Harrell v. State

procedures filing jurisdiction un- without the State for lack of collection court’s dismissal Code, Id. of the Texas Tax suit. der section 112.108 taxpayer any form of declara- which denies a the “combination of This Court held that § tory relief. Tex.Tax Code 112.108. We provisions in sec- prepayment contained appeals judgment of the court of

reverse the 112.101, on'declara- tions 112.051and the ban further remand to the trial court for 112.108, and the tory judgments section proceedings. remedy awaiting inadequacy of the Comptroller” filing of a collection suit bought more than January Week financial barrier created an unconstitutional marijuana pounds of from undercover However, Id. at 317-18. to court access. County the Midland Sheriffs officers with unnecessary all found it to void Department sting operation.” in a “reverse Instead, question. we con- the statutes Sharp, Comptroller of Public Accounts John legislative that without the recent cluded Texas, $1,428,604.80 for the State of assessed declaratory remedy, R Com- elimination against fail- penalties in taxes and Week for obtaining have a means of munications would the Con- pay the taxes due under timely courts that would not access to the possession of Tax Act for trolled Substances securing interest impinge on the State’s Tex.Tax Code controlled substances. See timely of taxes. Id. at 318. We collection §§ After an unsuccessful ad- 159.001-.206. as it struck section 112.108 insofar therefore brought hearing,- Week this suit ministrative obtaining taxpayer from preclude a would (1) seeking declaratory judgment that sec- liability by judicial tax means of review of Code, requires of the Tax which tion 112.051 declaratory action. Id. a tax- paid tax be that the contested Week, Communications, seeks a de- like R judicial review of the assess- payer seek constitutionality of claratory judgment on the (2) unconstitutional; ment, declaratory invalidation of sec- his tax assessment. Our Tax judgment that the Controlled Substances trial court with provides 112.108 tion unconstitutional; judicial re- Act is Therefore, jurisdiction action. over that trial court view of the tax assessment. The majority of hearing argument, a without oral jurisdiction, plea granted the State’s judgment of the court reverses the Court Code, citing of the Tax which section 112.108 the trial court for appeals and remands to seeking declaratory prevents taxpayers from proceedings. further appeals relief. The court of affirmed. decision, Following appeals’ court of analyzed 112.108 of the

this Court section Communications, in R Inc. v.

Tax Code (Tex.1994). In that

Sharp, Communications, sought plaintiff, R deficiency addi- from a assessment for relief HARRELL, Appellant, Wesley Id. at 314. The tional sales taxes. jurisdiction be- court' dismissed for want paid the company had not first cause Texas, Appellee. The STATE of required by statute. contested tax as 112.051). appeal, (citing On Tex.Tax Code No. 1232-92. argued Tax four

R Communications Texas, Appeals of of Criminal provisions violated the Texas and U.S. Code En Banc. 112.108; section 112.- section Constitutions: right to file suit which conditions the Sept. 112.101, taxes; upon prior payment of section injunctive pri- precludes relief without which bond; posting of payment tax 111.022, summary authorizes which

section

OPINION ON APPELLANT’S PETITION DISCRETIONARY REVIEW FOR MALONEY, Judge. engaging

A convicted organized activity sentenced criminal years prison. him to fifteen TexPenal 71.02(a)(5).1 Initially, § Code Ann. Appeals con- Twelfth Court of reversed the viction. Harrell 1991) (“Harrell I”). (Tex.App. Tyler This — Court reversed and remanded. Harrell v. (Tex.Crim.App.1991) 820 S.W.2d 800 (“Harrell II”). remand, On the Court of Appeals affirmed. Harrell v. 1992) (“Harrell (Tex.App. Tyler — III”). granted appellant’s petition for We determine, discretionary pur- review to for poses admissibility, the standard of applicable proving to the State the defen- dant committed an extraneous offense.2 We judgment will reverse the of the Court of Appeals. trial, guilt/innocence phase

At the number State introduced State’s exhibit ledger depicting drug during transactions February unspecified year. an and March of unclear, Although ledger reflected Wesley four that someone named made four- $27,100. during purchases ounce March for Ranger year A Texas testified that the was Hill, Longview, appellant. Odis R. for prices “the of the cocaine at because that time were the same as what would Brabham, Atty., David Dist. and C. Patrice have in ’86.” The instant offense was Savage, Atty., Longview, Dist. Asst. Robert Huttash, Paul, alleged September have occurred in Atty., State’s and Matthew W. Austin, Atty., Although Asst. names in the State’s for the State. some the first 71.02(a)(5) September September 1. Section from cocaine Code Texas Penal provides: thirty peo- Appellant was one of over ple indicted for the instant offense. (a) if, person A commits offense with the establish, maintain, participate in a intent (3). combination, TexR.App.P. Appellant & See profits combination or in the 2.. 200(c)(2) purpose complain conspires does not of the limited he commits or to commit one or more following: the extraneous offense evidence was of- which fered under nor does he TexR.Crim.Evid. n n n n : n n complain about extraneous offense evidence (5) manufacture, delivery, dispen- unlawful punishment offered sation, or distribution of a controlled substance TexCode Crim.Proc. 37.07, 3(a). Further, § because this Ann. art. dangerous drug, possession or unlawful trial, capital we are not concerned dangerous drug controlled substance or fraud, art. 37.071. Nor through forgery, misrepresentation, or Crim.Proc.Ann. TexCode presented with the issue of the are we here deception!.] 71.02(a)(5). applicable jury of- instruction on extraneous rather Code TexPenal Ann. lengthy alleges conspiracy to deliver fenses. indictment Relying upon Ill, Hud ledger, appellant’s, are the same as some like offense, of the names for this most indicted v. United dleston not. are 1496,99 L.Ed.2d 771 and Harris (Tex.Crim.App.), objected admission of Appellant — denied, U.S. —, 381,121 113 S.Ct. cert. exhibit number 76 under Tex.R.CRIM. State’s (1992),4 (b). Appeals 292 the Court of 401, 403, L.Ed.2d claimed and & He Evid. longer requires offense which the State no a clear it was an extraneous held that Texas proving a reason- had burden showing that the defendant committed an had not met able and that the State Id., offense. 885 S.W.2d that burden because no connection Instead, evidence of an extraneous offense ledger appellant and the en- shown between admissible, Ap- according to the Court of “Wesley.”3 name tries other than the if could find peals, stating objection, trial court overruled the defendant committed of the evidence relationship parties affirming the extraneous offense. “germane” a con- conspiracy was to whether conviction, Appeals held the the Court of spiracy existed. “justifiably by prepon- could conclude State, Relying upon Turner v. 754 S.W.2d Appellant derance of the evidence 668, (Tex.Crim.App.1988), 673 the Court recorded committed the extraneous offenses Appeals trial court erred admit held the ledger.” Id. at 438. in the ting number 76 because the State’s exhibit clearly appellant show that evidence did not Appeals Appellant contends the Court of depicted offenses committed the extraneous preponderance of the applying erred I, at 432- ledger. in the Harrell 885 S.W.2d evidence of an evidence standard because Appeals noted that al 33. The Court of only admissible if the extraneous offense is strong suspi though creates a “the evidence a “clear “clearly prove[s]” or makes State Wesley1 appellant was the who was cion committed such showing” that the defendant offenses, perpetrator the extraneous State, 709, Wyle 777 715 offense. v. S.W.2d of a clear show ... the evidence falls short Turner, 754 (Tex.Crim.App.1989); S.W.2d Id. at 433. perpetrator.” that he was the contends since 673. The State5 that the error was not harm It further held Rules of Criminal enactment of the Texas Id. at less. Evidence, should admit evi- the trial court discretionary petition The State filed a offense there is of an extraneous dence review, and remanded to and we reversed evidence from which sufficient Appeals the Court of for reconsideration the extraneous committed find the defendant State, light Montgomery v. 810 S.W.2d 104(b). The offense. See Tex.R.CRIM.Evid. 372, reh’g) (Tex.Crim.App.1991) (op. on 386 the United States urges us to follow (setting proper procedure under forth the of rule interpretation Supreme Court’s Evidence for the Texas Rules Criminal evi- Evidence that Federal Rules of of extra- preserving error offense is admissible of an extraneous ap- offenses and the trial court’s neous by a reasonably conclude if the determination pellate court’s function , that the de- preponderance of the evidence error). remand, II. Harrell On offense. See Hud- committed such fendant recognized although Mont- Appeals 104(b). dleston; A review of the issue involved Fed.R.Evid. gomery did not address resolving helpful in this issue. here, admissibility. our caselaw is emphasized Harrell inapplicable case because it to this 3.Appellant objected there was no 4. Harris also because ledger capital testimony punishment hearing related to that the items in the involved the offense, although it was cocaine or to the instant trial. clearly by the State as other cocaine offered by appellant. Because the offenses committed Court of Attorney County Gregg District 5. Both the Appeals only addressed the connection Attorney Prosecuting have filed briefs the extraneous offenses between in this cause. depicted ledger, we will do the same.

157 (Tex.Crim. State, 110, 111 pins v. 530 S.W.2d I Emster); (citing Tomlinson v. App.1975) juries long required that This Court has State, 474, (Tex.Crim.App. 422 S.W.2d not to consider extraneous offense instructed State, 1967) Shepherd v. (citing Lankford); beyond a rea- unless believed Tex.Crim. sonable doubt See, State, State, (1942) Nichols); e.g., Ernster v. v. (citing such offense. Wells (1957); (1931) 34-35 Tex.Crim. 308 S.W.2d 355, 42 S.W.2d Tex.Crim. v. 138 Tex.Crim. Nichols Lankford); Hughitt (quoting see also (1940); Vaughn 123 Tex.Crim. 58 S.W.2d (1938); 135 Tex.Crim. Wells). Thus, respect (quoting 122 Tex.Crim. Miller v. proving burden of to the State’s State, 790, (1932); v. 93 791-92 Lankford offense, committed an extraneous defendant 442, 389, (1923); 248 389-90 Tex.Crim. S.W. perceived a connection be this Court see also 8 Michael J. McCoRmick & Thomas admissibility and the standard of tween the Blackwell, D. Texas CRiminal FoRms jury instruction.6 (Texas 1985). 88.05 Practice Trial Manual However, while this Court has remained was, many In cases where the issue requiring the trial court consistent here, admissibility for as the standard of jury to consider extraneous instruct offenses, in part extraneous this Court relied it offense evidence unless believes upon requiring instruction cases commit- reasonable doubt defendant juries extrane be instructed not consider offense, such have not been as consis- ted we they ous offense evidence unless believed holdings regarding the standard tent our beyond a reasonable doubt the defen See, Al- e.g., Tip admissibility of offenses.7 dant committed such offense. extraneous forgeries], respect proving for these 6. With to the State’s burden in extraneous etc.” In order offense, apart by juty the elements of the extraneous be' collateral matters to used issue, defendant, agency occasion from the regarded has on the intent of the we evidence on the standard of of extrane- they evidence be- think must believe from ous offenses and the instruction on extrane- they forgeries. yond a reasonable doubt that are indivisibly Haley ous connected. See offenses only It is not sufficient if the evidence tends to State, 629, 675, 677, v. 84 Tex.Crim. S.W. 209 forgeries. to be the evidence show them State, 412, (1919); 678 Pelton v. 60 Tex.Crim. forgeries, to be then are tends to show them (1910) (op. reh'g). 132 S.W. 480 on against a not admissible defendant. Haley, In a murder the defendant and the Pelton, reh’g) (emphasis (op. S.W. at 484 on 132 having deceased’s wife were an affair. To illus- Thus, added). we that because the State held motive, trate the defendant’s the State intro- prove had to the elements of the extraneous prior duced evidence that ten months admissible, juty must be offense for it to be murder the defendant killed his wife. This Court to consider extraneous offense evi- instructed not noted that the extraneous evidence was offense beyond a reasonable dence unless it believed it prove beyond inadmissible unless the State could an extraneous offense. doubt to be poisoned a reasonable doubt that the defendant Haley, his wife with the intent to kill her. 209 on, recognized Early that evidence this Court S.W. at 677. We also noted that the should with- of an extraneous offense was inadmissible be instructed not to consider the extraneous of- connecting” proof “pertinently the defendant out proved beyond a fense evidence unless the State State, Tex. to its commission. Williams v. 38 died reasonable doubt the defendant's wife 645, 128, (1897); v. Crim. 41 S.W. 648 see Hooks poison administered the defendant with from State, 261 S.W. 1054-55 97 Tex.Crim. Thus, Haley the intent to kill her. Id. at 678. State, (1924) (op. reh’g); Glenn v. 76 S.W. 757 prove State must the elements of held that the State, (Tex.Crim.App.1903); Carmean v. see also offense extraneous (1956) 163 Tex.Crim. inadmissible, and that the otherwise Glenn) (defendant (citing must be Hooks and the extra- must be instructed not to consider offense). early In other connected to cases, it neous offense evidence unless State “reasonable de- this Court enunciated a beyond a reasonable doubt. gree certainty” standard. Walton v. Pelton, charged for- the defendant was (evi- 55 S.W. Tex.Crim. forgeries gery, the State offered extraneous wrote; offense was inadmissible dence of an extraneous him, against rehearing and on this Court suspicion” although there was "some charged because In the instant case the court that, extrane- the defendant was involved in the "If evidence has been introduced offense, tending evidence did not indicate "with ous [committed show refd); years ago, attempt in an Newman v. most fifteen previous of our (Tex.App. 1985), resolve the inconsistencies [1st Dist.] —Houston holdings, (Tex. we held that extraneous offense grounds, rev’d on other 743 S.W.2d 641 evidence was inadmissible unless: Crim.App.1988). This standard of admissi bility of extraneous offense evidence is 1) showing [was] there a dear that: proof known as the “clear” standard.8 We evidence of the extraneous offense is mate- have never clarified what is meant “clear”

rial, i.e., going to an element of the offense proof, perhaps proof because most “clear” information, charged in the indictment or cases involve either no or overwhelm 2) participated the accused in the extrane- ing proof that the defendant committed the being ous transaction into evi- offered However, extraneous offense. there is 3) some dence, relevancy to a material authority interpreting “clear” outweighs inflammatory preju- issue its potential^] proof beyond mean [citations omitted]. dicial (6th 1990); Black’s Law DictionaRY ed. (Tex. McCann Haley 84 Tex.Crim. 1980) (footnote Crim.App. Op.] omit [Panel (1919). S.W. We view this as a ted) added). McCann, (emphasis Since we logical interpretation, is consistent clearly prove required have requirement with the the trial court showing make a clear the defendant jury instruct not to consider extraneous sought committed the extraneous offense offense evidence unless it believes a State, against E.g., be offered him. Harris v. doubt that the defendant commit reasonable 568, (Tex.Crim.App.1989); 790 S.W.2d 583 Indeed, ted such offense. it makes no sense State, 715; Wyle, 111 v. S.W.2d Plante 692 to, hand, for the trial court on the one admit 487, 494-95 (Tex.Crim.App.1985); S.W.2d using evidence of an extraneous offense a State, (Tex. 415, Phillips v. 659 S.W.2d 418 then, admissibility, certain standard for but State, Crim.App.1983); see also v. 725 McGee hand, jury on the other instruct not to 362, (Tex.App. S.W.2d 365 [14th —Houston 1987, State, consider that same evidence unless it a uses pet.); no v. 720 Dist.] Pedford 267, 1986, State, (Tex.App. pet 268 different standard. v. 820 S.W.2d Geesa —Austin Cf. degree certainty" genesis proof reasonable that the defen- 8. The for this "clear” standard oft-quoted passage offense); comes from an in Texas Juris- dant was connected with the extraneous decades, prudence. In the last two this Court State, 474, see Fountain v. 90 Tex.Crim. 241 S.W. frequently quoted applied language has 489, State, (1921); 491 Denton v. 42 Tex.Crim. Jurisprudence Texas which states that extrane- 427, 670, (1901); Shepherd, 60 S.W. 672 see also "unless the com- ous offenses are inadmissible Nichols, Fountain, (citing 158 S.W.2d at 1011 clearly proved mission of the other crime is the However, Denton). we also held that extraneous perpetra- been its accused is shown to have offense evidence was inadmissible unless the § tor.” 24 Criminal Law 3035 at 180 TExJuR.3d State offense extraneous (1982); § 2d Evidence 195 at 302 23 TexJur. Haley, reasonable doubt. 209 S.W. at 677. We State, see, (1961); e.g., 503 S.W.2d Ransom v. have offense held that an extraneous is inadmis- State, 810, (Tex.Crim.App.1974); Landers v. 813 “satisfactorily sible the defendant unless (op. (Tex.Crim.App.1975) 519 S.W.2d 120 Wells, State, perpetrator. 42 reh'g); shown” to be the S.W.2d 315 Earns v. 546 S.W.2d State, 608; State, (Tex.Crim.App.1977); Thompson v. 165 Tex.Crim. Perez (Tex.Crim.App.1981); Elkins Carmean, (citing Hughitt, (Tex.Crim.App. n. 3 647 S.W.2d Wells); Shepherd; Clark v. 145 Tex.Crim. Turner, 1983); 754 S.W.2d at 673. Later, (1942); Hughitt. 165 S.W.2d interpreted language We have this Court noted that an extraneous offense was clearly prove the State to the accused committed prepared inadmissible unless “the State is offense, despite the extraneous the fact that the it, Tomlinson, prove” the accused committed literally requires that the accused be Lankford); (citing S.W.2d at 474 see Shaver v. See, e.g., perpetrator. Tippins "shown” to be (Tex.Crim.App.1973), 496 S.W.2d instance, at 111. For v. Ransom, suggesting prove the State had to the defendant Jurisprudence reciting the Texas after committed the extraneous offense the same language, hypothetical in its indicated required standard of the State is to use in "clearly examples be that the defendant must offense, proving namely the elements of the be- "clearly identified and shown” or shown" to yond a reasonable doubt. See TexPenal Code perpetrator Ran- of the extraneous offense. som, 503 S.W.2d at 2.01. Ann. that the Government (Tex.Crim.App.1991) (special federal rule proved the extrinsic act. in circumstantial evidence standard of review Nevertheless, cau- jury was no was abolished because cases evidence). longer on circumstantial tioned: instructed

Presumably, the standard however, say, that the Gov is not to This jury and the instruction were intended litany may parade past the ernment Thus, given another. mirror one acts that potentially prejudicial similar standard for consideration of extraneous or connected to the have established proof beyond a is well-settled as offenses only by innuen unsubstantiated doubt, we hold that the standard reasonable is admissible under Rule do. Evidence ** n evi for extraneous offense In the only if it relevant. also dence is 404(b) context, evidence is similar act if the can that the act occurred and conclude II actor, omitted] [citation defendant was contends that the Texas Supreme Court held that evidence Id. The Evidence, Sep Rules of Criminal effective an offense is admissible under extraneous 1, 1986, govern the connection tember now 104(b)10 federal rule reason- the defendant that must be shown between ably preponderance of the conclude Relying upon extraneous offense. evidence that the defendant committed the Federal Rule of Evidence Huddleston and offense. See id. The Court argues evidence of an wrote: extraneous offense is admissible if the determining whether the Government to meet has introduced sufficient evidence the the evidence 104(b), weighs court the trial neither the extraneous offense. credibility finding the nor makes Huddleston, petitioner In the contended conditional Government has the preliminary the trial court must make a by a of the evidence. preponderance fact finding by preponderance factual of the simply all the evidence The court examines 104(a) that the evidence under federal rule decides the the ease and whether defendant committed the extraneous act.9 reasonably fact— could find the conditional Huddleston, 686-87, U.S. S.Ct. here, by a that the televisions were stolen — Supreme 1499-1500. The noted that Court preponderance of the evidence. 404(b) federal rule does not indicate that Id. at 108 S.Ct. “any preliminary showing necessary agree with all of Huddle- evidence be introduced While we do not [extrinsic act] 108 ston n conclusions, 687-88, agree we do with some proper purpose.” for a Id. at point Consequently, analysis. its first out while S.Ct. at 1500. the court We might compelled to finding” trial court not be ‘‘preliminary does not make a under the (1987), 104(a) Supreme Court held that L.Ed.2d 144 9. The federal and Texas rule are identical. They provide: findings rule preliminary under federal factual 104(a) (a) preponderance GeneraEy. subject of the Admissibility Questions are to a Huddleston, qualifi- Preliminary questions concerning the See 485 U.S. at evidence standard. witness, person exis- cation of a to be a 108 S.Ct. at 1500 n. 5. 687 n. privilege, or the tence court, 104(b) evidence shall be determined identi- federal and Texas rule are 10. The (b). subject provisions In of subdivision They provide: cal. determination, making not bound its (b) Relevancy on Fact. When the Conditioned respect except rules of evidence those with upon relevancy depends fulfill- of evidence privileges. fact, shall a condition of the court ment of 104(a). & TexR.Ceim.Evid. Fed.R.Evid. to, upon, subject the introduction admit it argued Initially, petitioner that the District evidence sufficient to finding by preliminary clear Court must make its However, condition. fulfillment of the Bourjaily convincing evidence. 104(b). 104(b) & TexR.Ceim.Evid. S.Ct. v. United Fed.R.Evid. 104(b). “preliminary finding” make a as to the a conditional fact under rule Huddle- 104(a), of the extrinsic evidence under rule ston concluded that the trial eourt must de- under rule the trial court must never- termine that con- theless make an initial determination as to clude the evidence the evidence, relevancy dependent of the conditional fact. We decline to follow Hud- “upon the fulfillment of a condition of fact”. Brooks, dleston to this extent. See (La.1989) Huddleston, (rejecting 541 So.2d 813-14

In the conditional fact requires Huddleston because Louisiana In clear whether the televisions were stolen. convincing instant the conditional fact is whether evidence that the defendant appellant unadjudicated committed the extraneous offenses committed an extraneous of- fense). depicted State’s Exhibit 76. opin- As discussed in Part I of this offense, ion, committed the extraneous the evi- proper quan- we are convinced that the admissible, provided dence is relevant and establishing tum of the defen- prejudicial is not too and is offered for a dant committed the extraneous offense is proper purpose. See Tex.R.CRIm.Evid. beyond a We therefore 404(b).11 However, if appellant & did deciding that in hold whether admit extra- offenses, not commit the extraneous the evi- guilt/innocence neous offense evidence dence is irrelevant and therefore inadmissi- trial, must, phase of the trial court ble.12 Tex.R.CRim.Evid. rule make an initial determination at evidence, proffer of the that a Neither the federal nor Texas rules of specify gov- reasonable doubt quantum proof what relevancy erns when the defendant committed determination, contingent upon making In evidence is the fulfillment of offense.13 (Clinton, J., Additionally, concurring). Certainly ad Fifth Circuit limits the at 5 those missibility govern admissibility rules of relevant evidence of extraneous offenses under federal apply, and to that extent as demonstrated rules 403 and when it is doubtful that the above. However, Supreme recognized as the defendant committed the extraneous offense. Huddleston, Garza, specifically addresses See United States v. 990 F.2d - conditionally subject (5th Cir.1993), denied, -, which is cert. U.S. special (1993). Garza, considerations. 126 L.Ed.2d 278 charged possession defendant was of 447 kilograms Huddleston, of cocaine with the intent to distribute. 485 U.S. at 108 S.Ct. at 13.Cf. trial, agent Drug (trial During with the Enforce court must examine evidence and (DEA) ment Administration testified that names decide whether find condi- evidence); by preponderance of of the witnesses were in some Government's tional fact of 37.07, computer. the DEA crime On cross examina also TexCode Ceim.Proc.Ann. art. tion, (extraneous agent pun- at the the Government asked the if the name offenses are admissible phase non-capital anyone appeared trial of an of else involved in the case ishment occurring of a offense September agent computer. The on or after the testified that defen beyond appeared comput defendant is shown a reasonable doubt to dant’s name in the DEA crime offense). have committed the extraneous er in connection with a 1990 seizure of 5200 pounds marijuana. of The Fifth Circuit held it concurring Judge opinion Clinton in his criti- testimony regarding was error to admit the imposition beyond a cizes our of the reasonable computer extraneous offense in the DEA crime context, argu- doubt standard in the Rule prove because the failed to the de Government ing require any predi- that the rule does not such fendant committed extraneous Id. at offense. (Clinton, J., Op. cate on its face. at 165 concur- presence 177. The mere of the defendant's name ring). Judge Clinton indicates that no standard computer prove in the DEA crime did not proof apply just of should that the evidence be — defendant committed the extraneous offense finding” support "sufficient to that the condi- computer, proof and without such the evi suggests tion had been Id. at 165. He fulfilled. Further, dence was irrelevant. Id. the extrane that the evidence would be sufficient to ous was inadmissible offense evidence because it merely supported if it an inference probative lacked value and was therefore too degree certainty. with some Id. at 166. This prejudicial. recog- position contrary to Huddleston which proof application quantum nized the 401, 402, 104(b), Judge suggests determining admissibility Clinton that Rules under Rule al- 404(b) sufficiently apply, 403 and address the admissi- we and to beit a lesser one than choose bility of extraneous offense evidence and do not indications in the Code of Criminal Procedure applied contemplate any preliminaiy showing. Slip op. quantum proof that a should be when was further held that the error establishing the The Court “strength of the evidence part In I of this of the factors the not harmless. Id. at 433. [trial] similar act is one may conducting proof that the clear stan opinion, court consider when we noted Id., at 689 n. balancing.” proof a reason dard was the same Appeals n. at 1501 6.14 the Court of able doubt. Because applied a standard substan previously has case, In instant in order for the evi- tively the same as the trial dence to have been sufficient for remand this case to we see no need to it, that a to admit it had to determine court or -to for another determination that court beyond a reasonable doubt could find analysis ourselves. conduct appellant committed the extraneous of- depicted in exhibit number 76. fenses State’s Appeals in judgment of the Court of The Otherwise, portion depict- of the exhibit reversed, judgment of the Harrell III is reinstated, extraneous offenses was inadmissible. I is Appeals Harrell Court Indeed, the trial court instructed the not remanded to the trial court and this cause is to consider evidence of extraneous offenses proceedings consistent with this for further beyond a doubt unless it believed opinion. appellant committed them and then the WHITE, J., dissents. consider them on the issue therefore, Appeals,

intent. CAMPBELL, J., participating. holding erred in that State’s exhibit number CLINTON, Judge, concurring. jury could find 76 was admissible because the of the evidence granted present petition for discre- We defendant committed the extraneous offenses tionary in order to determine whether review III, depicted ledger. Harrell have altered the Rules of Criminal Evidence S.W.2d at 438. proponent which the the standard crimes, however, wrongs, or acts” opinion, initial of of of “other its 404(b), Tex.R.Cr.Evid., Rule must es- Appeals although held that “the evidence under actually strong suspicion that the accused creates a tablish “Wesley5 Specifically, the perpetrator who was the that extraneous misconduct. Tex.R.Cr.Evid., offenses, question ... the evidence falls is whether 104(b), “clear showing supplanted has somehow short of clear he was I, finally alighted on perpetrator.” proof’ this Court Harrell 885 S.W.2d at 433. Indeed, admitting extraneous offenses under our rules of extraneous offense evidence. appellate recognized court’s func- Legislature and the trial court's that even defen- punishment noncapital determination of error. The phase there tion in the object then the dant must first under rule must be evidence a reasonable doubt that proffered evidence is State must show the defendant committed an extraneous act be- tendency apart to show that the from its fore it be admitted. TexCode Crim.Proc.Ann. 3(a). Montgomery, 810 Admittedly, § is a criminal. art. article 37.07 is 37.07 hon- at The trial court then should inapplicable 387. to the instant case because this of- any request by for the State to or the defendant fense occurred in 1986 and the extraneous of- purpose guilt/innocence. the record the limited How- articulate into fenses were introduced at ever, of- legislature provided for which the evidence is given under rule that the has now trial court determines the evi- highest proof fered. Id. If the standard of for the admissi- for the relevant, must further punishment, is the defendant bility at and dence of extraneous offenses object 403. Id. at 388. "Rule 403 greater generally under rule restrictions have been that admissibility and the admissibility favors of relevant placed upon of extraneous of- will be presumption that relevant evidence guilt/innocence punishment, than at fenses prejudicial.” probative Id. at 389. than compare more TexCode TexR.Crim.Evid. 37.07, 3(a), uphold court’s appellate will a trial presumably, § court art. Crim.Proc.Ann. discretion, long ruling i.e. “as guilt/innocence absent an abuse of same standard of exists ruling within the court’s least as the trial But art. 37.- as well. 07, 3(e) (this Crim.Proc.Ann. TexCode disagreement....” Id. at zone of reasonable affect the admis- section does not distinguishable Montgomery because it sibility guilt/innocence). 391. of extraneous offenses at nothing proof, quantum and of does not concern requirement of a proce- Montgomery Montgomery, in abolishes this Court detailed the 14. In regarding quantum proof extraneous offenses. preserving of the admission of dure for error in the 1980 n . See McCann v. during beyond 606 confidence a reasonable doubt that (Tex.Cr.App.1980). During crime, oral wrong an accused committed another cause, Maloney sug- argument Judge in this taking act into account in their gested admissibility that for the standard Prosecuting deliberations.1 The State Attor- ought Rule evidence to be tied to the ney urged grant petition us to another for juries we in to im- Texas discretionary pending review then pose deciding in to extrane- whether consider squarely question, addressed this and consid- deliberations, ous in their vis: misconduct petition er that before or in concert with the proponent proven whether the the ac- present petition. Subsequently, grant we did cused the misconduct to a committed level petition discretionary review. See confidence a reasonable doubt. As 006-93, George pet. granted No. per suggestion argument, Judge his in oral April Maloney majority now holds for a Today, without reference the briefs predicate admitting that as a evi- George, including that of crimes, acts,” the State Prosecut- wrongs, dence “other concludes, Attorney, majority simply judge must determine that relying long-time precedent, find that the com- all of which accused Evidence, pre-dates mitted that misconduct a reasonable the Rules of Criminal jurors still must be instructed to perpetrated accused extraneous misconduct argument, Prosecuting After oral the State they can reasonable doubt before Attorney supplemental Noting filed a brief. consider them their deliberations. From Judge Maloney’s suggestion that is a there uncritically majori- accepted premise conceptual link between the standard necessarily ty reasons that it follows that the which decides whether to consider standard for of such evidence is evidence of extraneous misconduct and the doubt, proof beyond also threshold standard which the trial court that the trial court therefore should deter- makes the to admit decision the evidence mine, predicate of such instance, Prosecuting first At- place, the first whether a rational torney argued supplemental in his brief that conclude, jury could to a level of confidence Evidence, light the Rules Criminal beyond a accused the Court should revisit instruction 104(b), committed extraneous misconduct. supra, issue as well. Given Rule way majority hypothecates Along the Supreme United construc- States Court’s past that whenever this Court has said analogue in tion of the federal Huddleston v. States, it must be “shown” accused United misconduct, (1988), 99 L.Ed.2d 771 the Court should re- juries pre-Rules holdings consider must must be “clear” to be admissi- ble, along instructed must find to a level of what we meant all was that the stolen, supra, raising question In Huddleston v. United the de- the sets were thus Fed.R.Evid., argued Fed.R.Evid., fendant that under Rule relevance” under “conditional 104(a), judge pre- the trial should have made a that, 104(b). weighs the trial court neither liminary finding aspects that all material credibility nor makes a that the condi- crimes, wrongs, “other or acts” the Government proven, fact has but examines all the tional Fed.R.Evid., tendered under had simply evidence and decides whether the been established the evi- fact, i.e., find the conditional prior admitting them into evidence. stolen, by preponder- a that the televisions were Supreme rejected argument, The hold- Prosecuting ance of the evidence. The ing finding preliminary instead that such a of Attorney urges adopt us to the Huddleston level admissibility of extraneous misconduct is not standard, and likewise hold that of confidence 104(a). 404(b) called for under Rule In the Rule 104(b), only under our Rule the trial court need however, context, evi- it noted that "similar act predicate jury find that a rational could find all jury dence” is not relevant unless “the can rea- evidence, by the not facts a of sonably conclude that act occurred and that the convincing con- clear and the defendant was the actor.” Evidence that doubt, tends, beyond a reasonable as the ma- selling Huddleston was television sets was rele- jority today only jury holds. vant if the could find that majori- say by many the cited in the trial able to that rational lished cases court must be a jury ty opinion jury that that instructions to a doubt hold could find necessary. perpetrator. that effect are that accused was the This process reasoning whole seems to me to be (if argument implausible is not it This result-oriented, disingenuous. and not a little is, indeed, majority’s argument);3 but it could only Arguments is not the one. be

I. entertained, made, be and should at least Rules Evidence contem- of Criminal accept majority’s Rather than bald require- plate the the caselaw abolition of premise cannot be called a reasoned con- —it ment of a instruction that extraneous clusion—that even after effective date of perpetrat- be misconduct shown to have Evidence, juries must Rules Criminal by the to a level of confidence ed accused be instructed under the reasonable doubt a reasonable doubt before standard, I first examine and decide would may consider have said that new it. We true, question George. It is as the premium place rules a on the admission of 104(b) notes, majority that Rule does not on that of evidence —even “other particular purport its face to set out a level crimes, acts,” wrongs, long as so by confidence which the factfinder must find solely not proffered evidence is for inferences fact, upon that a which conditional the rele- conformity. Montgomery of character proffered vance of the item of evidential fact (Tex.Cr.App.1990, 810 S.W.2d 372 depends, has been established. rule ad- The 1991) (opinions original submission on preliminary question dresses “relevan- rehearing). own for Court’s motion cy fact,” simply providing conditioned on conditionally the trial court “shall” admit rel- U0U(b) 10k(a) Rules upon evant evidence the introduction of “evi- Tex.R.Cr.Evid., dence a sufficient Under Rule evi- crimes, Advisory wrongs, fulfillment of the condition.” of “other or acts” See hav- apart Committee Notes on relevance from character conformi- Fed.R.Evid. (West ty may purposes, proper Federal Criminal Code and Rules be for admissible 1994), speak at 215. The rule does not to a there is from a evidence which rationally level of a confidence which must find the accused committed it. infer That, Nothing suggests has been I condition established. text of Rule presume reason, majority any preliminary showing necessary would is a mat- is introduced; by ter it long since settled such Texas caselaw. subject only And by general the level of confidence dictated our strictures Tex. (hierarchical declared,' R.Cr.Evid., excep- is not the same as that caselaw Rules 402 tions) dixit, Huddleston, exclusions); essentially (balancing special ipse and 403 su- Tex.R.Cr.Evid., pra, preponderance a not viz: of the evi- Rule does Rather, been, always preliminary finding by dence.2 it has a the court that the any level prosecution has the act to as estab- judge Rehnquist Wright opine 21 C. Justice cites & K. does indeed should Graham, Federal Practice Procedure whether the make determination (1977), proposition p. rationally "preliminary what it calls the trial court must decide under federal fact,” say does he must determine that it juty could find the whether condition any particular preliminary could find that fact to upon which conditional fact Supreme Court level of thus confidence. depends by preponderance of the evidence. preponderance appears imposed to have The Court had earlier determined that Rule explana- authority, sans and without 104(a) questions prepon- be resolved should tion. standard, expressly but reserved the derance question prevail standard should of what argument, majority’s it at least 104(b). Bourjaily See v. United responsive being the virtue of Prose- U.S. n. 107 S.Ct. n. cuting Attorney’s adopt position we should 97 L.Ed.2d n. 1. While that Fed.R.Evid., Supreme portion Court’s construction Wright and trea- of Professors Graham’s 104(b) Rehnquist tise Rule Huddleston. cited Justice Huddleston themselves, confidence. Huddleston remotely See United the rules require it. 687-689, (Tex.Cr. at 108 S.Ct. at Cf. Santana v. 714 S.W.2d 1 1500-1501, (due 99 L.Ed.2d at 780-782. If there App.1986) process does not in- any is evidence of extraneous misconduct phase punishment capital struction at mur- that would tend to make the existence of a prosecution der must find accused consequence probable fact of more or less committed extraneous offenses a rea- probable it than would be without that evi- considering sonable doubt before them in (apart conformity) from character issues, special long deliberations on so if perpetrator, the accused was the then clearly only is instructed it can answer perpetrator evidence the accused was the ‘yes’ if it finds a reasonable doubt makes that evidence “relevant.” Tex.R.Cr. special issues should be answered that Evid., Any Rule 401. such evidence should way). (“All therefore be admitted under Rule 402 ...”) again, evidence admissible Wi(b) 10k(b) — Bules subject only whether, to the determination determining preliminary contrast alia, inter if the inference that the accused questions pur- of evidence for perpetrated particularly the offense is not a 104(a), poses of Rule under Rule one, compelling ought it nevertheless to be ante, 104(b) governs Rule conditional admis- probative excluded because the value is sub- alia, of, sibility inter Rule evidence stantially outweighed by danger of unfair crimes, wrongs “other or acts.” As the Su- prejudice, under Rule 403. preme pointed out in Huddleston: It emphasis would be inconsistent with the “Evidence is admissible under of relevant evidence to admit only if it is relevant.... In the Rule evidence of extraneous misconduct under the 404(b) context, similar act evidence is rele- above scheme of rules instruct and still vant if the can con-

jury that it must find that the com- accused clude that act occurred and that the mitted the misconduct ato level of confidence defendant was the actor. See United may give a reasonable it doubt before Beechum, States v. 582 F.2d any probative that evidence value whatsoev- (CA5 1978) (en banc). In the instance long contemplated er. As as the evidence is petitioner the evidence that was sell- by Rule relevant under Rules 401 and ing the televisions was relevant under the prejudicial probative not more than theory only Govemments’s and thus determined admissible the televisions 104(a); pursuant long to Rule and as as the were stolen.” clearly instructed it must find all Id., elemental facts to a level of confidence be- 485' U.S. 108 S.Ct. at added). yond (emphasis an instruction that L.Ed.2d at 782 Thus evi- evidentiary it must also find some item dence of the extraneous offense was condi- tionally subject fact to that same level of confidence before admissible to introduction of considering arguably superfluous. “connecting up” Nei- other evidence with the law, process determining ther requisite due and due course of nor condition of fact.4 In advisory proposed killing, 4. As the committee on rule of the kind used in the treated in Rule explained: treatment, situations, Accepted provided "... in the relevancy "In some of an item rule, sense, given ques- is consistent with that fact large depends upon generally. judge prelimi- particular tions makes preliminary the existence of a nary determination whether the foundation ev- purporting fact.... letter to be from Y is [I]f him, upon idence is sufficient to relied establish an admission so, probative it has Y fulfillment of the condition. the item is no value unless wrote or Relevancy [But authorized it. in this sense has admitted. 'after all the evidence on the in,' relevancy.' subject been labelled ‘conditional Prob- issue is to further determination of arising jury's lems in connection with it are to is- role vis vis the "fulfillment” distinguished problems logical from sue.]” relevan- Rules, 1994) (West cy, e.g., in a murder case that the Federal Criminal Code and 215; Huddleston, day weapon purchased supra, accused on the n. 108 S.Ct. at evidentiary beyond a doubt before proponent the of the misconduct reasonable whether it, considering necessarily it does follow conditionally not has introduced item admitted judge must a rational that the trial determine to fulfill the condition sufficient evidence he did reasonable jury could find a thereby Rule trial court meet “the admitting to the evi- predicate as a doubt credibility a find- weighs nor makes neither and on problem, is a Rule dence. This [proponent] the con- has requires predicate. the rule no such its face [; simply fact ... examines t]he ditional court crimes, context of evidence of “other the all and decides of the evidence the case acts,” wrongs, mandates ten- jury whether (as- evidentiary admission of an item tative fact,” Supreme according to the conditional Arti- suming it is otherwise under admissible Court, “by preponderance a the evidence.” of Rules) is long cle of the so as there IV Ibid., 690,108 at at at 99 L.Ed.2d finding [that to a “evidence sufficient preponderance standard is 782-88. But even has been fulfilled].” condition language somehow inherent of Rule plurality recognize, itself to as the seems itself,5 arguably for this anomalous prescribe particular does not rule, Court, having adopted to the federal of confidence which it must be found level jurors yet to hold that must be instructed that the condition has been fulfilled.6 fact find the conditional In the absence of articulated level 104(b), majority in Rule holds confidence By arguments is ana- these the caselaw “beyond appro- reasonable doubt” is chronistic, and should be in favor of interred priate, misconduct at least rules, respective application of context, of confi- because the level developing construed law. requires jury the caselaw to have. dence arguments, would resolve if We best these “it no plurality The believes makes sense” itself, George then same not at least at the admissibility for adopt a standard extrane- Instead, by George. that we consider time embraces a ous misconduct evidence that essentially assuming in an answer this cause requirement rig- any less level of confidence squarely George, to the issue we raised jurors than that which we orous pretermit any analysis real once we do come Maj. op. at 158-59. “Presum- themselves. Indeed, petition. it resolve would continues, ably,” majority “the standard decide, surprise me were admissibility and the instruction were today, conclusory holding consistent with its That, to mirror one intended another.” petition having George to dismiss the course, entirely begs question. improvidently granted. If the issue culminating in the I not read the cases do really cut regarding instructions is showing” prescribe a “clear test to McCann think, majority and dried as seems to admissibility for that includes de- standard appear put would we have Prose- court whether termination Attorney cuting significant trouble of finding make a that the accused briefing George naught. extraneous misconduct particular level confidence—much less II. requisite of fulfillment of a condition. is, uncritically accept if one does the The fact Even

premise must still be instructed never “mirrored” instruction. majority’s contrary “presump- for the to find the accused committed extraneous basis 1501-1502, 7, quoting resolving ] [Rule must observe n. L.Ed.2d at n. the court Graham, Wright C. & K. Practice and questions.") Federal (footnotes pp. omit- Procedure added). ted) (emphasis evi- the federal nor rules of 6. “Neither Texas quantum governs specify what Bourjaily 5. But see n. ante. Cf. v. United relevancy when the 107 S.Ct. (The contingent upon of a condition- fulfillment Federal 97 L.Ed.2d 104(b).” op. Maj. define under rule Rules ... nowhere the standard of al fact 166 perpetrator”

tion” seems to consist of some minimal [the] of an extraneous of- admitted); cross-pollination fense before it can be between the Fentis v. State, 590, cases, (Tex.Cr.App. 528 S.W.2d at 592 jury charge cases and the and one of 1975) (that accused committed extraneous given several definitions of word “clear” misconduct “must be shown with some de Dictionary. in Black’s Law But.it seems to gree certainty before evidence of [it] can describing me the caselaw the standard for in”); State, Tippins 110, come v. 530 SW.2d admissibility of extraneous misconduct de- (before (Tex.Cr.App.1975) at 111 scribes what the character of the evidence may introduce evidence of extraneous mis- admitted, must be before it be not to conduct, it “prepared clearly must be what level of confidence it could prove it); the accused committed” persuade jury. See, e.g., Williams v. State, 312, (Tex. Eanes v. 546 at S.W.2d 315 State, 128, 645, 38 Tex.Cr.R. 41 at S.W. 648 Cr.App.1977) (echoing Tomlinson and Lan (1897) (“... before evidence of an extraneous ). ders offered, cogent crime can be some crystallized many When McCann these ar- appellant’s should be adduced of connection ticulations of the standard which to mea- therewith_”); State, Walton v. 41 Tex. sure of extraneous misconduct 454, (1900) (“... 566, Crim. 55 at S.W. 567 test, showing” evidence into a “clear it did testimony there should have been indi some thereby incorporate not a level of confidence cating degree certainty awith Instead, component. the McCann test sim- appellant guilty” was of the extraneous ply identified what the character of the evi- offense); State, 427, Denton v. 42 Tex.Crim. dence should be. That evidence must “show” (1901) (same Walton); 60 S.W. 670 at 672 as “prove” necessarily suggest or even does State, (Tex.Cr. 757, Glenn v. 76 S.W. at 758 persuade any specific extent, it must but (before App.1903) evidence of extraneous simply provide that it sufficient substance to admitted, misconduct can be “there must be inference, support and to it “with pertinent testimony tending ap- to show that degree certainty.” language some pellant” it, citing is the one who committed to, was neither intended nor on Williams); State, Fountain v. 90 Tex.Crim. it, change showing” its face does this “clear 489, (1921) (that 241 S.W. at 491 accused standard. committed extraneous offense “must be I concur in the result reached the ma- certainty”); shown ... with reasonable jority. indulge majority’s I do not fic- State, Hooks v. 97 Tex.Crim. 261 S.W. tion, however, opinion its first in this (Opinion appel- at 1054-55 on really appeals apply- cause the court of was (same Glenn); rehearing) lant’s motion for standard, ing a a reasonable doubt State, Wells v. Tex.Crim. S.W.2d asking itself whether trial court erred to (1931) (that at perpetrated accused conclude the find be- “satisfactorily extraneous offense must be yond a reasonable doubt that justify admissibility); Shepherd shown” to ‘Wesley” in the notebook State’s ex- State, 387,158 143 Tex.Crim. at simply hibit I would hold that number 76. (1942) (same Wells); State, Clark appeals applied the court of the correct 63,165 (1942) (that 145 Tex. Crim. S.W.2d 747 original showing” “clear submis- perpetrated accused extraneous offense must sion, judgment and reinstate that on authori- “shown”); be Carmean v. 163 Tex. (Tex.Cr. ty of Arcila v. 834 S.W.2d (1956) (citing, Crim. App.1992). another, point above); one all of the Tom result, Accordingly, I concur but not linson v. (Tex.Cr.App. opinion majority. 1968) (State “prepared prove must the accused committed” extraneous miscon- MeCORMICK, P.J., joins opinion. duct); Landers v. (Tex.Cr.App.1975 (Opinion on State’s mo- Tex.Jur.2d, rehearing) (quoting tion for

Evidence, p. proposi- for the

tion that the accused must be “shown to have

Case Details

Case Name: Harrell v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 21, 1994

Citation: 884 S.W.2d 154

Docket Number: 1232-92

Court Abbreviation: Tex. Crim. App.