a three part admissibility test, then, as to the first part, this Court has consistently recognized what is apparent from the face of 404(b): "... the Rule's list of 'other purposes' is 'neither exclusive nor collectively exhaustive.' " Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App.1991). As far as we can discern, the second sentence in Rule 404(b) serves no purpose other than an exemplary one and, as is evident in this case, has sometimes been more a source of confusion than guidance.

The mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, in itself, make that evidence admissible. Admissibility of evidence under Rule 404(b), in fact, also hinges on the relevancy of the evidence to a "fact of consequence" in the case. Indeed, when a party makes a 404(b) objection, they are claiming that evidence is being introduced solely for character conformity or, in other words, that the evidence is irrelevant to anything other than character conformity. They need not explicitly state a Rule 402 objection since one is inherent in their Rule 404(b) objection. We find then, consistent with our analysis in Montgomery, 810 S.W.2d at 387, that a Rule 404(b) objection demands a relevancy analysis. To find otherwise might result in courts admitting evidence that is both highly prejudicial and irrelevant even after a proper 404(b) objection and despite the existence of Rule 401 and Rule 402. Such a result, we feel, would be absurd and contrary to one of the main purposes of the Rules.

When we say that evidence is relevant, we are necessarily saying, pursuant to Rule 402, that the evidence makes a fact of consequence in the case more or less likely. Rule 402, supra. As we stated in Montgomery, 810 S.W.2d at 387:

... a party may introduce ... evidence where it logically serves to 'make ... more probable or less probable' an elemental fact; where it serves 'to make more probable or less probable' an evidentiary fact that inferentially leads to an elemental fact; or where it serves 'to make more probable or less probable' defensive evidence that undermines an elemental fact.

Under Montgomery, then, it appears that "fact of consequence" includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evidentiary fact that stands wholly unconnected to an elemental fact, however, is not a "fact of consequence." A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a "fact of consequence" in the case more or less likely.

In this case, the court of appeals latched onto the phrase "common scheme or plan," and held the evidence admissible because it was being introduced for the purpose of showing that plan. Introducing evidence for a purpose other than character conformity does not, somehow, make that evidence magically admissible. The question of whether evidence should be admitted after a 404(b) objection necessitates a relevancy inquiry. Following the court of appeals' analysis, the relevancy inquiry here would have been: 1) Does this evidence make the existence of a "common scheme or plan" more or less likely? and 2) Can we infer an elemental fact from the existence of a plan? This kind of relevancy inquiry is complicated and entirely unnecessary. Here, the court needed only to ask if the extraneous offense testimony was relevant to any fact of consequence in the case other than character conformity. The trial court, for example, could have admitted Linda and Wendy's testimony as evidence relevant to show appellant's intent. Testimony that the appellant sexually molested two girls just before he molested the complainant makes it more likely that appellant did not act accidentally, but with intent. In fact, it appears, as appellant deftly points out in his brief, that "common scheme or plan [was] only a theory for the prosecution to bridge the gap between the act and the intent so that the State [could] attempt to show that a defendant acted with a culpable mental state." Brief for Appellant at 11, Rankin v. State, 872 S.W.2d 279 (Tex.App.--Houston 1994, PDR granted). The court of appeals, however, failed to bridge that gap.

Instead of focusing on how the evidence was relevant to show a fact of consequence in this case, the court of appeals attempted to show how the evidence tended to show a common scheme or plan. ² Furthermore, the court did not attempt to show how the existence of a plan related to intent or any other fact of consequence in the case. Of course, it is not up to this court to make findings as to the relevancy of this evidence in the first instance. Because the court of appeals has not conducted a complete relevancy analysis, we remand this case to them so that they may make a determination on this issue.

B. Rule 403

Rule 403 is yet another exception to the general rule of admissibility under 402. Rule 403 states:

Although 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. Tex.R.Crim.Evid. 403.

Rule 403 acts as a further check on the admissibility of evidence. In other words, even though extraneous evidence meets all the requirements for admissibility under 404(b), the trial court may disallow it as excessively prejudicial. The court is not required to prohibit such evidence. The court must, however, engage in the balancing test o...