Willie Ray MITCHELL, Appellant, v. The STATE of Texas, Appellee.
No. 06-94-00058-CR.
Court of Appeals of Texas, Texarkana.
Decided Jan. 5, 1995.
Rehearing Overruled Jan. 24, 1995.
892 S.W.2d 213
Submitted Oct. 18, 1994. Discretionary Review Granted May 3, 1995.
In Scherling v. Superior Court of Santa Clara Cty., 22 Cal.3d 493, 149 Cal.Rptr. 597, 585 P.2d 219, 223-24 (1978), the Supreme Court of California discussed the right to travel when someone has committed a crime.
[T]here is clearly a distinction between one, who, like the defendant, leaves the state after committing a crime, resulting in the tolling of the statute of limitations during his absence, and one who has cоmmitted no crime but is deprived of a government benefit merely because he exercises his right to travel to another state. In the former circumstance, the state has an interest in assuring that the defendant is available locally not only to enhance the possibility of detection but also to avoid the burdens of extradition proceedings, should he be charged, his whereabouts become known, and he refuses to return voluntarily.
I agree with the reasoning in Scherling.
I would deny the writ of habeas corpus.
Frank Long, Dist. Atty., Amy M. Smith, Asst. Dist. Atty., Sulphur Springs, for appellee.
Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.
OPINION
CORNELIUS, Chief Justice.
Willie Ray Mitchell was convicted on his guilty plea to a charge of delivery of cocaine of less than twenty-eight grams. The jury assessed punishment at seventy-seven years’ imprisonment. Mitchell raises three points of error in which hе contends that the trial court erred (1) by not including a jury instruction on the burden of proof on extraneous offenses introduced at the punishment phase; (2) by not including in the jury charge a limiting instruction on the permissible use of extraneous offenses at punishment; and (3) by refusing his requested definition of “beyond a reasonable doubt” in the punishment charge. We overrule these contentions and affirm the judgment.
At the punishment stage, with the jury present, the State introduced evidence that Mitchell hаd committed four extraneous unadjudicated offenses by selling cocaine. Then, outside the presence of the jury, the court ruled that the evidence was admissible and that it showed beyond a reasonable doubt that Mitchell had committed the offenses.
Mitchell contends that the trial court erred by not giving the jury his requested instruction on the burden of proof on extraneous offenses. He also contends in his third point of error that the court erred by refusing to include in the рunishment charge his requested definition of “beyond a reasonable doubt.” We discuss these points together.
After a defendant is found guilty, and regardless of whether the judge or the jury assesses punishment, either party may offer any evidence that the court deems relevant to sentencing. This evidence can include proof of an extraneous unadjudicated offense or act where the State shows beyond a reasonable doubt that the defendant committed thе offense or act and that it is one for which he could be held criminally responsible. It is not necessary that the State prove that the defendant was charged with or convicted of the offense. The statute does not require thаt this evidence conform to the rules governing the admissibility of extrane-
Mitchell does not complain of the evidence‘s admissibility. He contends, rather, that after the court admitted the evidence, it should have given the jurors his requested instruction and definition regarding burden of proof and allowed the jury to determine if the acts or offenses had been proven beyond a reasonable doubt.
Mitchell cites no authorities for this proposition. Few cases interpret this recently amended statute, and the statute is silent as to who decides whether the State has met its burden.
The Legislature amended Article 37.07 effective September 1, 1993, to overrule the holding of Grunsfeld v. State, 843 S.W.2d 521 (Tex.Crim.App.1992). In Grunsfeld, the Court of Criminal Appeals, relying on statutory construction, held that the Code of Criminal Procedure prohibited the introduction of unadjudicated extraneous offenses during the punishment phase of a noncapital trial. The previous Article 37.07 had allowed the judge or jury to consider, subject to the Rules of Evidence, any evidence about the defendant the court deemed relevant, “including prior criminal record, his general reputation and his character.” Prior criminal record meant a final conviction in a court of record, or a probated or suspended sentence that had occurred before trial, or any final cоnviction material to the offense charged. The Court of Criminal Appeals said the statutory language excluded evidence of unadjudicated extraneous offenses. Under this statute, the court determined admissibility subject to an abusе of discretion standard of review. See
A different Code article controls the introduction of evidence at the punishment phase of capital trials. In capital trials, the jury decides whether the State meets its burden of proof at punishment.
For noncapital cases, Article 37.07 does not specifically describe the duties of the сourt and the jury. When it amended the statute, the Legislature said nothing about changing the procedure for determining admissibility. It could have changed Article 37.07 to conform to Article 37.071 in its allocation of duties, but it did not.
In this case, the trial court deemed the evidence admissible and determined as a matter of law that the State had met its burden of proof. We hold that the requirement of proof beyond a reasonable doubt is a preliminary requirement for the admissibility of the evidence of extraneous offenses rather than a part of the State‘s case and that it is the judge rather than the jury who should make that determination at the punishment stage of the trial.
Mitchell also complains because the trial court refused his requested definition of “beyond a reasonable doubt” in the punishment charge. The jurors do not need such a definition because, as noted above, the court rather than the jury determines whether the extraneous offenses were proven beyond a reasonable doubt so as to be admissible.
Mitchell also contends that the trial court erred by not including in the jury charge his requested limiting instruction on the permissible use of extraneous offenses at thе punishment phase. He says the jurors
Jurors need limiting instructions to ensure that they do not use evidence for impermissible purposes when the evidence is admissible for one purpose but not for other purposes, e.g., when the admitted evidence is relevant to more than one material issue in the сase, but the jurors may legally consider it for only one of the issues. Jurors do not need instructions when the evidence is relevant only to the issue on which it was submitted. See Lewis v. State, 815 S.W.2d 560, 566 (Tex. Crim.App.1991).
Under the previous statute, a court was sometimes required to give limiting instructiоns at the punishment phase when a party had improperly placed evidence before the jury, such as when a party introduced evidence of extraneous unadjudicated offenses in violation of the statute. See Murdock v. State, 856 S.W.2d 262, 264 (Tеx. App.—Texarkana 1993, pet. ref‘d). Here, guilt had already been established and the court‘s charge set out the statutory punishment range. The jurors could not misuse the evidence. Their sole duty was to set punishment within the statutory limits. Enhancement, whiсh is set out in the indictment, determines the punishment range given the jury in its charge.
For the reasons stated, the judgment is affirmed.
GRANT, Justice, dissenting.
I agree with the majority that the amendment to
Extraneous offenses have long been admissible for limited purposes at the guilt/innocence phase of the trial. Harrell v. State, 884 S.W.2d 154, 159 (Tex.Crim.App.1994). The Court of Criminal Appeals has held, and continues to hold after the enactment of the Texas Rules of Criminal Evidence, that the standard of proof necessary to admit extraneous offenses is beyond a reasonable doubt. The Court of Criminal Appeals hаs further held that if the defendant requests at the guilt/innocence phase of the trial that the trial court instruct the jury not to consider extraneous offense evidence admitted for a limited purpose unless it believes beyond a reasonable doubt that the defendant has committed the extraneous offense, then the defendant is entitled to that instruction. George v. State, 890 S.W.2d 73 (Tex.Crim. App.1994). I see no reason why this instruction should not also apply at the punishment stage of the trial. Otherwise, it would appear that the trial court becomes the exclusive fact finder on this matter instead of the jury. This is contrary to the basic functions in the trial court under
I respectfully dissent.
CORNELIUS, Chief Justice
GRANT, Justice