Grunsfeld v. State

controversy, amount m and the fact that

Wilkes did not contest the suit. Based on GRUNSFELD, Appellant, Robert Charles those considerations the court found the sum of to be a $500.00 reasonable attor-

ney’s fee to be awarded to Texas, Inwood for Appellee. The STATE of services through rendered the trial. The No. 05-90-00243-CR. things considered the trial court are “attendant factually circumstances” that Appeals Texas, Court of distinguish this Ragsdale. case from At Dallas. the very least the controversy amount in June case, present $649.44, is an attendant tending suspicion circumstance to cast Rehearing Aug. Denied regarding uncontradicted evidence attorney’s Also, fee. the contents of the give

file would the trial court information

concerning legal services rendered and

would have led the trial court to find $500

to be a reasonable fee rather than the requested by appellant. Thus,

amounts un-

der the facts of this case the amount to be

awarded attorney’s as an presented fee

fact issue for determination the trial

court, and there was no abuse of discretion awarding rather $500 than the amount

requested. Appellant’s point first of error

is overruled. point

In its second appel of error complains

lant that the trial court erred in

conditioning the award of appellate attor

ney’s fees on the appeal. defendant’s If appealed

Wilkes the fees were awarded to not,

appellant. If appellant was to receive appellate attorney’s fees.

Whether the trial appellate court awards

attorneys’ fees is a matter within the sound

discretion of the trial court. We cannot

say trial court abused its discre- in conditioning appellant’s

tion award on appealed.

whether or not Appellant Wilkes

argues if appeal it is successful on attorney’s

would be entitled to recover argument

fees. ap- Such an is moot since

pellant has not appeal. been successful in

Appellant’s point second of error is over-

ruled. judgment of the trial court is af-

firmed. Nation, Dallas, appellant. for

John D. Dallas, Berdanier, Pamela Sullivan appellee. Aggravated

circumstances. sexual assault is sexual assault with the additional ele ment that the placed OPINION assaulter has the vic death, tim in fear that bodily serious injury, ONION, Justice. kidnapping will imminently inflicted appeals Robert Charles Grunsfeld his person. 22.- Tex.Penal Code Ann. aggravated conviction for sexual assault. (Vernon 1989). jury is mandated jury A assessed impris- at life assay first if that state of fear in fact alleges onment. Grunsfeld insufficient evi- existed; the defendant’s conduct is then dence points and also raises several of er- assessed to if produc determine ror on the admission evidence. We re- ing cause of such fear and whether the verse judgment. the trial court’s subjective state of fear was reasonable in complainant Grunsfeld took the light out on a of such Douglas conduct. dinner, date. After the two went to Gruns- 740 S.W.2d (TexApp. Paso — El feld’s mother’s they house where had pet.); some Kemp see having drinks. After his sexual advances (Tex.App. [14th — Houston rejected, Grunsfeld became pet. ref’d). violent. jury may con Dist.] forcibly Grunsfeld complain- removed the appellant’s conduct, sider an objective pulled acts, ant’s clothes and words, then out a stun or deeds and infer from the gun. gun Grunsfeld used the stun totality on the of the circumstances whether an complainant’s side, head, neck, appellant’s and but- placed overall conduct the com tocks. repeatedly raped Grunsfeld plainant bodily injury. fear of serious complainant abused the Kemp, over a five-hour 744 S.W.2d at 245. It is not neces period. sary to show that bodily injury serious or

death was threatened or inflicted. It is necessary also not to appel INSUFFICIENT EVIDENCE show that the lant could have bodily inju inflicted serious alleges Grunsfeld that there is in ry. Id support sufficient evidence to judg the ment. appellant challenges When an the complainant The testified to several sufficiency evidence, reviewing of the circumstances: she had never seen a stun whether, court must evaluating determine before, gun bad”; gun the stun hurt “real light all the evidence in the most favorable gun and the stun made her numb. The verdict, any rational trier of fact complainant that, also testified after she could find the essential elements of the gun, hid the stun Grunsfeld stated that he beyond offense a reasonable doubt. Jack going gun. to have to find a real Virginia, son v. 443 U.S. 99 S.Ct. complainant thought testified that she (1979); 61 L.Ed.2d 560 Butler gun Grunsfeld would use this on her. A State, (Tex.Crim. v. jury could beyond have found a reasonable App.1989). jurors are the exclusive doubt that the circumstances and Gruns- facts, judges of the credibility the of the placed feld’s the complainant actions witnesses, weight given the to be their bodily injury. fear serious We overrule testimony. State, Penagraph v. point first Grunsfeld’s of error. 343 (Tex.Crim.App. Op.] [Panel 1981). ADMISSION OF POLICE REPORT Next, complains

Grunsfeld concedes that the evi Grunsfeld of the dence, police when viewed under the standard admission into evidence of a offense above, cited is sufficient to sustain report theory optional a con under the com assault; pleteness. viction for sexual he chal 107. After Tex.R.Crim.Evid. lenges finding testified, aggravating complainant the as to the the the had the State “Writing or recorded state- in evidence. Umpledy, police offi- John Dallas called depositions. ments” includes Umpledy testi- examination cer. On direct responded he to sexual assault fied that: Tex.R.Crim.Evid. apart- complainant an report; he met the forerunner,2 designed Rule like its and her and took her ment Lewisville guard against possibility “the confu he then Hospital; to Parkland roommate sion, impression false distortion of the complainant the the scene drove act, writing, an could rise from the use of offense, ques- alleged located the house conversation, transaction out declaration or fled when and the house to which she Livingston tion proper context.” Grunsfeld; escaped (Tex.Crim.App.1987), he took a she from denied, 487 U.S. 1210,108 S.Ct. cert. complainant. He did not report from the (1988). 101 L.Ed.2d 895 The offense re- relate that conversation. tendered to Grunsfeld’s counsel port was proposition the cites cases for State

for cross-examination. un- that the entire statement admissible optional completeness der the when rule cross-examination, used On Grunsfeld the issue of a the defense counsel raises report Umpledy from some of elicit questions the witness as police report and complainant had things told See, e.g., Wintters to its contents. portions highly him. The elicited se- were (Tex.Crim.App. Umpledy testified that the com- lective. 1981). that the Op.] We conclude [Panel told him that had been plainant Grunsfeld distinguishable from on the facts cases are he drinking heavily and had told her loved use case. The mere instant At one marry her and wanted to her. purposes for the of cross- report offense could point, when the officer-witness not rule 107. examination did not invoke of the recall address house to which the any portion of Grunsfeld did not introduce fled, complainant Grunsfeld had officer and, than report other refresh- offense report memory his review refresh address, ing memory as to witness’s jury. read the address Gruns- jury. The court it was not read report feld did introduce read admitting report offense erred entire portion jury. any other same to into evidence. examination, Upon re-direct the State of- conclude, however, beyond a We into report fered the entire offense evi- that the error made reasonable doubt theory optional dence under the of com- or punish contribution conviction court Gruns- pleteness. The trial overruled making 81(b)(2). Tex.R.App.P. ment. objection feld’s and admitted the offense decision, required are to focus not this we report into evidence. guilt of weight on the but might possibly have on whether the error act, declaration, part When of an con- decision-making. jurors’ prejudiced the versation, writing or recorded statement 568, State, Harris 587-88 given by party, is in evidence one Thus, upon (Tex.Crim.App.1989). we focus subject may on the same be in- whole it contrib the error and determine whether other, quired into a letter when punishment. uted to the conviction or to read, subject is all letters on the same Id. at 585. parties given. may the same be between act, declaration, conver- When detailed opened in- the door and Since Grunsfeld sation, writing or statement recorded had the officer quired into the conversation evidence, act, given every other declara- complainant, had with the the State tion, writing inquire recorded into the right statement rule 107 to under Had the State fully to make it understood conversation. necessary balance of the been no error. given this, would have explain same also be done there or to Evidence, 1965, R.S., 722, 27, May repealed by Leg., ch. Texas Rules of 59th 2. Act of R.S., 685, Leg., (formerly May ch. see Act 69th 1965 Tex.Gen.Laws Tex. (Vernon 1981)), Tex.Gen.Laws Code Crim.Proc.Ann. report An examination of the ing offense re- jury. absence of the After the veals the balance the conversation the hearing explained the trial court jury complainant officer had with the and re- that testimony further gun about the stun already flects other facts in evidence from admissible, had been determined to be but Further, objection. the officer without jurors had obligation the serious jury argument report Grunsfeld used the weight. determine its jury’s to call to the attention the inconsist- Thereafter, Wimer made clear that he complainant’s encies between the trial testi- placed battery gun. had a new in the stun mony and what she told the officer as The record reflects: report. reflected in the jury He asked the Q. you try battery Would in front carefully report. examine the The error jury, please? prescribed. was harmless under the test Tex.R.App.P. 81(b)(2). A. (Demonstrating) We overrule Gruns- feld’s point second of error. This is all that the record reveals as to experiment. in-court demonstration or IN-COURT DEMONSTRATION experiment To be admissible WITH STUN GUN or demonstration under must be conducted ground error, In his third Grunsfeld conditions that are similar to the event to contends per- that the trial court erred in duplicated; the conditions need not be mitting gun demonstration a stun un- weight identical as dissimilarities affect the der circumstances different from the al- admissibility and not the of the evidence. leged complainant offense. The testified The trial court has discretion to admit or during alleged course of- demonstrations, experiments exclude gun fense snapped the stun when Gruns- appellate review is limited to whether feld turned it on and that a current of the trial court abused its discretion. Can electricity prongs went across the two (Tex.Crim. tu v. gun. She could see and hear the elec- denied, cert. App.), 484 U.S. 108 S.Ct. tricity. gun When Grunsfeld touched the (1987); Ginther v. 98 L.Ed.2d 154 skin, to her it hurt “real bad” and made her (Tex.Crim. 476-77 “numb.” App.1984). Wimer, attorney’s Paul a district investi- gator, testified that over eleven months The demonstration with a new bat alleged after the offense he executed a tery complain clarify was relevant to search warrant at the home of Grunsfeld’s testimony, weapon ant’s to show how the mother; gun that he found the stun in worked, and to show reasonableness question in a closet the com- described complainant’s bodily fear of serious plainant; and that it was made of black injury experiment or death. An conducted plastic prongs. with metal After the stun original under circumstances similar to the gun evidence, prose- was admitted into helpful understanding transaction is to an cutor asked the witness to “activate” the of the transaction the finder of fact. presence in jury. exhibit the of the The State, 179, Dominguez v. See 722 S.W.2d explained the'battery might witness 1986, (Tex.App. 183 Dist.] [14th — Houston dead, battery. but that he had a new pet.). conclude that the trial court We objection Grunsfeld in his made clear that did not its abuse discretion. We overrule oppose he did not a demonstration with the point Grunfeld’s third of error. original instead, battery; Grunsfeld direct- objection battery. ed his to the of use a new EXTRANEOUS, UNADJUDICATED permitted Wimer to testify was then OFFENSES gun operable the stun when it was was error, found; point In his fourth of Gruns- “sparked” that it didn’t but that he trial court pointed vigorously urges touch it. feld that the prosecutor After the out gun admitting pen in at the storage that the stun had since erred into evidence been extraneous, seizure, unadjudi- alty stage its the trial hear- the court conducted a of trial

165 prior criminal “as to the timely over offer evidence offenses and their details cated defendant, point general reputa- of calls into objection.3 The error his record of the giv- to be question proper the construction tion, at The his character." Id. 462. and article 37.- en Code of Procedure de- record” was not “prior term criminal 07, after its 1989 amendment4 fined, generated much this confusion extraneous, regard the admission of to properly admissi- as to evidence was what penalty stage unadjudicated offenses at the ar- Questions as to whether ble. arose timely objection. trial of the after Tex. offenses, sheets, rests, unadjudicated rap 3(a) (Ver- art. § Code Crim.Proc.Ann. meaning the cases fell within remote point the Supp.1991). non We will sustain term, only final convic- of the or whether error, judgment, and remand of reverse the next of tions be used. At the session could punishment. hearing new for a See oversight the the was corrected. (Ver- 44.29(b) art. Tex.Code Crim.Proc.Ann. “prior criminal record” was de- term Supp.1991). non fined mean “a conviction in a court final trial, penalty stage the of At the record, probated suspended of or a sen- 1989, place the took in October State trial, tence that has occurred presented three female witnesses. Two of offense final conviction material the allegedly to rapes witnesses testified the 1967, 19, Leg., charged.” May Act of 60th against committed them Grunsfeld on R.S., 659, 22, ch. 1967 Tex.Gen.Laws § 18, 1989, 8, 1989, respective- May and June 1732, The definition has remained 1740. ly. permitted The trial court the State to Extraneous, unad- the statute ever since. the of these elicit details offenses. clearly judicated offenses inadmissi- were alleged witness testified at- third about Even if the con- ble under the definition. rape September tempted by Grunsfeld on final the fact of that con- viction was time, 24, At had the Grunsfeld not statute, under viction was admissible been convicted for of those assaults. permitted the State was show rested, After the State Grunsfeld's underlying the con details of offense simply mother. witness was his She testi- 517, State, v. 671 S.W.2d viction. Stevens previously fied that Grunsfeld had not been v. (Tex.Crim.App.1984); Johnson 522 felony; convicted this established State, 784, (Tex.Crim.App. 792 eligibility probation. for See Tex.Code 1983); State, v. Ramey (Vernon 4a(a) Crim.Proc.Ann. 1978). (Tex.Crim.App. Op.] [Panel Supp.1991). was not cross-examined. She Further, has held that been part Article 37.07 was enacted as specific is inadmissi- unadjudicated conduct 1965 Code Criminal Procedure. Act of stage of trial penalty at ble R.S., May Leg., ch. 59th for “suitability” attack accused Laws It 1965 Tex.Gen. 462-63. estab- timely probation objection when a for system lished the bifurcated trial cer- State, lodged. Kingsley v. S.W.2d provided It that at tain trials. stage (Tex.Crim.App.1990); Drew party the trial v. penalty either could appellant granted changed by amendment The State notes that been the 1989 running objection, preserves objection. which it claims trial overruled the statute and review, nothing State, citing appellate v. Goodman expressly appellant not have court stated would (Tex.Crim.App.1985), S.W.2d again presence jury to object part grounds, overruled in State, on other Hernandez preserve any rule error. This was line with (Tex.Crim. 751-52 n. 15 52(b) Appellate Procedure. the Texas Rules of However, App.1988). see Sattiewkite running objection was made No mention of 1989). (Tex.Crim.App. 283-84 Later, stage during penalty the time. trial, hearing jury’s presence, At a outside objected again appellant and received made what it intended to offer at the State penalty clear objection objection. running conclude the We stage regard of the extraneous preserved appellate properly review. Appellant objected on the basis that the fenses. 37.07, was inadmissible under article sec same 785, 28, R.S., 1989, Leg., May ch. Act 71st 4. 37.07, 3(a). art. tion See Tex.Code Cmm.Proc.Ann. 3471, 4.04, Tex.Gen.Laws § 3(a) (Vernon Supp.1991). court was The trial § opinion interpretation the statute's had 74, (Tex.Crim.App.1989); extraneous, 75-76 the former unadjudicat- statute Murphy 44, (Tex. ed offenses were inadmissible. Has the Crim.App.1989)(op. reh’g). on These hold- brought change? amendment about a At ings did not mean that an accused could blush, first it seems the additional “open not the door” to the admission of sweeping. is broad Upon evidence, such merely but held that offer- closer appears examination it that evidence ing evidence satisfy the eligibility re- extraneous, unadjudicated offenses, quirement probation from jury does if sentencing even deemed relevant to by “open the door.” Murphy, 111 S.W.2d court, the trial would have to meet two at 67-68. First, tests. it would have to be evidence permitted by the rules of evidence. Sec- In arguments view of the by advanced ond, part if it prior of a defendant’s parties, we will examine the statute record, criminal as it has been considered in before and after its last amendment. Prior past, it must comply with the amendment, statutory 37.07, to its 1989 sec- definition of that 3(a) term. provided pertinent tion part: (a) Regardless plea of the and whether As construing statutes, an aid in punishment by judge be assessed the Code Construction Act is applicable to jury, or the may, permitted evidence as the Code of Criminal Procedure. Barbee v. by Evidence, the Rules of by be offered 78, (Tex.Crim.App. the state and the defendant as 1968), denied, 924, cert. 395 U.S. 89 S.Ct. prior defendant, criminal record of the (1969); 23 L.Ed.2d 241 Ceaser general his reputation and his character. State, (Tex.App.— prior The term criminal record means a Beaumont pet.). The Code Con record, final conviction in a court of or a struction Act is now found in the Govern probated suspended or sentence that has ment Code. Tex.Gov’t Code Ann. 311.- §§ trial, prior occurred any or final con- (Vernon 1988). 001-.032 The section enti viction charged. material to the offense tled Statute provides: Construction Aids 22, 1987, May R.S., Act of Leg., 70th ch. construing statute, whether or not 1891, 1898, 1987 Tex.Gen.Laws § ambiguous the statute is considered by May amended Act of 71st face, its among a court consider R.S., Leg., 4.04, ch. 1989 Tex.Gen. § other matters the Laws (1) object sought attained; to be 3(a) provides, Article section now (2) circumstances under which the pertinent part: enacted; statute was (a) Regardless plea of the and whether (3) legislative history; by judge be assessed (4) statutory common law or former jury, or the may, permitted provisions, including laws on the same or Evidence, by the Rules of be offered subjects; similar the state and the defendant as to (5) consequences particular of a con- matter the court deems relevant to sen- struction; tencing, prior including the (6) administrative construction of the defendant, general record of the rep- statute; and utation and his pri- character. The term (7) (caption), preamble, title and emer- or criminal record means a final convic- record, gency provisions. probated tion a court of or a suspended sentence that has occurred (Vernon Tex.Gov’t Code Ann. trial, final conviction ma- 1988). charged. terial to the offense legislative A look history at the 37.07, 3(a) Tex.Code Crim.Proc.Ann. 1989 amendment to article (Vernon added). Supp.1991) (emphasis reveals that it was effected House change legislation piece relevant was the addi- Bill a voluminous which, emphasized language. things, tion of among Under other created the thoughts Apparently prevailed, Department of Criminal Justice. second Texas amended, 2335 was and for thereafter H.B. in of introduced the House H.B. was 4.03 became section 4.04 of the bill section by Representative Alan Representatives 3(a) amending section of article in the 37.07 provision in the no Hightower. There was found in the current statute. manner now 3(a) 37.07, section amending article bill permitting references to evidence as The passed Representa- the House of when record, prior criminal char- the defendant’s report- May on 1989. The bill was tives reputation, and and the definition acter adversely in Jus- ed the Senate’s Criminal The restored. prior criminal record were McFarland tice Committee. Senator R. proposed 4.03 last sentence the section offered H.B. then Committee Substitute completely almost omitted. H.B. was a section 4.03 amend- which included rewritten, passed May on the Senate 37.07, 3(a) ing article section as follows: The refused to concur in the 1989. House Regardless plea the and whether joint amendments and a conference Senate punishment by judge assessed the the be appointed. was The Senate committee jury, may, permitted as evidence adopted joint the conference committee’s Evidence, by the the Rules of be offered May did report on and House any matter state or the defendant as to 29,May approved The so on bill was sentencing. the court deems relevant to to arti- on June 1989. The amendment not be may This subsection construed 37.07, Sep- section effective cle became authorizing introduction of evidence 1, 1989. tember in of the States seized violation United analysis to H.B. makes bill Constitution or the Texas Constitution. proposed to ar- mention amendment existing per- References in the statute 37.07, 3(a). urges ticle section State mitting the con- introduction evidence representa- consideration of the fact that record, cerning a defendant’s criminal County and At- tives of Texas District character, general reputation his and torneys’ Association and the Texas Crimi- “prior the definition of criminal record” “indi- Attorneys’ nal Defense Association proposed deleted were amendment. they cated that favored the amendment Obviously, the not language deleted would either could because more evidence side if any needed evidence “as to be matter get jury on the bet- before sentencing” court deemed relevant to was side ter off that would be.” After investi- pat- be allowed. amendment was find gation, we that the State’s conclusion provisions terned after the in Code support, found little or no and is not indica- has 37.071(a).5 legislative Procedure article intent.6 tive record, (a) showing provides perti- only prior 5. Section article criminal 37.071 State to part capital nent that in a case: reputation murder of the accused was character Boston, proceeding, good provision.” representa- present- In the "real John bar, ed as to deems matter the court of the defense stated he had not had tive relevant to sentence. This shall subsection study carefully chance to the draft amendment not be construed to authorize introduction organization speak for his on and he could evidence secured violation of object to the relevant whether it would "all Constitution of the United States or of punishment” language information State of Texas. expressed only per- draft amendment. He (Vernon 37.071(a) TexCode Crim.Proc.Ann. opinion in arti- that the current sonal cases). Supp.1991) (procedure capital 37.071(a) Senate “seems to make sense.” cle amended, tape State us to an of a not vot- 6. The refers audio was never Bill 1169 hearing by Com- the Senate’s Criminal Justice “draft of committee. The amendment” ed out April Bill 1169 on mittee Senate appear us. It does not to be not before lengthy bill some The bill was not a but stated of House Bill 2335 which same as section 4.04 concerning principles broad law re- 3(a). section The scant did amend It contain an form. did not amendment testimony offered the committee lends before 3(a). hearing At article prosecutors’ representative, support had little what Krampitz, stat- Tom finally enacted. mind striking ed that draft amendment S.B. 1169 restricting the limitations in article 168 restoration, argues making legislature In

The State that the 1989 amend the the is 37.07, 3(a) ment presumed past to article section to have known the construc- torpedo aimed like a missile at the decision placed tion on the same or similar statute (Tex. Murphy in v. 111 S.W.2d 44 Welch, by the courts. Welch Crim.App.1989). may While there be some 434, 1963, (Tex.Civ.App.—Dallas 437 belief, foundation for this we have not writ). study legislative history found in our 37.07, reading of Any article sec in question of the amendment where Mur present clearly tion in its form shows target phy was ever mentioned as the evidence offered to matter the caught in the cross-hairs. sentencing court deems relevant to must Act, The like Code Construction permitted by nonetheless be that which is score, an old familiar reminds us that Rules of This has Criminal Evidence. phrases words and in a statute shall be requirement of the statute since the been according in read context and construed 1985 amendment.7 grammar usage. of rules and common (Vernon A brief examination of the Rules of Ann. Tex.Gov’t Code 1988); State, 676 see also Polk v. in 402 is Criminal Evidence is order. Rule 408, (Tex.Crim.App.1984). 410 The domi operative provides rule. It rele- all nant rule the construction of a statute evidence is unless it contra- vant admissible give legisla effect to the intention of the constitutions, statute, Rules of venes generally ture. The intent is obtained from Evidence, pre- Criminal or other rules language of the statute and from the pursuant statutory authority. scribed legislative history City of the statute. All irrelevant evidence is inadmissible. Williams, Tawakoni v. West 403 “relevancy” Rule 401 defines and rule 1987, 489, (Tex.App.—Dallas 491 de writ provides general authority to exclude nied). legislative is also ob intent prejudice, relevant evidence on the basis of considering provision being by tained issues, misleading jury, confusion of entire law construed context of the delay, undue and cumulativeness. Id.; it is found. which McCulloch general relevant evi- authority to exclude Jacobs, Inc., Fox 921 & dence rests within the sound discretion n.r.e.). (Tex.App.—Dallas writ ref’d through the trial court. Rules provision given meaning One will not be relevancy special- address issues harmony out of or inconsistent with other resolution. ized rules have evolved for their provisions, although might susceptible be standing if of such a construction alone. If the introduc it can be said that Bernhard, 562 S.W.2d extraneous, Barr v. unadjudicated offenses tion (Tex.1978). stage meets the penalty at the of the trial clears the relevancy test of rule must therefore careful not be We hurdles of rule there more to be language lift of context the out new considered.8 3(a) of article 37.07 and construe it section punishment. relevant Character standing other alone or with certain may of- penalty phase, be provisions the statutes to reach selected connection, by prosecu- by fered an accused And in this a desired result. tion as to the criminal record of the keep in the deletion and then we must mind accused. Other evidence of his character restoration of the of the for legislative process. by offered an accused or during mer statute 18, 1985, R.S., Sep- May Leg., effective on December to become 7. Act of 69th ch. 8(b), Tex.Gen.Laws 2473. tember application conditioned passed are not to be over 8. Rules 401 and 403 promulgation Evidence to the the Rules of penalty stage hurriedly of the trial when at the Evidence on or before such Rules Criminal sought be introduced is extrane- Ap- the evidence January 1986. The Court of Criminal ous, unadjudicated their details. offenses and peals adopted of Criminal Evidence the Rules character; left prove this Nothing herein limit inadmissible to prosecution. shall testimony only acceptable reputation Article Code of provisions of Reputation proof. Id. at method of Procedure. is, addition, per testimony specifically 404(c). Tex.R.Crim.Evid. 3(a). Opin mitted 404(c) governs Rule the offer charac- prove testimony permitted to charac ion is stage penalty of a non- ter evidence at 405(a). ter in all cases. Tex.R.Crim.Evid. counterpart capital criminal trial. It has to Also, is held allow article 37.07 now civil or in the federal in our evidence rules during testimony as to opinion character significant It not rules. did work penalty stage of a criminal trial. Hed change in Texas law. icke, third 779 S.W.2d at 842. The method By limiting evidence admissible specific of proving of instances character — char- record and prior accused’s criminal in separate conduct—is addressed 404(c) Rule acter evidence Criminal “In of Rules of Criminal Evidence. preclude use would to of most seem in which character or trait of charac cases offenses which were not ad- extraneous person an of a ter of a is essential element merits, at well mitted the trial on the as defense, claim, charge, proof may or also regarding the as evidence character of specific be made of instances his con “Prior criminal of accused’s victim. 405(b) (emphasis duct.” Tex.R.Crim.Evid. 37.07.3(a) by record” defined article is added). specific It in is thus clear that so exclude as to extraneous offenses [sic] may only stances of conduct be used where subject not the which were a convic- is element that is character an essential tion. “Other evidence his character” proved in for the required to be order State appear proof by would to be to limited or defendant to make its case. opinion reputation and as witnesses 405(b) Civil Rules are es- Criminal and 405(a). prescribed by Criminal Rule to federal sentially identical their coun- specific This not include acts of would They question of terpart. address the by the misconduct defendant unless elic- specific may instances of conduct when by implication through ited cross-exami- prove offered in to character. be evidence nation of the defendant’s wit- character issue, may an ultimate Character be nesses. is, may it an essential element of a be 33 S. O. & M. Goode, Sharlot, Wellborn charge, claim or This is defense. almost Texas Guide Rules of Evidence: exclusively a civil matter.... (Tex- at 135-36 Civil issue, it If character ultimate 1988) (em- as Practice [hereinafter Goode] instance, proved. In must be this Rule added) (footnotes omitted). phasis it pertinent 404 is not since deals Thus, if prior record be proof of character as circumstantial used, comport must with the definition to show conduct or state the statute. If “other evidence” is to be conforming partic- mind character prove penalty used to character at prove char- ular occasion. Permission case, stage non-capital of a it is limited comes from as an ultimate issue acter by opinion proof reputation and witnesses. general permission given Rule Appeals The Court of Criminal instructs to admit all relevant evidence defined Thus, 405(b) un- in rule 401. Rule was us that there are three basic methods of presumably (1) necessary included proving reputation but was character: (2) repel any argument that the common personal opin person community; admissibility had re- law rule of been testimony ion of witnesses who know pealed implication. (3) person; specific instances con duct from inferences be drawn. In cases character was an ulti- where (Tex.Crim.App.1989), issue, Hedicke S.W.2d the common law and mate — denied, U.S.—, t. law allowed all three modes Texas cer (1990). opin- reputation, At such character: proving 110 S.Ct. L.Ed.2d ion, law, opinion testimony specific held instances conduct. common Rules, following The Texas the Federal non-capital procedure gov Rules, codify practice. this Rule however, erned does not proof by reputation allows of character specific frame a issue that can be said to opinion whenever evidence of charac- have character as such as an element. 405(b) permits ter is admissible. Rule non-capital jury cases where the assesses proof by specific of character instances punishment, it does not determine the ex subject’s conduct when the sub- Deciding istence of discrete facts. what ject’s character is an ultimate issue. To punishment to assess pro is a normative distinguished use, pursuant is the to cess, intrinsically Murphy, factbound. 404(b), Rule specific act evidence to 777 Significantly, in non- prove some contested issue such as in- capital “sentencing,” proof no burden of tent, identify. motive assigned has ever been to the broad issue Goode, supra, (emphasis 405.3 at 149-50 of what to assess. Id. at 63 n. added) (footnotes omitted); see also Pur particular 10. Whenever a issue can be State, 360, (Tex. tell v. 761 S.W.2d 369 consequence identified that is of at the cert, Crim.App.1988), denied, 490 U.S. punishment proceeding, questions of bur 1059, 1972, 109 S.Ct. 104 L.Ed.2d 441 proof immediately den of come to mind. (1989). mandatory requirement There is no that sentencing in capi scheme during the State offer evidence at all provides tal murder cases that “evidence penalty stage noii-capital of a case. may presented be as to matter the Id.; State, Wright see also v. 468 S.W.2d court deems relevant to sentence.” Tex. 422, Hence, (Tex.Crim.App.1971). 425 no 37.071(a)(Vernon art. Code Crim.Proc.Ann. Thus, proof assigned.9 burden is crimi Supp.1991). “sentencing” procedure permit nal evidence rule 405 would not capital requires prove cases that the State specific use of acts of misconduct other probability that is “there that the defen prove than final convictions to character dant would commit criminal acts of vio penalty stage non-capital of a criminal continuing lence that would constitute a Specific may trial. instances of conduct be society.” threat Tex.Code Crim.Proc. used where character is an essential 37.071(b)(2)(Vernon Supp.1991). Ann. required proved element that Nothing in requires article 37.071 that case; order for the State to make its there be a final conviction for an extrane penalty such element is at issue in the punish ous offense to be admissible at the stage non-capital of a trial for a offense. phase. Clearly, prior ment evidence of of The Rules of Criminal Evidence do not range prior fenses falls within the crimi extraneous, permit the introduction of nal conduct and would be relevant to the unadjudicated offenses and their details at jury’s special deliberations on issue number stage non-capital penalty of a case. (article 37.071(b)(2)). State, two Garcia 168, (Tex.Crim.App.1979), 179 limiting now turn to the other We. 902, grounds, vacated on other 453 U.S. pri- factor—the definition of a defendant’s (1981). 101 S.Ct. 69 L.Ed.2d 988 A earlier, or criminal As record. observed rational trier of fact must find the elements enacted, first did when article 37.07 was special beyond issue number two a rea “prior not contain a definition of criminal State, sonable doubt. Keeton v. 724 great uncertainty record.” Because (Tex.Crim.App.1987). 61 S.W.2d Such was admissible under as to what evidence determining prob conduct is a factor in term, that it was defined the 1967 ability crimi that defendant will commit May amendment to the statute. Act nal acts of violence that would constitute a R.S., continuing society. Leg., threat to Id. 60th ch. alleges prior prove allegations.

9. Where the indictment convic- such See Wilson v. purpose (Tex.Crim.App.1984). tion or convictions for Of of enhance- S.W.2d course, consent, punishment, ment of the court’s the State the State would have the with allegations. proof beyond burden of a reasonable doubt to waive and abandon enhancement to violate the law not propensity definition Tex.Gen.Laws issue tendered fact, relevant a material unchanged. it was has remained punish- probation in a application for after hav- restored to the amendment For jury. that proceeding before a action ment ing earlier eliminated. Such been matter, self-serving is a declara- neither clearly legislative intent indicates that will not violate by applicant re- he tion retain the limitation of evidence with probation. if placed record law gard a defendant’s stage can penalty at the of the trial. Few at 67. Murphy, extraneous, argue unadjudicated of- of recent cases con are well aware We admissible fenses and their details were McMillian, today. In our trary to decision Murphy, prior to 1989 amendment. an extra held admissible the Houston court at 57. neous, unadjudicated as relevant to offense to the use of the The State calls attention probation. “fitness” McMillian’s “including” in 1989 amendment term 313-14 McMillian enlarge- argues is one of term (Tex.App. pet. [14th Dist.] — Houston ment and not limitation exclusive legisla reviewing the granted). Without 311.- enumeration. Tex. Code Ann. Gov’t general history, spoke court tive 005(11) (Vernon agree Supp.1991). We change” and “significant like “ex phrases that the 1989 amendment State language.” Then, conclusory in a panded 3(a) expanded without court found no conflict be statement the might other that enumeration matters 37.07, 404(c) section rule and article tween introduced if the trial court deems the 3(a). “prior crim No mention was made sentencing and re- same relevant other in rule both the and inal record” contained disagree, quirements are how- met. We has The Houston court reit the statute. ever, that amend- with the contention the State, position its in 803 erated Munoz ment the introduction extra- authorized (Tex.App. 755 S.W.2d [14th — Houston neous, unadjudicated offenses their de- and refused). writ Dist.] tails in term view retention the court held the Huggins, In the Beaumont “prior limiting criminal record” and its defi- in court not abuse its discretion trial did nition, history of the the the statute and extraneous, admitting unadjudicated of 1989 amendment. penalty stage of the trial. fenses at the testimony hold the was We that State, 795 S.W.2d 911 Huggins under both the Rules of Crimi ref’d). inadmissible 1990, pet. (Tex.App. — Beaumont limiting the nal Evidence and definition any analysis, Huggins court Without meaning “prior of a criminal record.” The 37.07, in sec held that admitting court its in it. abused discretion by (3)(a) permitted evidence tion that and relevant to rules of evidence deemed isIt true that Grunsfeld offered evidence sentencing by the trial court was “addition establishing eligibility simply proba- his for separate independent” and al to and jury tion after State had elicited in the language found elsewhere statute extraneous, unadjudicat- evidence of three concerning prior criminal a defendant’s and their details. This did not ed offenses record, general reputation, and charact result. cure error or call for a different unadjudicated found the er.11 court Nothing his- amendment or its and details relevant under offenses their tory holding Murphy that in indicate made of rule 401. No mention was rule superseded. to be In Mur- was intended 404(c). court held: phy, the boldly held Huggins court then past criminal conduct whether difference or applicant probation may a trait there “is no realistic reveal now 2(b) meaningless interpretation Originally renders the term was found in section 11. Such "prior statutory criminal record" Its found in reference of the statute. definition now 3(a) its definition. section of article 37.07. and ous, unadjudicated distinction” between article section offenses and their de- 3(a) non-capital admissible, in cases and article 37.- tails be but that convic- regard to the admission of ex being tions must be final before admissible traneous, unadjudicated capital offenses in then that of the underly- even details legislative history cases. No was disc ing offenses are to be excluded. ussed.12 The Beaumont court reit has Next, question we address the State, Hunter v. position erated its requires whether the error a remand to (Tex.App. S.W.2d 918 — Beaumont hearing punish the trial court for a new filed). pet. making ment. a harmless error deter The San Antonio court has followed mination, reviewing court must isolate Huggins. McMillian Gallardo v. See effects, second, the error and all its (Tex.App.—San 809 S.W.2d 540 to An again, might ask whether a rational trier of fact filed). pet. nio Here reached a result if the error have different legislative history was not considered nor reviewing had not occurred. The court was the statute read as a whole. The Fort weight should focus not on the of evidence Huggins. Worth court has also followed guilt rather on the error at but whether (Tex. See Hubbard v. might possibly prejudiced issue have h.). App. pet. Worth — Fort Harris, jurors’ decision-making process. controlling We do not find these cases 81(b)(2) Rule man S.W.2d at 587-88. persuasive. It is abundantly clear that appellate upon dates that the court focus legislature whatever the intent of the determine, the error and in cases like the enacting the 1989 amendment to article one, instant whether the error contributed 3(a), open it was not to Id. assessed. non-capital door to cases as error, Focusing upon con we capital sentencing. wide as that case If allowing intent, clude that the trial court’s error in that was the then the jury testimony to hear the addi limiting about would have retained the lan- rapes prejudiced guage in tional and their details the amendment. This Court can- jury’s decision-making process. See not now eliminate those limitations. The extra neous, Rumbaugh unadjudicated 418 offenses could S.W.2d (Tex.Crim.App.1979). persuade jury We must not at- that Grunsfeld stood be tempt guise judi- rapist amendment under the of fore them as a vicious serial who interpretation. given punishment; cial must the maximum We not convert a must be imposed imprisonment. jury statute from what it is to one of our own the life There choosing, fore, interpretation beyond even if that is a this Court cannot determine Further, popular the error one. we cannot attribute reasonable doubt that made no legislature punishment an intent reach an assessed. to contribution to Tex.R.App.P. illogical 81(b)(2). result. It not make sense We sustain Gruns- would legislature point light feld’s of error. In of our that intended that extrane- fourth Burgess, concurring Huggins, language, language. This 12. Justice disa- there is additional greed majority's approach. “prior language with the He stated: additional defines record.” pun- completely Article 37.071 is a different statutory principles Sound of construction capi- ishment scheme from article 37.07. The every require presume that this court that jury questions, they tal murder must answer purpose. used for a Polk word in statute is any years. do not determine number of One (Tex.Crim.App. questions proba- is there is a of those whether 1984). majority’s ignores interpretation The bility that the defendant would commit acts of place principle. this Article 37.071 was continuing violence that would constitute a 37.07, Thus, recent amendment to article before the society. threat to Also, the focus different. 3(a). legislature could have delet- section there is a marked difference between the "prior ed all references to criminal record” actual in the sections. Article 37.- Therefore, must straightforth, pro- but chose not to do so. we simple "In the 071 is and give meaning phrase that ceeding, presented any continue to to as to defined. matter that the court deems relevant to sen- Huggins, While article does have that 912-13. tence.” conviction in a point fourth of nal record means final disposition of Grunsfeld’s record, error, probated of or a or a sus- point his final court do not address we applica- prior that has occurred concerning post pended the ex facto sentence error 37.07, 3(a). trial, final in a any conviction court tion to article record, suspended probated or or a judgment the trial court’s We reverse trial, prior occurred sentence that has proceed- the cause for further and remand conviction material to the final 44.29(b) Tex- ings pursuant to article charged. offense Procedure.13 as Code of Criminal Crim.Proc.Ann, 37.07, 3(a) art. § Tex.Code ROWE, (hereafter BAKER, MALONEY, (Vernon Supp.1991) referred STEWART, THOMAS, statute”) (emphasis added to reflect WHITHAM as “the WHITTINGTON, JJ., majority in the join amendatory language). This amendment opinion. September effect on 1989. Prior took above, amendment, this section read as LAGARDE, J., opinion. dissents with emphasized portion. exclusive Tex. BURNETT, CARVER, C.J., ENOCH, 3(a) (Ver- Crim.Proc.Ann. Code OVARD, CHAPMAN, KINKEADE and 1981). non JJ., join dissenting opinion. CONSTRUCTION ARTICLE OF LAGARDE, Justice, concurring and 3(a) 37.07, SECTION dissenting. Presumptions. agree majority’s I and concur in the disposition points. of Grunsfeld’s first three amendment, construing courts respectfully majority’s I dissent from presume legislature must that intended holding the trial court committed re- that change construe the the law should in admitting versible error evidence of ex- way gives effect to a amendment in a that during traneous offenses change than one that renders the rather phase Accordingly, I Grunsfeld’s trial. Trahan, parte useless. Ex amendment would affirm. (Tex.Crim.App.1979). presume legisla must Courts also majority hold sec- given ture intended that effect be tion of the Texas Code Austin, parte Ex entire statute. forbids the introduction extra- Procedure (Tex.Crim.App.1988); Tex. during punish- neous offense evidence (Vernon 311.021(2) Ann. Gov’t Code phase section, ment of a trial. This 1988). presumed to have 1989,provides, pertinent was amended result and just intended a and reasonable part, as follows: public over have interest favored record Sec. Evidence Papageor private Lindsay v. interest. finding in all after a criminal cases — (Tex.App giou, 751 S.W.2d guilty. denied); Tex. writ Houston Dist.] [1st (a) Regardless plea of the and whether (Vernon 311.021(3),(5) § Code Ann. Gov’t judge the punishment be assessed 1988). permitted by jury, may, the evidence as Evidence, by the the Rules of be offered Guidelines. 2. Construction as to any state and the defendant mat- statutes, construing ter relevant sentenc- To assist courts the court deems fol- provides Act the ing, including prior the criminal record the Code Construction defendant, general lowing list of factors court reputation of the his nonexclusive prior may The term crimi- consider: and his character. new except court shall commence the appeals ... a new that the

13. "If the court awards guilt finding of had been returned only made as if a trial on the basis of error ... trial ... stage trial, punishment proceed of the punishment stage to the of the the cause trial_” 44.29(b) art. stood case the shall stand as would have Crim.Proc.Ann. Tex.Code below, (Vernon granted by Supp.1991). new trial had been the court (1) sought attained; object Appeals to be has held that bad acts (2) phase inadmissible circumstances under which the stat- enacted;

ute was a trial unless the opens defendant first (3) door to such legislative history; Murphy evidence. 64 (Tex.Crim.App.1989)(op. (4) common statutory pro- law or former reh’g). visions, concurring opinion, In a including Judge laws on the same or subjects; similar Legislature Duncan stated: “If the wants (5) jury consequences beyond to have access to evidence particular of a con-

struction; 37.07, 3(a), supra, that authorized Art. § (6) pass legislation it should to that It administrative construction of effect.

statute; and is not this Court’s function to authorize an (7) expansion beyond of the (caption), statute its lan- preamble, title and emer-

gency provision. guage.” (Duncan, J., Id. at 71 n. 1 concur- ring). that, presume This Court must (Vernon § Tex.Gov’t Code Ann. amending statute, legislature knew 1988). majority Unlike the who discuss affecting circumstances and conditions only legislative history, I will re- now relating amendment, including to the pertinent guidelines view each of the sepa- rately. prior Welch, court decisions. Welch v. (Tex.Civ.App. —Dallas object a. The sought to be attained. 1963, writ). Aware that the Court of starting point, As a this Court must re Appeals narrowly construed the legislature presumed member that the language, statute because of its restrictive changed have the law and should construe legislature, only governing body give change. the statute to effect to a Ex so, authority to do took the initiative Trahan, parte 591 S.W.2d at 842. To and amended the article broaden the legislative enacting ascertain the intent scope punish- of admissible evidence at the amendment, this this Court must first look phase ment of trial. to the of the statute itself. (Tex. Faulk v. legislative history. c.The Crim.App.1980). legislature’s objec amending tive in the statute can be learned dispute majority’s I do not factual looking amendatory language from at the legislative history; discussion of the I itself. The statute now states that evi disagree they with the conclusions draw “any dence be admitted matter view, my legislative therefrom. his- sentencing, the court deems relevant tory compromise. initially reveals a As including criminal record of the proposed, the amendment was as broad as defendant, general reputation and his 37.071(a),1 places only a con- character.” Tex.Code Crim.Proc.Ann. stitutional limitation on evidence admissible 37.07, 3(a) (Vernon Supp.1991) (emphasis punishment stage capital at the trial. added). “including” The word is a term of proposed obviously Because this bill met enlargement and not of limitation or exclu opposition, compromise resulted. sive enumeration. Tex.Gov’t Ann. Code According majority’s construction 311.005(13)(Vernon Supp.1991). By us statute, pun- to be admissible at the ing “including,” the term trial, phase noncapital ishment of a evi- sought scope to broaden the of admissible permitted by dence must both be the rules punishment phase evidence at the of a non- and, part of if it of a defen- evidence is capital trial. record, prior dant’s criminal it must fit b. circumstances under which the prior the statute’s definition crim- within of statute was amended. construction, majori- inal record. In its ty phrase permitted by focus on the “as interpreting pre-amendment In ver- statute, sion of the the Court of Rules of was carried for- Criminal Evidence” which 37.071(a)). 37.071(a) (Vernon 1991) (hereafter referred as article Tex.Code Crim.Proc.Ann. 1.

175 hand, per is not character evidence previous on the other from the version and ward is Consequently, probative its value prior of of se. statute’s retention the definition for which a majority that of an offense criminal record. The choose less than finally has convicted. See ignore language matter defendant been the new “as at 49. sentencing, Murphy, 777 S.W.2d the court deems relevant including,” by the 1989 which was added assessing responsible punish Those for By amendatory ignoring amendment. possible ment need the fullest information neglect very language, majority concerning Murphy, life. a defendant’s statutory they construction that set rule of State, (citing v. at 63 Williams forth; namely, part that each of a statute 1079, 1083, 93 69 337 S.Ct. U.S. every part is other to be considered with (1949)). no are L.Ed. 1337 Because there language and that all the should be viewed of to be determined discrete issues fact together. trial, noncapital punishment phase of a stage is admissibility of evidence at this contrast, a my gives construction har policy, logical of not of relevan a function of lan monious effect to all the statute’s 892, State, 782 cy. v. S.W.2d Miller-El that, agree guage. majority I as State, (Tex.Crim.App.1990);Rice v. 895-96 amended, go not as the statute does far (Tex.App. 789 605 S.W.2d 37.071(a).2 However, — Dallas unlike the ma Thus, curiam). the sen pet.) (per I is jority, the statute now believe tencing authority must assess its encompassing predecessor more than society light following goals permits, and within the trial court’s discre (1) through sentencing: seeks to achieve tion, acts, bad, specific good or individual defendant deterrence both the through testimony of offered live witnesses (2) society; re other members of and subject Specific to cross-examination.3 act straint; rehabilitation; education; (3) (4) evidence, through testimony, offered live (5) A.& Scott, retribution. W. LaFave part prior a not defendant’s 1986). (2d ed. Jr., Law record; therefore, the fact that the statute Criminal sentencing cannot responsible Those “prior criminal defines record” should goals fully any of these and assess reach any way limit its introduction. term knowing as proper sentence without “record” means account of written “[a] de much information about the individual act, transaction, instrument, some drawn possible. fendant as law, up, authority proper a under officer, designed to remain as memo case, if specific act evidence in this permanent rial or evidence of the matters believed, jury that has shows the Grunsfeld to which it relates.” Black’s Law Dictio rehabilitation; potential for it also a low nary (4th 1968). Specific ed. act evi danger- high potential for reveals a future dence, hand, other reveals defen recidivism which bears ousness and future conduct, bad, prior good or, put dant’s upon for restraint in order his need way, is another a “circumstance of defen society. Murphy, 111 S.W.2d at protect interchangeably Although used dant.” J., dissenting). (White, years, Ap over the Court peals recognizes prior criminal record d. law or statu- The common former prior criminal conduct are distinct provisions, including laws on tory State, terms. Crane v. See subjects. or similar the same (Tex.Crim.App.1990). Evidence understanding helpful guideline is character evi This one’s criminal record State, that the retained per se. 794 the reason dence See Henson v. by the Rules permitted “as (Tex.App. — Dallas evidence, ref’d). when it amended the statute. pet. Specific on the Evidence” act course, subject, disagree would be regard, Live witnesses In this I with the decision (Tex. perjury McGary Huggins See laws. refd). (Tex.Crim.App.1988). pet. App. S.W.2d 784-85 —Beaumont majority emphasize heavily Appeals grafted The this lan- Court on an guage “limiting In major- as a factor.” the other limitation to the admission of evi view, ity’s unadjudicated, extraneous of- dence, clarifying a that trial court’s discre fenses are inadmissible under the statute during tion in the admission of evidence the only they part because are not of a punishment phase capital of a trial extends record, prior defendant’s criminal but also only to the relevance of the evidence and pro- the rules of because criminal evidence does not alter the rules of evidence with According hibit their admission. the ma- regard to proof. the manner Crane jority, unadjudicated extraneous offense State, (Tex.Crim.App. evidence constitutes other evidence of char- 1990); Porter v. 404(c) acter under rule and that character Thus, (Tex.Crim.App.1979). I do not be (1) proved only by: repu- that the permitted by lieve “as the Rules of (2) person community; tation of the language poses Evidence” a to the barrier personal opinion testimony of witnesses specific admission act evidence. (3) person; specific who know the in- stances of conduct where a defendant’s consequences particular e. The aof character is an essential element of a construction. charge. Hedicke v. all, guideline, perhaps This best of exem- — (Tex.Crim.App.1989), denied, cert. plifies majority’s the weaknesses of the U.S.—, 110 S.Ct. 107 L.Ed.2d 836 presumed legisla- rationale. It is that the (1990); 404(c), 405(a), (b). Tex.R.Crim.Evid. change ture intends to the law when it legislature amended the statute in enacts an amendment and this Court has language 1985 to contingent include this obligation to construe the amendment upon promulgation the of the rules of crim- gives way change that effect to a rather inal January evidence on or before than one that renders the amendment use- Appeals approved Court of Criminal Trahan, parte less. Ex 591 S.W.2d at 842. the rules of criminal evidence on December majority way construe the statute in a 18, 1985, and the rules became effective change, rendering that effectuates thus 1,1986. September At the time of the 1985 legislature’s the efforts to enact amendment, legislature intended majority amendment useless. The state language this to restrict both the substan- they agree that ex- amendment tive evidence under the admissible statute panded might the matters that be intro- proof. and also the manner of duced if the court deems the trial same legislature again When amended this sentencing, give relevant to fail to but statute in language. 1989 it retained this might possi- clue as to what those matters In retaining language, this I believe that bly construing statute, In be. the ma- legislature permitted intended that “as jority permitted by focus on the “as by the only Rules of Evidence” now limits Rules of Evidence” and the defi- proof the manner longer and no limits prior nition of criminal record. In contra- types of evidence admissible under the construction, of the rules of vention I by looking statute. reach this conclusion majority emphasiz- construe the statute construing 37.071(a), to case law article ing “limiting ignoring these factors” and statute on subject. a similar As noted ear giving amendatory no effect lier, presume this Court must language. amending statute, contrast, I would reconcile the “limit- prior aware of court relating decisions ing Welch, amendatory language factors” with the amendment. 369 S.W.2d at 437. originally drafted, give As a reasonable construction to the limitation on admitting “limiting the trial court in statute as evidence under a whole. The first 37.071(a) factor,” prior was that the the definition of criminal court could record, not admit evidence specific that was obtained in is not because act relevant violation of the United States or part Texas evidence is not of a defendant’s law, Through Constitutions. case record. I the second reconcile section factor,” article permitted by “as amended version “limiting trial does not constitute to Grunsfeld’s language, the new Rules of Evidence” with application of the law as post ex facto construing mean- language by its intended Supreme States by the United law, defined ing light case known to Further, relating or statutes rules Court. legislature at time it enacted procedural admission of evidence are to the amendment, interprets a different litigation as apply pending in nature and Un- concerning subject. a similar statute date of the statute of the effective rule. majority, harmoniously I construe like the State, 440, 442-43 Tumlinson v. 757 S.W.2d statute, giving thus effect whole ( ref’d). 1988, pet. I Tex.App. legislature’s presumptive intent — Dallas point fifth overrule Grunsfeld’s would change the law. error. judgment. the trial court’s I affirm would BY COURTS CONSTRUCTION SISTER Of the few courts that have decided C.J., KINKEADE, ENOCH, amendment, cases under this most construe OVARD, BURNETT, CHAPMAN and I do and hold that evi amendment as CARVER, JJ., join concurring unadjudicated, of dence of extraneous opinion. dissenting fenses is now admissible under article 37.- State, 3(a). Hubbard v. section (Tex.App. Worth — Fort State, h.); Gallardo v. pet. 809 S.W.2d (Tex.App. pet. Antonio — San State, filed); Hunter v. (Tex.App. pet. 920-21 — Beaumont

filed); v. McMillian (Tex.App. [14th Dist.] — Houston ANDERSON, Craig Appellant, Eugene reh’g); Huggins granted) pet. (op. (Tex.App.— 1990, pet. d). ref Beaumont Texas, Appellee. The STATE No. 05-90-01147-CR. EX POST FACTO LAW Texas, Appeals Court argument Grunsfeld raises one final Dallas. point. He if fifth contends even 3(a)permits the admis 26, 1991. June specific punish sion of act evidence at the trial, phase ment an ex constitutes

post applied law he facto here because charged

committed offense before I dis

effective date the amendment.

agree. Supreme The United States Court post ex facto as one that:

defines an law

(1) previously punishes as crime an act done;

committed, when which was innocent

(2) punish more makes burdensome crime; (3) deprives

ment one

charged a crime of defense avail according

able to law the time when Young-

act was committed. Collins v. — blood, U.S.—, 110 S.Ct. (1990). Applying the

111 L.Ed.2d 30

Case Details

Case Name: Grunsfeld v. State

Court Name: Court of Appeals of Texas

Date Published: Jun 4, 1991

Citation: 813 S.W.2d 158

Docket Number: 05-90-00243-CR

Court Abbreviation: Tex. App.