*1 2000). App. Worth The Court of — Fort
Appeals concluded that V.T.C.A. Penal 12.42(a)(2)
Code, § permits sequential two
prior convictions, felony one of which is a
state-jail conviction, felony to enhance a
non-aggravated state-jail felony to a sec
ond-degree felony. Appellant pe filed this discretionary
tition for challenging review state-jail
the use of the felony conviction
for enhancement under language 12.42(a)(2),
§ specifies which that felonies used,
may be but does not state that state-
jail felonies be used.
In Campbell v. (Tex.Crim.App.
No.2031-99, 7, 2001), delivered March this
Court held that “felony” terms 12.42(a)
“state-jail felony” § used are
mutually exclusive. At the time the Court Appeals case, decided this it did not
have the benefit of this opinion Court’s
Campbell. Accordingly, grant ground Appellant’s
one of petition for discretion-
ary review and remand the case to the
Court Appeals in fight of our opinion in
Campbell. HAMMOCK, Appellant,
Harold Lee
The STATE of Texas.
No. 213-00.
Court of Appeals Criminal of Texas.
May *2 Isbell, Houston, for appellant.
Allen C. Houston, Klibert, Atty., Asst. Dist. Julie Austin, Paul, Atty., for Matthew State’s State.
OPINION J., HOLLAND, the opinion delivered MEYERS, PRICE, the Court in which HOLCOMB, JOHNSON, HERVEY, and JJ., joined.
Appellant
aggravated
was convicted of
impris
sexual assault and sentenced
life
his
appeals
court
affirmed
onment. The
State, No.
Hammock v.
conviction. See
01-96-00568,
to have some drinks after work. Appel- fore. That it in in started the State her, lant sat talked, down next to they and [appellant] of Arkansas and that has been together. drank and danced She became to penitentiary Later in before.” intoxicated, and the bartender refused to trial, guilt/innocence stage appellant’s serve her another Appellant drink. drove sister testified on the State’s cross-exami- her to another bar in her van. At that nation of her that her brother had been in bar, they more, danced, drank kissed and past trouble in the and had time in served closed, held When the bar hands. K.H. jail.3 Appellant’s counsel object did not said that she would take a cab home. But the admission of this evidence nor did he appellant spend offered to let her night request a limiting instruction at the time at his apartment, and he told her that he this evidence was offered. perfect would be a gentleman. K.H. ac- any objections When asked for to the cepted. charge, stated, appellant’s counsel At his apartment, appellant and K.H. then, Honor, asking yom* What we’re for beers, had some and then K.H. wanted to I what want included the Court’s change go clothes to to sleep. After she charge, you are instructed that certain shirt, put long on a K.H. testified that you evidence was admitted before re- appellant attacked her and raped her at gard to the [appellant’s having been knife-point. over, After the charged incident was and convicted of an offense or she stated that appellant offenses other than the allowed her to one for which he get is now on trial. dressed. He Such evidence cannot told her that he knew she be by you against considered [appellant] would rape charges, file that he had been any guilt evidence of in this case. jail already, and that he going wasn’t back.2 But K.H. convinced him to let. her The trial request. court denied this Again, leave, stating that she wouldn’t tell appellant’s objected, be- stating, counsel “we admitted, troduction of evidence he knows is admissi- 2. Before the appel- evidence was ble for a purpose limited in order to be attorney lant’s stated that he did not have an entitled to a jury instruction in the objection testimony. to K.H.'s He stated that charge jury’s proper as to the use of the just goes weight ”[i]t and not admissi- evidence. 2) bility.” Whether Texas Rule of Evidence that a defendant appellant 3. The record shows that was con- instruction at the time evidence is intro- Larceny Escape victed of Grand and in 1974 duced in order to be entitled to a Larceny Opening and Attempting jury charge instruction in the as to the Open Coin-Operated Vending Machine in
jury's proper use of the evidence. felony 1975. These convictions occurred in 3) Whether Texas Code of Criminal Proce- County, Drew Arkansas. In he was dure, 38.13(sic) Art. entitles a [36.14] defen- Aggravated Robbery also convicted of dant to a proper instruction on the use Property County, Theft of in Chicot Arkansas. of evidence which is admissible limit- 1992, appellant pleaded Ag- no contest to though ed even the defendant did gravated charges Assault in Fort Bend Coun- object to the evidence and did not re- ty, Texas. quest instruction at the time it was introduced. part general evidence and ask that instruct the would the Court purposes. used id. for all orally giving the written before disregard any are to evidence of review, grounds In the first two before, prison [appellant] having been holding our appellant argues arrested, any charged, convicted offense Appellant revisited. asserts should be The also this before.” trial court denied that, Garcia, this had before Court never request. required for a instruc tion time the evidence was intro at the argued that appeal, appellant
On therefore, duced, wrongly Garcia was trial court have submitted an in- should Furthermore, appellant contends decided. jury stating struction to the *4 105(a) that of Evidence Texas Rule does previous charges of and convictions could limiting not that a for a specify request of guilt not be considered as evidence the be made at the time evi appeals The court of the instant' offense. introduced, urges dence and he this is appellant that had the burden to stated interpret Court to consider federal cases object request limiting and instruction at ing Rule of Evidence The Federal the introduction of the evidence. See “completely that Garcia is State counters Hammock, slip appellant Because op. at 5. rationale language with the and of line request limiting instruction at did not the 105(a).” argues Rule The State be admitted, the the the time evidence object failed to admis cause appellant appeals request held that the at court evidence, it sion of was admitted all the not and timely the conference was purposes. no error was shown. See id. 105(a) states,
Texas Rule of Evidence II. evidence is as to When which admissible stare The doctrine of decisis party purpose but not one for one followed, because it generally should party another or for admissible promotes judicial efficiency and consisten court, admitted, purpose the another is decisions, cy, judicial it reliance fosters on request, restrict the upon shall per and and it contributes the actual proper scope to its and instruct the judicial process. integrity ceived of the but, accordingly; in the absence of such State, 840, 844- v. 967 S.W.2d See Proctor in admitting the action court’s (Tex.Crim.App.1998). 45 It is often better such evidence without limitation shall consistent, right. than to be rather See on ground complaint appeal. be a State, 234, 236 Malik v. 953 S.W.2d 105(a). Overruling precedent, Citing Crim.App.1997). Tex.R. Evm former Texas however, 1054, acceptable under certain cir this of Criminal Evidence Rule example, “[w]hen For older held in v. State that cumstances. Court with a newer decision precedent conflicts opposing evidence has the burden “party reasoned, soundly to be more is found objecting requesting inconsistency in favor at of the evi resolve the introduction (Tex.Crim. 862, soundly decision.” of the more reasoned 878 dence.” 887 S.W.2d 721, 974 S.W.2d evidence is received Awadelkariem App.1994). Once instruction, (Tex.Crim.App.1998). 725 Another factor it becomes without 105(a). 105(a) is Evidence Rule of Evidence 4. Texas Criminal exactly the current Texas Rule same as
893 reasoning responsibilities parties to consider is whether the un- established of the admissibility.” 1 derlying precedent older has been un- situations of limited al„ Goode, et by passage dercut of time. id. Texas Texas Steven PRACTICE: (2d.l993). § 105.1 support Further factors that the overrul- Rules of Evidence 1) light, plain language in this precedent Considered orig- include: when the place the outset; of Rule seems to relevant inal rule of law is flawed from the 2) timing for a produces inconsistency when the rule 3) the moment the evidence is admitted. law; confusion when the rule consistently unjust creates results or Garcia, Additionally, since this Court
places unnecessary upon sys- burdens has discussed in detail the timeliness of 4) tem; and when the rale creates differ- instructions and the ences practice between criminal and civil 105(a). policy behind Rule See Rankin v. when a reason for the difference does not State, 707, (Tex.Crim.App. S.W.2d exist. v. Toney, See State 1996). precise issue dis (Keller, J., (Tex.Crim.App.1998) 645-46 cussed was whether the trial court had concurring). postpone giving discretion to *5 jury charge
instruction until the the when III. requested defendant had an such instruc tion at the time the evidence was admitted. initially We language note that the the a presents While instant case different 105(a) of Rule does require objec not an issue, timing general timing principles the tion to the admission of evidence before in helpful. outlined Rankin are requesting limiting a instruction on that 105(a). evidence. See Rule Rankin, Tex.R. Evid. we stated: 105(a) requires only a defendant to “re spirit [T]he of the rale and the contem- quest” that the trial court “restrict the plation of the rule-makers includes two proper evidence to its scope and instruct First, separate in- limiting notions: that Therefore, jury accordingly.” the Id. actually improper structions curb the any language disavow in Garcia that re and, second, use of evidence that the quires objection an admission in way only rale should act a that not evidence before a limiting instruction can the proper “restricts] evidence to its requested. be scope”, effectively but does as so notions, possible. Working under these
The part holding of our in Garcia that logic demands that the instmction be requires request the for a limiting instruc- given opportunity. at the evidence, tion at the admission of the how- first ever, added). appears be consistent with (emphasis the Id. at 712 a lim When 105(a). in language the second half of Rule iting given instruction is for the time first The second half of the rule “in states that charge, submission the the the absence of such the court’s is allowed to consider the evidence in an admitting action in such evidence without inappropriate during manner the trial. ground limitation shall not be a expected com- id. cannot See “Jurors be 105(a) plaint appeal.” on exactly know how to use the evidence un Tex.R. Evid. added). them, (emphasis Rule of Evi- guarantee Federal less we tell nor can we dence 105 not language open-minded does contain this will ‘remain until 105(a). in the second half presentation of Rule “The the of all of the evidence and ” purpose of the additions Texas Rule of Id. v. (quoting [to instructions.’ Morrison State, 882, spell Evidence is to out the well- 887 (Tex.Crim.App. 105] 845 S.W.2d 1992)). Further, the evidence is admitted. Allow in Rankin that moment we noted for all 105(a)5 jury to consider evidence the required, language of Rule telling them to consider purposes and then request, a upon proper for a limited that same evidence at the time the evidence given to be impossible. only asking jury a to do is considering 713. After admitted. Id. at it given, If is to be a concerning cases other state and federal admitted to must when the evidence is instructions6, we the timeliness Rankin, 974 S.W.2d at be effective. See that a trial court does not have concluded properly- postpone giving discretion to considering language when that requested limiting instruction After articulated in policies and the of the evi Rule is made at admission holding we decline to overrule dence. request for a Garcia distinguishable from the facts Rankin is at the of the limiting instruction admission case, the trial of the instant case. In this proven not That rule of law has evidence. erroneously delay giving court did not it confusing, does to be unworkable requested when it was limiting instruction It unnecessarily system. burden initial of the evidence. at the admission law; inconsistency produce does not Rather, counsel failed to ask appellant’s rather, guidelines under provides it clear until later for a must limiting instructions be re which principles apply. trial. But same Further, has been fol quested. When an extraneous offense admitted appeals. courts of by lowed several trial, failing of a guilt phase Arana the time of instruction at give *6 1999, pet. App. Dist.] [14th — Houston jury in the draw- admission result State, 56, refd); 61 v. 999 S.W.2d Thacker inferences about the defendant’s ing 1999, pet. [14th Dist.] (Tex.App. — Houston conformity, a character guilt upon based State, 475, ref'd); v. 980 S.W.2d Saldivar contemplated by of the evidence not use 1998, Dist] (Tex.App. [14th 493 — Houston then danger trial court. The be- State, ref'd); Rodriguez v. 968 S.W.2d pet. improper inference comes 554, Dist.] (Tex.App. [14th 560 — Houston by an in- cannot later be erased drawn State, h.); 1998, George v. 959 pet. no charge. struction in the 378, (Tex.App. S.W.2d 386 — Beaumont State, 469, 992 S.W.2d 478 v. Jackson State, refd); 1998, 950 Turro v. pet. time and ac “Passage of Crim.App.1999). 390, Worth (Tex.App. 400 S.W.2d — Fort it hard evidence make cumulation of other State, ref'd); 1997, Knapp v. 942 pet. a accomplish [of the intended to 176, (Tex.App 182 S.W.2d . —Beaumont of the State, at the end limiting instruction] ref'd); 1997, 888 Puente pet. Kirkpatrick case.” C. 521, Antonio (Tex.App. Laird & Christo 528 S.W.2d — San pher Mueller, above, h.). B. Evidence: Practice Un 1994, explained And as pet. no ed.). (2d jury subsequent § If the with compatible 1.16 is der the Rules Rankin, 974 See in a limit from this Court. required to consider evidence cases is manner, from the at it must do so S.W.2d ed then Rankin, another line This Court followed trial court. the rule was Texas 5. At the time of 105(a). limiting to requiring instruction Rule of Criminal Evidence of cases request. immediately upon proper given state noted that some 6. The Court in Rankin at 712. 974 S.W.2d timing leave the of the federal courts did of the limiting to the discretion instruction
895
Therefore,
the evidence is ad-
given
to the in-
should be
when
apply Garcia
appel-
again
K.H.’s
mitted and then
at
testimony
stant case.
final
jail
(emphasis
lant
that he had
to
at 712 n. 3
charge.”
told her
been
added).
stated, however,
subject
limit-
already
previously
would have been
to a
weAs
instruction,
if
properly
pur-
one had been
all
testimony
K.H’s
was admitted for
requested.
request
See Abdnor v.
808
a
poses
appellant failed to
because
(Tex.Crim.App.1991).
S.W.2d
478
the evidence was
limiting instruction when
opportunity
request
limiting
The first
to
a
Garcia,
In the third appellant Federal Practice Evi- 5065). § right asserts that a Because the evidence “the accused’s to have dence charge question purposes, the court’s was admitted for all a ground independent based on a of the limiting instruction on the evidence was argues case,” Texas Rules of Evidence.” He applicable not “within the law to the Texas Code of Criminal Procedure Article required and the trial court was 36.148 charge to set include case, applicable
forth the law to jury. Tex.Code Crim. Proo. Ann. 105(a) Texas Rule of Evidence cannot Art. 36.14. separate ground. Ap- amend alter this conclusion, appellant failed to because pellant contends that “Rule enables he first request when party and receive a so, opportunity had the to do K.H.’s testi- instruction at the time the evidence comes mony jail concerning appellant’s prior ex- in; Article 36.14 a party enables periences purposes. was admitted for all *7 and receive a in instruction the testimony was considered for all Since In charge.” response, court’s the State purposes by jury, a argues that because the evidence was ad- in charge on the evidence was not limitation, mitted without a in- judgment The of the court of warranted. applicable struction was not within the law appeals is affirmed. of the case. WOMACK, J., joined I III parts agree
We with the In a State. KELLER, P.J., a only. in delivered “pursu footnote we stated that concurring opinion in which ruling ant to our Rankin to WOMACK [in ] and Art. 36.14, instructions, KEASLER, JJ., joined. if jury requested, that, appellant’s argument pertinent part 7. We understand 8. The of Article 36.14 states cases, shall, in a defendant will not know judge argument some that "the before the subject ..., evidence is to a limit- whether certain begins, jury, deliver to the a written apparent instruction until it becomes later applica- charge distinctly setting the law forth in the trial. But we need not address this Tex.Code Crim. Proc. Ann. ble to the case.” case, today. appellant’s ap- issue it was Art. 36.14. parent that a was war- ranted at the time the evidence was admitted. P.J., KELLER, concurring filed a HOPKINS, Douglas Leroy WOMACK, in
opinion which II, Appellant, KEASLER, JJ., joined. join opinion except
I the Court’s upon policy extent it relies reasons for its The of Texas. STATE holding. says, “Allowing The Court No. 536-00. jury purposes to consider evidence for all telling and then them to consider that Appeals of Criminal of Texas. Court purpose only same evidence for limited May 2001. impossible.” Slip asking to do the op. at
First, disagree I with this statement. other we wait until the
On occasions jurors disregard to ask to certain
evidence, and we assume do so. raised, ju-
When the issue is we instruct
rors, in charge, disregard And
obtained violation of the law.1 ap- with
although quoted Rankin2
proval “impossibility,” statement of holding giving
foundation for the at time of admission applica-
was the better and more effective 105(a).3
tion of Rule
Second, if faced with a a defendant is
choice between an ineffective instruction all, presumably he
and no instruction opt
would for the former since it could not so, being
hurt him do so. That
policy opinion offer reasons the Court’s him if refusing
no basis for that instruction requests
he it. agree
I that the trial court did not err instruction in
refusing give *8 jury charge. 38.23, Proc. Ann. Id.
1. Article Tex.Code Crim.
2. Rankin v. Crim.App.1996).