Grunsfeld v. State

(1992). Applicant’s seventh L.Ed.2d

allegation overruled.

Accordingly, sought the relief is denied.6

CLINTON, J., dissents. GRUNSFELD, Appellant,

Robert Charles Texas, Appellee.

The STATE of HUNTER, Appellant,

Jerred J. Texas, Appellee.

The STATE of 1037-91,

Nos. 1092-91. Texas, Appeals

Court Criminal

En Banc.

Oct. 1992.

Rehearing Denied Dec. 1992. Dallas, Nation, appellant D.

John Grunsfeld. Vance, Atty. and Dist. Pamela Sulli-

John Berdanier, Dallas, Atty., Dist. Asst. van Austin, Huttash, Atty., Robert State’s the State. allegations remaining Applicants are denied and conclusions of law. findings basis court’s of fact on the of the trial

Anthony Lyons, Dallas, appellant D. gun throughout for saulted her a stun with In alleged punishment portion Hunter. offense. trial, of a the State called witness who Tim Curry, Atty., Dist. and C. Chris Mar- her testified that Grunsfeld assaulted sev- shall, Betty Conder, Marshall & Steven W. subject eral months offense. Worth, Dist. Attys., Asst. Fort Robert Hut- also other State called two witnesses tash, Austin, Atty., State’s for the State. raped they who each testified that had been by Grunsfeld several months after the sub- ject objected claiming offense. Grunsfeld ON OPINION PETITIONS FOR testimony that the witnesses’ constituted DISCRETIONARY extraneous offense evidence and did not REVIEW 37.07(3)(a). fall within article The trial testimony court nevertheless allowed MALONEY, Judge. objection. these witnesses over Grunsfeld’s cases, separate appellants Robert Grunsfeld’s mother testified that Grunsfeld Charles Grunsfeld and Jerred J. Hunter1 felony had of- never been convicted a by jury aggravat were each convicted fense, establishing eligibility for thus his ed sexual assault sentenced to life im probation. Appeals The Dallas Court prisonment. Appeals The Court of for the admitting held that trial erred County Fifth District in Dallas reversed unadjudicated the evidence of the extrane- Grunsfeld’s conviction and remanded the ous offenses and and remanded reversed case for trial. new Grunsfeld case the trial court. Grunsfeld. (Tex.App. 1991). 813 S.W.2d 158 — Dallas During trial, appellant Hunter’s the vic- Appeals The Fort Worth Court of affirmed tim gave testified that she Hunter a ride in unpublished Hunter’s opin conviction meeting they her after a automobile ion. Hunter No. 2-90-170-CR Upon had both attended. arrival at Hunt- (Tex.App. Aug. 1991). Worth — Fort destination, supposed er’s a deserted build- cases, We have consolidated these two ing, the victim testified that Hunter sexual- they seek review the both same issue. ly her then drove to assaulted a second granted We for State’s Petition Dis- sexually location where he assaulted her cretionary Appel- Review in Grunsfeld again. She further testified Hunter that Discretionary lant’s Petition for Review arm, causing choked her with his her to to determine Hunter whether Article 37.- lose consciousness and Hunter threat- 07(3)(a)V.A.C.C.P., amended, allows ad- reported ened to kill her if she the incident. mission of extraneous of- punishment phase At the of the trial the fense evidence in the phase of State who called D.B. testified that on the noncapital a trial on a offense. We will day subject gave before the offense she affirm the Appeals decision of the Court of appellant Hunter a ride home from a school and reverse the decision of Grunsfeld they they both attended. When ar- Appeals Court Hunter. We re- location, designated rived at the Hunter respective mand both cases their trial sexually gunpoint assaulted her at punishment hearing pur- courts a new choked her his further with arm. D.B. 44.29(b) A suant article V.A.C.C.P. brief any- testified Hunter threatened to kill help- discussion of each the facts of case Ap- one she whom told about the incident. understanding ful in appli- the context and pellant timely Hunter objected to D.B.’s 37.07(3)(a). cation of article testimony as 37.- inadmissible under article appellant The victim testified at Gruns- 07(3)(a)and as under not relevant the Rules following feld’s trial date of Evidence. Hunter’s mother testified Grunsfeld, he took her to his mother’s previously that Hunter had not con- been repeatedly raped felony, house where he her. The establishing victed of thus victim further eligibility probation. testified that Grunsfeld as- The Fort Worth "appellants” term collectively. shall hereinafter refer Grunsfeld and Hunter trial court anything the may include Appeals affirmed Hunter’s convic- but Court 37.07(3)(a) relevant, including unadjudicated ex tion, holding that article deems meaning Appellants the same evidence. intended have traneous offense 37.071(a)2, consequently the amend plain language effect as article claim that the sup extra- permitting history evidence of legislative provision and the ed during punishment of non- unadjudi- neous offenses that evidence port a conclusion capital offenses. inadmis remains offenses cated extraneous 37.07(3)(a). article sible under 37.07(3)(a), portion of article 1989, 1, pro- September amended effective statutory con primary A tenet vides: legislative importance the struction is the Regardless plea of the and whether intent. v.Ward by judge or punishment be assessed State, 815 Dillehey v. (Tex.Cr.App.1992); may, permitted by jury, evidence TEX. (Tex.Cr.App.1991); S.W.2d Evidence, by the the Rules of be offered 311.023(3)(Vernon ANN. GOV’T CODE any as to mat- state and the defendant 1988). may from intent be derived Such to sentenc- ter the court deems relevant statute, legislative of the record ing, including prior criminal law “context of the entire history and the defendant, general reputation of the Grunsfeld, 813 in it is written.” prior character. The term crimi- and his pointed out at 168. As means a final conviction in a nal record brief, examining amendments State’s when record, probated or sus- court of presumed it is existing legislation, prior pended sentence that has occurred af of caselaw legislature was aware trial, any final material conviction fecting relating to the statute. Welch charged. to the offense Welch, (Tex.Civ.App.— 37.07(3)(a) (Vernon Article V.A.C.C.P. writ). Dallas no Supp.1991) (emphasis portion on added history light In amendment). amendment, and in an timing of the and the The State contends that the amendment meaning word to each effort to ascribe 37.07(3)(a) legisla to article effectuates the subject provision, in contained ruling intent this court’s ture’s to overturn amended, Dallas Court agree with the we (Tex.Cr. Murphy 777 S.W.2d 44 construing arti Appeals in App.1989) (opinion rehearing)3, by now Grunsfeld if 37.07(3)(a), provide that even cle allowing “any the admission of matter the sentencing by the trial deemed relevant to sentencing,” in court deems relevant court, punish admissible at not offenses, cluding unadjudicated extraneous (1) ment, permitted by it is unless capital consistent with their admission (2) if the evidence Rules of Evidence argues cases. The State the term admitted is evidence of sought to be inclusion, “including” is one of not limita offense, 37.- it satisfies article extraneous therefore, tion and evidence is admissible 07(3)(a)’s prior criminal reco definition of prior not limited to a defendant’s criminal character, record, general reputation rd.5 offenses, 37.07(3)(a) subject amended in 1985 to 4. Article

2. At the time of the provide offered thereunder must 37.071(a) that evidence part provided in relevant that "[i]n permitted the Rules of Evidence. offense], [punishment phase evi- of a presented matter that as to dence Appeals held that: 5. The Dallas Court relevant to sentence." Article the court deems extraneous, unadjudicated of- evidence of ... 37.071(a) V.A.C.C.P. fenses, sentencing even if deemed relevant to court, would have to meet two the trial Murphy, offense we held that extraneous First, it would have to be evidence tests. permitted by evidence was admissible Second, the rules of evidence. “suitability" pro- the defendant for attack the part prior criminal rec- it is ord, of a defendant’s (opinion Murphy, bation. 777 S.W.2d at past, it as it has been considered in the rehearing). statutory comply definition of must that term. We Murphy opinion note that these plurality two criteria did not to hold 37.07(3)(a), existed, come as a about result that article then of the 1989 amend- as it ment, prohibited the admission place but were before the recent record, general other than criminal only change amendment. accom- reputation, upon and character.7 Based plished by amendatory language is the opinion, original this view of the court’s recognition that evidence other statutory probable legislature also than record, general reputa- reading reached the same conclusion tion and character is admissible. At original prompted and was time of passage subject amend- 37.07(3)(a) amend article insertion of the ment, questionable this issue was under “including” clarify word that the arti- original this in Murphy. To opinion court’s not cle’s list of admissible was extent, agree that we State that exhaustive and other evidence is admissible subject very likely amendment di- was long so as it is deemed to sentenc- opinion rected at this in Murphy.6 court’s ing. Although patently apparent not from the original opinion, separate face of the Although the amendment’s embrace of dissenting thereto, opinions Presiding “including” both the term the list renders fol Judge Judge lowing nonexclusive8, Onion and White construed retention Grunsfeld, Although punishment phase 813 S.W.2d at 166. we to show circumstances of agree appeals’ Murphy, (opin- with the court of conclusion that the offender.” at 64 S.W.2d limiting apply two factors rehearing). "family admission of ion on such as Evidence evidence, affiliation, education, background, religious extraneous offense dowe not see the em- apply necessity ployment history them in order appropriate recited and the like are Also, satisfy punishment." that court. if the evidence fails to considerations assessment of limitations, However, one of the we see no need to ad- Id. the court also that the said State analysis vance to an of the evidence under prior was "limited ord, form ... criminal rec- limiting other reputation testimony" factor. opinion when presenting article character evidence under 37.- broad, however, overly 6. The State is in its con- 07(3)(a), (opinion then as it existed. Id. at on legis- tention that the amendment evidenced the rehearing). disapproval lature’s of this court’s decision in Following Murphy, we confirmed that evi Murphy, as the State fails to delineate between specifically dence other than that identified in original opinion opinion this court’s its on punishment. the article was 37.07 admissible rehearing. subject passed The amendment was State, (Tex.Cr.App.1989), Hedicke v. 779 S.W.2d 837 28, May Senate on vote House denied, 1044, 840, rt. 493 U.S. 110 S.Ct. ce 29, 1989, May vote on three weeks before this (1990). Hedicke, recog 107 L.Ed.2d 836 we rehearing court its rendered decision on on prove opinion nized that evidence to character June 1989. although, pursuant was also admissible to Mur argues legislature’s The State that the amend- phy, conduct was still inad 37.07(3)(a) attempt ment of article was an missible. Id. holdings Murphy, citing overturn court’s this Murphy, 61 and 64. The State provides 8.The Code Construction Act that: presumed further contends "it is that the ‘including’ enlarge- ‘Includes’ and are terms legislature holdings aware of these when it ment and not of limitation or exclusive enu- 37.07(3)(a).” amended article State also meration, and use of the terms does not cre- supports argument by pointing Judge its Dun- presumption components ate a pressed not ex- concurring opinion can’s he noted excluded. are expand it was not the function of court to this (Vernon 311.005(13) Supp. TEX.GOVT CODE 37.07(3)(a) beyond limiting language. article 1992). Clearly the reference to holdings on State’s reliance this court’s record, general reputation and character does 60, 61, Murphy pages on 64 and Duncan’s amount to list of "limitation or exclusive concurring opinion our all refer to decision on However, enumeration”. the Code Construction rehearing, legislature possi- which the could not provide Act does not that use of the terms "in- bly "presumed” to be aware of since the "including” any following cludes” or will render opinion rehearing was not delivered until components list of immune from limitations the days passed by several after amendment was legislature may impose. Accordingly, choose to signed by governor. both houses and "including” insertion of the term does not mean rehearing "any 7. This court’s clarified matter the court deems relevant to that, point. rehearing, sentencing” subject On stated that is not to other limitations 37.07(3)(a), existed, legislature may article as it then "is not see or seen fit to have setting impose. exhaustive in out evidence admissible at that evidence “prior urged by the term criminal record” and its defini struction is now admissible offenses provision tional indicates an intent to main of extraneous to and defini despite the retained reference tain limitations on the admission of extra would ren “prior tion of criminal record” evidence, including unadjudi- neous offense 37.07(3)(a), large portion article der a cated extraneous offenses.9 There is no useless, rules contrary to well-established If, apparent other reason for its retention. each presume that of construction which contends, as the State the retained defini for a in a statute is used word contained tion does not control admission of extrane Polk v. See purpose.10 evidence, ous offense its retention in article (citations (Tex.Cr.App.1984) omit 37.07(3)(a) purpose. Fur would serve no ted); Huggins v. ther, appropriately noted the Dallas 1990, pet. (Tex.App. 912-13 Appeals, Court of would not make — Beaumont “[i]t ref’d) (concurring opinion). legislature sense that intended that ex traneous, unadjudicated offenses and their further contention that arti- The State’s admissible, details be but that convic 37.07(3)(a), broadly applied as cle should be being tions must final before admissible 37.071(a), unfounded in as article is also underly and even then that details of the provi- of the light portions of the retained ing offenses are to be excluded.” Gruns sion. The of the Bill submitted to the form feld, Why 813 at 172. S.W.2d would by the Committee on Crimi- Senate Senate legislature insist that a “fi conviction be proposed deletion of article 37.- nal Justice nal,” comported in assurance record, prior 07’s references criminal process safeguards, yet due admit evidence general reputation and character and the unadjudicated offenses which have not definition of criminal record. Howev- by rigors process? er, by been tested of due brought up for consideration when gives meaning pro Senate, Our construction floor amendment was offered vision as a whole and accounts passed for each reinstated those refer- portion questioned legislature If of the article. The con ences and definition.11 918, State, (Tex. “prior 9. The definition of criminal record” has 805 S.W.2d 920-21 Hunter v. 1991, granted); not been modified 37.07(3)(a) App. pet. since its inclusion in article McMillian — Beaumont definition, State, 311, in 1967. (Tex.App.— Pursuant to this v. 799 S.W.2d 313-14 consistently 1990, this court has specific held evidence of Hug pet. granted); Dist.] Houston [14th bad), (good including State, However, acts extrane gins none v. 795 S.W.2d ous, unadjudicated offenses are inadmissible. necessary found it to entertain these courts Hedicke, 839; State, 779 S.W.2d at Drew v. 777 legislative history. Based discussion of 1989); (Tex.Cr.App. Murphy, S.W.2d 74 777 similarity language solely upon be (opinion rehearing); S.W.2d at 61 Elder v. 37.071(a), 37.07(3)(a) they tween article State, 538, (Tex.Cr.App.1984); 677 S.W.2d 539 summarily ex concluded that since evidence of State, 535, (Tex.Cr. Ramey v. 575 S.W.2d 537 traneous offenses is admissible in the State, 262, App.1978); Sherman v. 537 S.W.2d it must also be admissible now in the context State, (Tex.Cr.App.1976); Lege 263-64 v. 501 recog noncapital Only context. Gallardo even 880, (Tex.Cr.App.1973); S.W.2d 881-82 Mullins the refer nized the retention in the statute of 277, State, (Tex.Cr.App. 492 S.W.2d 278-79 definition, ence to criminal record and its 1973). We see no reason to construe that defi apparently but dismissed its retention as mean any differently nition now. Gallardo, ingless. S.W.2d at 542. 809 acknowledge 10. We that numerous courts of appeals 11.The detailed appeal, exception Grunsfeld, Grunsfeld with the Jolivet legislative history subject amendment 1991, State, (Tex.App. 706 — Dallas and our own research has confirmed the accu- State, pet. granted) and S.W.2d Blackwell v. racy subject discussion. The amend- of that 134, 1991, filed), (Tex.App. pet. 140-41 — Waco passed ment was the 71st subject render have held that the amendments part larger piece legislation of a Bill 37.07(3)(a) 37.071(a) virtually article and article —House House, initially passed by therefore, HB 2335. When applica identical State, did not contain an amendment to article (Tex.App.— tion. Slott v. 824 S.W.2d 225 3(a). Upon receipt HB filed); § 37.07 Senate, pet. Beaumont Gallardo v. it was referred to the Senate Committee (Tex.App. 541-43 Antonio — San (the "Committee”). pet. granted); on Criminal Justice Hubbard v. Report proposing (Tex.App. Committee’s to the full Senate S.W.2d 319-20 Worth — Fort changes pet. granted); to HB 2335 contained an amendment Cannon v. 1991); (Tex.App. which deleted the reference to a 37.07 [14th Dist.] — Houston did not intend that extraneous offense evi- very which were similar in detail dence punishment phase admissible at the subject light offenses. In highly of its “prior limited the term criminal rec- prejudicial nature, say beyond we cannot ord”, passage of the floor amendment reasonable doubt that the admission of the would have been nonsensical. the trial courts did not contrib- ute to the appellants.

Here, the trial courts allowed evi stated, For the unadjudicated, dence reasons herein we extraneous of affirm the decision during appeals fenses of the court of phase Grunsfeld, trials of reverse noncapital two decision of offenses.12 Pursu Hunter appeals ant to court of this court’s historical remand construction of both cases “prior respective term to their trial courts record” the evi proceedings dence of consistent unadjudicated extraneous with article 44.- of 29(b) fenses was V.A.C.C.P. improperly admitted. Accord ingly, we find that the trial courts both MILLER, joins J. Although with note: I and Hunter abused their discre Grunsfeld Judge am satisfied that MALONEY’s in admitting tion evidence of analysis adequate is most to resolve the extraneous offenses under article 37.07 herein, presented issue join I also 3(a).13 concurring opinion. CLINTON’S When we find proceed- error in the CLINTON, Judge, concurring. ings below, of the court the error is revers- ible unless we determine “beyond a enacting reason- the 1989 in ques- amendment able doubt that the error made no contribu- tion to Article Y.A.C.C.P. tion to the conviction or to punish- (“§ 3(a)”), created a conun- ment.” Chapman California, v. 386 U.S. drum that has disparate, drawn several 18, 24, 824, 828, 87 S.Ct. usually L.Ed.2d 705 subjective, answers from some State, (1967); Harris v. appeals courts of to which the riddle was (Tex.Cr.App.1989); posed. TEX.R.APP.P. A quickly textual literalist would 81(b)(2). The evidence admitted in both enigma by solve the applying “the literal- implicated appellants cases in offenses meaning ness test” to the clear record, prior general defendant’s criminal accompanying of those references and the defi- reputation and character and legislature the definition of nition other than the intent of the prior proposed by criminal record. As maintain a limitation on the admission of extra- Committee, the amendment revised neous noncapital article 37.07 offenses at in a 3(a) virtually identically § to read aptly by Judge Burgess offense. to article As stated in his 37.071(a). concurring opinion appeals appeals As stated the court of to the court of deci- Grunsfeld, "[o]bviously, Huggins, language legislature sion in "[t]he deleted could have 'prior would deleted all not be needed if references to criminal evidence ‘as to record’ Huggins, but chose not sentencing’ matter the court deems to do so.” relevant to 795 S.W.2d at However, legislative history 913. The legis- was to be shows that allowed.” Id. for un- reasons, clearly amending lature days known considered two article 37.07 later when the Com- 3(a) 37.071(a), to be Report § identical to article brought up mittee’s but for consider- deliberately Senate, chose not to do so. ation before the Senator McFarland (Senate sponsor of HB 2335 and chair Committee) offered a floor appellants amendment to the 12. We note that offered evidence proposed by form only of HB 2335 they eligible Committee’s to establish that were Report. probation. The floor showing amendment "open revised the Com- Such a did not specific mittee’s version of the amendment door” to evidence of Murphy, to article conduct. 3(a) 37.07 § retain the at 68. references to a defen- record, general reputation dant’s character as well as the definition of analysis 13. We will not reach an of the admissi- criminal record. McFarland’s floor amendment bility subject evidence under the Rules of passed changes and no further were made to the analysis Criminal Evidence or an of its “relevan- 3(a) amendment of article 37.07 before final cy to sentence” as determined the trial court passage of HB 2335. Review of the since appellants’ we hold that the evidence of history any explanation does not reveal for this conduct is inadmissible under article apparent change 3(a)’s of heart. We can think of no "prior 37.07 § definition of criminal rec- explanation other reasonable for the retention ord.” language” theo unambiguous problem: as defined the “same term “sentence” See, e.g., Accordingly, considered ry. used our statutes. is first 42.02, (“sentencing” pun- orders Y.A.A.C.P. here.2 execution). today But

ishment carried into in the instant causes this Court examines A answers, to find broader issues its own agree My I its results. effort own resolu- Huggins court divided over The positions seeks to sort out contentious majority contention. tion propositions to the “incon- tenuous end that thought is “no realistic difference there sistency is ... removed con- reasonable permissive distinction” between 101(c). struction.” Tex.R.Cr.Evid.Rule 37.071(a) that used in the of Article 3(a); ergo, “evidence and amendment I pun- proof unadjudicated offenses at the Apparently appellate the first time an Id., 911. stage ishment is admissible.” 3(a) court addressed amended the situa Article 37.- concurring opinion believed tion involved extraneous of completely 071 is “a different being punishment pro fenses admitted article and saw “a scheme” from ceeding application proba actual lan- marked difference” between State, Huggins tion was at issue. Id., guage in sections. at 912. 1990), (Tex.App. S.W.2d 909 — Beaumont unpublished opinion the instant PDR refused.1 The Beaumont Court con cause, much like the Beaumont Hunter cluded that evidence of such offenses was reasoned, viz: Court, the Fort Worth Court reasons; separate admissible for three implicates prosecutorial point third the central overrule Hunter’s first be- “We contention of choice for section now favorable solution cause article B, Actually I McMillian v. 799 S.W.2d 311 Both bases will be treated in Part 1990) (Tex.App. granted, presently pending PDR post; suffice to note here that [14th] — Houston both, days Huggins following was delivered five before several cases one or review are However, supra. was decided on the e.g., (Tex.App.— McMillian Hunter v. 805 S.W.2d 918 separate theory distinct that since consideration 1991) granted Beaumont PDR June probation part is an “essential of the sentenc State, (both, probation); Hubbard v. 809 no ing process,” testimony question relevant to “the 316, (Tex.App. at Worth S.W.2d 319-320 — Fort appellant's probation fitness for is admissi 11, (both, 1991), granted September 1991 PDR being 3(a) ble"—there no conflict between State, probation); no 540, Gallardo v. 809 S.W.2d "notwithstanding and Tex.R.Cr.Evid. 404 the 1991), (Tex.App. at Antonio PDR 543 — San 11, (c) subpart only exempts fact that of Rule 404 (first, proba granted September 1991 no Id., Article 37.071 at 313-314. Al [V.A.C.C.P.].” tion). though probation Huggins, was at issue in see disclaimers, e.g., Others were refused with PDR, 7, 11, 12, Ap at the Beaumont Court of State, (Tex.App.— v. 818 S.W.2d 494 Rexford peals theory, did not consider that unless its Id., 1991) (no probation), refused Houston [1st] State, cryptic Murphy allusion to v. 777 S.W.2d (Tex.Cr.App.1991), or for alter 823 S.W.2d 296 (Tex.Cr.App.1988), 44 is to indicate it did. See decision, compelling reason” for native “more 2, post. appellants note Both in the instant State, e.g., Zayas (Tex.App.— 814 S.W.2d 509 v. charged apply causes did for and the court 1991) (probation testimony) Houston [14th] probation, theory on so the will be exam 30, Apparently PDR refused October 1991. post. ined State, Cannon 807 S.W.2d there is no PDR in v. 631, 1991) (no (Tex.App. at 635 [14th] Huggins majority 2. The also advanced two other — Houston State, supra, probation, but follows McMillian v. admitting evidence of extraneous bases unadjudicated 1). see note offenses, first, that viz: State, 221, (Tex. at Holland v. 820 S.W.2d 223 phrase independent is “additional to and 1991) (no App. probation) Worth PDRs ‘prior criminal record of the defendant’ ... and — Fort 10, 22, February January filed 1992 and 1992 independent evidence is also of and relevant separate State, 765, decision); (split Brooks v. 822 S.W.2d gener- from evidence defendant’s 1992) (no character;" second, (Tex.App. pro at bation) reputation [1st] 769 al by and his — Houston 4, 1992; State, April “any PDR filed Slott v. providing matter the court deems rele- admissible,” 1992) (no (Tex.App. Legisla- sentencing 824 S.W.2d 225 vant to — Beaumont 24, 1992) probation) February (split PDR filed ture test” and abuse of discretion ”invoke[d] decision), State, pending Murphy are initial review under Tex. "the solons overrule v. 777 Id., 202(k). (Tex.Crim.App.1988)." R.App.Pro. 44 Rule S.W.2d 911. McMillian, makes supra 1, admissible evidence the court Huggins n. deems sentencing, relevant to rejected holdings followings those then [citation extant, e.g., State, The new supra version article Gallardo v. n. omitted]. (also language State, uses the same found in supra, although article Hubbard v. 37.071(a) governs capital sentenc particular holding). does not turn on this ing procedures; State, 158, the Court of Criminal 813 S.W.2d Grunsfeld Appeals statute, has held 1991), (Tex.App. 171-172 PDR — Dallas language granted 4, Moreover, allows for the admission of December offenses, unadjudicated dissenting opinion omit likewise [citation Grunsfeld We see no why legisla disagreed Id., reason part with this of Huggins. ted]. ture incorporate 175, 2; would State, same lan n. see also Jolivet v. guage give 706, but it a meaning; (Tex.App. 1991) different S.W.2d at 709 — Dallas and there is no evidence they granted (following have PDR Grunsfeld). done so. We conclude the In these circumstances the “same lan- meaning intended to have the same guage” majority ratio decidendi of the providing 37.07 as it does thus opinion in Huggins and of the for the admission of of examined, carefully Hunter should be during punishment phase fenses purpose to that I now turn. State, trial. See Gallardo v. 540, 1991, 541-42 (Tex.App Antonio — San filed) pet. curiam); (per Huggins v. (Tex.App— was amended in ref’d; pet. inserting

Beaumont inter alia the under- McMilli (“the phrase phrase”) scored to cause the [Tex. App. operative portion of the first pet. sentence [14th Dist.] — Houston granted) (opinion rehearing).” read: Slip opinion, may, permitted by at 2-3.3 Accordingly, ap- “[E]vidence Evidence, Rules pellate prosecuting be offered attorney urged, “This Court, however, state and the defendant as to mat- need not conduct further ter the trial court deems relevant Appeals’ review because the Court of hold- sentencing, ing including based the decision in Huggins v. defendant, general rep- record of the which this Court declined to re- utation and his PDR,

view.” character.” Reply State’s at 3.4 cause, In however, the instant context, original is essen- Grunsfeld the majority opinion critically tially reviewed principle restatement of the that is Emphasis supplied by Attached," 3. above Opinion the writer for the with the notation "No C.O.A. Court; emphasis Fort Worth all other is added though petition competently even drawn throughout by opinion the writer of this unless respects. in all other otherwise indicated. Manifestly, refusing Huggins our review in approval. granted not be taken as We have petition 4. This Court did indeed refuse the for relying rejecting review of other causes on or in 5, discretionary September review of the 1990 See, part aspect Huggins. whole or in 21, Huggins decision on November But 1990. State, 540, 542-543[3] e.g., Gallardo v. 809 S.W.2d at beginning we have made clear from the (Tex 1991) .App.— Antonio PDR determining grant whether to review is an exer- San 11, 1991; granted State, September V, judicial v. cise of discretion under Article § 5 Grunsfeld 4.04, 158, and, (Tex.App. 813 Article 2 S.W.2d at 171-172 like denial of certiora- — Dallas States, Supreme 1991) 4, 1991; granted ri Court of the United PDR December Jolivet v. precedential State, our refusal to review bestows no 1991) (Tex.App. 811 S.W.2d 706 — Dallas value whatsoever on 16, below. granted (following PDR October 1991 Gruns Furthermore, State, promulgated feld); 134, this Court certain Blackwell v. 818 S.W.2d at requirements guidelines presenting 1991) a (Tex.App. 140-141 PDRs filed No — Waco proper petition discretionary 20, review. See (following Grunsfeld); vember 1991 Torres Tex.R.App.Pro. petition Hug- Rule 202. The in State, 141, (Tex.App.— v. at 143 gins appendix including did not contain an 1991) grounds, Waco vacated on other copy opinions appeals of the court of (Tex.Cr.App.1992). S.W.2d 124 202(d)(7); required by Rule it was thus refused presupposition cases,” “a very except in the con misdemeanor involved “all criminal ception system of a rational jurisdiction justice evidence.” cases within and mu- Blakely, cases, Article Relevancy IV: and Its nicipal capital court and cf. former Limits, 152, 20 Houston L.Rev. n. 2 (1965 1967); article 37.07 the Court (1983 Handbook), quoting Tex.R.Evid. J. provision made clear that the for introduc- Thayer, Preliminary A Treatise on Evi ing evidence of criminal record “had (1898). dence at the Common Law 264-265 application capital no cases where the misleading But it is wording” “awkward in being penalty sought.” death Vessels a Texas statute prescribing matters for (Tex.Cr.App.1968). v. noncapital consideration case. “Sen Meanwhile, early legal scholars tencing” proceeding is a impose distinct improve others who seek to criminal law prescribed and order executed in a manner working penal were on a model code punishment already adjudged by proposed proceeding a bifurcated court in accordance with a verdict or phrase question cases. The is but finding proper punishment. as to Ar portion comprehensive of more formulation 42.02, ticles 42.01 and V.A.C.C.P. In Tex 210.6(2)— found in the Model Penal Code § as, “any matter sentencing” relevant to Supreme even before Court struck “any will never pun matter relevant to capital punishment down extant schemes. ” ishment because the latter matters have (The Institute, Proposed American Law Of- previously been “punish determined Draft, 1962). Appendix ficial See attached proceeding.” ment Livingston See (Tex.Cr. n. 4 (and Then in Georgia Furman App.1976); Hovila v. 532 S.W.2d 293 Texas), Branch v. U.S. 92 S.Ct. (Tex.Cr.App.1976) (concurring opinion, at (1972), Supreme 33 L.Ed.2d 346 297). simply explication Court held and without proponents Prosecutorial of the amend- imposition carrying that “the out of and, argue ment ante, as indicated some penalty the death in these cases constitute appellate accept courts that because an al- cruel and unusual violation most identical appears in Article Eighth and Fourteenth Amend- 37.071(a), it must have the same effect Upon examining carefully ments.” incorporated when in Article separate opinions supporting nine i.e., unadjudicated extraneous offenses and holding, among the consensus interested specific acts of misconduct are now admis- commentators, legislators concerned punishment phase sible noncapi- of a practitioners affected was that Jus- Chief Comment, tal case. Accord: Bringing Burger likely signaled appro- tice most Light Non-Capital Felony Punish- priate approach, remedial viz: ment Phase: Article Section 3a and I “While would not undertake to make Unadjudicated Evidence Extraneous parame- a definitive statement as to the Offenses, Baylor (1992), L.Rev. ruling, ters of the Court’s it is clear that 109-112 ff. Whether the contention has legislatures Congress if state and the depends place merit proper first on a availability capi- wish to maintain the understanding and correct construction of punishment, significant tal statutory 37.071(a). question That raises the changes will to be made. have Since legislative meaning premises. pivotal concurring opinions two Jus- [of

2 Stewart, respectively] tices White and assumption punish- turn on the that the Before 1965 the trial of every in Texas ment of death is now meted out in a unitary proceeding case was a manner, punish- unpredictable legis- which evidence on the merits random and and may ment adduced bring for the factfinder to lative bodies seek to their general render compliance verdict. Thereafter an laws into with the Court’s procedure” initially ruling “alternate by providing was allowed juries standards for noncapital felony judges cases but later for determining and follow 530 relating any aggravating

sentence cases or more ters of the or defining narrowly the crimes for which mitigating circumstances enumerated in penalty imposed, is to be omit- (6) (7) and [note subsections section.”6 If such standards can be devised ted]. expressly assign While the does not statute meticulously defined, or the crimes more proof party, a burden the Flori- either cannot result be detrimental.” any Supreme ag- da Court reasoned Id., 400-401, S.Ct., 2809, 92 gravating at at 33 circumstance associated with L.Ed. 2d, at 442.5 commission offense substantive necessarily proved must the state 3 Dixon, beyond supra, a reasonable doubt. Responding to Georgia, Furman v. at 9. The and or his state defendant coun- (and State of jurisdic Florida later other permitted present argu- sel “shall be well) tions as procedural provi drew on against ment for or sentence of death.” sions in the Model Penal Code. v. Proffitt The jury is instructed to determine whether Florida, 242, 248, 6, U.S. 428 at nn. 5 and outweigh mitigating aggra- circumstances 2960, 2964-2965, 6, 96 S.Ct. at nn. 5 and 49 circumstances, vating and then “based on 913, 920, 921, (1976); at 5 L.Ed.2d nn. and 6 these defendant considerations” whether 153, cf. Gregg Georgia, v. at 193- U.S. death; should be sentenced to life 194, 44, 2935, 2909, 44, n. 96 S.Ct. at n. vote, by majority verdict is determined and 859, 886, (1976). L.Ed.2d at 44n. “only advisory.” Regardless is of the rec- scheme, consisting The Florida of three ommendation from evidence it statutes, reproduced from the in heard, particular weigh the court must Dixon, (Fla.1973). State v. 283 So.2d 1 See aggravating mitigating circumstances Appendix Supreme The 2. Court Florida statutorily prescribed deciding whether generally system described it as “a where- death; to enter a sentence of life possible aggravating mitigating imposes a sentence of the court death shall defined, circumstances are but where the upon findings make which its sentence is weighing process carefully is left to the aggra- based as to the facts that sufficient judgment jurors scrutinized vating circumstances exist enumerated judges.” Dixon, supra, at State 7. (6) are insuffi- subsection that there 921.141,F.S.A., mitigating cient Under Florida Statutes circumstances enumer- (7) separate sentencing outweigh ag- there ated proceed- is “a subsection ing,” Id., presented gravating at “evidence at 5. circumstances. As the Supreme as to matter that Florida emphasized, the court deems Court “[T]he sentence, procedure counting relevant to include is not pro- shall mat- ... a mere pertinent being 5. For three most commentators con- vance to issues considered. It is consensus, Ehrhardt, tributing bard, easily to such see Hub- from determined the broadness of the al., interpretation et Furman: statute that narrow Aftermath of (1973), enforced, Experience, Florida & C. 2 J.CrimX. rules of is not to be wheth- 5; Comment, regard Part I at House Bill 200: The er in to evidence or to other mat- Legislative Attempt Capital except illegally to Reinstate Punish- ter seized evidence.” Texas, (1974), Dixon, ment in Houston L.Rev. at supra, State v. at 7. 421; Note, Dead?, Baylor Penalty Is the Death One reason discretion of court is "not (1974), way L.Rev. 114 at In one 117-118. aggravating that the unbridled" is circumstances first enumerated, another two allude to Model Penal although “shall be limited" those 5, Ehrhardt, Code 210.6. n. 16 and accom- limiting language introducing “[t]here no text; Comment, 417, panying n. 65. The third statutory mitigating list of factors.” Proffitt perceives also notes what it as similar views Florida, supra, 428 U.S. at n. 96 S.Ct. at expressed by Douglas. Justice 8; Appendix n. L.Ed.2d see n. 2. In this connection note also the Florida "The discretion of the trial in deter- statute certain omits matters included 210.6(2), mining might be what relevant sentence model "the nature and cir- § viz: crime, merely necessary is power not unbridled. It is cumstances of the defendant’s char- acter, needlessly proce- background, history, physical drawn out avoid mental and party might go Compare Appendix Appendix dure where one choose to condition.” 1 and forward with evidence which bears no rele- 2. Levinson, aggravating cess of X circum- Ehrhardt & The number of Aftermath of mitigating Experience, Y cir- stances and number of The Florida Furman: cumstances, II, In judg- (1973), but rather a reasoned Part at 15.7 C. J.Crim.L. & require short, “presented ment as to what factual situations evidence is whatever [to imposition of death and can be matter the court deems jury] any as to in light totality satisfied of the cir- related to sentence” that is not relevant to present.” Id., 10; cumstances at listed in subsec- any of the circumstances Proffitt Florida, supra, 248-251, 428 U.S. at 257- (6) (7) and is superfluous tion becomes 258, S.Ct., 2965-2966, 2969, at engages in the redundant when the 921-922, L.Ed.2d at 926. making process. final decision statute, Thus the Florida similar to the 210.6(2), jury Model Penal Code casts the § Florida, Texas, began like it advisory Compare Appendix in an role. Georgia Appendix legislative history response initial to Furman v. 2. The 200, “hybrid” demonstrates that 921.141 is a came in the form of H.B. No. mandat- § product compromise ing capital punishment between for murder commit- chambers, viz: ted under three circumstances. It muted, however, in the Senate approval “... return for the House’s [I]n substitute, complete proce- committee judge jury sentencing

of a proce- “virtually dure, aspects dural of which were iden- the Senate abandoned its insistence provisions 921.- tical” to Florida jury that the have a determinative role in § 414, sentencing capital Rumbaugh 141. 589 S.W.2d cases. While the (Tex.Cr.App.1979).8 Each philosophy statute retains the Senate’s bill was jury joint sent conference committee which participate should in the to a sentencing process, jury by substantially now reconciled differences dis- has the both, authority only give carding underlying advisory concepts sen- while tence which rejected by modifying procedural aspects can then be Senate judge 1973, 426, trial findings regarding Leg., his Acts 63rd substitute. Ch. 3, 1, 1122, mitigating p. (adding and aggravating circum- Article at 1125 37.071).9 justify stances such action.” jury’s advisory only, basically pat 7. The "... function is on the Florida stitute was drafted which, turn, their recommendation does not bind the tern is a modified 210.6. judge. statutory aggravating The list of Rumbaugh v. nn. mitigating circumstances must be considered Dixon, 4 and 5. See State v. 283 So.2d at 4-6 sentencing procedure and if the (Fla.1973), favorably by a case noticed the Court imposes penalty support the death he must (Tex.Cr. in Jurek v. at 940 by findings concerning decision these circum- App.1975). stances. here, pertinent pro- As the Senate substitute statutory aggravating The lists of and miti- vided: gating circumstances are intended to narrow "(a) finding Upon a that the defendant scope making of discretion in the life- offense, guilty of a the court shall death decision.” separate sentencing proceeding conduct a Id., at 17. determine whether the defendant should be Thus, Florida, competing 8. as in measures imprisonment. sentenced to death or life represented criminological a basic difference in proceeding shall be conducted in the trial philosophy: the House bill was "crime-oriented” waived,] jury[, the trial court before unless mandatory penalty, with a death whereas the practicable. soon the trial has been [If "punishment-oriented” Senate substitute was pleaded guilty, waived or the defendant sentencing procedure. with a bifurcated See sentencing proceeding shall be conducted be- al., Ehrhardt, supra, et at 14. jury empaneled purpose unless fore proceeding, waived In the defendant.] It has been ventured that certain features of presented any as to matter the Senate substitute reflect the influence of the sentencef, Code, Comment, that the Court deems supra, Model Penal relating Legislative and shall include matters Attempt House Bill 200: to Rein Texas, aggravating mitigating Capital state Punishment 11 Hous. circum- (1974), (e) (f) say, L.Rev. 410 n. 65. Better to stances enumerated in Subsections discerned, Any as the Court has Senate that the sub this section. evidence that the court Immediately significant process whereby clearly noticed is a de- ent the State now parture superior from the role of a trial produce has the burden to evidence rele- judge actually making the ultimate sen- special to three vant issues sufficient to tencing through decision a one-sided bur- jury beyond convince a a reasonable doubt process receiving weighing dened of and giv- special to return a unanimous verdict prescribed aggrava- evidence relevant to ing an affirmative answer on each submit- ting mitigating circumstances issue, upon “shall ted which the court sen- light offense and of the offender of tence the defendant to death.” Article 37.- judicial experience.10 Comment, 071(a)-(e); 200, see House Bill opted conference committee to retain 419, 82;11 supra, at nn. 81 and separate “a sentencing proceeding” before light view, comparative of that that jury; the trial but it snip- extracted a mere the Florida statute and the Texas Senate pet language original of from its definitive provided committee substitute to H.B. 200 context, phrase declaring that “evidence presented may any “evidence be as to mat- may presented any as to matter that the ter that the court sentence,” court deems deems relevant sen- as it tence, fashioning strikingly went about differ- relating and shall include matters 297). probative separate deems to have value be admit- Later the Court on “a elaborated ted, viz; regardless admissibility sentencing under the proceeding,” “Actually, pro- evidence, exclusionary rules but the ceedings penalty punishment stage are the defen- opportunity dant shall be accorded a trial, capital sentencing fair murder the formal any hearsay rebut This subsec- statements]. State, Livingston comes later.” v. 542 S.W.2d tion shall not be construed to authorize the 655, (Tex.Cr.App.1976). at 661 n. 4 introduction of evidence secured in viola- tion of the Constitution of the United States or Supreme justified 10. The Florida Court trial prosecuting of the State of Texas. The attor- judge jury making sentencing rather than ney and the defendant or his counsel shall be decision, viz: permitted present argument against for or step process "The third added to the sentence of death." prosecution capital crimes is that the trial Rumbaugh, supra, at 416 [material underscored judge actually determines the sentence to be within brackets deleted tee, id., conference commit- 417; imposed guided by, by, 37.071(a) not bound but at cf. § ]. — findings jury. layman, The conference To a no committee removed referenc jury heinous, might appear es to waiver of a trial because it believed crime to be less than unsound, see, practice constitutionally that to be experience but a trial the facts State, e.g., (Tex.Cr.App. Sorola v. 769 S.W.2d 920 criminality possesses requisite knowl- 1989) 929-937); (concurring opinion, at it delet edge against to balance the facts of the case relating ed mention of matters to enumerated activity only the standard criminal can aggravating mitigating circumstances be developed by involvement with the trials of "substantially rejected concept,” cause it that numerous defendants. Thus the inflamed 417; Rumbaugh supra, v. at it struck out longer jurors emotions of can no sentence a authority of the tried court to admit evi die; light man to the sentence is viewed in the value, probative regard dence deemed to have judicial experience.” prohibitive "exclusionary less of rules of evi Dixon, supra, State v. at 8. dence,” limitation, retaining in favor of ibid. 11. hailed the Comment conference committee Thus, comprising each of the five sentences "eradicating] obviously vague criteria remaining paragraph is now Article loosely guided impermissi- would have 37.071(a) directly came from the Florida stat- bly jury’s power punish- restricted to assess utterly stripped conceptual ute—but its core Court, course, Supreme ment.” The found emphasizing context consideration of and upholding system. otherwise in the Florida weighing aggravating mitigating circum- Florida, 251-253, supra, v. 428 U.S. at Proffitt stances, advisory jury finally by first S.Ct., 2966, L.Ed.2d, at at 922-923. See also Dixon, sentencing judge. supra, State See v. 203, 209-212, Rumsey, v. 467 U.S. at Arizona 4-6, 7-8, at 2305, 2309-2310, S.Ct. at 81 L.Ed.2d 181- Finally, imported because as well as other (1984); Missouri, Bullington 451 U.S. the bobbed is “awkward word- 433-444, at 270, 101 S.Ct. 68 L.Ed.2d ing” likely to mislead the bench and bar in (1981); Padgett Texas, at 282 early Presiding Judge pointed Onion Mathes, (Tex.Cr.App.1986); parte at 57 Ex "sentencing” out the terms "sentence" and (resolution (Tex.Cr.App.1992) "equivalent 830 S.W.2d 596 in Article 37.071 should be taken as punishment.” special proceeding issues in bifurcated Hovila v. determi- court). (Tex.Cr.App.1976) (concurring opinion, judgment native of and sentence of trial

533 Id., aggravating mitigating the cir- at 939-940. the late Whether contemplated designated actually cumstances Morrison the under- enumerated sub- [in sections],” the scored term to include of- while conference committee simply provided point light fenses is of decisions may present- “evidence a moot State, 578 699 ed the such Hammett v. S.W.2d matter that court deems (Tex.Cr.App.1979). Obviously impressed relevant to sentencing,” only reflects State, affirming supra, that in v. the respective legislatures Jurek compromised declared, alia, disparate Supreme proposed Court inter “What solutions to constitu- jury is essential it tional is that the have before deficiencies “standards” seen possible all information about Supreme certain Justices of Court in individual defendant whose fate it must penalty extant death pro- schemes. Each determine,” elaborated, cess serves to Court viz: circumscribe discretion receiving court to evidence relevant “Nothing supra, in Art. re- to those consequence matters of quires that there final conviction respective ultimate determinations to be an extraneous offense to be at admissible made, Florida, i.e. the weighing process in phase of the trial. Evi- special process and issue in Texas. dence of other crimes ... falls within the range 'prior criminal conduct.’ latter, however, phrase has no ‘prior clearly Such criminal conduct’ is special significance; authority pur- jury’s relevant to the deliberation on the ports grant already exists: “It is thus special pun- issues submitted to it at the axiomatic that the court should receive evi- capital phase ishment murder trial.” dence that will lead to resolution of those Id., State, at 709. Accord: Garcia v. 581 critical facts reject [read “material”] 168, (Tex.Cr.App.1979); S.W.2d at 178-179 Blakely, evidence that will not.” State, 349, S.W.2d Wilder v. 583 at 369 Relevancy IV: and Its Limits. 20 Hous- (Tex.Cr.App.1979); State, Green v. 587 151-152, (1988 ton L.Rev 153-155 Tex. 167, (Tex.Cr.App.1979); S.W.2d at 169 Handbook). R.Evid. Those “matters” are State, supra, Rumbaugh v. at 418. And prescribed by 37.071(b).12 article since then “relevant information” includes In the State, seminal Jurek v. 522 mitigation penalty. death S.W.2d 934 (Tex.Cr.App.1975),affirmed 428 302, Penry Lynaugh, v. U.S. 109 S.Ct. 262, 2950, U.S. 96 S.Ct. 49 L.Ed.2d 929 2934, (1989). 106 L.Ed.2d 256 (1976), the Court did not even mention the discussing abstractly certain mat- ters deemed proper for consideration Since in various versions Article case, jury in a including “prior 37.07, V.A.C.C.P., provided has that for conduct,” criminal viz: assessing punishment purposes of “evi In determining "... the likelihood dence be offered the State and the the defendant continuing would be a defendant as to the criminal record of society, defendant, threat to could consider general reputation his significant whether the had a defendant his develop character.” For historical formulation, criminal record. It could consider the ments behind that see Mur range severity State, phy v. 44 (Tex.Cr.App. 777 S.W.2d 1988-1989) P.J., (Onion, conduct.” concurring and dis early 12. The missibility proof Court determined and late that the manner survived and phrase allowed trial courts much discretion in were still "alive and well” under Article 37.- 071(a). State, admitting excluding germane E.g., to one Porter v. 578 S.W.2d at issue, special usually State, spe another (Tex.Cr.App.1979); Rumbaugh the second v. su issue, State, 417; e.g., Livingston pra, King cial 655, 542 S.W.2d at at (Tex.Cr.App.1976); (Tex.Cr.App.1983); 661-662 Gholson v. De Luna v. (Tex.Cr.App.1976). (Tex.Cr.App.1986). at 47 Thus there However, only constitutionally mandated no discretion to what rules admit of evidence statutorily provided exclusionary rules of declare See inadmissible. Tex.R.Cr.Evid.Rule ordinary regulating evidence but also rules ad senting, 54) (opinion rehearing, mitigating at 58- nature evidence rather State, Hedicke v. 61); 837, revealing offense, 779 at an un S.W.2d than extraneous (Tex.Cr.App.1989); 840-841 see also Histor less its dicta one under somehow Construing ical Note to Article 37.07. probation, to Court deemed relevant provision version, initial in the 1965 howev consistently upheld unadjudi- the rule that er, opined: the Court cated extraneous offenses were inadmissi v. Murphy assessing punishment. in “Evidence ble hearing to be offered at the State, 44, punishment (Tex.Cr.App. S.W.2d at 37.07,

on 46-47 pursuant Article to 1988) (Allaben 2(b) undermined in when Section ... is no limited to means include, “prior record” record, criminal defined to general the defendant’s his e.g., and his character. Evidence in rec reputation “a final conviction a court of Id., legally mitigate punish- ord”); (opinion admissible to also at 61-64 see ment evidence that is relevant to the rehearing). application probation, any, for if Legislature In this vested in

also admissible.” rulemaking power” adopt Court “full State, Allaben v. 517, promulgate and rules of in trials at 519 (with (Tex.Cr.App.1967) (on exception of cases committing trial for here) sodomy, applicable until testimony remain effect of defendant himself “disapproved” Legislature, he had Acts psy that since been under care of 685, 5-9, 1985, Leg., 5136, chiatrist for problems p. sexual should have 69th Ch. §§ error).13 3(a) been admitted but not reversible and therein amended of Article 37.07 § though the testimony by inserting permitted Even excluded was in “as of by the Rules 13. er, procedure” originally contemplated the “alternate de- the likelihood of autho- and cases, jury felony noncapital for vised trial in rized consideration of other unidentified evi- punishment directly the trial going question proba- was to “assess the dence to the applicable charged except to the offense ... tion. cases and historical note See cited defendant, above, upon ger- when ing of a find- return main and commentaries and text guilty, requests punishment that the parts following mane of historical note Article jury.” assessed the same Former article 37.- 42.12. 07, 2(b). however, Regardless, may Therefore, § “evidence been the Allaben court must have be offered the State and the defendant as to taking "judicial opining license" in "evi- that defendant, prior criminal record of the his application dence is relevant that character,” reputation general and and if the admissible;" probation, any, yet is also jury punishment, is to assess "shall ap- Court continued to exercise its "license" give may such additional instructions be nec- appropriate many prove as for consideration Id., 2(c). essary.” generally Rojas § See v. offender,” other “circumstances of the such State, (Tex.Cr.App.1966). 404 S.W.2d 30 affiliation, family background, religious edu- cation, like, history employment albeit and the specifically prescribed As well as those mat- ters, mitiga- precluding others deemed irrelevant in special anticipated revision committee State, Murphy supra, cases cited in party might tion. See v. competent either offer “such evi- (opinion rehearing). at helpful punish- 63-64 assessing as is dence suitable Erisman, Legislature re- With the 1967 revision the ment." Introduction 1965 Revision Procedure, quired hearing jury, punishment before the Texas Code Criminal 1 V.A.C.C.P. xv, alia, be, pro- jury may at inter “where the recommend xxiv. It was not See however. (State Hed- supra, proposal v. Bar bation and defendant filed his sworn motion icke Therefore, rejected). began.” punishment probation Acts before the trial first Also, 1967, 659, 1739, Leg. conditionally permitting p. Ch. § scheme bifurcated 60th 22. perhaps light problems made trial no mention of relevant consider- noticed determining probation Rojas supra, Murphy ations in the issue and in 54, beyond specified. sep- supra, those Such matters were it made other modifications arately "prior treated in Probation term the revised Adult defined the criminal record" as it is Law, Still, Id., jury today. Legislature in the event the first assesses at 1740. did viz: years not to exceed ten rec- not introduce new matters for the probation pretrial assessing upon proper ommend mo- consider in or recom- tion, proof finding mending speci- probation, previously and its defendant had those 1965, 1985, felony. been Acts alone never convicted of a fied stood until Indeed, Leg., 3(e) p. post. always vol. Ch. 3a. § § 59th See has cautioned any legislative history nothing There no indication in therein af- “shall be construed [to 2(b), admissibility either former § article or for- ... fect] guilt[.]" extraneous offenses on 42.12, 3a, working togeth- mer article both Nothing prosecution. herein shall limit Evidence” become effective when promulgated body Court of rules evi- provisions of Code dence, id., 8(b); timely accomplished we Criminal Procedure.” Rules of the task and ordered the Criminal 404(c).14 relationship Rule between Evidence thus formulated to become effec- 404(c) 3(a) 405(a) thus and Rules September tive Í986. excep- stood until 1989—with one unrelated Accordingly, part the affected of § demonstrating tion provided: then “disapprove” knows rule of well how a may, permitted “... the by evidence as promulgated.15 evidence this Court Evidence, by Rules be offered the of Then, lengthy in comprehen- 4.04 of a § the state and defendant as to the designed to reform the executive sive bill defendant, gen- record of criminal the justice system component of the criminal reputation eral and his character.” of Department and establish the Texas effect, intent, of manifest as well as Justice, the tucked Criminal that amendment is to condition admission phrase away in an amendment prescribed of evidence as to matters under 785, 3(a). 1989, Leg., p. Acts 71st Ch. § 3(a), germane of Evi- Rules Criminal § 3471, 4, 4.04, at 3492.16 § dence. such provides: One rule originated passed House The act penalty phase, may “In the evidence he Representatives of House Bill 2335. No. by by prosecu- offered an accused After it reached the Senate there were tion as to criminal record of the intriguing surrounding machinations accused. Other evidence of his some character may by offered by be an accused or The chairman of the bill.17 Committee 609(d), "prior “Additionally, per notwithstanding 14. A is se record” Rule Evidence, "being peace of a trait of “bad" character for a Rules Texas of Criminal abiding generally ful and law See citizen.” may by state offered and the defendant State, (Tex.Cr.App. Smith v. 414 S.W.2d 659 adjudication delinquency on a of an of based 1967). much So for the first sentence of Rule by penal violation the defendant of a law of 404(c). unless_” grade felony, of designed permit The second sentence is “prior 16. inserted after the definition of Also general of introduction “other evidence” of identifying sentence criminal record" is a new specific character and of traits of character of circumstance, mitigating Boyd an accused. See State, viz: definitions collected in (Clin- (Tex.Cr.App.1991) 811 S.W.2d 105 may mitigat- “A court consider as a factor in ton, J., 126, 3); dissenting at n. see also cases ing punishment conduct of a defendant Ray, (3rd Ed.) cited in Texas Law of Evidence program participating while under Article 1492, 169, 171-172, § 2 Texas Practice at 17. n. 17.42(a) of this code as a of 17.40 condition course, Of "other evidence” limited to meth- on bail.” release proof specific ods of in Rule con- here, directly quickly implicated While not we duct has never been and one. is not available punish prescription "mitigating notice 837, Hedicke v. at 840-841 reminiscent for ment” is of used (Tex.Cr.App.1989); Hernandez Presiding Judge mer Onion Allaben v. (Tex.Cr.App.1990). S.W.2d 523 ante, supra, at 519. See 533-534. admitting Since there are restrictions these 1990, C.S., 135, 25, p. Leg. 6th Acts 71st Ch. evidence, kinds character of last sentence 30, (f), allowing added evi- § also subsection nothing makes in Rule clear 404 limits "availability community dence of of corrections provisions of Article which evidence in the facilities” venue. of other extraneous offenses and may be re- misconduct admissible. This caveat Appeals the Dallas State 17. Before Court understanding flects the Court that evi- 20, recording April the court to referred of an qua dence conduct character is 1989, hearing by the Senate Committee of Crim- Goode, noncapital cases. admissible See 1169, during inal Justice on Senate Bill Sharlot, & Rules Wellborn Texas Evidence: expressed respective witnesses certain favorable § Civil and Criminal 33 Texas Practice positions aspect on one of that State’s bill. (1988) 136. Brief, Writing for at 38-39. the court former Presiding Judge 609(d) Onion reviewed the bill and the precludes 15. Tex.R.Cr.Evid. admission demise, However, and, testimony juvenile noting apparent adjudications.” con- its "evidence cluded, testimony.... Leg., p. Acts 70th "The scant lends little § Ch. end, 3(a) by adding perti- support legislature at the to what the had amended in mind Grunsfeld, part, finally supra, nent enacted.” n. viz: produced on Criminal complete Justice (C.S.H.B. 2335) committee substitute No. statutory It is a truism in construction

containing phrase a 4.03 inserted the meaning language” “same used to issue, repealed “record,” express omission the a notion one context does not necessarily carry to a different “reputation” provisions forward “character” setting. which a The sense disclaimer, evidentiary and introduced an used in is not one act conclusive in that as formally so drafted those additions significance another; used in when operative parts appeared and deletions in spirit, scope purpose particular thus: phrase must examined to determine its “[Ejvidence may, permitted by the meaning. See Tex.Jur.3d Statutes Evidence, Rules be offered (1989), Such at 686. an examination state and the defendant as to matter ante, has been conducted and the results sentencing. the court deems relevant to are meanings indicative of different This subsection not be construed as respective practical con- conceptual and authorizing the introduction of evidence texts. seized in violation United States Code, phrase In the Penal Model Constitution Texas or the Constitution permissively coupled examples with mat- prior criminal record of the defen- [the sentence,” e.g., ters deemed “relevant dant, general reputation-and his char- “the nature circumstances and acter.—The term criminal record crime, character, the defendant’s back- means a final in a conviction court of ground, history, physical mental and condi- record, probated-or suspended or a any aggravating sen- tion and miti- trial, gating [desig- tence that circumstances enumerated in any has occurred nated In the subsections final § conviction material to the 210.6].” offense statute, permissively Florida it related charged].” mandatory aggravation matters limited reported favorably May substitute was mitigation and unlimited in declared “rele- May 1989.18 But on 19 when he called 921.141(1), (6) vant to sentence” § up reading second the chairman of- (7). The erstwhile Texas Senate substitute substitute, complete fered another Floor tracks the Florida statute. While the mod- 1., 4.04 Amendment No. of which re- § penal el assign code does not burdens evidentiary stored the matters omitted in statute, proof, judicial gloss on the Florida 4.03, former the evidentiary deleted dis- § substitute, and thus the Senate dictates “mitigating claimer and also added the fac- any aggravated circumstance related quoted tor” in note ante. Senate Jour- necessarily to the offense must substantive nal, Session, Leg. Regular 71st 1535 at proved beyond reasonable doubt. 1551; supra, finally see each Grunsfeld, judge 167. formulation trial Moreover, legislators the State does mention the fact in both bodies had in mind when 16, 1989, May finally approving that on at least one of those a different version of

witnesses same testified to the effect before the amendment in a revised substitute. considering same committee when it was House Comment, Bringing Light Conventional wisdom holds that the Bill 2335. See 37.071(a), question from but Non-Capital Felony § was lifted Phase: Punishment Article code, compare penal Florida Unadjudicated model statute Section 3a and Evidence of Senate It Offenses, Baylor committee substitute. is evident from Extraneous L.Rev. 101 (1992), 115-116, proposed format of this and content revision and related text. n. 94 Un- writer, however, given that senators were to understand un- like the Comment and much Onion, promul- der Presiding Judge Texas Rules of Criminal Evidence like I believe that in a gated by hearing both State and comprehensive seventy this Court defendant on a substitute articles, may proffer evi- pages length, containing eight and trial court could admit four sections, going "any many dence matter each with before six deemed relevant members of committee, sentencing” interpretations seized in violation of either whatever of one —unless however, proposed coming partisan post, amendment from a Constitution. As will seen group apparently enough advocate for his own interest do not nec- senators and other interested essarily support parties majority lend that which a were not with that satisfied formulation. weighs the in report contemplated by “circumstantial evidence” Article § making impos- the ultimate decision as to C.C.P., V.A. to be considered the court. ing sentence of life or death. 37.07, 3(d). Although Article Article 37.- 07, 3(a), any now allows evidence “as to hybrid product legislatively engraft- A matter the court deems relevant to sentenc- ed in several sentences from the ing,” including formerly prescribed certain Senate substitute with an innovative cre newly matters and added matters such as committee, ation of the conference “adjudication delinquency,” see note 37.071 allows evidence “as to matter ante, mitigating punishment,” “factor in the court deems relevant to sentence." 16, ante, “availability see note of com- wording” That “awkward even had to be facilities,” munity ibid., corrections there is translated for the “pun bench and bar to proof pun- no burden of on the “issue” of ishment, 9, ante, is, see note ishment; nothing requires the article bearing to material matters on one or more special prove judge jury issues which the to inform the court or the State must beyond and a unanimous must requisite find issue it must determine or Id., (a), (b) (c). reasonable doubt. obliged otherwise what it is to do such required Such statutes are to be based on Indeed, 3(d) merely provides evidence. passed and each has muster on consider upon considering investigative re- ations of constitutional dimension demand port hearing, and the evidence adduced at ed Eighth Amendment, including shall announce the decision “as permitting now a “reasoned moral re punishment to be assessed” sponse” mitigating evidence. v. Proffitt court; 3(b) provides merely whereas § Florida, Jurek v. Penry Ly and v. jury “the responsibility has the of assess- naugh, supra. all purpose Because the ing punishment,” with “such additional provide jury possible with “all necessary,” instructions as and in information about the individual defendant practice common none touches on “is- determine,” whose fate it Jurek, must su “obligation” conditioning sue” or its as- pra, of, alia, inter extraneous “punishment” sessment of in terms of offenses are admissible. Hammett v. years fine, any.20 and State, supra. Unlike the Florida initial and Senate committee schemes in which the jury The verdict of the is to be included jury merely verdict is advisory, in Texas as court, judgment and the defen- a matter jury of law the determination of punished according dant shall be to its ver- requisite issues independent and effect of 1, dict. Article item 8. mitigating evidence penalty mandates the A part V.A.C.G.A.P. sentence is that punishment the court impose must in its judgment ordering punishment 37.071(e), sentence. supra. Article carried into execution in pre- the manner scribed law. provi- Article 42.02. But nearly every case, noncapital on the sions in “punish- Article 37.07 related to hand, depending situation, other on the ei- identify ther ment” fail to all judge jury may “matters relevant assess punishment. (b), 3(a); sentencing,” Article ante, particularly and viz: at matter §§ judge may 529. The investigative order an probation in that sentence is not im- particular 19. “Whenever a compare general charge punish- issue can be identi 20. See and consequence’ fied including, that is ‘of at applicable, probation: ment where proceeding, questions proof (State Jury Charges of burden of imme Texas Criminal Pattern Bar diately 83-88, 1975) 12.42(a)-(c), come to mind. aside from [But certain of Texas §§ CPJC statutorily prescribed exceptions 12.42(d); Blackwell, or based scat McCormick & Texas Crimi- throughout imposing 81.05, 81.13, tered our statutes a bur nal Forms and Trial Manual §§ 8 other], party 268-270, (1985) den on one or the Supp. no burden of Texas Practice 283 and proof 1992; assigned has ever been to the broad ‘issue’ 3 Texas Annotated Penal Statutes (Branch’s Wright Ed.1974) 388-390; of what State, to assess. See v. Appendix Third at 422, (Tex.Cr.App. McClung, Jury Charges at 424-425 for Texas Criminal Prac- 1971).” 62, Murphy supra, (Rev.Ed.1992) at n. 10. tice posed, and 527-528, as to other matters I be- at concur with the Court in fore pronouncing judge sentence the reversing judgment. must or may take into consideration many other relevant matters jury, withheld from the B e.g., 42.12, 9, Articles 42.01-42.03 In Huggins, the Beaumont Court did not 42.07-42.08, say, V.A.C.C.P. That is to expressly disposition relate to the fact that necessarily will not decide all probation below, implicated 1, see note

terms and conditions of whatever sentence ante; instead, its decision seems to concen- actually imposes. trate on other in generally considerations

assessing punishment. “unique

Given the nature of the death The majority first penalty construes the purposes Eighth Amendment operative part 3(a), reasoning analysis,” that the Supreme Court has consis- question is “additional to and tently cautioned courts that its decisions in separate independent ‘prior capital cases are of “limited assistance” ” defendant,’ criminal record of the determining punishments. lesser Rummel also “evidence relevant” is “inde- Estelle, 263, deem[ed] 273, 445 U.S. at 100 S.Ct. pendent separate from evidence of the 1133, 1138, 382, at (1980); 63 L.Ed.2d at 390 general reputation defendant’s and his Alabama, see 625, 637, Beck v. 447 U.S. at character;” because the definition of “rele- 2382, 2389, S.Ct. at 65 L.Ed.2d at vant evidence” Tex.R.Crim.Evid. Rule (1980) (significant constitutional differ- 401 focuses on that which “to tends make ence between penalty pun- death and lesser existence of fact that conse- ishments); Gardner v. Florida. 430 U.S. quence action,” to the determination of the 357-358, 97 S.Ct. evidence of extraneous of- (1977) (death L.Ed.2d penalty fenses to which objected defendant is “of different kind of any from oth- consequence” part to that of the determina- imposed er country). Upon consid- involving tion punishment.” “assessment of eration germane of all factors spirit, to the Id., at 911.22 purpose scope phrases and appear- ing 37.071(a), in Article and in Article quaere: Precisely may But what be iden- 3(a), respectively, only rational con- § tified consequence,” “matter clusion language” is that the “same theory existence of which evidence of will not determine the sense in which the probable, conduct tends to make more and phrase was meant applied to be used and in thus question relevant? That is the exact latter, and I would so hold.21 Accord- members of this Court debated without set- ingly, to the tling extent that the decision of unanimously in Murphy. See Part Beaumont in Huggins B, But, Court rests on post. III the Beaumont Court did theory, it should disapproved; be recognize because not even ques- this is the crucial the ratio decidendi of the decision from tion to be answered in its first basis for the Fort Worth Court in the overruling point instant Hunt- of error one in favor of er solely cause is based theory, 910-911; and Huggins, the State. See at cf. urged it, ante, rely State us to State, see supra, McMillian v. at n. ante. rejects language” 21. The Court also respect, Huggins spawned the “same 22. In this several fol- theory, through analysis legislative albeit its lowings probation in which is not shown to be history. Slip opinion, at 8. In tandem we thus issue, State, 920-921; e.g., supra, Hunter v. at premise underlying consequen- make moot the tial considerations and conclusions in Com- State, 319; supra, Hubbard v. at Gallardo v. State, 541-543; State, supra, supra, at Rexford ment, Bringing Light Non-Capital Felony 496-497; State, supra, passim at Slott v. and at Punishment Phase: Article Section 3a and 227-228. Unadjudicated Offenses, Evidence Extraneous (1992), Baylor particularly L.Rev. 101 Parts III, II and at 109 ff. Act, id., majority opinion teachings in the Code Construction then addresses “an “We must cautioned, 166; at separate and additional distinct basis” therefore context the new not to out viz: decision, phrase “invokes careful lift phrase] and construe it language in [the test;” abuse of discretion the trial standing alone only certain other with discretion; did not “the solons abuse State, Murphy provisions of the statutes reach selected overrule 777 S.W.2d 44 result,” id., 168; legis- Id., at 911.23 at viewed a desired (Tex.Crim.App.1988).” 1989 amendment history lative say summary Suffice to that such resolu- id., 166-168; Act, light at noted of that begs questions tions of both bases difficult 3(a) clearly shows “evi- that since construction, statutory intent “that relevant” must be dence deemed very “the raised actions of solons” permitted by the Rules of Criminal application and of rules of evidence.24 id., 168; Evidence,” proceeded to exam- rules, i.e., 401, 402, 403, germane ine Rules 404(c) and and found: cause, “Thus, is to writing In the if a criminal record instant Grunsfeld used, majority Court, comport the defini- for a of the Dallas former it must with Presiding Judge guidance Onion from tion in the statute. If ‘other evidence’ is took "permitted by 23. The second basis for is reflected in those the Rules of Evidence.” decision (Tex. govern Hunter v. Criminal Evidence were to Rules of 1991) (no granted App. proba proceedings “except PDR where otherwise — Beaumont tion); in, 1101(d)(1) e.g., higher provided” Hubbard v. at 319-320 Rule and (T 1991) ex.App. granted governance, “inconsistency Worth PDR and hierarchial then — Fort (no probation). Holland v. reasonable construction." be removed 1992) Thus, (Tex.App. Id, (c). 101(b) at 223 Worth PDR as related to Rule — Fort pending rules, (probation), appellate agreed germane especial- punishment, Article IV Murphy," (opin that the 404(c) "overrules at 67 ly govern those rele- Rules rehearing), quoting approvingly identifies, i.e., ion on from “prior crimi- vant matters dissenting opinion record," White’s and 51 "general reputation" “charac- nal ter,” original submission). (opinion on 3(f) subject implied strictures of as to offenses. extraneous example, 24. For her brief in the instant Hunt- Insofar as other matter be “rele- appellate prosecutor vant,” er cause the calls attention the definition of “relevant evidence” 1101(d)(1), dealing law," to Tex.R.Cr.Evid. Rule actu- Rule 401 codified "current Texas prescribed "applica- when rules of evidence are ally of the common law. See is a restatement part,” ble in viz: supra, applies Blakely, Rule 402 at 528 general admissibility; definition to Rule following proceedings “In the these rules against probative lists factors to be balanced apply to extent matters of evidence are not value, approach a common law assimilated into provided govern pro- for in the statutes which "general practice. prefer- Texas Those rules of cedure therein ...... limited, however, by Rules 404 and ence” are (1) Sentencing punishment or assessment ****’’ Goode, Sharlot, 405. Wellborn & Texas Rules jury; or the court 404.2, Texas § Evidence: Civil and Criminal Merits, (emphasis State’s Brief on the at (1988) 404(a) (b) relate Practice 104. Rule original). provision argues: From that the State "_As mainly merits, pertaining to matters to trial on the result,_§ 3(a) effectively over- 404(c) governs character whereas Rule placed rules limitation only evidence relevant in non- specific relevancy rules of IV, capital criminal cases. Id. at 135. substituting single § Art. instead statuto- 3(a) phrase § now inserted in does not ry ‘any standard of matter the court deems in_ Thus, provide anything precepts new to traditional requirement relevant.' 3(a) practice except word 'permitted and our the awkward that such evidence also be § — “sentencing,” judicially only must be taken to to com- the Rules of Evidence’ refers IV, 3(a) “punishment." nothing pliance mean There is in § with rules outside Art. rules such evidence, inserting hearsay, "permit- best and so on." to indicate that so soon after Ibid, Evidence," original). my judgment, (emphasis ted the Rules selectively argument anything is untenable. "overrules” nullified Arti- inconsistency legislative design cle IV thereof. If there is Pursuant to intent and Court, 3(a) making by applicable responsive both between and Article IV rules § rule punishment, Criminal Evidence co- "reasonable construction” is to and Rules of "procedure” thus is what this whole exercise is alesced in 1985. The remove it—which provided by incorporating "matters of evidence" about. prove character, be used to critically is limited reviewed the Huggins effort at proof by reputation wit- statutory construction, noting first it was nesses.” made analysis sans and consideration of 404(c),id., 171; Id., 169; Rule at and after examin- concluded on this factor thus: ing followings, e.g., its other Hunter v. “... The Rules of Criminal Evidence do State, Gallardo v. State and Hubbard v. permit the introduction of extrane- (all probation” cases), “no ous, supra, unadjudicated offenses and their de- them, rejected viz: penalty stage tails at the non-capital of a case.” “We do not find these controlling cases Id., persuasive. abundantly It at 170. clear legisla- whatever the intent of the Next, Judge 3(a), Onion turned to an- ture in enacting the 1989 amend- “limiting other factor” in the definition of ment to article section it was “prior record,” id., 170; noted open not to the door to evidence in non- term, evolution of the capital cases as wide as that in restoration, tentative elimination and later sentencing. case intent, If that was the indicating an intent to “retain the limitation legislature then the would not have re- [regarding matter],” id., limiting tained the 171; language of the significance discussed the of the term * * * * amendment. Further “including,” we cannot viz: legislature attribute to the an intent to agree “... We with the State that the illogical reach an result. It would not expanded amendment ... without legislature make sense that the intended enumeration might other matters that extraneous, unadjudicated offenses and introduced the trial court deems the admissible, their details but same relevant sentencing and other convictions must being be final before requirements are met. We disagree, admissible and even then that however, details of with the contention that underlying offenses are to be exclud- amendment authorized the introduction ed.” extraneous, unadjudicated offenses and their details in view the retention Id., at 172. dissenting opinion sought ‘prior the term criminal record’ and its give “a harmonious effect to all of the definition, limiting history of the stat- language,” agreeing statute’s however ute and the 1989 amendment.” that, amended, go “does not Id., at Accordingly, 37.071(a),” as far as article and in this Grunsfeld majority concluded: regard, disagreed thus “with the decision Id., Huggins

“We hold that the v. State." testimony was inad- at. 175. missible under both the Rules of Crimi-

nal Evidence and the definition limiting the meaning ‘prior criminal record.’ vacillating While proving between char The court abused its discretion in admit- through opinion reputation, acter ting it.” England common law and the common Mentioning Ibid. that Grunsfeld offered law of Texas firm that evidence only eligibility establish his specific “inherently prejudi conduct was probation after the State had adduced evi- cial” and thus “only admissible when char offenses, dence of extraneous Judge Onion acter State, was an issue.” Hedicke v. pointed out that his tactic “did not cure 837, S.W.2d at (Tex.Cr.App.1989); 840-841 error or call for a different “Noth- result[:] Goode, Sharlot, Wellborn & Texas Rules of ing in the 1989 amendment or its history Evidence: Civil and Criminal indicate the holding Murphy in (1988) 138-139); Texas Practice see Mur [opinion on rehearing, at was intended 67] State, phy v. 44 (Tex.Cr.App. S.W.2d to be superceded.” Ibid. 1988-1999) (opinion 58-56). rehearing on at

Having implicitly disapproved some of its Because the Huggins court addressed rationale, Judge 3(a) Onion then directly and coupled alone with Tex.R.Crim.Evid. alia, Rule pretermitting, 1992) (cf. excep dissenting opinion, inter Beaumont 401— provisions (these rules); 228) 2, tional granted February Rule 402 To PDR exclusionary provisions (proba opinions accepted of Rule 403 the extent those the sim al., danger plistic Huggins, Judge tive value versus et preju of undue rationales of dice); special provisions 404(c)(character they controlling Onion found neither were persuasive punishment); majority nor for a in limited method Grunsfeld. Instead, provisions 405(a) developed essentially prop he of Rule two (reputation and why question ositions to show in opinion) Judge concur with Onion —I change did explicit respect the law with implicit with this Court in its admissibility specific conduct evidence. disapproval of the first and second reasons State, Accord: Blackwell v. basing S.W.2d the decision Huggins, by 134, (Tex.App. 1991), at 140-141 followings ante, extension its identified — Waco granted 20, PDR (analysis November note but myself do not associate persuasive more because it harmonizes and every employed rationale and each conclu gives statute); provisions effect to all sion reached them. Torres v. at 143 (Tex.App. 1991) vacated on other — Waco II grounds, 825 124 (Tex.Cr.App.1992). point From this discussing onward in phrase, rather than wording” its “awkward I will translate it to read “any matter the First, 3(a) already provided because § court deems relevant to punishment” “prior evidence as to crim- keeping statutes, with our rules of evi- record,” inal “general reputation” and practice, dence and unless the context de- “character,” may permitted be offered “as mands Considering otherwise.25 Evidence,” Judge the Rules of Onion phrase in light, on authority of our argues even conduct evi- opinion rehearing in Murphy and its dence relevancy meets the test of Rule 401 followings I sign would right off now to and clears hurdles of Rule other rules affirming judgment of the court of considered; must be from views of com- appeals in However, prudence Grunsfeld. concerning 404(c) mentators Judge Rule dictates that questions additional exam- “prior Onion asserts that a criminal rec- ined. ord” comport must statutory with the defi- nition, and “other evidence of his charac- A 404(c) ter” under Rule proof is “limited” to recapitulate To briefly, nearly very court by reputation witnesses. appeals that has addressed the issue has Grunsfeld, at 168-169. We know that one held that the 1989 amendment to Article matter the trial deem relevant 37.07, 3(a) now authorizes admission of character, because the specific conduct evidence—with or without so; expressly says statute evidence of application probation. See cases “permitted” character is also rules of collected majority 404(c) Slott v. Rule says because so. See — (Tex.App 226-227 However, 405(a) note ante. Rule gen- 25. That gambit there was and still is a collateral (Tex.Cr.App.1978-1979) 591 S.W.2d 810 involving specific conduct evidence seems to (opinion 818[4], [8]). rehearing, practically ignored have been in all the current prosecutor may "thereby indirectly develop the argument germane over § rules of evi- existence of acts of Murphy, misconduct." dence. The late Duncan called attention potentially devastating technique at 73. “This concurring Murphy, to it while at 72-73. exposing specific the trier to acts which of fact Once an accused adduces evidence of “charac- permitted on the character is reflect despite defendant’s through testimony reputation ter” as to or in the general prohibition the on the use of opinion, may form of the witness be crossexam- directly against such evidence Goode, the defendant." regarding specific ined "relevant instances of Sharlot, Wellborn & Texas Rules Evi- of 405(a), his conduct.” Rule as amended. The dence: Civil and Criminal § Texas is, proper inquiry respectively, you “have heard” (1988) Practice 147. 73; you Murphy, or "did know." see Ward v. erally limits proving specific methods of character the deem “rele- to conduct reputation to opinion testimony. Spe- punishment” regardless sig- vant to cific qua conduct evidence is admissible evidence; specific nificance as character evidence only character where character is evidence, “permitted by conduct if not charge, “an essential element of claim Evidence,” arguably Rules of is at least not defense,” 405(b). under Judge Rule Onion prohibited And, by them. will be devel- opinion authority held on of our on rehear- oped B, Part II post, in the trial decision as ing Murphy that character cannot fairly unreviewable; may to relevance be unless described an “element ... claim or judge practically trial admits on the punishment phase at the defense” of trial. allowing record is specific that he conduct Id., Therefore, reasons, specific at 170. he evidence, qua appel- character impermissible conduct is an method of late put be hard to reverse his would 405(b), proving character Rule under decision. hence under as well. argument acceptable first This as far goes. as it But it argu- seems to me the proposition, As to the second On- go may enough. ment not far It is true that, ion Legislature’s maintains use of specific that qua conduct is inadmissible “including” notwithstanding, word Moreover, character evidence. in Murphy “prior definition of criminal record” that that, rehearing on we stated in the absence ultimately retained in even af- legislative express guidance, we would amendment, operates ter the 1989 still to presume Legislature not intended to specific exclude conduct evidence. He ad- specific exclude qua conduct character evi- (as must, given mits he use of the word dence, contemplat- “while at the 'same time “including”) that trial court’s discretion ing always identical evidence would be ad- determining what matter is “relevant to [and, missible as ‘relevant’ to the broader I punishment” “prior fact not limited to add, might category, circum- court-made] general reputation criminal record ... stances of the “Loath nullify offender.” Id., ... But this Court character.” 171. intent,” apparent we held had always unadjudicated considered mis- 3(a) “precludes specific evidence of prior conduct under the criminal rubric acts of conduct” to show “circumstances of record, and when 1967 definition of Id., the offender.” at 64. prior permit record did criminal not days rehearing Six before our proof, form of the Court construed that as however, Legislature in Murphy, pur- categorical prohibition against admission portedly took the ultimate decision of what Id., specific conduct evidence. is “appropriate” for a to consider Accordingly, Judge argues Onion assessing punishment out the hands of because 1967 definition of placed squarely Court it ultimately record was retained af- Legislature hands of the trial court. The phrase, ter the must still thus argu- created basis for counter contemplated specific have conduct punish- ment: matter is What “relevant” Id., would not admissible. at 171. He ment is whatever the trial “deems” it observes: be; should the trial court believe there is legis- “It not make would sense that a “relevant” matter to con- extraneous, unadju- lature intended that apart pertains quite duct evidence from — dicated offenses and their details be ad- any bearing it may character— have missible, but that convictions must successfully defendant invoke 405(b) it; 405(b) being be final Rule before admissible and even only exclude Rule character; then proving underlying controls methods of that details of the of- judge’s is within trial discretion under fenses are be excluded.”26 potential problems though 26. There are at least two even details of convicted offenses First, question this observation. whether admission are not is a admissible makes "sense” legislative policy, judiciary details extraneous offenses not for the determines concluded, capital a trial court Id., Judge Thus In a case at 172. Onion to sen- original “any sub- matter is relevant reminiscent of on whether pertinence to the Murphy, according mission in else the to its whatever tence” Legisla- judge might punish- issues, trial deem “relevant to defined special as statute, required by Eighth not ture, “mitigation” ment” under the she could or Id., specific assigning of at By admit evidence conduct. Amendment principles. 171, 172. matter question of what the trial court the noncapital punishment” in a is “relevant to Again, argument does not satisfacto- case, precious are few statuto- where there rily “authority” account for the to decide 62-63, issues, Murphy, see at rily defined punishment.” is what matter “relevant to 10, essentially em- Legislature has n. specific evi- qua That conduct character by case powered courts to dictate case trial (albeit possibly infera- dence inadmissible operative punish- what the issues are at from fact of a final conviction or a ble phase may This be an uncon- ment trial. probated suspended occurring or sentence poli- delegation stitutional trial), specific does not mean that making judicial cy function to the branch. “any conduct evidence as to matter the apart punishment,” court deems relevant to long held Supreme Texas Court has Our character, bearing from its will be inad- that decisions of the United States Su- may imagining missible. We have trouble separation preme Court on the doctrine how conduct evidence could be powers interpreting instructive in are brought to matter relevant to bear express provision. constitutional our own from, punishment apart decision Carlton, Trimmier v. 116 Tex. involving, least without a character infer- (1927). Su- S.W. 1070 The United States Nevertheless, Legislature ence. has recently preme Court reiterated: provide point failed to a reference for mat- nondelegation doctrine does not “that the ters of “relevance” at Congress seeking assis- prevent from phase, so it seems to me that after the 1989 limits, tance, proper within from amendment the fact that our intuitions as coordinate Branches. omitted] [Citation appropriate to what Thus, Congress does not violate the Con- jibe decision do not with trial legislates in merely stitution because it provide adequate an basis terms, degree of leaving a certain broad appellate reversal. judicial actors. discretion executive by leg- long Congress ‘lay[s] down So B intelligible principle act islative questioning particular While some of his person body authorized to which the analysis, ultimately agree I do legis- conform, such is directed [act] respect. give Onion in one cannot full We delegation action is not a forbidden lative play apparent to the trial court’s “authori- Hampton, legislative power.’ J.W. ty” under the to determine what States, Jr., 276 U.S. & Co. v. United punishment in non- matters are relevant to 348, 352, 409, 48 72 L.Ed. 624 S.Ct. capital prosecutions. To construe the (1928).” amendment to confer such unfettered dis- U.S. -, States, arguably say Touby is to cretion the trial court v. United -, unconstitutionally 114 L.Ed.2d Legislature that the S.Ct. has Thus, (1991). delegated part authority in at 227 of its violation branch, delegate power separation doctrine em- can to a coordinate powers II, “declaring policy first in Article 1 of the Texas Con- but not without bodied im fixing primary standard” for its stitution. argument pressed upon guess the Court is defect. At now the second absent constitutional rate, trial court we cannot at all sure the details that we have held in the context offenses could not admit details of convicted too, they adjudicated crimes are admissible as details be found "relevant to should those dangerousness. relate to future punishment” under the amendment. Even 544

plementation. Granviel, parte Ex implement making 561 which to it—in his deci- 503, (Tex.Cr.App.1978), S.W.2d 514 at cit His sion. discretion will be “uncontrolled” ing 132, Margolin v. Tex.Cr.R. Admissibility and “unreviewable.” of evi- (1947) 205 S.W.2d 775 Williams punishment phase dence at the will left 430, 146 Tex.Cr.R. S.W.2d exclusively opin- almost to the “individual (1943). primary That standard must be predilections judge.” ion and of the trial “capable application.” of reasonable Id. “overarching Compare the constraints” uncontrolled, arbitrary, and unre- “[A]n Congress imposed on United States delegated.” viewable discretion not be Sentencing in its to Commission mandate 73, p. (1981). Tex.Jur.3d § sentencing guidelines uniform establish for legislature right “The has no to confer system. the federal Mistretta v. United on the judiciary power so terms States, 361, 374-378, 488 U.S. 109 S.Ct. meanings broad and vague so that the 655-657, at 102 L.Ed.2d at 732- application nonapplication of the law (1989). depends opinion wholly on the individual reason, overriding given For this those predilections judge....” of the trial Grunsfeld, Onion in I would ar- Johnson, In re 781-82 gue give phrase we cannot (Tex.Civ.App. Corpus Christi ref’d — impact ap- proponents broad its claim it n.r.e.), quoting approval with have, pears light of our on from 16 p. C.J.S. Constitutional Law § rehearing in Murphy. 635. phrase If in fact the was intended to Ill authority confer ultimate trial courts to determine ap- on a case case presume Legislature basis Because we propriate criteria assessment of thing, however, would not do a useless we punishment, it seems fairly then clear that must either construe amendment Legislature unconstitutionally has dele- accomplished objective, lesser have some gated authority. That the statute does simply else we must declare unconstitu policy already not announce a has been separation powers. tional violative of rehearing, decried in itself Murphy is, course, always former to be (no guidance concerning 62-63 clear consid- Groves, preferred. parte Ex informing jury punishment erations deci- 888, 893 (Tex.Cr.App.1978); see Code sion). does nothing remedy Construction Act 3 V.T.C.A. § fact, by purporting situation. In (1988) Government Code authority vest in individual trial courts to determination, make the “relevance” A Legislature potentially has cut off whatev- ascertaining intent of the Legisla- er source policy that had We existed. ture when it enacted the 1989 amendment that, held in Murphy beyond the criteria 37.07, 3(a), supra, to Article it is useful 3(a), § evidence could be admitted at the original keep opinions in mind the sub- punishment phase as to the circumstances in Murphy supra. mission A like- of the offense The for- offender. ly hypothesis is that when mer was deemed “relevant” under the language, “any added the viz: matter the seemingly pun- maxim self-evident sentencing, deems relevant to includ- ishment should fit the crime. The latter ”, ing it intended the hold- ... to reinstate “appropriate” was considered if no oth- ing State, supra, that, punish- of Allaben v. er reason than the absence ex- evidence press legislative policy, “prior ment was not limited to courts have tradi- reputation criminal record tionally general ... believed that should fit character,” particular Under ... and that other criminal as well. mitigate punishment probation inform the trial decides “rele- vance,” he is much not even bound recommendation are admissible consistent policy a “primary including less standard” —much

545 probable conduct. See opinions original on future Murphy conduct. indicative 52, (White, J., 4 dis- supra, at n. support hypothesis. Murphy, submission tend to Moreover, Judge vehe- senting). White disagreed particular evi- mently that conduct admit- dence of bad In plurality opinion original his on sub- prejudicial than Murphy ted in was more Murphy, Judge gave mission in Miller es- probative. sentially specific two reasons that miscon- punishment duct was not at the admissible part, Presiding Judge Onion For his phase, application proba- defendant’s for agreed specific misconduct was inad- that it, notwithstanding. tion As I understand disagreed that missible under but § position holding first was that the holding of Allaben was under- the broader Allaben was on a construction of based pointed had mined. He out that Allaben 2(b) originally former enacted 1965. misconduct, specific § and that not involved 1967, When the statute amended in was holding that other evidence relevant to 2(b) 3(a) in in- became which was application § § unaffected probation for was precise “pri- cluded a definition of the term he the 1967 amendment. In essence or criminal record” which did not include 3(a) agreed Judge did with White that § conduct, specific Leg., Acts 60th see provide an exhaustive list of what is not 1739, 22, 28, 1967, 659, p. August ch. eff. punishment phase, § admissible at the but specific to the extent Allaben authorized agreed Judge Miller to the extent he with pro- application conduct relevant to an for 3(a) believed that the 1967 amendment admitted, longer it no bation was specific render acts in admissi- did good Judge position law. Miller’s second Thus, Judge in the ble.27 Onion concurred in Murphy “suitability” assumed that for result, plurality opinion disclaimed the but probation is indeed a viable issue at Judge Miller. punishment phase application where for probation opined is made. he Nevertheless specific

that the acts of misconduct admit- suggested It that the 1989 has been Murphy, ted in even relevant to that 3(a) Legislature’s amendment to was the issue, prejudicial probative, were more than plurality opinion response to this Court’s and hence were also under our excludable rehearing in Murphy. on See Grunsfeld traditional extraneous offense rule. State, (Tex.App.— dissent, 1991) J., Judge disagreed (Lagarde, concurring White that Dallas Also, dissenting). revised 1967 was meant to it has been assumed prohibit specific opinion evidence of conduct at the that the reacted to our (Tex. punishment phase. Judge agree White did Miller-El v. Judge implicit (no legislative policy assumption Cr.App.1990) Miller’s coherent application probation guide appropriate for makes an to courts as deliberation). “suitability” probation accused’s for an is- for See McMilli Miller, however, (Tex. Judge Judge sue. Unlike an v. 1990), granted. specific App. concluded that of mis- PDR White acts [14th] — Houston highly obviously searching justifica conduct are relevant to the issue of Both were tion, suitability. significantly possibly course neither can probation Most but of here, Judge Bill contained the purposes inquiry of our so. House amendment, signed opined specific acts are relevant into on White was law June 1989,71st 15,1989. probation suitability Leg., in much the same See Acts ch. opinion rehearing they question p. are 3558. This Court’s on way six dangerousness Murphy was not handed down until future later, 21, 1989; days on phase prosecution, of a murder un- June this Court’s 37.071(b)(2), is, supra, opinion supra, was der Article Miller-El caveats, Indeed, adopted by plurality given of the Court in its one or two definite was rehearing fairly position Murphy. be said that Onion’s can later, delivered until seven months enough Jan specific prove admit conduct to 17,1990. uary It just dangerousness, does seem more than future so also it should be plausible, however, enough broad the amendment as well to authorize responsive opinions prove probation conduct to original suitability, sub vet non, mission in Murphy, notwithstanding April handed down on the narrow definition 8,1988; “prior approach and that the criminal record” Legisla which was ulti- mately short, ture left in the In suggested may took was one statute. by Judge Legislature be that White. all the intended to ac- complish by 3(a) its 1989 amendment to § specific was make conduct evidence ad- B missible application whenever an proba- for by chosen Legislature essence, tion is filed—in legislate Judge amend may or may not have § been White’s nothing dissent—and more. part taken in from Model Penal Code 210.6(2); 921.143; Florida Statutes § §

Senate 200; Committee Unfortunately, Substitute for H.B. Legislature did not Report 200; anticipate Conference Committee on H.B. our rehearing on in Mur- Senate phy. plurality held, Committee There the contrary Substitute for H.B. 2335, 4.03; assumption Miller, the tacit Judge Floor Amendment No. 2335, 4.04; premise Judge White, C.S.H.B. No. stated or the Confer- Report “suitability” probation ence Committee for on is not in fact H.B. see an punishment nn. 9-11 issue at the phase accompanying text at trial. 531- 532, ante, More importantly, plurality pointed or in out whole from Article that the (a), concept of supra. “relevancy” pun- at the Regardless, in that context we phase ishment highly problematical. long have specific held evidence of conduct this context plurality wrote: be admissible as a matter relevant to the issue, special second dangerousness. problem future defining "... lies in what cases, In noncapital however, particular Legisla- ‘issues’ are that evidence may ture and may the Court traditionally prove. have hon- not be ‘relevant’ to general ored the We have remarked before common law rule ma- ‘[t]he terial specific during punishment phase evidence of issue conduct is not admissi- is, prove obviously, punishment ble to character what to as- unless that matter is an issue case, on the merits of sess[.]’ Hoffert 145 (Tex.Cr.App.1981). prove never While that is in- admissible to character as a obvious, deed especially it is not helpful material punishment, matter on except un- purposes deciding der dicta in relevance. Atiaben when probation was at issue. Murphy v. supra, consequence’ “The facts guilt 46-47 ‘of at the (Onion, P.J., phase concurring dissenting of trial are narrowly drawn original submission, 54-55) readily extrapolated (opinion penal provi- from rehearing, passim); 533-535, statutory justifications. sions and see also An ante. may

extraneous offense be offered as proof fact, of an ultimate such as identi- ty culpable intent, or it may be offered If Legislature intended the 1989 fact, to establish evidentiary an such as amendment to defeat Miller’s view motive, from which an ultimate may fact that the “prior definition of criminal rec- be inferred. In either case we know ord” renders conduct evi- what the material issues are because the dence inadmissible even if relevant to suita- supplied has them. Thus we bility probation, hardly it could have point have a fixed navigate which to chosen appropriate more language than questions of guilt relevance at the phase suggested by Judge White’s dissent in of trial. The same is not true of the footnote If “any matter punishment There, phase. aside from deems relevant to sentence” is broad exceptions, certain [footnote omitted] ‘factfinder’ does not determine the exis- unfettered discretion to decide “mat- what tence of discreet Moreover, facts. ter is because the [sic: discrete] relevant.” Deciding what to assess is a assigned legislatively trial court is the task process, normative intrinsically fact deciding “relevancy,” criteria for de- bound. Because the material issue at cision essentially unreviewable indistinct, is so relevancy of all, appellate an court. After if the trial proffered evidence cannot be determined saying court’s discretion includes what processes. deductive To extend the relevant,” is, “matter is what “relevance” metaphor, nautical given we have been appellate hardly say court can the trial steer, rudder to polestar but no to steer by finding court abused its discretion by. particular piece of evidence “relevant.”28

“In reality, what is ‘relevant’ to deter- mining proper punishment is more a C question policy logic. that of In creat- However, Legis- I cannot believe that the ing separate punishment proceeding lature, opinion which did not have our on Legislature clearly intended rehearing it, Murphy by before intended to remove the blinders inherent in a uni- adding phrase unbridled, to confer such tary trial. Unfortunately, outside of Ar- and upon hence unconstitutional discretion 37.07, 3(a), ticle supra, given it has no B, trial courts. See Part II ante. To avoid guidance clear as to what considerations denouncing now phrase as an unconsti- should inform the jury’s punishment de- separation tutional breach of the powers cision.” doctrine, finding and in favor of it advances 777 S.W.2d at 62-63. proper purpose, a I would hold that give does no more than a trial court discretion having to admit evidence recognition This lack of concrete tendency prove to those matters that are issues punishment at the phase of a non- traditionally recognized categories of “cir- capital trial makes purely “relevance” a cumstances of the offense and the offend- normative put peculiar call has gloss on er,” as well as already material matter phrase. By providing that evidence as clearly by Legislature delineated to whatever “matter” the trial court deems —nei- embracing specific ther conduct punishment evidence. is admissible at This accomplishes construction phase of trial Legislature appears, objective light to overrule Miller’s Murphy on rehearing, to have original assigned in Murphy submission the trial signifi- the more suggests extent it cant task of that the deciding, definition of apparently case case, “prior criminal what “matters” conduct” is an appropriate are exhaustive inform list punishment of what is determination admissible at the proper as to phase noncapital prescribed within the cases. That range. this Court “prior record,” Outside of “gener- subsequently pre-amendment construed the reputation” “character,” al however, accomplish and statute to this same result on Legislature still supplied any rehearing just has not in Murphy Legis- means the particular reference, any “polestar” if you prematurely lature acted while this Court will, by which the trial court can make granted deliberated on a State’s motion for essential “relevancy” rehearing determination. It is it did a “useless” —not apparently left thing. trial court in its lence,” threat,” 28. The same capital is not true in "continuing murder "unreasonable re- special Tex.R.Cr.Evid., context. There we have sponse" 401, “provocation,” issues to illumi- Rule consequence. only Court, nate matters of Not can the appellate but also this as the direct cases, trial court according decide relevance to wheth- court in can measure the trial er evidence tends to abuse, make a matter possible of conse- against court’s discretion for quence probable determining more or less generally that same standard. Montgomery See issues, "deliberateness," elements of the such as (Tex.Cr.App.1991) S.W.2d 372 expectation,” "reasonable (Opinion "criminal acts of rehearing motion). vio- on Court’s own rehearing Court, But we also approval pleaded guilty held on Murphy that “suitability” probation for felony has not to murder as a of the first de- gree; been identified punishment phase, id., material issue at the (d) the was under 18 defendant nothing certainly in Article 42.- years age the time of the commis- 12, V.A.C.C.P., has been amended that crime; or sion of the Thus, change holding. would on the (e) physical the defendant’s or men- causes, ultimate issue in I these would leniency; tal condition calls continue to hold that conduct does (f) although the evidence suffices to become admissible sim verdict, it does not fore- sustain the ply application probation because an respecting close all the defen- doubt presented has been filed the fact guilt. dant’s finder for the Kingsley determination. (2) Court or Determination (Tex.Cr.App.1990); Court and Unless the Court im- Jury. Drew v. (Tex.Cr.App. 777 S.W.2d 74 poses (1) sentence under Subsection 1989). Section, separate it shall conduct After sorting considering ger- out all proceeding to determine whether de- positions mane propositions and for the felony sentenced fendant should for a be stated, reasons compellingly per- to me but degree of the first or sentenced to death. haps some, extendedly join too I the proceeding The be conducted shall before

judgment of the Court.29 the if the defendant Court alone was sitting convicted a Court without MILLER, J., joins part that of this con jury upon plea guilty if or his or the curring opinion does that not conflict with attorney prosecuting and the defendant opinion original submission in Mur respect jury waive sentence. State, phy v. 44 (Tex.Cr.App. In other shall be cases it conducted be- 1988). sitting jury fore the with the which Court or, guilt determined the defendant’s if APPENDIX I good cause Court for shown dis- (1) Death Sentence Excluded. When charges jury with a em- jury, new murder, guilty defendant is found panelled purpose. for the impose the Court shall sentence for a proceeding, may In the evidence be felony degree first it is satisfied presented any matter as to that: sentence, Court deems relevant to includ- (a) aggravating none of the circum- ing limited to the nature but not and (3) stances enumerated Subsection crime, circumstances of the defen- of this Section was established character, background, history, dant’s trial or at the will be estab- physical any mental and condition and proceedings lished if further are initi- aggravating mitigating circum- (2) ated under of this Subsection Sec- (3) stances enumerated Subsections tion; or (4) Any and of this Section. such evi- (b) mitigating substantial circum- dence the Court deems to have stances, by the established evidence at probative may received, regard- force be trial, leniency; call for admissibility less of its under the exclu- (c) defendant, evidence, sionary provided with the rules of consent prosecuting attorney and the the defendant’s counsel accorded a fair 29. As a collateral consequence, 1991), opinion (Tex.App. S.W.2d [14th] — Houston they implicitly disapprove and to relied on Court and this the extent the "same lan appeals guage" theory, regardless application several decisions of courts in which issue, State, State, probation Huggins probation, Huggins supra; v. v. Gallar viz: viz: State, 1990); (Tex.App. (Tex.App.—San do S.W.2d 909 v. 809 S.W.2d 540 to — Beaumont An 1991); (Tex.App.— McMillian v. nio Holland 820 S.W.2d 221 1990); 1991). Tayas (Tex.App. Houston [14th] Worth — Fort addition, In

report of such examination. presented may be opportunity any hearsay to rebut state- deems relevant to matter that the Court prosecuting attorney ments. The and sentence, including but not limited to the the defendant or his counsel shall he crime, nature and circumstances of the permitted present argument for or character, background, the defendant’s against sentence of death. history, physical and condition mental The determination whether sentence of mitigating aggravating and death imposed shall be shall circumstances enumerated Subsections Court, except discretion of the that when (3) (4) Any and of this such Section. proceeding is conducted before the evidence which the Court deems to have sitting jury, Court with a the Court shall received, probative regard- force impose sentence of death unless it admissibility less of its under the exclu- jury submits to the the issue whether the evidence, sionary provided rules defendant should be sentenced to death the defendant’s counsel is accorded a fair imprisonment or to jury and the returns opportunity any hearsay to rebut state- a verdict that the sentence should be ments. prosecuting attorney If jury death. unable reach a the defendant or his counsel shall be verdict, unanimous the Court shall dis- permitted present argument for or miss impose sentence for a against sentence of death. felony degree. of the first The determination whether sentence of Court, in exercising its discretion imposed death shall be shall be sentence, as to jury, in determin- exercising discretion of the Court. ing upon verdict, shall take into ac- discretion, such the Court shall take into count the aggravating mitigating cir- aggravating mitigating account the cumstances enumerated in Subsections circumstances enumerated in Subsections (3) (4) any and other facts that it (3) (4) other facts that relevant, deems impose but it shall not or deems impose relevant but shall not sen- recommend sentence of death unless it tence of death unless it finds one of the finds one of the aggravating circum- aggravating circumstances enumerated (3) stances enumerated in Subsection (3) and further Subsection finds that further finds mitigating that there are no mitigating there are no circumstances circumstances sufficiently substantial to sufficiently substantial to call for lenien- call leniency. for When the issue is sub- cy- jury, mitted to the the Court shall so (3) Aggravating Circumstances. instruct and also jury shall inform the (a) by The murder was committed a the nature of the imprison- sentence of imprison- convict under sentence of ment imposed, including ment. implication respect possible re- (b) previously The defendant was upon parole, lease if verdict convicted of another murder or of a against sentence of death. felony involving the use or threat of (2): Alternative formulation of Subsection person. violence to the (2) by Determination Court. Unless (c) At the time the murder was com- imposes the Court sentence under Sub- mitted the defendant also committed (1) Section, murder. section of this it shall another conduct separate a proceeding to (d) determine knowingly The defendant created whether the defendant should great be sen- many persons. a risk of death to felony tenced for a degree of the first or (e) The murder was committed while sentenced to proceeding, death. In the engaged the defendant was or anwas Court, in accordance with Section accomplice of, in the commission or an 7.07, shall consider report pre- commit, attempt flight or after com- investigation and, sentence psychiat- mitting a attempting or to commit rob- ordered, ric examination bery, rape has been or deviate sexual inter-

“(1) person A been who has convicted punished felony a shall be force, course force or threat ar- life imprisonment required and shall be son, burglary kidnapping. or (25) twenty-five serve no less than (f) The murder was committed for years becoming eligible calendar before the purpose avoiding preventing or parole proceeding unless the held to a effecting escape lawful arrest or according pro- determine sentence from custody. lawful cedure forth in 921.141 set section re- (g) The murder committed findings by sults the court that such pecuniary gain. death, person punished by shall and in (h) The especially murder was hei- person the latter event such shall be nous, cruel, manifesting atrocious or punished by death.” exceptional depravity. 782.04, F.S.A., Fla.Stat. statute un- (4) Mitigating Circumstances. der which all the accuseds before this (a) significant The defendant has no charged, Court are deals with the crime of history activity. provides: murder and (b) The murder was committed while “(l)(a) killing unlawful a hu- defendant was under influence being, perpetrated pre- man when from a of extreme mental or emotional distur- design meditated to effect death of bance. person being, killed or human or (c) participant The victim was person engaged when committed the defendant’s homicidal conduct or perpetration attempt or consented to the homicidal act. arson, rape, perpetrate any robbery, (d) burglary, kidnaping, piracy, aircraft or The murder was committed un- throwing, placing discharg- unlawful der circumstances which defendant ing bomb, of a destructive device provide justifica- believed to moral which resulted from the unlawful distri- tion or extenuation for his conduct. by person age heroin over bution of (e) The an accomplice defendant was (17) years drug of seventeen such when per- a murder committed another proven proximate be the cause of participation son the homi- death of user shall be murder in cidal act was minor. relatively degree the first and shall constitute a (f) The defendant acted under du- capital felony, punishable provided as ress or under the domination of anoth- 775.082. person. er “(b) In cases section all under this the (g) murder, theAt time of the procedure set forth in section 921.141 capacity of the appreciate defendant to shall be followed order determine criminality [wrongfulness] of his imprisonment. sentence of death or life or to conduct conform his conduct to “(2) perpetrated by any When act im- the requirements impaired of law another, minently dangerous as a result mental disease or defect evincing depraved regardless mind or intoxication. life, although any pre- human without (h) youth of the defendant at design to the death of meditated effect the time the crime. any particular individual or when com- perpetration or in mitted in APPENDIX II arson, attempt perpetrate rape, any So.2d burglary, robbery, kidnaping, pi- aircraft questions statutes involved throwing, racy, placing or unlawful or 775.082, before this are Court Fla.Stat. discharging of a §§ destructive device or 782.04, 921.141, bomb, F.S.A.Fla.Stat. 775.- except provided in as subsection 082, F.S.A., penalties (1), deals with for crimi- be murder in the shall second de- provides, pertinent nal gree convictions and felony and shall constitute a part: degree, punishable imprisonment first of Florida. The state and the

the State permit- defendant or his counsel shall be life, prison the state or for such present argument against ted to for or years term as be determined sentence of death. the court. “(2) evidence, hearing After all the “(3) perpetrated When without de- jury shall deliberate and render an advi- sign death, by person engaged to effect sory upon sentence to the court based in the perpetration of or in attempt following matters: perpetrate any arson, felony, other than “(a) aggravating Whether sufficient rape, robbery, burglary, kidnaping, air- circumstances exist as enumerated piracy, craft throwing, plac- or unlawful (6), subsection ing or discharging of a destructive device “(b) mitigating sufficient Whether cir- bomb, it shall be murder in the third cumstances exist as enumerated in sub- degree and shall felony constitute a (7), outweigh aggravating section degree, punishable provid- second as exist, circumstances found to ed in section section “(c) Based on these considerations section (Emphasis supplied) 775.084.” whether the defendant should sen- 921.141, F.S.A., provides Fla.Stat. tenced to life or death. procedure to determining be followed in “(3) Notwithstanding the recommenda- penalty what following should be assessed majority jury, tion of a the court designated conviction for a crime as a weighing aggravating after and miti- capital felony. provides: It gating circumstances shall enter a sen- “(1) Upon adjudication conviction or death, imprisonment tence of life but guilt of a defendant capital felony of a death, imposes the court a sentence of separate court shall conduct a sen- writing findings it shall set forth in tencing proceeding to determine whether upon which the sentence of death is the defendant should be sentenced to based as to the facts: death or imprisonment life as authorized “(a) aggravating That sufficient cir- by section proceeding 775.082. The shall cumstances exist as enumerated in sub- be conducted the trial before (6), section jury the trial practicable. soon as If “(b) That there are insufficient miti- the trial has been waived or if the circumstances, gating as enumerated in pleaded guilty, defendant sentencing (7), outweigh aggrava- subsection proceeding shall be conducted before ting circumstances. In each case jury empaneled for purpose unless imposes which the court the death sen- waived pro- defendant. In the tence, the determination of the court ceeding, evidence may presented supported by specific shall be written matter the court deems findings of fact upon based the circum- sentence, and shall include (6) (7) stances in subsections relating matters any aggrava- upon based the records of the trial and ting mitigating or circumstances enu- sentencing proceedings. (6) (7) merated in subsections “(4) If the court does not make the Any this section. such evidence which findings sentence, requiring the death the court deems to probative have value impose the court shall life received, sentence of regardless of its admis- imprisonment in accordance with section sibility under the exclusionary rules of evidence, 775.082. provided that the defendant is opportunity “(5)

accorded a fair judgment to rebut The of conviction and hearsay statements; and provid- further sentence subject of death shall be to au- ed that this subsection shall not be con- tomatic Supreme review the Court of strued to authorize (60) the introduction of sixty days Florida within after certi- any evidence secured in violation of the sentencing fication court of the Constitution of the United States or of entire record unless time is an extended

ence of extreme mental or emotional dis- turbance; period additional (30) not to thirty exceed “(c) participant The victim was a days by Supreme good Court for defendant’s conduct or consented to the cause shown. Such review the Su- act; preme Court priority shall have over all “(d) The accomplice defendant was an cases, other and shall be heard in accor- capital felony committed anoth- dance with promulgated by rules the Su- person er preme participation and his Court. was rela- minor; tively “(6) Aggravating Ag- circumstances. — “(e) gravating circumstances The defendant acted shall be limited under ex- following: treme duress or under the substantial domination “(a) person; of another capital felony The was committed by person imprison- “(f) under sentence of capacity The of the defendant to ment; appreciate criminality of his conduct

“(b) The or to conform previously require- defendant was his conduct to the convicted capital of another felony substantially impaired; or of ments of law was a felony involving the use or threat of “(g) age The of the defendant at the person; violence to the (Emphasis time of the crime.” supplied) “(c) The knowingly defendant created McCORMICK, Presiding Judge, great many risk of death to persons; dissenting. “(d) capital The felony was committed part “It is no duty judicia- of the while the engaged defendant was or was ry to resort to technical subtleties to accomplice of, in the commission or an defeat purposes the obvious of the legis- commit, attempt to flight or after com- power lative in a matter over which that mitting attempting or to commit rob- power right has a constitutional to con- arson, bery, rape, burglary, kidnaping, trol.” piracy, aircraft throwing, the unlawful Although many this Court has on occa- placing discharging of a destructive- sions stepped found the to have bomb; device or bounds, beyond today majority fails “(e) capital felony The was committed recognize judiciary the role of the purpose for the avoiding preventing ignores Section 1 of our Texas a lawful effecting arrest or an escape Constitution. majority openly The thwarts custody; from the will of people expressed by legis- “(f) capital The felony was committed lative enactment in order to substitute its pecuniary gain; justice. own sense of To such unwarrant- “(g) felony was committed ed and judicial activism, unconstitutional I disrupt or hinder the lawful exercise vigorously dissent. any governmental function or the en- laws; forcement of I. “(h) capital felony especially heinous, atrocious or cruel. THE ISSUE “(7) Mitigating circumstances.—Miti- presented The issue in these cases is gating circumstances shall be follow- whether Article Section ing: Texas Code of Criminal Procedure forbids “(a) significant The defendant has no the unadjudicated introduction of extrane- history prior activity; criminal ous offense during punish- the

“(b) capital felony was stage committed ment a trial for offense other while the defendant was under the Section, influ- than murder.2 This as State, (1857), State, citing 1. Cain v. The 20 Tex. (Tex.App.— 355 v. 813 S.W.2d 158 Grunsfeld Sedgwick Statutory J., and Constitutional 1991) Law. (Lagarde, concurring part Dallas in dissenting part) (pet. granted). in 2. Much of this is taken from Justice Lagarde’s concurring dissenting opinion in

553 reason a third 1989, enactment. Yet perti- time of provides, amended now text is that focussing on the literal part, as follows: nent constitutionally enti- is the rec- prior “Sec. 3. Evidence criminal Judiciary will expect the finding tled to criminal ord in all cases after the text faithfully follow guilty. at Boykin, adopted.” 818 S.W.2d “(a) Regardless of plea and whether omitted). (emphasis 785 judge or be assessed jury, permitted may, as “if the concluded Boykin Court Evidence, by the Rules of offered text, read statutory when meaning of the and the as to mat- state defendant of construc using established canons deems to sentenc- ter the court relating have been to such text should tion prior record ing, including it, for we plain legislators voted who defendant, reputation his general plain mean ordinarily give effect to that crimi- and his character. The term 785, State, 789 citing v. ing.” Id. Smith in a nal record means final conviction Thus, 590, (Tex.Cr.App.1990). 592 S.W.2d record, or a sus- probated court of unambiguous, the is clear and if the statute pended sentence that has occurred mean Legislature must be understood trial, any final material conviction expressed, is not for it has and it what 37.07, charged.” to the offense Article Judiciary to add or subtract from such 3(a), (emphasis added Section V.A.C.C.P. 785; 818 Coit Boykin, S.W.2d statute. language). amendatory to reflect the State, 473, (Tex.Cr.App. 475 808 S.W.2d v. 15, 1989, Chapter See Act of June Davis, 52 1991); 412 parte Ex S.W.2d 4.04, Section 1989 SERY. TEX.SESS.LAW hand, if (Tex.Cr.App.1967). On the other (Vernon). language of a is not clear plain statute interpret “When we statutes such [Ar results, “then and lead to absurd or would 37.07, 3(a)], effec ticle Section we seek to then, necessity, is it only out of absolute legisla

tuate the 'collective' intent of the permissible court to constitutionally for a the legislation.” Boykin tors who enacted consider, arriving interpre a sensible State, (Tex.Cr.App. 818 S.W.2d tation, as execu extra-textual factors such 1991), citing Camacho v. interpretation of tive or administrative (Tex.Cr.App.1989). ex As this Court legislative history.” Boykin, statute or plained Boykin: omitted). (emphasis at 785 attempting to “When discern this collec- Therefore, must first determine wheth we legislative intent nec- purpose, tive we clear and er Section essarily focus our literal intention on the unambiguous on the issue of admission question text of the statute in and at- during offenses unadjudicated extraneous tempt fair, objective to discern mean- phase of trial. ing text at of that the time of its enact- ex appellate courts have Several Texas do this ment. We because the text held that Article Section plicitly it is statute is the law the sense that amended, (3)(a), permits admission thing only actually adopted by the extraneous offenses at compro- legislators, probably through noncapital trial. punishment phase of a mise, and submitted to the Governor (Tex. State, 818 See S.W.2d signature. We on the literal Rexford her focus 'd, 1991, pet. ref App. [1st Dist.] only text is the text also because the — Houston State, 809 reh’g pending); Gallardo v. legisla- definitive evidence of what the (Tex.App. Antonio (and Governor) perhaps had tors — San pet. granted); Hubbard v. enacted into mind when statute was (Tex.App. S.W.2d 316 Worth really There no other certain law. — Fort pet. granted); McMillian v. determining method for the collective (Tex.App. 311 S.W.2d legislative purpose intent or at some [14th — Houston 1990, pet. granted); v. assuming single Huggins point past, even a Dist.] 909, (Tex.App.— State, at the 911 purpose intent or was dominant 795 S.W.2d 554 1991, pet. ref’d).

Beaumont given The parte Dallas to the entire Ex Aus statute. however, Appeals, tin, Court of 226, has (Tex.Cr.App.1988); determined 746 S.W.2d 236 State, V.T.C.A., Code, otherwise v. 813 Section 311.- Government Grunsfeld (Tex.App. 1991). 021(2). S.W.2d 158 Finally, presume should the courts — Dallas Judge Onion, writing eight Legislature change of the fif a intended the to effect justices court, teen of that just determined that: that the reasonable result favors any private public interest blush, over interest. “At first it the seems that addi- 544, Lindsay Papageorgiou, 751 S.W.2d language tional the amended Article [in (Tex.App. 37.07, (3)(a) is sweep- [1st Dist.] section broad and ] — Houston V.T.C.A., Code, denied); writ Government ing. Upon appears closer examination it 311.021(5). Section extraneous, unadjudicat- offenses, ed even if deemed relevant to B. The Code Act Construction

sentencing by court, the trial would have First, to meet two tests. it would have statutes, construing To assist courts in permitted by be evidence the rules of Legislature provided the a nonexclu has Second, part evidence. if it a of defen- may sive list of factors a court consider. prior record, dant’s criminal as it has (1) object sought These are: the at be been past, considered the must com- tained; (2) the circumstances under which ply statutory with the definition of that enacted; (3) legislative the statute was the term.” (4) history; or common law former statuto ry provisions, including See also Blackwell v. laws on the same 818 S.W.2d (5) (Tex.App. pet. subjects; consequences or similar a pending). Ar — Waco construction; (6) guably, particular among conflict courts of administrative statute; appeals (7) (cap demonstrates that construction of the title the amended tion), preamble statute unambiguous; emergency provisions. is not clear and hence, V.T.C.A., Code, we should now use Government Section 311.- prescribed (The Act). statutory rules of Code Construction See Dil construction to examine 37.07, 3(a), (Tex.Cr.App. Article lehey Section and determine 1991) Baird, articulate, (Judge dissenting whether there when way sensible construing interpret should it. statutes courts consider by factors all enumerated Government II. 311.023). Section Code CONSTRUCTION OF ARTICLE (1) object sought to be attained. 37.07, SECTION i.e., To ascertain the intent — Presumptions A. object sought look be attained —we amendment, construing statutory to the of' the statute itself. presume Legislature courts must (Tex. that the Faulk v. change law; Legislature intended to Cr.App.1980). courts should amended subsequently 37.07, 3(a), construe amendment adding Article Section way change gives phrase effect rather admitted “as way than in a that renders the amendment to any matter the court deems relevant to Trahan, useless. parte sentencing, Ex including ....”3 The added (Tex.Cr.App.1979). Courts then “as to matter court deems presume should in clearly expands relevant” evidence ad change tended that effect of punishment phase. at the missible The ad amendment, defendant, reputation 3. Prior to general Article Section and his 3(a), read as prior follows: character. The term criminal record record, “Regardless plea pun- means final conviction a court and whether the probated jury, suspended ishment or sentence be assessed that has trial, may, permitted evidence Evidence, the Rules of occurred final conviction charged_" be offered and the the state material to the offense (1988). defendant as to the record Section V.A.C.C.P. State, 418 “including” also admissible.” Allaben merely dition of the word em expansion (Tex.Cr.App.1967). it is a phasizes the term because S.W.2d enlargement or of inclusion rather than a these cases sub silentio. Murphy overruled V.T.C.A., term of limitation or exclusion. for re- opinion on a motion plurality In a 311.005(13). Code, Government Section al- hearing, Judge reasoned that Clinton is, being limited That rather than evidence though evidence was admissible character record, prior criminal to a defendant’s of Rules penalty phase, includes his criminal record as now proof of character with permit Evidence as “evidence as to matter the well conduct, 3(a) autho- Section specific acts of deems relevant.” solely with proof criminal record rized of a above, pre- As stated this Court must leg- convictions, thereby evidencing a final Legislature that intended to sume proof exclude of character islative intent to change the law 37.07 when Article unadjudicated offenses. With extraneous Thus, easily conclude amended. we can ain explained at 61. Duncan Id. added to the stat- from broad Legisla- concurring that “[i]f objective in Legislature’s ute beyond to have access ture wants the 3(a), amending 37.07, Article Section was to 37.07, 3(a), supra, that authorized Art. scope expand the of evidence to be admit- It pass legislation to effect. it should punishment phase at the of a non- ted not this function authorize is Court’s fact, only limits on trial. its lan- expansion beyond the statute scope admissibility apparent from the J., (Duncan, guage.” n. 1 concur- Id. at 71 37.07, 3(a), language of Article section are ring). the Rules of Evidence and the determina- presume We that the accom relevancy by tion of the trial court.4 they expansion plished precisely this when Welch, amended statute. See Welch v. (2) The circumstance under which the (Tex.Civ.App. Dallas, — statute was amended. 1963, writ.) Legisla (presumption no interpreting pre-amendment When ture knew the circumstances and conditions 37.07, 3(a), of Article version Section this amendment, affecting relating to held that Court extraneous offense evi decisions). including Thus prior court not dence is admissible at the 37.07, gave Article aware that this Court phase parties of a trial unless one of 3(a), interpretation narrow be Section opens Murphy the door such evidence. Legis language, the cause of its restrictive (Tex.Cr.App. intended not to be obviously lature such 1989) (Plurality opinion on State’s Motion they amended the statute the case when Rehearing). Such a narrow construc adding language. expansive such tion, however, had always been the law. prior Murphy, In a series of cases (3) history. legislative held that: Court history the 1989 hearing to be at the “Evidence offered amendment to Article Section punishment pursuant provisions to the Bill effected by reveals that it was House 2(b), Ann. Article Section Vernon’s piece legislation by no voluminous means limited to the C.C.P. which, things, among other created record, his defendant’s Department Texas Criminal Justice. reputation general character. Representative Hightower introduced legally first mitigate admissible Evidence House Bill 2335 the House. The House punishment that is to the application probation, approved the bill and sent it on any, entirety, clearly but it find not amended in declares If we read 37.07 in we 3(e) "[n]othing admissibility that Section states that herein Article 37.07 does not affect the affecting shall be stage contained admissibility construed guilt/innocence extraneous offenses at the ques- extraneous offenses of trial. guilt or This section was tion of innocence." 556 1991) (detailing App.

Senate. There was no amendment to Arti- House and — Dallas bill, proposed proposed cle 37.07 in the Senate amend bill. actions the reported ment). unfavorably however was in the by Senate the Senate’s Justice Committee. simple did the This addition not defeat Senator McFarland then offered Committee attempt scope broaden of admissibili- to the Bill Substitute to House which 2335 includ- ty “including” because the word means amending 37.07, ed a section Article Sec- longer prior that a criminal record is no 3(a),

tion to read as follows: exclusively part 11(B)(1), required. See su- “Regardless plea of the and whether the State, Stavinhoa v. pra. also 808 See punishment by be assessed the (“In 2 (Tex.Cr.App.1991) S.W.2d 76 78 n. jury, may, permitted the evidence as 37.07, 3(a) Leg- that amendment the [of ] Evidence, the Rules of be offered the may provided islature evidence be ad- any state or the to defendant as matter punishment phase mitted at the of trial ‘as the court sentencing. deems relevant to any matter the deems relevant to court may This subsection not be construed as sentencing, previ- including’ those matters authorizing introduction of evidence ously the expressly made admissible under seized violation of the United States statute, prior the of viz: criminal record Constitution or the Texas Constitution.” defendant, general reputation the his therefore, initially proposed, As the amend- Legislature his the Query character. what virtually ment Article 37.07 was . means this context.” ‘relevance’ 37.071(a), Y.A.C.C.P., broad as Article omitted]). [cites places which only constitutional limitations (4) The common law or statuto- punish-

on the evidence the admissible at former including on the ry provisions, laws stage capital ment of a trial.5 subjects. same similar We can find no stated explanation why Legislature 37.071, 2(a), proposed added to the Arti controls ad- Section 37.07, 3(a), phrase missibility punishment cle Section “includ of in the ing prior of phase capital quite criminal record the defen and is similar trials dant, general reputation 37.07, his charac of Article amended version ter,” kept proviso 3(a). is, phrase from the former in Article Section That 37.071, 2(a) article that a criminal record means as to Section ... —“evidence record, “a final in a any conviction court of or a deems matter court relevant” —is probated suspended phrase or a sentence that had the to Article added 3(a), occurred trial.” surmise We that Section when it was amended. Evi- phrasing present of- statute was a dence of extraneous adoption long simple language of Article fenses been this has admissible under capital interpreted by stage 37.071 had been State, numerous occasions. See Gruns trials. See Garcia v. Court 581 168 S.W.2d State, State, v. v. (Tex. S.W.2d Wilder (Tex.Cr.App.1979); 166-67 583 feld provides perti- Unadjudicated long 5. Section of Article 37.071 extraneous offenses have part punishment phase nent that in the of a phase been admissible in the capital trials, murder trial capital admissibility with the rationale for presented being ".... evidence usually state are rele extraneous offenses or the defendant defendant’s counsel determining statutory vant to issue that the deems matter dangerousness future of a defendant. See Wil sentence, including the defen- (Tex.Cr.App. der v. background dant’s or character or the circum- 1979) 37.071(a) ("Nothing requires in Article mitigates against offense stances of the final conviction for an extraneous offense to be imposition penalty. the death This punishment stage."). admissible at the Reed Cf. not be subsection shall construed authorize (Tex.Cr.App.1983) the introduction evidence secured in (Testimony dangerousness relative to future violation of the Constitution the United punishment stage held not admissible of non- State States of Texas....’’ Article pre-amend trial because of (emphasis Section V.A.C.C.P. 37.07). ment Article added). procedure, (Tex.Cr.App.1979); bifurcated S.W.2d Hammett ex- (Tex.Cr.App. of evidence that rule abolished Thus, offenses; 1979). to the addition of the proof of extraneous cluded 37.07, 3(a), clearly suggests choosing Article Section not to the deliberately abolish unadjudicated evidence, that evidence extraneous of the rules of exclusionary other punish is in the offenses now admissible in kept them effect Legislature has phase non-capital of ment trials.6 capital phase of a trial.” punishment the Rumbaugh v. explanation of the dis- Clinton’s cita- (Tex.Cr.App.1979). [footnotes pre- Article 37.071 the tinction between tions omitted]. in Rumbaugh amendment Article 37.07 (Tex.Cr.App.1979), Legislature amend the to The choice emphasizes argument the for con- further by adding language of 37.07 the Article struing the sections in a like He manner. legislative a clearly Article 37.071 evinces stated: Arti- remove restriction from intent to the

“Nothing requires in Article 37.071 that unadjudi- of requiring exclusion cle 37.07 be a extrane- there final conviction evidence from the cated extraneous offense pun- ous offense to admissible at the phase non-capital punishment in trials. phase [capital] The ishment of the trial. (5) particular a consequences The of comparison implies statement Ar- construction. 3(a), V.A.C.C.P., ticle Section other, sup- guideline, more than This which, phase in punishment of a non- Legislature position in- ports the that the trial, capital proof limit defen- does of a unadjudi- allow of tended to the admission dant’s criminal record final con- to offense evidence at cated extraneous adjudicated victions and other offenses. stage non-capital trial. As punishment significance The is comparison stated, presumed trial, previously In a it is that this: non-bifurcated in which change to the law guilt the issues of are intends time, litigated at it an amendment. Fur- the same there is a rule whenever enacts thermore, to proof obligation of evidence that excludes extra- this Court has an it in a way neous offenses because confuses and the amendment that construe prejudices guilt. pur- way issue of The in a gives it effect rather than pose procedure nullity. bifurcated is to elimi- Ex the amendment renders exclusionary Trahan, nate the need for this rule The parte very Leg- The of evidence. choice gives the majority construction the statute to proce- islature establish a bifurcated change no effectuates renders capital cases, dure like in non- the one completely useless. amendment cases, capital evinces intention to eliminate the rule of evidence that ex- III. proof cludes of extraneous offenses. THE RULES OF EVIDENCE proof capital itHad wanted to limit the AND RELEVANCY offenses, adjudicated trials to it could adoption Texas The Rules of Crim- provided so in Article as it have September, signifi- being noth- inal Evidence has Article 37.07. There cantly changed legal standards of ad- ing require 37.071 to such a Article limitation, missibility it. in criminal trials. impose this Court cannot that, by choosing Herasimchuk, Relevancy The net is “The Revolu- result See Sharlot, Goode, virtually & 6. See 33 Wellborn Guide lie fact that it identical 37.071(a) gov- employed Texas Evidence: Criminal in Article Rules Civil and (1991 punishment phase Supplement to Prac- cases. In- 404.7 1988 Texas erns 41) (footnotes omitted). authorizing p. viewed as tice at following “In asmuch as article is decision, legislature Murphy of- the admission of fenses, extraneous argue to make admissi- it would be reasonable amended Article 37.07 ‘any language non-capital same effect in ble matter the court deems relevant new has the sentencing.’ significance of this cases." tion in Criminal Law: A stage non-capital Practical Tour trials Through guidance the Texas see if provides any Rules Criminal Evi- for deter dence,” (here- Mary’s (1989) mining appropriate pun St. evidence is L.J. what Revolution”). 1101(d)(1), Relevancy inafter “The ishment. Rule Tex.R.Crim.Evid. codified rules of evidence are rules of inclu- 37.07, V.A.C.C.P., governs proce- sion, exclusion, favor admission punishment stage non-capital dure at the of all logically except relevant evidence provides only trials and provided by constitution, statute, otherwise guidelines determining appro- what rules of evidence or prescribed pursu- rules punishment. First, priate to ant statutory authority. Rule Tex. 3(a), Section authorizes the admission of R.Crim.Evid. A trial step court’s first in any evidence court deems relevant to determining therefore, admissibility, must sentencing. gives This the trial court an be to ascertain whether the is unlimited almost discretion to determine “logically relevant.” See Rule Tex. relevancy sentencing, but restricts ad- questions (Preliminary R.Crim.Evid. con- missibility by requiring further that evi- cerning admissibility of evidence shall only permitted dence be offered “as court). by determined the Rules of Evidence.” See Rule (relevant Tex.R.Crim.Evid. evidence not ad- “logically Evidence is relevant” has by statute, proscribed missible if constitu- “any tendency to make the existence of tion, rules). Second, 3(a) provides Section consequence fact that is of to the determi specific of of examples list evidence ex- nation of the probable action more or less pressly punishment.7 light admissible at probable than would it be without the evi only of the rule that relevant evidence is dence.” Rule But Tex.R.Crim.Evid. admissible, we can thus infer that these logical punishment stage relevance at the examples specific predetermined been have non-capital of a trial is difficult to deter appropriate punish- to be or relevant few, any, mine because are if there discrete (rel- ment. Rule See Tex.R.Crim.Evid: fact issues for the to decide. Miller- admissible, evant evidence is irrelevant evi- State, (Tex.Cr. El v. not). dence is Since character evidence is Indeed, App.1990). this Court held has list, expressly in included this we conclude deciding punishment what to assess is that evidence of the character of a defen- process, policy normative oriented and punishment, ergo, dant is admissible at intrinsically not fact bound. Murphy v. by legislative punishment relevant to man- Thus, punishment at date. evidence is not “relevant” in sense that relevancy of character evidence does it probable tends make more less or not, however, guarantee admissibility. rather, fact; some identifiable acknowledged just We have that the admis- simply evidence is information that has evidence, sibility of character or evi- appropriate, been deemed either dence determined relevant to courts, Legislature or by the find fact matter, dependant for that is on Rules assessing ers in punishment. to consider Therefore, of Evidence. we must ascertain Murphy 777 S.W.2d at 63. Since whether the Rules of Criminal Evidence The Rules of apply Criminal Evidence proof exclude punish- of character at the sentencing “to only the extent of matters stage. ment provided are the stat govern procedure utes which therein Rule the Rules of Criminal Evi- rule,” permits another court we shall look first to dence of exclusion relevant evi- governs dence, during alia, procedure statute that inter finds that the 17.42(a) examples program 7. Section lists of evidence under Article 17.40 this predetermined by bail; to be relevant (5) code a condition of release on (1) punishment: the assessment defen- conditions, adjudica- under certain defendant’s record, (2) dant’s defendant’s delinquency tion of based violation of a (3) character, general reputation, defendant’s felony law. (4) participating defendant’s conduct while distinguish nor between the meth- substan- does prejudicial effect such evidence proving ods for character as established outweighs its tially probative This value. 405(b). all character evidence Rule Since rules general rule followed several form is purpose whatever for whatever situations, perform circumscribed 404(c) punish- under Rule admissible balancing for this the court. See Rules 404 alone, ment, rule, standing does not 406-412, These Tex.R.Crim.Evid. of character evi- admission preclude the having are courts rules been result dence. faced numerous occasions with the same repeatedly evidentiary having scenario and Unfortunately, rele- determination probative found either that value admissibility of vancy character evi- outweighed by type certain of evidence admissibility guarantee the dence does not counterfactors, proba- various offense evi- extraneous outweighs preju- consistently dence, tive value 405 of the Rules because Rule Herasimchuk, Relevan- dicial effect. “The limits the methods for Criminal Evidence Esquivel cy p. proving Revolution” 794. One of these character.9 See (determi- rules, 404(c), (Tex.Cr.App.1980) balancing Rule 595 516 predetermined S.W.2d supersede relevancy does not nation of plain simple language states and in regarding manner of rules of evidence prior and evidence of a criminal record all State, v. Hernandez proof); 800 S.W.2d of character” “other evidence an accused’s (character evi- (Tex.Cr.App.1990) 525 punishment stage.8 may be offered may punishment but Thus, dence be admitted probative of value character evi- 405). governed by its admission is Rule dence, as well as evidence of a crimi- record, substantially nal is out- never following provides the three Rule 405 weighed by prejudicial effect and is (1) proving reputa- methods for character: admissible. The of this reasonable result (2) community; person in the tion of the predetermined balancing is that evidence of personal opinion testimony of witnesses “good” both is now “bad” character (3) person; specific in- who know the punishment admissible at deliberations Unadjudicated extra- stances of conduct. Moreover, 404(c) in non-capital trials. Rule certainly specific in- neous offenses are places absolutely 405(b) no restrictions on the conduct, further of but Rule stances character;” “other of evidence it does not to proof limits conduct show distinguish between the various reasons in in or character “cases which character offering 404(b) person for evidence as does Rule trait of character of a is an essential — -, denied, 404(c) provides 8. Rule full: cert. 111 S.Ct. in U.S. evidence, (1991) (rules except L.Ed.2d 699 “(c) punishment. Character relevant to sentencing). privileges, are, however, apply to do not There penalty phase, may In the be of- important be two distinctions by by prosecution fered an accused or system punishment in the federal tween record of the accused. system punishment be in Texas that must may Other evidence be of his character of- (1) sys punishment the federal considered: prosecution. fered or accused court, solely by tem determined while is Nothing provisions herein limit of Arti- shall punishment by jury or Texas cle Code of Criminal Procedure." court; (2) Rule of Evidence Federal 1101(d)(3) Rules Evi states that the Federal 405(b) counterpart Rule has a in the Federal dence, except privileges, applica not for the are Evidence; fact, 405(b) Rule Rules of was sentencing proceedings; but Rule ble to Texas 405(b). Federal Rule taken verbatim from 1101(d)(1) the Texas rules, Evidence states that language adopted is When from federal sentencing apply pun to Rules of Evidence ishment, judicial interpretation as as the the ing well word jury, the court or a to whether before usually adopted. is See Moreno v. provided not extent “matters of evidence are (Tex.Cr.App.1990); Campbell govern procedure for in the statutes which (Tex.Cr.App.1986). Evidence, prescribed pur including therein or another rule Since the Federal Rules of statutory authority.” 405(b), do ana apply punishment suant to We not do to Rule not courts, arguable lyze recognize these distinctions but them and phase it is of trials federal 405(b) rely note we do choose to on an analo Rule intended to not that Texas 405(b) gy apply punishment phase. U.S. the Texas Rule and the Fed at the See between 405(b) Paden, (5th Cir.1990), today. eral our decision F.2d 1235 n. 3 Rule charge, claim, element of a Cr.App.1979); or defense.” Davis v.

This raises (Tex.Cr.App.1972)(courts the same confusion routinely in determining relevancy punishment to jurors they may struct all consider evi raised, because no there are “elements” to during guilt/inno dence that was admitted punishment. be determined at cence at as relevant to circum offense). stances of the evi Character The term “essential element” nowhere certainly dence is most circumstance defined, but the Penal Code defines “ele- defendant; ergo, character evidence ment an offense” as the con- forbidden germane deliberations. duct, required culpability, any required 404(c), explicitly Rule makes result, negation any exception punishment; ergo, character admissible at V.T.C.A., Code, the offense. Penal Section 404(c) under Rule I.07(a)(13). Court has decided Each offense defined in the germane that character is essential designates Penal Code which elements are punishment. necessary prove determination of that offense. Proof of each particular element es- Section likewise declares that offense is determining innocence, guilt punishment; sential character is admissible at proved but there ergo, are no elements has mandated that punishment. appropriate pun character is or essential to apparent judicial ishment. It is from these previously, punishment As noted pol is a ly created rules and this man icy guided by determination which is not date that character is essential to the as specific elements, but information Moreover, punishment. sessment of there appropriate process deemed to by judi the express language is no in the rules or the legislative cial or It mandate.10 follows proof statute that limits of character to then appropri information deemed reputation opinion. or See Hedicke v. punishment ate by judicial to deliberations (Tex.Cr.App. legislative or necessarily mandate would be 1989) (Legislative reputation of use terms the making policy elements essential to the character, joined by conjunction and and general, In appropriate decision. abrogate or evidences intent to old rule punishment relevant to has a relation reputation ship only approved to the of was the circumstances the method offense to the proving character); circumstances of Murphy the defendant. See of but see v. (Tex. State, Stiehl 63.11 S.W.2d at Query Legislature punishment phase whether Murphy the has deter- at the of trial. specific guiding mined elements or issues for plurality 777 S.W.2d at 64. The V.T.C.A., assessing punishment process the of initially reasoned that Section authorized Code, 1.02(1)(A-C)? Penal Section Section 1.02 punishment, admission of evidence at character states: 3(a) simultaneously but Section authorized convictions, general purposes proof only thereby "The of this are to code of final exclud system prohibitions, penalties, ing proof unadjudicated establish a of of extraneous offenses and correctional to deal with specific measures con- conduct to Id. show character. at 61. unjustifiably inexcusably Clinton, duct that writing causes plurality, for the went on pub- or threatens harm to those individual or say to protection ap- lic interests for which state specific We find "... also it untenable that end, propriate. provisions To of the this may punishment phase acts be at the admitted construed, intended, code are be and shall to prove to some of circumstance the offender following objectives: achieve the Thus, apart per from his character se.... (1) safety through: to public insure the incep- albeit terms anachronistic from its (A) penalties the deterrent influence tion, 37.07, 3(a), supra, Article affords the provided; hereinafter only Legislature of indicator what the deemed (B) the rehabilitation of those convicted of decision, appropriate punishment code; violations of this specific It conduct. seems incredible that viz: (C) necessary such as be to would have bothered limit prevent likely to of be- recurrence se, by proof excluding per of character evi- havior ...” end, specific of dence conduct to that while at Murphy contemplating 11. In this Court the same time held identical evi- amendment, precluded always Section to dence would be admissible as ‘rele- specific category, admission of conduct show character vant’ to the broader circumstances Know?, Texas Jury Accordingly, do the Rules of Should Evidence What exercising (1992). prevent trial court from B.J. evi- his discretion to find conduct inter- Paradoxically, plurality now in the form extrane- dence of way language in a amendatory prets the ous offenses to both relevant and admis- This essentially ineffectual. that leaves punishment stage non- sible at the of a of at because interpretation was arrived capital trial. canons misapplication plurality’s Judges join I the comments of both recognize and its failure construction White, Campbell and and dissent. view, history. my relevant legislators amended Article who CAMPBELL, Judge, dissenting. certainly 3(a), in 1989 intended almost causes, pur- granted of these We review the admission of to allow the amendment Appellate Proce- suant Texas Rule punish- at the extraneous conduct evidence 200(c)(1), determine whether Article dure case, phase non-capital in a so that ment 37.07, 3(a), as amended allows picture jurors complete would have a evi- the admission of extraneous conduct pun- they assessing defendant when were punishment phase non-capi- dence at ishment. says no; say yes. I plurality tal trials. in its plurality’s first mistake rests question provides The statute in now Over the “canons of construction.” use of part: American courts English the centuries Regardless plea whether aid in developed canons to have numerous be assessed statutory process interpretation. jury, may, permitted by nothing than really more These canons— Evidence, the Rules offered proverbs based on com specialized —are state the defendant mat- people ordinary of how monsense notions ter the deems relevant to sentenc- meaning. Boykin express use ing, criminal record including 782, 785, (Tex.Cr. fn. 818 S.W.2d 3 v. defendant, general reputation his care, When the can App.1991). used with character. The term crimi- help legislators had suggest can what ons in nal record means a final conviction particular statu they in mind when drafted record, probated court of or a sus- or language. improperly, used tory When pended has sentence that occurred however, easily as lead the canons can trial, or to final conviction material legislators’ probable the intent away from charged. to the offense toward it. added.) (Emphasis emphasized portion The exclusively and un- plurality The focuses legislative ef- was inserted amendment canon, realistically only one the one 1989; September 1, fective the rest of the that, possible, parts stat- stating all of a statutory language unchanged. left was given should be harmonized and effect. Legislature ute apparently did not realize v. 855 amendatory See Thomas that its insertion of the lan- canon, (Tex.Cr.App.1942). as it inevitably This based guage would lead to serious legislators that when interpretation. with M. De- is on the sound notion problems See Koatz, parts al., Assessing they surely et a statute intend all Punishment: enact specific offenses, apparent proof nullify the to of character with conduct of offender. Loath the 37.07, intent, unadjudicated legislative extraneous the use of we hold that Article 404(c) 3(a), supra, precludes Rule also of "criminal record" in would § admission anything proving to else exclude “other evidence character" conduct show character light offenses. In of of the of- extraneous under rubric of circumstances 37.07, 3(a), trial, phase punishment amendment Article Section fender at the either of longer apropos. part mitigation aggravation is II punishment.” this rationale B(l), no See nothing in Furthermore, original). supra. (emphasis there Id. at 64. is 404(c) proof argument apply character has been extended to Rule indicate

This is, 404(c). only two three rec- to be limited to Rule That since “criminal was 37.07, 3(a), Section excludes methods. ord" Article effective, highly persuasive it is shown to establish a rule different from when a is faced with a statute that announced the court. C.J.S. wholly was (1953). enacted in the first instance. Statutes § persuasive, The canon is however, less Applying these three canons when the dealing court is with major 37.07, 3(a), I cannot but conclude that the pre-existing amendment to a statute. The Legislature likely most intended for the is significantly persuasive canon less when significantly 1989 amendment to alter the the amendment causes the statute to be- meaning of the to allow for statute and facially ambiguous. come admission of extraneous conduct evidence interpret When a court seeks to phase non-capital a statute at the tri- and, has Certainly, been amended a result of als. nowas accident that the amendment, ambiguous, language is it seems amendatory inserted into Article that, me realistically, legislative pur- 3(a), possible broadest pose behind the amendment will language be more and essentially identical to lan- closely approximated if the court focuses guage 37.071(a) language in Article — amendatory language on the long and on those we have held allows admis- completely ignored by plurali- sion extraneous conduct canons— ty dealing specifically with such lan- phase trials. — guage. See, e.g., Gentry State, 770 S.W.2d (Tex.Cr.App.1988). I cannot believe Three such immediately canons come Legislature essentially chose identical First, recognized mind. as we in Ex Parte radically to achieve different Trahan, (Tex.Cr.App. outcome. 1979), enacting an amendment the “[i]n Legislature presumed changed to have history of Article law, and a supports my construction should be also conclusion. gives (Tex. adopted Murphy effect to the intended change, rather than one that Cr.App.1988), original renders the our Second, April 6, 1988, amendment useless.” whenever submission handed down we Legislature phrase has used a interpreted pre-1989 amendment ver statute one sense meaning, prohibit and with one sion of the statute to the admission subsequently uses the same in of extraneous the pun conduct evidence at legislating again on the same subject phase non-capital mat ishment trials. Presid ter, presumed ing Judge vigor to have Onion and White phrase used the in holding. the second time the ously dissented to that At the meaning. same sense and very opportunity, Legislature with the same next the (5th 37.07, 3(a), 2B by inserting Sutherland Stat. Const. 51.02 amended Article § § ed.1992); Black, H. phrase “any Handbook on the Con the matter the court deems Interpretation sentencing” struction and the Laws to Article 37.- of from (1896); 82 071(a). Again, timing C.J.S. Statutes & I cannot believe the § §§ if, (1953). Third, a after statute has of the amendment was an and accident that court, interpreted Legisla been aby the the attempt amendment was a direct to ture change makes a radical the stat legislatively abrogate holding the Mur phraseology, ute’s thereby original an intention is on phy submission.1 record, Interestingly, plurality prior general a reputa- reader of both the fendant’s criminal Judge tion, concurring opinion Clinton's Op. and character. fn. 7. might problem that Clinton, conclude the solution to the citing Murphy rehearing, also on con- punish- of what evidence is admissible the cludes that circumstances of the offense and the phase non-capital really a ment of trial is now admissible, being "‘ap- are the latter offender quite simple. plurality opinion, citing Mur- that, propriate’ if for no other reason than phy rehearing, on finds that evidence such as express legislative policy, of absence courts have affiliation, “family religious background, edu- traditionally punishment believed that should fit cation, employment history and the like are particular the [as criminal well the crime].” appropriate considerations in the assessment of Op. at 544-545. punishment," separate apart from the de- adjudicated prior supporting convic- “in- facts plurality concedes that the term show, also be admissible cluding” to 1989 amendment is term the tions would enlargement else, of of- of and not of limitation and the nothing the seriousness than “evidence other that, therefore, prior convic- by those represented fenses record, general reputation all, criminal idea, of the 1989 after tions. The admissible” character is at the open up to the amendment was non-capital under Article phase trials get complete the to hearing to allow 3(a). (emphasis in Op. at 524-525 picture offender. of the original). goes to plurality But the rea- Legislature’s finally I address the must ‘prior that son “retention the term crimi- permitted by phrase “as retention of the provision nal and its record’ definitional The retention of Evidence.” the Rules of indicates intent limitations maintain significant phrase is because Rule the conduct admission evi- preclude the admission would seem dence, unadjudicated including extraneous punish- at the conduct evidence extraneous Again, Op. offenses.” at 524-525. the But, non-capital trials. phase ment plurality point. the The notion misses that again, Legislature’s of this the retention legisla- would not make sense that the “[i]t the not dissuade me of correct- does extraneous, unadjudicat- ture intended that interpretation my ness of of Article admissible, ed offenses and their details be 3(a). Rather, along with Professors that prior but convictions must be final Goode, Wellborn, Sharlot, I think it is then being before admissible and even to conclude reasonable underlying details the offenses are to be excluded” assumes erroneously the ^[1989] amendment was intended expanding and has effect unchanged law would remain as to the of relevant evidence found definition underlying prior admission of the details 404(c) However, Rule include if, believe, Criminal I convictions. [to Although this punish- of extraneous open intended conduct].3 difficult, grammatically it would seem ment door acts2 general, way give legisla- logically only then it would follow that effect opinions people prosecution, How but rather the do these two illuminate the or even the juries effect the 1989 As I read these state. For it is amendment? who in this sit on opinions, non-capital a defendant in a jurors punish- trial left to the difficult who are make that, example, introduce evidence is a having he ment decisions in criminal cases without father, church, model a deacon in his holder of- of all the “circumstances of the benefit degree physics, of a and has doctoral been fense offender." steadily twenty employed previous years. my interpretation plurality opin- From might

And what sort of un- ion, change question of answer to the what plurality’s interpretation present der statute, wrought by obvi- was amendment to counter offer the defendant’s evi- change jurisprudential at all. The ous—no dence? State had If the evidence that defen- 37.07, 3(a), quagmire has encased treasury had dant looted church’s while he is alive and well. deacon, might State offer such evi- offering dence? will the State to Or be limited 2. It should be noted that a defendant’s extrane- reputation testimony character or that the de- may adversely on ous reflect him —and conduct peaceable law-abiding fendant is not a and citi- regardless of thus be relevant to — zen, leaving jury the to how the defen- wonder might give conduct rise to criminal whether that perceived thusly by others? If the dant could be 487, 490, liability. Plante v. had State had evidence the defendant sexu- (Tex.Cr.App.1985). fn. 3 children, ally might abused his the State offer will State be such evidence? Or the limited 404(c) pro- 3. Texas Rule of Criminal Evidence again presenting only once to character and vides: Indeed, reputation testimony? plurality the may phase, penalty In offered the evidence leaves the term "circumstances of the undefined prosecution an accused the as offense and the offender.” prior record of the accused. Other basically criminal questions These are rhetorical but may of his character offered plurality’s serve to that the inter- demonstrate 37.07, 3(a), Nothing prosecution. pretation an accused or the renders the § of Article 37.071, provisions limit The net herein shall 1989 amendment ineffectual. loser Legislature, Criminal when all this is sorted out is not the Code of Procedure. language changes place tive ju the Even Art. and to 37.07 [in amendment]. § if accepted the interpretation courts this position they ries back in the in after were they would continue to have the authori- this Court’s Murphy decision ty to admit or exclude State, (Tex.Cr.App. [under statute] at 56-68 proffered evidence, pro- other than that 1988). my opinion, In I dissent to that for specifically vided in Article 37.07 my position concerning explained jury’s 3(a), on the basis their as decision to § de need all relevant information when its relevance to the punishment decision.4 ciding probate whether or not to the sen Goode, tence a defendant. Sharlot, S. O. Wellborn & M. Guide Texas Rules Evidence fn. comprised abiding § “Juries citizens law (Supp.1991). Furthermore, 10.90 under community of the in which the defen- interpretation of the statute all other dant, reside, given probation, are will rules of applicable, evidence would still be vested with the discretion to a fair assess and trial courts would admit evidence of appropriate In sentence. their deter- by, extraneous conduct as limited for exam appropriateness proba- mination of the 401, 402, ple, Rules tion, and 403. they are entitled to know defen- history, just dant’s criminal as the I would Ap- reverse the Fifth Court of provided report in pre-sentence when peals’ judgment and affirm Grunsfeld See, he considers the same. Art. Appeals’ judgment the Second Court of nothing There is show that a § Hunter. jury impartial cannot be fair WHITE, Judge, dissenting. judge or that the history every important juries’ not as bit Today, aggressive plu- and assertive common sense determination of the is- Court, rality of this unsatisfied with our sues.” Legislature’s permit juries decision to S.W.2d, See, relevant, Murphy v. at 53. of this state to receive realistic also, Murphy 73. Under the descriptions and accurate of the character authority of the new I past Art. 37.07 history convicted defendants so juries during are may fairly sentences, believe that entitled juries that the assess punishment stage of a trial to hear a com- upon misperception relies of the authori- plete description ty of of the relevant criminal upon its electoral mandate to foist cases, history of a defendant all whether juries legis- of this State its own judicially eligible probation a defendant is not. changes lated to TEX.CODE CRIM.PROC. 37.07, 3(a). vigorously ANN.Art. I dis- To the the plurality extent that is uncom- sent, agree Presiding Judge with being prospect fortable with Judge Campbell’s McCormick and views permitted to hear the whole truth about a criticizing attempt the plurality’s to inter- defendant, can they convicted take comfort pret the intent behind the 1989 Legislature, in the fact that the in its wis- n changes 3(a). agree I to Art. 37.07 also dom, permit did trial courts of this concerning Benavides’ views State unbridled discretion what those interpretation of the courts choose allow be admitted 3(a). Art. amendments to 37.07 § during punishment phase into admitting evidence, of a trial. Before view, my plurality decision trial must first be satisfied that cynical reflects a basic and mistrust of the the proffered evidence is to a ma- average fairly impar ability citizen’s 3(a) terial fact in issue. Art. 37.07 sets tially appropriate punishment the assess out: person a I for convicted of a crime. can plurality’s

find no explanation other for the “evidence be offered the blithely any decision as to overturn the state and the defendant to matter Presumably, (i.e., pun- punishment 4. general evidence is "relevant” to the of tives deterrence, rehabilitation, etc.) helps ishment decision it the decide what in the defen- punishment objec- level of best will fulfill the case. dant’s of not reached sentencing, points error consideration of deems relevant to court submission, affirm the original Hunter. To Appeals of decision Court of the stat requirements Pursuant do other- plurality to the decision ute, a court must first be satisfied trial wise, I dissent. passes proffered that the muster evidence If under Rule 401.1 TEX.R.CRIM.EVID. BENAVIDES, Judge, dissenting. proffered the trial finds the Criminal of I convinced that Code relevant, am it determine un to be must then 37.07, Procedure, per- section article Rule 403 if the der TEX.R.CRIM.EVID. receive, among many judges trial to probative of the evidence is mits value substan unadjudicat- things, prior of tially outweighed danger unfair other prove to prejudice. requirements These sufficed to ed extraneous offenses offered im- sentence should be protect Montgomery the defendant that a more severe (Tex.Cr. seems to at 386-390 I this because it posed. believe trial, judges App.1990), appellate if not at then on trial me that the statute authorizes review of the trial court’s decision. Mont issues non- punishment determine the to This gomery supra, given at 390-397. trials limits within defendant, any pro Evidence, would be sufficient for and be- Texas Rules of Criminal misconduct, trial has that vided that counsel insured prior wheth- evidence of cause preserved. not, error has been relevant to finally adjudicated or is er which do reasonable criteria imagine Legisla- It is difficult to how the depend an evaluation of defen- successfully 37.07 ture can amend Art. dant’s character. 3(a) aggressive in order to convince plurality and assertive of this Court I. they permitted a jury intend for to be to review relevant criminal ac- Sentencing” to “Deems Relevant during of defendant tions assessment to sec- The 1989 amendment article non-capital crime. grammatically complex. is not tion print Perhaps they amendatory lan- will to parties permitted once the were Where extra-large guage type, not unlike bold char- evidence of defendant’s introduce grade primer. perhaps that of a school Or record, acter, reputation, and criminal will, somehow, they to more be able find any may now evi- trial receive use, direct much farmer like a sentencing, in- he relevant to dence deems two-by-four nose of would use across the character, reputa- cluding evidence of mule it in order to convince recalcitrant tion, record of the defen- get it quarter is time to off its hind R.S., Leg., 71st ch. Acts dant. pull wagon. Whatever method It September 1989. effective selects, interesting, will be only indisputable me that seems least, aggres- say the to witness how the this amendment significant consequence of sive and members this Court assertive issues listed the stat- provide is it. rewrites complete ute, more or sur- formerly a less prevent attempt This another law is evidence, punishment-phase should vey of abiding (juries) met- citizens Texas from regarded merely illustrative and now be punishment to crimi- ing proper out those on ad- impose limitation not taken rape, rob murder their chil- nals who judge’s im- missibility aside from the trial families. dren and their I relevancy. do not think that pression of plain language of this statute reason- I decision of the Court would reverse the Grunsfeld, susceptible reading. remanding ably other Appeals in consequence to the determina- Rule fact 401 reads follows: probable prob- more or less tion" the action of "Relevant Evidence” Definition having the evidence. able than it would without means evidence “Relevant evidence” any tendency of to the existence make place, unambigu- the first it follows the admission of extraneous offenses ously legislature’s offense[,]” of noncapital from the use is in 525-526, “including” character, reputa- unimaginative. (em- Op. word n. 11 tion, phasis added). Perhaps legislature criminal record were not meant to be an list of merely exhaustive admissi- to ensure that its amend- intended English, ordinary appear- encourage, ble evidence. In ment would not be read to in allow, things ance of this word a context like one even to of those exclusion always involved here Perhaps means that the items which were it admissible before. examples representa- which are merely thought follow that the inclusion of tradi- particularly tive or interesting, examples comforting but not tional would be See Tex.Gov’t completely descriptive. may trial But judges. whatever it have 311.005(13) (West 1992). essentially Code Ann. in unimpor- intended silence is Clearly, unadjudicated light statutory extraneous offenses tant me in lan- qualify do not in guage for inclusion a criminal itself. they produced record because not fi- have dissenting opinions Judge Camp of sentences. See probated nal convictions or McCormick, Presiding Judge bell and with 37.07, 3(a). Tex.Code Crim.Proc.Ann. art. agree respects, I many which successful kindness, But neither have deeds of hero- ly plurality’s appeal refute the of to canons

ism, and self-sacrifice. None of these statutory interpretation. But the canons things expressed partial list of they plurality both and the refer are admissible phase evidence. directed at a of in discernment But that does mean not it must be exclud- prefer, I tent. much under the circum It something part ed. is not whether of here, the approach stances taken this the defendant’s criminal record that Boykin Court 818 S.W.2d 782 admissibility, determines its but whether (Tex.Crim.App.1991), majority wherein a re the trial it deems relevant to sentenc- interpret unambiguous solved to statutes ing. according plain meaning to their rather plurality argues legislature investigation legisla that the than hazard would not have retained the usually restrictive defi- ture’s inscrutable motives. The nition “prior plurality if simply legisla record” it intend- assumes that the ed deliberately provid extraneous offenses to be ture enact law would judge. ing “including” deemed relevant the trial Unless that the word means “with limitation,” pass construed as a limitation on the using “deems out another law maintains, language, explanation, relevant” term Court same without further portion statute, deliberately expect interpret re- and then the courts to it as legislature spite tained Garcia v. of efforts it were a limitation in fact. Cf. it, superflu- (Tex.Crim. be essentially remove would 799-800 Accordingly, is, ous. we App.1992). are asked to infer so To construe the law legislature that the it my opinion, intended as a limita- to sanction deliberate effort despite tion representatives people earlier use the word elected “including.” affirmatively them to mislead about the purpose legislation. I important public course, I Of concede that elimination of approve any interpretation cannot such “including” “prior clause and of the our law. criminal record” definition would have been way agree much express Certainly, plurality cleaner the statute I with the But, I interpret it. use of the “including” word “insertion the term does not “including” always “any renders the mean that matter the deems Besides, following it useless this sense. sentencing” subject relevant to is not plurality’s assertion think legislature may “can other limitations the see or explanation may impose.” of no Op. other reasonable have seen fit to retention of those references and ac- n. 8. But other such limitations companying appear very beginning definition other than the intent clause legislature limitation “including.” Rather, to maintain a they word must contemplation elsewhere, dangerousness and expressed using the lan- or be limitation, Crim.Proc.Ann. enlargement. Tex.Code guage of not of death after. 37.071(b). nothing of kind legislature Because the done no such art. But has noncapital case, in law for cases. thing in this I am to read a exists our disinclined said, legislature example, not has limitation that sort into the statute. get great- dangerous more criminals should hand, I equally the other am On reluc- mili- provocation or punishment, er tant to believe that amendment with But, lighter of a sentence. tates in favor effectively here which we are concerned by authorizing judges trial to what- admit incorporated complex capital our sentenc- sentencing, the to they ever deem relevant fundamentally ing jurisprudence into a dif- necessarily legislature empowered has noncapital punishment ferent It scheme. case, determine, judges those to case connection, argued particu- has been this will at the what the material issues be by Presiding Judge larly McCormick dis- noncapital punishment phase trials. sent, legislature’s that our choice argument sentencing,” Accordingly, Judge Clinton’s language “deems relevant to only “deem relevant” figures prominently judges may also in the Tex- that trial which sentencing statute, implies specifically been capital that which has elsewhere legislature legislature punishment rather intention made a issue unadjudicated intrinsically or is relevant to make extraneous offenses that which an capital is on the same terms as in circumstance of the offense offender admissible is agree unpersuasive argument I do to His cases. not with this view. As me. theory Judge rightly points mostly punishment in his based on the Clinton out con- curring opinion, holding plurality opinion our on rehear- underlying that article (3)(a) ing in meaning Murphy section has the same arti- 37.071(a) (on (Tex.Crim.App.1989) rehearing), and cle does not indicate that the two legislature en- always upon have the was statutes same extension. a belief example, couraged did unadjudicated For extraneous of- to amend the statute as it dissenting might fenses be admissible under one and a footnote White’s they original other if in that case. actually not the were relevant submission capital the issues in case but not I do not wish to enter the debate whether noncapital issues in a case. opin- responding to our legislature gen- why relevancy Murphy That is ion in some other more impor- is such an key punishment-phase problem. tant If the issues are eralized concern about cases, it capital noncapital different evidence when amended article 3(a). Impressions of mo- then evidence will be relevant or irrelevant section upon kind to me like make- depending generally in each of case tivation read tendency proba- weight arguments stand increase decrease the which should bility resolving particu- anyway. my perspec- their From those issues own tive, ren- way. statutory merely lar And because evidence relevant to amendment another, might dered obsolete. But parts Murphy one issue relevant to thinking punishment- progress it turn out that an ex- in our about phase Murphy produced in a capital traneous offense look noncapital significantly changed way relevant in a has we context but not relevancy. context where the issues are different. all, What, thing upon If is one which we all

And is the rub. after are there it can noncapital agree, seem is that relevance the issues hear- course, case, ing? clearly In a never determined without defin- the is- clear, in a reasonably ing least if of fact at stake sues are we material issues challenge in Eighth particular controversy. leave the Amendment out of for a legislature prescribed deciding evidence should be received moment. The has what therefore, dangerous- not, empiri- specifically deliberation, them — ness, provocation problem. September before cal It does not involve a difficul- ty determining Judge in siding responds fact of to whether some McCormick this consequence probable that, less by is made more or contention arguing because trial by judges empowered punish- the introduction of certain evidence. are to determine it question policy, Rather is a of necessitat- cases, they ment in noncapital criteria can ing really a decision which about facts are simply declare the defendant’s character to consequence legislature of when the has be an any punishment essential element of prescribe any. omitted to permit specific issue to proof so as of his 405(b). I agree behavior under Rule do not Judge approach, spite Clinton’s in of its it, I position. with this As understand appeal, nevertheless fails to convince me. essential element in context would be a He first construes what “the court deems punishment fact which a particular absent to relevant” mean what “is relevant” in lawfully could not be assessed. Such ele- fact, and opines relevancy then that do, course, punish- ments of exist in the fully by context is elaborated context, ment noticed in Murphy, we Murphy rehearing. on This construction but them 62 n. none of is advantage has the of plausibility historical 37.07, 3(a). included in article section Is- But, and constitutional in harmlessness. character, reputation, sues of purports statute which face its to de- record, together with addition- relevant, what imagine scribe is I cannot al by matters deemed relevant the trial any competent speaker English that judge, optional are rather than essential. language say would that may “evidence sentencer, jury, may whether ... offered be state and defen- assessing punishment, consider them but dant as to any matter the court deems required is never so. to do sentencing” to if say relevant he meant to trial judge should cross-reference Still, although proof do Rules forbid other statutes for issues additional crimes, of wrongs, other or acts to show proffered might actually which be conformity person that a with behaved I just accept relevant. cannot occasion, particular they his character on a a reading, statute vulnerable to such proof things do not of such other forbid for plain when is not relevancy focus Thus, purposes. even we assume that fact, authority judges but on the of principles apply guilt same both determine it. trial, phase phase and at the of Therefore, I plu- do not subscribe it would offend the of not case Rules holding rality that article section proof unadjudicated Evidence to allow of 3(a), as amended limits the discre- extraneous offenses or other acts trial judges punish- tion of to determine misconduct the defendant for the noncapital ment criteria in cases and to purpose showing something other than receive evidence question his character. And is not a agree thus issues raised. Nor can I prove does in whether the evidence fact concurring opinion of Clinton just question character. It is whether essentially which reaches the same conclu- purpose evidence was offered sion a different route. instead, proving or, prove character something else. II. Suppose, example, suggested it were “As Permitted the Rules Evidence" misconduct, persons history with a not, only specifically That leaves the Texas whether de- Rules of criminal or (Rules). punished Criminal Evidence has severely It been ar- serve to be more than that, gued in spite past of the “deems relevant” those whose behavior has been social- ly acceptable, exemplary. Perhaps article section or even prohibit proof principle Rules ex- such culpability of moral would traneous appeal everyone. offenses because the character of not Yet are there person proven ordinarily by many might it. accept who would It of specific prior thought by persons misconduct. Pre- some mis- whose pun- And, infrequent is isolated are if he deems it relevant behavior easily those who other the defendant’s more rehabilitated than ishment criteria than society habitually. People sub- under character, objectionable offend who not be it will necessarily such a 3(a). scribe to view would 37.07, section article prior deem evidence of extra- offenses, and of so-

neous other instances III. behavior, good bad, cial both to be actually it affects the to address appropriate relevant because I think it Finally, probability rehabilitating an accused argument plurality Clinton’s they might simply a short time. within Or interpretation of article section meaning- something that it discloses think well, represents a my interpretation as personal culpability. ful about moral officers delegation power to II, contrary to article judicial branch course, it is true Of that extensive I Texas am 1 of the Constitution. section widely misconduct is also to indi- believed disagree his assess- prepared not character. notion that cate bad But the respect, although the matter is ment in this punished offenders habitual should be him. clear to it is to somewhat less me than severely necessarily is not character more However, question is I am certain that the Rather, con- dependent. specifically it is presented this case. Thus, not dependent. duct one need not hold persons deserve bad character reading of the at issue My statute greater good persons than understanding of its determined a fair pun- in order greater character favor acknowledge language. Although I plain history for those ishment with a duty prefer constitutionally inoffensive itself, misconduct. The even if misconduct interpretations of the such inter- law when person good committed of otherwise statutory pretations are consistent with character, might reasonably to indi- be held duty I not to be language, do consider that cate the need for a sen- protracted more here, the statute is un- implicated because Likewise, might tence. bad character well ambiguous. simply bring myself I cannot regarded entirely to the irrelevant a law to make it constitutional— to rewrite long issue of accused so as the deter- entirely exercise from a a different significant history is without of bad mination of whether the law as written event, In such might behavior. it be entire- I Accordingly, unconstitutional. think ly appropriate greater penalty to assess no unpresented ques- inappropriate address for the isolated of bad criminal conduct necessary constitutional tions of law characters than for infrequent offenders actually resolution of issues a fair good character. in this case. raised point The essential Rules 404 here is that given, For the reasons I dissent make objectionable and 405 do not disposition plurality’s cases here crimes, of both it is wrongs, other or acts when I Fort under review. would affirm the prove something offered to than different Appeals Worth Court Hunter person. the character of a is the And it Appeals the Dallas Court of judge authority trial who has under amend- reverse it consid- ed article section to decide with instructions that Grunsfeld which, any, issues proffered any points of error not reached er prove, admitted to it is the original opinion. will be because judge trial who “deem” it relevant or fit, subject only he sees Rules

not as Therefore,

of Evidence. if the trial unadjudi- to receive

is asked evidence of offense, or of

cated extraneous noncriminal

conduct, purpose for a other than to show character, will not

someone’s such evidence objectionable 404 or Rule under Rule

Case Details

Case Name: Grunsfeld v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 28, 1992

Citation: 843 S.W.2d 521

Docket Number: 1037-91, 1092-91

Court Abbreviation: Tex. Crim. App.