Montgomery v. State

request for denying erred in Halsell’s

jury trial.1 jury grant

A refusal shows only if the record

harmless error fact exist and an

that no material issues of justi

instructed verdict would have been Bank,

fied. v. Texas Commerce See Olson 764, (Tex.App.

715 S.W.2d —Houston Here, n.r.e.). ref’d writ Dist.] [1st existence of several

the record reflects the chiefly, whether

material fact issues: apartment, and

Dehoyoses their abandoned damages. Dehoyoses’ extent of the refusal that the trial court’s

We conclude harmful grant trial amounted ap- grant therefore Petitioner’s

error. We pursuant

plication for writ of error Appellate Procedure

Texas Rule of argument, majority hearing oral

without judgment

of the court reverses remands this cause to appeals

court of jury trial.

the trial court for a

CORNYN, J., sitting. Logan

Patrick

MONTGOMERY, Appellant, Texas, Appellee.

The STATE 1090-88, 1091-88.

Nos. Texas, Appeals

Court Criminal

En Banc.

May 1990.

Rehearing Feb. 1991. Granted Rehearing

On June our is inconsistent with the extent that it disapprove opinion v. Arel in Brawner 1. We Antonio), lano, (Tex.App. holding herein. 757 S.W.2d 526 — San (Tex.1988), by agr., pet. dism'd Weaver, only, Dallas, R.K. appeal appellant. Vance,

John Atty., Dist. and Patricia Noble, Poppoff Celia Barr and Karen Be- cak, Dallas, Attys., Asst. Dist. Robert Hut- tash, Austin, Atty., State’s for the State. ON APPELLANT’S PETITION OPINION FOR DISCRETIONARY REVIEW McCORMICK, Presiding Judge. juryA appellant, Logan found Patrick Montgomery, guilty of two of inde- counts cency with a child and assessed sentence of ten years’ confinement each offense. ment the State’s case and it cannot be Appeals appealed. He Court of Dallas act; 5) criminal did not inferred held that trial court abuse motive; 6) hear testi allowing jury discretion in to re- show the accused’s mony appellant claimed constituted theory raised fute defensive improper proof of an extraneous offense. accused.” 323, 324-325 State, 760 S.W.2d Montgomery v. aggrieved testimony did not fit Because the (T 1988). granted ex.App.— We Dallas argued snugly any exception, appellant into holding1 appellant’s petition to review this Appeals trial court to the Court of and now affirm. erred when it allowed the to hear case, During of this over trial testimony. objection, judge the State lant’s allowed Court, appellant repeats Before this testimony that had to introduce argument he made before Court paraded around on several occasions Appeals prays reevaluate the that we daughters, complain- front of his minor find that the trial court erred evidence to ants, in with an erection. Before the nude testimony permitted aggrieved it when argued Appeals, appellant the Court of go jury. For the reasons to before the trial court erred when it allowed the below, appellant’s we decline invitation. testimony, arguing State to introduce this that: “It is settled that an accused well THE TRIAL ROLE COURT’S not be tried for some collateral crime or Initially, reject appellant’s we invocation being generally. a criminal For this for rules of the common-law’s mechanistic reason, generally prohib- the courts have of evi- tended to favor exclusion which ited the introduction of about adoption Appellant was tried after dence. extraneous offenses ... the Texas Rules of Criminal Evidence. proffered by “The extraneous offense favor the admission of all The new rules prejudicial the State to the Defen- was jury’s logically for the relevant evidence dant and was not material or relevant. State, v. 761 consideration. See Crank not, The extraneous offense should (Tex.Cr.App.1988). 342 n. 5 S.W.2d therefore, have been in the trial admitted Finding piece of evidence to be “rele- of this cause.” step court’s vant” is the first

Appellant, citing State, Plante 692 v. the evidence determination of whether (Tex.Cr.App.1985), 487 S.W.2d and Cole should be admitted before “[a]ll (Tex.Cr.App. man v. 577 695 S.W.2d admissible_ Evi- relevant evidence is 1978), evidence, aggrieved insisted is not relevant not admissi- dence which admissible, to be must fall into one of the Tex.R.Crim.Evid. 402. “Relevant ev- ble.” generally accepted exceptions “six to the tendency having any to make idence means against rule admission of extraneous of that is of conse- any the existence of fact Appellant specifies “gener fenses.” these quence of the action to determination ally accepted” exceptions as: probable probable or less more “1) show in which the the context [to] Tex.R. be without the evidence.” would ...; 2) to criminal act occurred circum- 401; 401. “Rele- Fed.R.Evid. Crim.Evid. stantially prove identity where the State characteristic of vancy is not an inherent issue; 3) to lacks direct evidence on this as a rela- any item of but exists scienter, guilty or where intent of evidence and a an item tion between knowledge cannot be inferred from the Ad- itself; 4) properly provable matter the case.” act show malice state visory Note Fed.R.Evid. mind where malice is essential ele- Committee’s however, consideration, granted petition deter- 1. We also to review further we have petition Appeals' holdings granting Court of did mined that the error, properly preserve any, purpose improvident in that the error was Montgomery, Upon properly preserved. 760 at review. S.W.2d in Waldrop v. 401.2 deciding particular piece As this Court said whether a relevant, evidence is a trial 138 Tex.Crim. 133 S.W.2d 969 person, should “would a ask reasonable (1940): experience some the real world “Relevancy is defined be that which particular piece believe that the pertinent proof hy- conduces helpful determining truth or falsi pothesis pertinent hypothesis being —a ty consequence fact is of which, if logically one sustained would Brashier, lawsuit.” See United States it is influence the issue. Hence relevant (9th Cir.1976) (rule 548 F.2d put evidence any circumstance inquire thumb whether reasonable tends proposition to make might probability man of truth believe probable.” issue more less consequential fact if he be different added). (emphasis proffered quoting S.W.2d at knew of Wein Evidence, Burger, Weinstein’s stein & Brown See also ¶401[07], (1985)). 401-27 If the (McCormick, (Tex.Cr.App.1988) P.J., juror believes a reasonable State, concurring); Johnson v. 698 S.W.2d would that proffered conclude the evidence Plante, 154, (Tex.Cr.App.1985); 160 692 probabilities alters the to de involved Thus, merely S.W.2d at 491. evidence gree, relevancy present. is tending probability to affect the 401, From the trial Tex.R.Crim.Evid. falsity truth of a is logically or fact in issue court next moves to 4023 Tex.R.Crim.Evid. Moreover, relevant. the evidence need not logically to decide whether the relevant by prove disprove particular or itself a fact evidence should be Under the admitted. relevant; to if be it is sufficient the evi- proponent rules of once the of an provides nudge prov- toward small item of shows the evidence evidence that is ing disproving or some of fact conse- in logically relevant to some issue quence. Advisory See Committee’s Note to 401, under it is under Rule admissible Rule (“The proved 401 Fed.R.Evid. fact opponent 402 unless the the evidence of ultimate, may be or intermediate evidentia- demonstrates that it should be excluded ry; it not so it is long matters as of conse- provision, because of other whether some quence action”). constitutional, in the statutory, evidentiary.4 the determination of or 401, 402 and the Rules 403 of the Texas Rules of 4.There will be occasions when trial court 2. judge from Rule to Tex.R.Crim. Criminal Evidence are in all must detour 401 identical material moving Evid. 104 ample, 402. For ex- aspects before Rule same in the numbered rules the Fed contrary ap- made and to assertions in they eral Rules Evidence from which were merits, pellant’s on the Huddleston v. brief in Although by derived. this Court not bound is States, 681, 1496, U.S. S.Ct. United 485 108 99 decisions, lower when the federal Texas (1988), Supreme Court L.Ed.2d 771 the in an Rule, greater duplicates Rule the Federal 104(b) opinion, ap- unanimous plies held that Rule given usual deference should be federal relevancy preliminary to all issues in- State, interpretations. Campbell court’s See v. cluding the admission of extraneous offenses 712, (Tex.Cr.App.1986); 718 S.W.2d 716 Rodda 104(b) 404(b). provides under Fed.R.Evid. Rule 415, (Tex.App 745 S.W.2d 418 . —Hous relevancy depends upon that "when of evidence 1988, refd); pet. ton Cole v. [14th Dist.] fact, the the fulfillment a condition of 1987, (Tex.App. 735 S.W.2d 690 — Amarillo to, upon, subject shall admit it or introduc- Committee, pet.) appoint no The State Liaison finding support tion of evidence to of fulfill- by Legislature propose ed 1981 codi Supreme ment of the condition.” The Court evidence, consistently fied rules of considered . concluded evidence of extraneous of- that an Rules, rejected although the Federal verbatim fense be admitted if there is sufficient "should McGee, Caperton adaption. Background, support by finding evidence to Scope Applicability Texas Rules committed defendant the similar act.” 108 Evidence, (1983). 20 Hous.L.Rev. is, hypothetical juror S.Ct. at That if a 1499. reasonably could conclude that defendant provides 3. Rule 402 evidence relevant ”[a]ll committed the extraneous offense that of- admissible, except provided by as admissible, otherwise fense shall is otherwise statute, rules, Constitution, by by by or these admit it evidence. See S.Ct. at into States, prescribed pursuant statutory Dowling other rules au- Accord v. United 493 U.S. (1990) (relevant thority. Evidence which relevant is not is not 110 S.Ct. 107 L.Ed.2d 708 juror admissible." extraneous evidence admissible if offense mutually nor “neither exclusive us, claims dent—are In the case before Cleary, McCor- proof collectively exhaustive.” constitutes (3d Evidence, its extraneous offense and mick On section prejudicial af- outweigh Ed.1984). its does not uses value are numerous other “There Although not cited fect. of criminal acts to which evidence attempts to merits brief put.” Id. 404(b). That Tex.R.Crim.Evid. invoke rele “[although provides Rule 403 provides: vant, proba may be excluded its crimes, wrongs, or “Evidence of outweighed substantially tive value is char- acts not admissible confusion of prejudice, unfair that he person order show acter of a issues, misleading jury, or conformity may, It therewith. acted in delay, needless of undue considerations pur- however, for other be admissible It is presentation of cumulative evidence.” motive, proof opportu- poses, such Texas adoption of this rule that intent, preparation, plan, knowl- nity, evidentiary Under the law altered. identity, or of mistake or edge, absence Texas, pro former common-lawrules accident, provided upon timely request required ponent piece of evidence accused, giv- by the reasonable notice value of to show that of trial of intent to intro- en advance outweighed prejudicial offered evidence duce in the State’s case chief such effect. See Bush arising in the evidence other than that (Tex.Cr.App.1982). also 444-445 See same transaction.” 344, 346 662 v. S.W.2d Williams wrongs The of other exclusion rules, (Tex.Cr.App.1983). Under new based, Rule 404 is not on its lack of under however, in a alteration there been value, probative but unfair rather focus; burden to opponent’s it is the now prejudicial Blakely, effect. See Article IV: only proffered evi demonstrate not Limits, 20 Relevancy and Its Hous.L.Rev. but to show negative dence’s attributes 151,190 (1983). Advisory Committee’s negative these attributes “sub also 404(b) Note to Fed.R.Evid. states that ” probative stantially outweigh any value. Rule offers “no mechanical solution” to 5; Crank, n. 761 S.W.2d 342 Rodda excluding admitting evidence of other 415, (Tex.App.— 745 417-18 S.W.2d wrongs by the committed defendant. 1988, ref’d). pet. Houston Dist.] [14th Rather, the Committee indicated Judge in Crank Clinton observed trial court should such evidence un- assess plain language 403 shifts the of Rule “[t]he admissibility: rules “The der usual for from the test enunciated focus somewhat must made determination be whether 344, 346 in 662 S.W.2d Williams [v. outweighs the prejudice of undue progeny. The (Tex.Cr.App.1983) and its ] value the evidence view Rule 403 is to admit all approach under appropriate making deci- other factors probative val unless the relevant evidence In kind Rule 403.”5 sions under outweighed the dan substantially isue short, 404(b) simply specific a cod- Rule prejudice to a defendant.” ger of unfair balancing general ification for a determina- (emphasis n. in the at 342 5 must re- tion under Rule 403. It also be original). exceptions membered that enumerated balancing objections upon Most based motive, 404(b) proof opportuni- to Rule — attack intent, required under Tex.R.Crim.Evid. 403 ty, preparation, plan, knowledge, (as party aggrieved to the identity, of mistake or acci- or absence only judge may reasonably on the basis occurred exclude could conclude act 403, forth in of those considerations set and the defendant was the actor notwithstand- ing i.e., prejudice, waste time.” acquitted confusion or that the defendant has been 681, States, offense). having 108 v. United 485 U.S. Huddleston committed extraneous 1496, 1500, (1988), citing 99 L.Ed.2d 771 S.Ct. Advisory Supreme agrees, finding to Fed.R.Evid. 5. The Court that "with Committee’s Note 404(b). respect permissible to uses such 378 us). appellant does in case before It THE APPELLATE ROLE COURT’S remembered, however, must be that virtu- adoption Concomitant with of the Texas ally proffered by party all evidence to a Evidence, Rules there should be corre will prejudicial opposing lawsuit sponding part on the ap reluctance of an party. Figueroa, United States v. 618 pellate court to reverse court decisions 934, (2d Cir.1980), F.2d 943 ex- the court which admit or exclude evidence. Courts

plained: recognize universally commentators “All against evidence introduced defen- that with the enactment of Federal Rule dant, case, if material issue in the 403 there was a conscientious decision to prove guilt, but tends it is not neces- give the trial court a considerable freedom sarily prejudicial mat- sense that evaluating proffered proba evidence’s evidence_ ters to the rules of Evi- prejudicial tive value relation to its ef prejudicial only when it tends Robinson, fect. See United 560 States some have adverse effect a defen- 507, (2d Cir.1977) (applying F.2d 512-516 beyond tending prove dant the fact or “arbitrary-irrational” judicial standard of justified issue that its admission into evi- discretion); Wyers, United States v. prejudicial dence. ... The effect (5th (rule Cir.1977) F.2d well es tendency created of the evidence tablished that trial court’s rulings some fact properly adverse unfairly relevancy materiality issue or excite emotions ab disturbed defendant_ against the materi- When discretion); sent clear abuse of United prejudicial al evidence has an additional Cohen, (5th States v. 544 F.2d effect, requires Rule 403 the trial court Cir.1977)(same) denied, cert. 431 U.S. to make conscientious assessment of (1977). 97 S.Ct. 53 L.Ed.2d 224 See whether the value of the evi- also Construction Ltd. v. Brooks-Skinner disputed dence on a issue the case is (3d Cir.1973) (if Bldg., F.2d substantially outweighed by preju- as trial sitting judge, might tendency dicial of the evidence to have prejudicial well have concluded nature other some adverse effect de- the worth; probative of outweighed evidence fendant.” 618 F.2d 943. court, however, appellate say not could such, only As prejudice provides “unfair” that action of the court trial constituted the basis exclusion of evi- relevant discretion).6 Opinions of abuse from this Jamil, dence. See United v. 707 States See, e.g., Court have held same. Mar the 638, (2nd Cir.1983) (“preju- F.2d 644-645 State, 395, (Tex.Cr. 741 ras v. S.W.2d 404 dice” showing does not constitute “un- of 85, App.1987); Stone 574 v. S.W.2d prejudice). fair” Advisory See also Com- (Tex.Cr.App.1978). 89 (“Unfair” note to mittee’s Fed.R.Evid. 403 appellate The reason that courts must prejudice tendency means an “undue great a trial afford court discretion its suggest basis, an improper decision on commonly, evidentiary though is not based necessarily, not an emo- decisions exclusive- one.”) tional ly upon Appel- the wording Rule 403.7 general agreement required 6. Commentators are in the court so. trial is not to do As appellate drafted, originally courts should afford trial courts the Rule 403 of the Federal Rules discretion admit exclude and/or of Evidence read: jury’s generally from the consideration. See “(a) Although EXCLUSION MANDATORY. Herasimchuk, Relevancy The Revolution in relevant, pro- evidence is admissible if its through Law: Criminal A Practical Tour the outweighed substantially by bative value is Evidence, Mary's Texas Rules Criminal 20 St. prejudice, of unfair or confusion Goode, (1989); L.J. 782 n. 113 Wellborn & issues, misleading jury. or of Sharlot, Guide to the Texas Rules Evidence: "(b) EXCLUSION DISCRETIONARY. Al- Criminal, Civil and Section 403.1 at n. 15 relevant, though be excluded if (Texas 1988). Practice probative outweighed substantially value is Indeed, by delay, Tex.R.Crim.Evid. like undue its federal considerations of waste of time, counterpart, provides “may" presentation trial court or needless of cumulative rule, implying exclude evidence under that evidence.” differing of a view courts, ter otherwise because by appellate late bound cold (a) the highly subjective factors of records, the trial courts discre- must afford (b) value, in a court judge tion because the trial infer- by the evidence. This impact presented superior position to evaluate the strengthened by the fact that the wit- judge The trial sees the ence the evidence. a mere nesses, defendant, not establish imbalance jurors and coun- Rule does requires standard, sel; but rather partici- as the he alone is able witness only if its ‘may’ barred As the the evidence be pants’ mannerism and reactions. ‘substantially’ out- cannot value is opined: Robinson “[W]e by prejudice.” weighed weigh on ... the intonation appeal preceding demeanor of the witnesses agree; the trial court should be allowed We deter- nor can we in issue ... or admit evidence the discretion exclude jury reaction mine the emotional appellate an before judge the pieces ... or of evidence rulings not set aside the trial court’s should by impeachment cross-examina- success record showing in the absent jurors.” through tion observation court has that discretion. abused 560 F.2d 512-516. Marras, 741 at 404. S.W.2d merits, Court, early opinion in its on the this there brief In an attempt attention to an to define “abuse of discre- directs Court’s United was Cir.1978), (3rd Remarkably, the Court wrote: Long, 574 F.2d tion.” States proper providing standard many cases of the dif- are cited to “We late review for these cases. There ferent states of the Union relative Appellate Federal Court concluded: meant ‘abuse of discretion’ what is an lending desirable, itself an abso- and while judicial “If restraint is ever by which such measuring lute stick analysis is when a Rule 403 of a understood, the opinions could abuse court nal_ reviewed tribu- agreement that an seem to be in fair usually doing of discretion means abuse ‘may’ “In view the use of in the of ... re- something differently from what the final version of Rule it is manifest viewing authority would have felt called draftsman intended that do.” upon to Williams given very discre- substantial (1954). Tex.Crim. ‘balancing’ probative tion in value on no such prejudice’ one hand and ‘unfair on the The Court cited authori- Williams’ other, proposition and “abuse of discre- ty and that he should not be reversed for its in simply appellate an be- has so defined because court tion” never been test, If jurisdiction. lieves that have the mat- this were the it would decided ways balancing I rea- Department be a situation. see no Both Judiciary of Justice and the Senate rejected purport preliminary to draw a hard and fast line Committee son to practice. opposed to trace Department draft. The rule's “ab- that no one will be able Depart- adoption present provide inadmissibility.” of the draft will solute standard of The The (1971) Report (reprinted in with another standard ment Justice criminal defendants of Evidence, Burger, ground appeal and lead to needless rever- Weinstein and Weinstein’s (1985)). cases." Letter of n. 4 It determined sals and retrials in criminal 403[01] at 403-7 ¶ that such a Judiciary "require would reversal on Chairman of the Senate Committee standard disagreed Standing appeal appellate on Rule an Committee of Practice whenever court 12, 1971) (August (reprinted in Id. and Procedure with the trial court’s exercise of discretion.” Evidence, Burger, and Weinstein’s The concluded matter is Weinstein Committee that "this (1985)). judge." left to of the Id. at 403-8 n. best the discretion ¶403[01] Judiciary lead to the cur- Senate Sentiments such as these rule’s Chairman of the Commit- wording "recognizes desirability rejec- of was in his tee more adamant reasons for rent discretionary power but to exclude tion: "My difficulty attempts exercise of lies with the to limit the discretion failure of Subdivi- (a) stating policy are to ultimate what considerations that sion to see the issue in terms that Graham, emphasize justify Wright its use.” and Federal the sound discretion of the trial Procedure, judge uphold ruling appeal, his and Section at 256-57 and to Practice discretion, (1977). what will al- absent abuse of judge the trial court judge then would have virtu- that the trial court abused her discre- ally no discretion to do other than that ap- tion. The two indictments under which appellate court would do. The pellant allege “knowingly was tried appellate “superior court would then intentionally engage[d] and in sexual con- judge”; such is the antithesis of abuse complainants] tact with two then ... [the discretion, not its embodiment. A more younger years than 17 and then the appropriate test for a determination spouse [appellant], by contact between whether the trial court abuses discretion [appellant] genitals the hand of and the aptly Supreme stated the Texas complaint[s], intent with the to arouse [the] Court: gratify [appel- and sexual desire “The test for abuse of discretion is not Thus it was incumbent lant].”

whether, opinion reviewing in the doubt, prove, beyond State reasonable court, present the facts appropriate an appellant had contact with two Rather, case for the trial court's action. complainants and that this contact was question of whether the court gratification. for his done sexual any guiding acted without reference to Rockwell, ex-wife, Linda Lou rules principles. way Another testify State’s second witness to stating the test is whether the act was Upon examination, the trial. direct Rock- arbitrary or unreasonable. The mere appellant frequently well testified that fact judge may that a trial decide a mat walked around the house in front of his discretionary authority ter within his children while he was unclothed. stat- She appellate judge different manner than an ed that at these times he an had erection. in a similar circumstance does not dem along This was elicited with and onstrate that an abuse discretion she had concerning after testified occurred.” Aquamarine Op Downer v. lant’s other conduct front children: erators, Inc., 241-242 complainants once She found one (Tex.1985), cert. denied 476 U.S. the shower with him. She observed that (1986) 106 S.Ct. 90 L.Ed.2d 721 younger complainants when the of the two (citations omitted). girl’s appellant, open kissed mouth was Thus, judicial rulings will if the be affirmed tongue. and she inserted her had Rockwell appropriate analysis trial court follows the appellant girls. observed bathe the little balancing factors, though time, appellant At one she heard discuss might disagree weight given with the genitals; their he referred one of the short, to those individual factors. a trial complainants pus- said she had “fat given right a “limited to be sy.” girls At other times after the bathed wrong,” long so the result is reached they would ask the children if arbitrary capricious manner. See slits,” referring their their had “washed Discretion, Rosenberg, Judicial 38 Ohio times, vaginal area. At other (1965). Bar say girls, were would “You and I other”; your for me hot meant each “Give THE APPLICATION OP LAW TO love”; lips kissing”; “My were made for THE FACTS my lips.”8 and “Press hot granted that the trial Given court great ability aggrieved discretion its to admit or It is to us testi- clear that the mony, to exclude we now turn this case when consider in the the context of relevant; if pro- to determine the record demonstrates other evidence at trial is Appeals' opinion outweighed majority any possibility prejudice.” 8. The of Court deter- of mined that the trial court could have admitted holding implies 325. S.W.2d at This that the this proper because "the its evidence served majority undertook reevaluate the evidence— revealing function of the familial rela- something it should not have done. The Court tionship provided the context the of Appeals should have determined if the trial of charged Montgomery, offense.” 760 S.W.2d at admitting its discretion in evi- court abused the Appeals 325. The Court of then that concluded jury. dence before the "the value the of extraneous offense vaginal touching their areas was proving lant’s nudge” the “small toward vides if he touched the appellant’s specific sexual motive intent to cause done with the complainants. Having the evidence found It should be remembered sexual arousal. determine if the to be relevant we must solely appellant responsible that was record reveals the trial court abused that daughters at the time of the welfare of his choosing to admit the its discretion evi- demonstrates the and the record offense dence. bathing responsibility for that he assumed possible There are a of factors number testimony, the the children. Absent above judge could considered in her have any touching done possible it is was permit jury the to hear determination evi- innocently making the need for the testimony: 1) The trial court could this factors, we greater. Given these have considered the inherent circumstantial judge the trial say cannot court tending to prove of the evidence nature in allowing the abused her discretion charged of- appellant committed testimony. Another aggrieved to hear the sexually arouse fenses with intent differently may have trial court done involved this case himself. offense easily and could excluded the testimo- have touching improper is an with hand as we, appellate ny, but in our role as an opposed penetration organ. with a sexual court, say that cannot The manner acted around his own abused its discretion.9 appellant’s of only proof children was the touching appellate possible Exemplary sexual motive did of an court exceed- 2) in fact occur. The court could have ing proper its role as proving of considered State’s burden its dis- allowing the trial court to use appellant’s beyond a intent reasonable exclude is the cretion to admit or when there other available evi- doubt is no in this dissenting opinion of Appeals’ Court gratification. dence to sexual This is adopts case which in his brief coupled having with the State’s sustain being a as correct statement merits appellate challenges sufficiency dissenting law.10 The would Justice Appeals evidence where the Court aggrieved testimony from have omitted under required Texas law to consider rea- jury’s consideration because hypothesis guilt. sonable inconsistent with society great majority “[ajlthough some mo- Without display would condemn such doubtless tives, possibility any touching acknowledge that a must nudity, we innocently outstanding done exists as an argues adamantly significant segment 3) Also, hypotheses. the trial court could nothing nudity. wrong with that there is age complain- have considered the of the primitive societies We know also trial, girls the time ants. At of the the two nudity accepted around world have years Appellant seven and old. were ten analysis, In final the brand normal. challenged competency testify their no reflects more ‘unnatural’ trial and it would have been reasonable (sic) majori- contemporary attitued young the trial court to conclude that the ty in corner of world.” girls would not be to relate that able justified acts evi value of similar There is a that evidence concern poten unduly prejudicial substantially outweighed by the defendant but dence is protection: Advisory prejudice, rules of evidence offer Com tial see for unfair ...; 404(b) Note on Fed.R.Evid. mittee’s fourth, protection against unfair [as- ‘‘[T]he Federal Rule Evidence sociated the introduction extraneous shall, upon 404(b) provides that he trial court offense evidence under Fed.R.Evid. ] first, request, jury acts the that the similar ... sources: from instruct emanates from four 404(b) prop requirement only that evi- considered for the the of Rule the evidence is to be proper purpose; Hud purpose dence be offered for a ond, sec- er which it admitted.” was 1502) (footnote omitted). relevancy requirement dleston, from the of Rule 108 S.Ct. third, 104(b); through Rule 402—as enforced Only majority opinion published in was from the the trial must assessment court make under Rule to determine whether this case. 403 382

However the weighed bility finding Justice would have nor makes a that the Govern- the factors in his determination to admit or proved ment has the conditioned fact by a superfluous exclude the to a preponderance of the evidence.” 108 S.Ct. determination of whether trial court added).) (emphasis put at 1501 As Pro- abused previous- As stated discretion. Wright: fessor ly, “the mere judge fact that relatively seems clear that “[I]t decide a discretionary matter within his weighing process under Rule 403 the authority in a different manner than an judge cannot the credibility consider appellate judge in a similar circumstance place, witnesses. In first credi- does not demonstrate an abuse of dis- bility question jury; permit is a for the cretion Downer, has occurred.” 701 judge to exclude evidence on the Moreover, S.W.2d at 242. even if the dis- grounds that thinks he incredible senting sitting Justice were as the trial would be a remarkable innovation and case, judge court in this his decision to may even right be a violation of the exclude the accepted evidence because he trial by jury. place In second even if nudity as the would an norm incorrect jury involved, were not order to standard. If particular judge trial court credibility assess the of a witness the he, could determine that 'personally, does judge to hear testimony would have logical find a connection between the demeanor, so as to assess his know what proffered issue, evidence and the fact in he evidence is available corroborate his is bound to admit the evidence if he be- testimony, perhaps even look at the lieves that a might “reasonable man” con- impeaching opponent evidence that clude that relevant. See plans to Rule 403 presuppos- introduce. Land, United States v. Acres 478.34 es judge that the can determine the ad- (6th Cir.1978) F.2d (holding missibility by assessing logical inferenc- judge himself need not be convinced of es at the time it offered. If judge probative value of evidence he or she well, credibility were to assess it is determines jury reasonably could so difficult to see this could how be done find). See generally Burg- Weinstein and hearing nearly without first the entire er, Evidence, Weinstein’s at 401- 11401[09] Graham, Wright trial.” Federal (1985). Procedure, Practice And Section argues The dissent also that the source (1977) (footnotes omitted). at 265-66 aggrieved testimony of the limits its use- justice When appellate determined fulness, writing quite “it is obvious” aggrieved he would have omitted ex-wife could not be “con- testimony of the on the basis witness’s lack objective, sidered an unbiased witness.” First, credibility doubly he erred. The dissent deems the witness’s motive— position usurp functioning no acrimony stemming parties’ di- see the that could witness and “drastically reduces the value of vorce— the assessment; credibility make its own proof extraneous offenses as that the second, judge court even the trial should actually indicted offense occurred.” weighed not have factors in a such determi- making credibility argument, nation to exclude evidence. steps late judge way court out of line. only proper for the trial basis court improper

It would have been to exclude in this the evidence case is that to omit relevant on the provided in Rules the Texas of Evidence particular basis that she did not believe the only proper and the for an witness. basis Thompson, See United States v. (5th Cir.1980). court to 615 F.2d reverse a trial court’s decision is Accord States, when the record that the trial Huddleston v. United 485 U.S. demonstrates (1988) (“In court has S.Ct. 99 L.Ed.2d 771 abused its discretion. The record determining whether the before us does demonstrate Government has introduced sufficient evidence to her meet Rule abused discretion 104(b),the trial weighs court neither when she to credi- allowed the hear that

383 of outweighed by danger the stantially erection in nude an appellant appeared with to a prejudice unfair defendant.” Crank affirm front of his children. We therefore State, 328, 342, (Tex.Cr. n. 5 court the at judgment the of the trial Appeals. opinion App.1988).1 the of majority of Court however, subscribe, to ma- I the cannot BERCHELMAN, J., participating. proper role of an jority view of the CLINTON, dissenting. Judge, Particularly, I cannot late in all this. court’s discre- accept notion that a trial word, subscribing to for it word Without over tion to admit relevant evidence even say to majority much the agree I with is objection probative an that “its value new Texas regard operation of the to danger of particularly substantially outweighed I of Criminal Evidence. Rules that, issues, or majority’s of the prejudice, observation unfair confusion embrace adopt general rule of ex- than misleading jury,” rather to includes “limited miscon- of of extraneous clusion evidence wrong.” Maj. op. at That right 380. to be that, duct, contemplates if rele- Article IV me, say, to it seems to essentially is to consequence of vant to some issue authority to re- appellate courts have no case, ordinarily is extraneous misconduct of application Rule view trial court’s Tex.R.Cr.Evid., Rules 401 & admissible. Assuming rig- supra. appellate courts are The exclude such 402. question orous in their review is substan- “if its value extraneous misconduct proffered whether tially outweighed of unfair “tendency logical make evidence has a to Tex.R.Cr.Evid., Rule 403. prejudice_” any that is of conse- the existence of fact exception general An rule of admissi- to of action quence to the determination bility of extraneous mis- such evidence is probable more less would conduct admitted to raise no more than an evidence[,]” supra, I Rule without the conformity character inference of —what agree pay great should appellate courts of rules prior to the advent the new we decision, pursu- a trial court’s deference to “propensity referred as evidence.” supra, that the ant to Rule 719 at Boutwell v. S.W.2d outweighs value of relevant evidence (Opinion (Tex.Cr.App.1986) on State’s mo- potential unfair or confusion Tex.R.Cr.Evid., rehearing). tion for See however, view, my the facts of issues. 404(b). very case demonstrate such defer- Indeed, thought I had that recent deci- ence must have limits. prior applicability sions of this Court set pains The out majority takes begun to already the new rules had mi- appellant’s extraneous miscon- minutiae of “general grate away from a rule” of in- that, ironically, comprised duct the bulk admissibility of extraneous misconduct evi- page in the 300-odd State’s admissibility any one such Then, guilt phase of trial. transcript of the specific, is relevant mate- evidence that self-styled application in its the law case, issue for its proffered rial in the “facts,” majority concludes value, conformity probative- character these matters be- State needed extraneous outweighs potential any ness of which only proof appellant’s cause “the it was prejudice. E.g., Morgan v. touching if the did possible sexual motive (Tex.Cr.App.1985); S.W.2d Maj. ma- op. at 381. The fact occur.” State, supra, (Opin- 171-72 Boutwell v. jority continues: submission); original ion Williams “Without some (Tex.Cr.App.1983). 662 S.W.2d touching motives, possibility only change in the new rules out- innocently exists was done “Rule shifts the focus somewhat ... * * * hypotheses. proba- standing reasonable admit relevant evidence unless It value that relevant evidence sub- should be remembered tive original. Emphasis empha- supplied unless indicated. in the All other sis otherwise responsible Yes, solely was the welfare of A. for I did. daughters at the time of the offense and the record demonstrates that he as- Q. you Did ask her who those secrets responsibility bathing sumed chil- were with? dren. miscon- Absent [extraneous A. Yes. evidence], possible any duct it is Q. say they Who did she were with?

touching innocently making was done A. Daddy. greater. need the evidence Given factors, say these we cannot Q. you What did her ask next? trial court her abused discretion in IA. her if asked she could tell me allowing aggrieved to hear the about the secret. testimony.” Q. say? What did she agree Id. I that a Rule 403 evaluation of A. She said that her father —the secret probativeness against the balance of preju- her touching was that father was her ought properly dice take form of an genital and then she her indicated area inquiry much into how the State needs the by touching. misconduct, relevant extraneous either to Q. say Did she he touching what was instance, its ease in the first or to her with? damaging it rehabilitate after ev- defensive A. His hand. Morgan supra, idence. See 879-80, Q. you anything Did use 7; get nn. & further and at n. information from Beechum, regarding United her that? States v. 582 F.2d 898 (5th Cir.1978). patently What is incorrect Yes, A. I did. is majority’s case, assertion that Q. And did you what use? misconduct, other than the extraneous A. The anatomically correct dolls. produce State could no evidence that Q. What did she with do those dolls? lant requisite acted with the intent A. She doll took male and laid it on gratify and arouse his sexual desire. Here top of the female doll. She took the produced the State abundant evidence of penis doll male and stuck it Appellant that intent. was tried simulta- thighs between the and then moved she

neously for separate sexual contact on two hips the male doll’s back and forth. occasions with daughters. two his three Q. put penis She of the male doll— The circumstances of the offenses them- I pants assume his were down? selves, Department related of Hu- A. Yes. caseworker, man Services chil- Q. the thighs Between of the female themselves, dren are ample to show that doll? all, any touching manifestly occurred at A. Yes. was gratify intent to arouse and Q. off, pants And were her too? appellant’s Denying sexual desire. A. Yes. all, daughters touched his at no time did appellant try Q. any to show that had And then she contact moved male doll’s hips been inadvertent or in- without lascivious back and forth?

tent. A. Yes.” pursuant hardly supports

The caseworker testified Ar- Such a reason- 38.072, hypothesis “any ticle V.A.C.C.P. touching She related able was appellant’s daughter innocently.” Maj. op. eldest told her that done at 381. At trial, genital had touched her her daughter second oldest de- Appellant’s area. second daughter oldest scribed the same event as follows: graphic descrip- somewhat more her “Q. you jury] ... Now will tell [the tion to the caseworker: you your about the daddy secret had?

“Q. you Did her ask whether or not she

had secrets? A. Yes. anything “he else be- put Q. here time she denied happened? What Look over A_Tell Appel- legs beside his hand.” happened. tween me what [her] daughter that also testified lant’s oldest anybody. My dad me not to tell A. told “pee put on her his hand appellant had now, Well, Q. okay to will it’s tell so her to tell also told “not place.” Appellant you us tell now? anybody.” Yes. A. gross It understatement would be Q. Okay. happened. me Did Tell what gratify arouse say specific intent to your daddy a room? come may readily desire be appellant’s sexual leading [Objection to overruled] acts proof of the themselves. inferred from Yes. A. testimony appellant Coupled with Q. say he came What did when secret, keep child to the act instructed each the room? not for better the State could ask anybody. A. Not tell short, intent.2 In unlike the of lascivious State, supra, the State Morgan case for the no whatever evidence of had need Q. your happened dad- ... What when misconduct was admitted extraneous dy walked into room? See Prior v. in this cause. pull my panties. He told me to down A. suggest- (Tex.Cr.App.1983). In S.W.2d 956 Q. you Okay. And did do that? otherwise, majority simply ignores ing A. Yes. the record. Q. your daddy, right, Because he’s The trial admitted all of the extra- you mind him? the State neous misconduct evidence before A. Yes. testimony to introduce the attempted even Q. you Okay. Then what did do? caseworker. At the of the children A. I did what he told me to do. made court could have no time Q. And what that? whether the State re- accurate assessment pull my panties. A. To down out, As the State ally needed it. it turns Q. And then what? Nevertheless, it at all. almost needed not pulled panties. Then he his A. down entirety appellant’s defense was nec- Q. And then what did he do? essarily to rebuttal of devoted me. A. He molested in front of language his and behavior about children. Under the circumstances

his that “the could not but find trial court Q. How did he do that? miscon- of the extraneous value” By touching me. A. “substantially outweighed duct was Q. you What did he touch with? prejudice, danger of confusion unfair A. His hands. issues, misleading jury[.]” Rule Q. put hands He his where? the trial court supra. That the rule allows my private.” A. On (“evidence may exclude such evidence ”), it, dolls, anatomically requiring rather than With correct the child be excluded ... unfair At then demonstrated had cannot authorize trials. how least, This read to authorize “private” touched her with his hand. should be 601(a)(2). majority "[a]ppellant At the conclusion of each hear- 2. The contends that chal- however, daughters’] testify ing, lenged competency to the trial court declared each child [the witness, objection competent trial and it would have been reasonable for the sans way young girls did assail their to conclude In no defense counsel trial court lant. testify during competency his appellant’s final summa- would not able relate that rate, touching vaginal At the children themselves their areas was done with the tion. significance specific cause sexual arousal.” understood intent have change argument hardly Maj. op. per- conduct does not fact at 381. This readily apparent It is true that asserted his lascivious intent would suasive. speak right them- competency adults. The events to have of the children tested to a Tex.R.Cr.Evid., examination court. selves. pose 404(b), admission extraneous evi- misconduct under Tex.R.Cr.Evid.Rule does possibly before could the defendant shoulder the burden then equipped have persuading proba- been to determine its rela- the trial court that the ensure, tive We value. must substantially tive value of such evidence is else, nothing that the trial its outweighed by court does preju- of unfair job. dice, such that it should be excluded under Second, 403? Tex.R.Cr.Evid.Rule what is In my majority today view the errs to proper appellate role of the court in justi- invoke abuse of discretion order to reviewing the trial court’s decision both fy right for trial a courts even “limited permissible pur- that evidence does serve a wrong.” appellate be That kind of defer- 404(b), pose, under Rule evi- ence amounts to I abdication. dence should not excluded under Rule part want no of it. argument, After 403? with new briefs in Accordingly, I dissent.3 hand, we revisit those issues addressed on original Ultimately submission. we hold TEAGUE, Judge, dissenting. that the trial court abused its discretion in Believing majority opinion does failing to exclude the extraneous miscon- nothing less than to make the of waters duct issue in this cause under Rule 403. murkier be extraneous offenses than ever history fore in of State’s criminal

jurisprudence subject, I respectfully I. THE NEW RULES State, dissent. Also see 719 Boutwell v. Evidence is “relevant” that has 164, 187(Tex.Cr.App.1985)(Teague, S.W.2d “any tendency make the existence of J., State, concurring opinion); Robinson v. consequence fact that is of to the determi 701 (Tex.Cr.App.1985) S.W.2d of probable nation the action more or less J., (Clinton, opinionjoining the judgment of probable than it would without evi Court); and Morrow v. Tex.R.Cr.Evid., “All dence.” Rule 401. (Tex.App. S.W.2d [14th — Houston admissible, except relevant evidence 1987). Dist.] rules_ provided by otherwise ... these Evidence which is relevant is inadmissi- OPINION ON ON REHEARING Tex.R.Cr.Evid., ble.” Rule 402. Tex.R.Cr. COURT’SOWN MOTION ON APPEL- Evid., 404, generally prohibits Rule “the LANT’S PETITION FOR DISCRE- circumstantial use character evidence.” TIONARY REVIEW Goode, Sharlot, Texas Prac- Wellborn & CLINTON, Justice. Texas Civil tice: Rules Evidence: granted rehearing (1988), Thus, We on our own motion al- Criminal 404.2 106. § relevant, parties “[ejvidence this cause and ordered the though crimes, re-argue wrongs, re-brief and the issues two or acts is not admissible to particular questions prove in mind. once of person First: character a in order to crimes, wrongs conformity “other acts” or show he acted there- permissible pur- 404(b), shown a supra.1 been to have Rule with.” majority opinion appeals preexisting relationship 3. The court of to show a in order to credibility complainant. found the extraneous here misconduct evidence demonstrate of a child proper revealing Id., “served its the fa- depends, function at 177. seems to Either reason it relationship provided me, milial the context propensity a character inference. charged Montgomery however, of the offense." present notwithstanding, Boutwell language 404(b), S.W.2d at 325. This echoes supra, exception Rule admits no such gestae" admitting the limited "res rationale for prohibition against propensi- to its character extraneous sex offenses between a defendant ty/conformity evidence. complainant and the when defendant stands issue, parentis complainant, party directly in loco as here. If the character of supra (Opinion Boutwell on State's mo- the rule does not bar character "since rehearing). purported employed tion for There are two it then would not be to establish a admission, first, Goode, respond propensity way.” reasons to act in a certain viz: offense, second, Sharlot, supra, an denial accused’s & Such Wellborn at 106. evi- crimes, TRIAL COURT’S FUNCTION II. THE “other

Evidence however, be wrongs, “may, acts” admis Decision Whether A. The Trial Court’s apart if it has relevance sible” 404(b) Rule To Evidence Under Admit per tendency “to the character party attempts to adduce aWhen that he acted in con son in order show crimes, acts,” wrongs or of “other 404(b), supra. formity therewith.” Rule appeal, the preserve in order error on Hence, such evi party introduce object opponent that evidence must logically “to make serves where Optimally, opponent timely fashion. probable probable” less more ... is inadmis object that such evidence should fact; “to where it serves make 404(b). elemental objection that An sible under probable” “relevant,” an it probable more or less or that ... such evidence is or “ex “extraneous offense” evidentiary inferentially fact leads to constitutes an that misconduct,” although pre not as traneous fact; an where it serves “to elemental or be, ought ordinarily to be cise as it could probable” probable less ... more or make ap the circumstances sufficient under evidence that undermines an ele defensive prise the court of the nature of 401, 404(b) mental fact. Rules both complaint. Zillender permissible “pur supra. Illustrative of Tex.R.App.Pro., (Tex.Cr.App.1977); “crimes, poses” to which evidence of lodged, 52(a). complaint Rule Once “proof may put acts” are wrongs, or be proponent it is incumbent motive, intent, opportunity, preparation, satisfy the trial court that evidence to plan, knowledge, identity, or absence of crime, wrong, relevance “other or act” has 404(b), supra. or Rule mistake accident[.]” tendency character apart prove from “to its logically Extraneous offense evidence he acted person in order to show that purposes of these is “relevant” serves 404(b), su conformity therewith.” Rule tendency beyond “to charac any re honor pra. The trial court should person ter of a show that acted quest by opponent of the evidence conformity It ad therewith.” is therefore purpose into the record of the articulation missible, subject only court’s by the for which is either offered to exclude it “if its discretion nevertheless ultimately by the proponent or admitted substantially outweighed value is trial court. ” by danger prejudice.... of unfair the evidence If the trial court determines hand, 403, supra. Rule the other On con- apart character has no relevance extraneous offense evidence is “rele absolutely formity, the evidence is then apart from supporting vant” inference has no discre- The inadmissible. conformity,” absolutely of “character it is Graham, Wright & tion to admit it. See 404(b). under For if inadmissible Rule evi Evidence Federal Practice and Procedure: crimes, wrongs, (1978), dence of “other or acts” at 540 & 544. 5249 & 5250 §§ value, conformity only has character hand, proponent On the other balancing by required otherwise Rule 403 may persuade the trial the evidence obviated, having deemed rulemakers crime, wrong, or act” that the “other evidence is probativeness of such conformity; apart from character relevance “substantially out slight so as elemental that it to establish some tends by weighed” intent; of unfair fact, identity or such as fact, evidentiary States v. a matter law. United tends to some establish motive, (CA5 1978).2 opportunity preparation, Beeckum, such as or 582 F.2d at 910 submission, relevant, majority original noted on only Rule 2. As the dence would not construing supra, also Rule it would be admissible under the federal cases and commentaries 402, supra, because it is not rendered inadmissi- interpretation rules are instructive our However, supra. per character ble provisions IV own Rules of of Article of our charge never se "is almost an element of Slip op. n. Evidence. at Criminal in a criminal Id. defense case.” leading fact; inferentially to an elemental prior Under caselaw there was a so- rule,” it rebuts a theory by “general defensive called often cited and in- voked, showing, e.g., absence of amounting mistake or acci to an ex- 404(b), supra. dent. Rule traneous offense or proponent misconduct was inad- missible. persuade also This was said to the court be so “not that it is rele be- cause such upon logical legal vant evidence is without rele- inference not anticipat general vance to the issue of whether the ed the rulemakers. This is the reason accused charged, committed the act but “purposes” designated 404(b) in Rule because such evidence inherently preju- crimes, “other wrongs, or acts” dicial, tends to confuse the issues in the are, are pointed admissible as was out on case, and forces the accused to him- defend original submission, “neither mutually ex against self charges which he had not been clusive nor collectively exhaustive.” notified brought against would be him.” Cleary, Evidence, (3d McCormick on § State, supra, Albrecht v. at 100. This is no 1984), ed. 558. Cf. Morgan more than an earlier incarnation of the S.W.2d (list 879 (Tex.Cr.App.1985) rule, 404(b), now embodied Rule that as (Tex.Cr. Albrecht v. 486 S.W.2d 97 se, per character evidence evidence of ex- App.1972) exemplary “was rather than ex- traneous misconduct is inadmissible be- haustive_”). Should he admit the evi probative cause its value is deemed to be dence, upon timely then request, further outweighed by inflammatory its preju- judge should instruct the potential dicial as a matter of law. the evidence is limited to purpose whatever Albrecht the pur- Court set out a list of proponent persuaded the has him it serves. poses other than as character evidence to 105(a). Tex.R.Cr.Evid Rule which extraneous misconduct evidence had been held in past. admissible the This list B. The Trial Court’s Decision Whether widely perceived “excep- articulate To Exclude Evidence Under Rule 403 “general tions” to the rule” of inadmissibil- i. When ity. But as recognized, Albrecht itself test for determining admissibility the “[t]he Once the trial court rules that the any type of evidence is whether the apart evidence has relevance from charac outweighs value of such evidence conformity, ter he has ruled on the full inflammatory aspects, any.” Id., its if extent of opponent’s objection. the Error Thus, any evidence, as with preserved is as to whether the evidence proof of extraneous misconduct was said to 404(b), was admissible under Rule supra. admissible relevant to a material issue From point on the new rules have case, relevancy the and its value out- effected two important changes subtle but weighed inflammatory prejudicial its po- procedure practice from our under the E.g., State, tential. v. Williams First, former objection caselaw. S.W.2d 344 (Tex.Cr.App.1983); Elkins v. proffered evidence proof amounts to of an State, (Tex.Cr.App.1983); 647 S.W.2d 663 “extraneous offense” longer will no suf (Tex.Cr. Rubio v. 607 S.W.2d 498 fice, by itself, ruling to invoke a from the App.1980). If it had apart relevance evidence, trial court whether the assuming conformity, character pro- and it was more it has apart relevance from character con prejudicial, bative than evidence of extrane- formity, subject is nevertheless to exclu admissible, ous misconduct was notwith- ground sion on the prejudice. of unfair standing “general rule.” Morgan See objection Further based Rule 403 is supra, at 879. required. Second, now when the trial court upon by is called objection sufficient objection An under the caselaw that probativeness balance prejudice, evidence was inadmissible because it presumption probativeness is now that amounted to an extraneous offense was weightier consideration unless in the sufficient to alert the trial that he posture particular case the trial must determine both the evidence was court determines otherwise. relevant ato material issue its long proffered before The outweighed prejudicial its evidence probative value capable gauging opponent “shifted impact. But current Rule has p. post. enunciat- from the test for it. See proponent’s the focus somewhat “need” Williams, progeny. supra, equipped ill ed event he would be In that 403 is to admit approach major The under at least one “demonstrate” whether probative val- unless the relevant evidence analysis for or militates factor evidence is substantial- ue of that relevant Indeed, propo- it is the against exclusion. outweighed by prej- of unfair ly is in the best who nent of defendant.” udice to a Crank probative- the relative position to advance (Tex.Cr.App.1988) n. 5 S.W.2d regard do But we ness of evidence. original). Thus, (emphasis in Rule 403 shoulder who would best question admissibility of relevant favors because, pertinent one to be burden presumption is that evi- and the relevant case, interpret Rule 403 we do not preju- be more dence will assign to either specifically to a burden determines If the trial court dicial. Rather, Rule 403 to party. we understand crimes, wrongs, “other or acts” evidence of impose duty upon the trial court. apart from character con- has relevance inquire oppo- well to court would do admit the evidence ab- formity, should nent his view of the is. what objection by opponent sent further hand, the should ask the On the other opponent’s objec- the evidence. The earlier But once proponent to articulate his need. has no relevance tion that invoked, judge has no “the trial rule conformity, beyond character and is there- engage or not discretion as to whether 404(b), fore inadmissible under Rule balancing process.” Wright & Gra- upon upon. It is been ruled now incumbent ham, supra, at 544-45. Rule When § him, presumption of in view the of admissi- “may provides that evidence be exclud- evidence, bility of relevant to ask the trial substantially is ed if its value court to exclude the evidence its authori- danger preju- unfair outweighed by the of ty ground under Rule on the dice,” trial courts simply means evidence, assuming value of the cases, in in close should favor admission apart it is relevant from character conform- presumption of admissibil- keeping with the ity, substantially is nevertheless out- ity of relevant evidence. weighed by, of e.g., danger prej- the unfair udice. ii. How made, objection is the Once objection a further is When proba- is weigh called to 403, it will not suffice for made under Rule against poten the tiveness of its simply determine that the the trial court to is, prejudice tial for “unfair” as the —that legitimate, some evidence is relevant to submission, majority original iterated on its as purpose such one non-character-related “tendency suggest im decision on an 404(b). in Rule “The of those enumerated basis, proper commonly, though not neces the determination must be made whether sarily, Advisory an emotional one.” Com outweighs the prejudice of undue Also on mittee’s Note to Fed.R.Evid. 403. the in view of probative value of submission, original majority the observed proof of availability the of other means opponent’s is that “now it burden not making appropriate for deci other factors proffered only evidence’s demonstrate this kind under Rule 403.” Advis sions of negative attributes but to show also that to Fed.R.Evid. ory Note Committee’s negative ‘substantially these attributes ’ into 404(b). go that should Factors any probative Slip op. outweigh value.” Gra balancing Wright are elaborated & language at 377. To the extent that this compellingly ham, How supra, at 545-551. may opponent obligation an suggest an has misconduct of the extraneous objection evidence anything to do more than level an probable or a fact to make more less the evi serves that the trial court should exclude words, its inher consequence other dence disavow it now. under we —in probativeness ent certainly proffered a factor. crimes, evidence of “other —is often, This is invari although wrongs, no means apart acts” no relevance ably, similarity a function of the conformity, character it does not charged extraneous of transaction objection. have discretion admit it over See fense. v. 701 S.W.2d of necessity, Robinson But court must have (Tex.Cr.App.1985); leeway deciding at 898 Imwinkel some such whether evi ried, Uncharged Evidence, Misconduct legitimate pur does fact serve a 2:12, (1984). pose 8:07 It is also a function character evidence. §§ Likewise, strength proponent’s evidence to trial court has no discretion opponent to refuse request show the in fact committed the conduct a Rule 403 balancing probativeness Wright Graham, extraneous conduct. & versus and decide supra at 548. whether exclude evidence Another obvious factor in spite admissibility misconduct of its potential crimes, un wrongs, “other 404(b). der Rule But conducting after impress acts” have to jury in some balancing, applying the we factors have irrational but nevertheless way. indelible identified particular to the facts of the This often a function nature ease, the trial court must given wide Imwinkelried, supra, misconduct. 8:03. § exclude, or, particularly latitude to in view much proponent How trial time does the presumption admissibility of rele develop need to evidence of the extraneous vant exclude misconduct misconduct, such attention of the evidence as he fit. long sees So as the trial will factfinder be diverted from the indicted operates court thus within the boundaries Id.; Graham, supra, offense? Wright & discretion, of its court should great Finally, propo how is the decision, disturb whatever it be. nent’s “need” for the extraneous transac Templin Cf. 711 S.W.2d tion? This last inquiry breaks into down (Williams (Tex.Cr.App.1986) test is “left to subparts: three proponent Does have and absent a clear abuse of other available evidence to establish discretion his decision will not disturbed consequence fact of the extraneous appeal.”); Cantrell so, misconduct relevant show? If how (“And (Tex.Cr.App.1987) strong is that other evidence? And is the judge’s admitting discretion in extrane consequence fact of related to an issue that given deference.”). ous is offense to be due dispute? is in proponent the When has We turn next question to the difficult other compelling undisputed or evidence to defining, possible, it scope insofar as is the the proposition establish or fact that the of that discretion. goes extraneous prove, misconduct misconduct will weigh evidence less far A. Reviewing Trial Court’s might than it otherwise in probative- Decision To Whether Admit versus-prejudicial balance. Morgan v. 404(b) Evidence Rule Under State, supra, 880; at United States v. Beechum, 914; Appellant argues supra, that Wright at because & Gra ham, supra, relevancy rule-gov determination of is at 546-47.3 erned, appellate court’s role is neces

III. THE APPELLATE sity to conduct a novo de review ensure COURT’S FUNCTION that the trial court adhered to the rules. relevant, Under the former caselaw it was Evidence is either con tends, said that much of not, the trial court’s role all or and appellate it is court “discretionary,” is this and that is still should reverse the trial court it whenever true under the new rules. As have we has admitted evidence as relevant which is seen, once trial court has that suggests decided not. To the extent it that an exclusion, re-emphasize point by major- ruling 3. We made for the trial court in non, on the vel submission, ity original 382-383, slip op. on supra. of relevant evidence under Rule credibility that evidence establish "other Graham, supra, Wright & at 265-66. § crimes, wrongs, inquiry proper or is not acts" proffered always its rience can it be concluded that appellate superimpose court tendency over that of to make the exist- judgment own as relevance evidence has a court, reject approach. this or consequence trial we of a fact of more less ence be, then it probable than it would otherwise ap- The drafters of Fed.R.Evid.Rule its discre- can be said the trial court abused accepted that “the law parently the view Moreover, that tion to admit evidence. relevancy.” Weinstein furnishes no test of that it is when clear ¶ 401[08], Berger, & Weinstein’s Evidence by the court as perceived trial what (1990). It is at 401-53 true Rule really no than experience is more common “relevance,” definition is defines but that operation prejudice, of a common necessarily a particu- broad one. Whether reason, trial out in court has borne lar meets the definition evidence will its In either event the abused discretion. always be cut and dried. Our adversarial recognize appellate court should system assigns question to the trial the proffered court erred to admit judge, assumption trial has harm- vantage proceed to determine from which to decide. Deter- best any given Tex.R.App.Pro., Rule mining the relevance of item fulness under any given 81(b)(2). evidence to lawsuit not exclu- logic. The sively a function of rule and objected-to evidence of Whether rely large part upon must crimes, rele wrongs, or acts” has “other experiences own observations conformity, apart from character as vance world, exemplary common observa- 404(b), supra, also required by Rule experience, tion and and reason from there court. The trial question for the trial deciding proffered whether judge must conclude “any tendency make the existence of logic experience tends common consequence fact the determination than purpose some other character serve probable probable the action more less conformity to make the existence of fact than it would be without the evidence.” consequence probable more less 401, supra. rel- determination of ap An the evidence. it would be without evance, non, vel thus one depends owes no less deference to the pellate court

judge’s perception experience. of common making judgment than judge in ¶ Berger, supra, 401[01], See Weinstein & making any relevancy affords him process wholly 401-10. The cannot be call. objectified. may disagree Reasonable men experience particular whether common Reviewing B. the Trial Court’s inference is available. Where there To Exclude Decision Whether disagreement, appellate room for such an Rule Evidence under 403 ruling a trial on court reverses court’s relevancy accomplishes nothing more than measure the trial court’s We also perception to substitute its own reasonable ruling of “oth whether to exclude evidence experience common for that crimes, wrongs, or er acts” under 403 appellate effectively The dis- court. court The by an abuse of discretion standard. court, places commandeering trial majority original on went so far submission institutionally assigned function elsewhere. making to declare that this assess as ment, afford the appellate court should anomaly, appellate To avoid this courts wrong,’ right 'limited to be so trial court “a uphold ruling appeal the trial court’s on in an long as the result is not reached is to absent an “abuse discretion.” That Op. arbitrary capricious manner.” at or say, long ruling trial as as the court’s Discretion, 380, citing Rosenberg, Judicial within the zone of dis- least reasonable 819, (1965). By 823 this we 38 Ohio Bar agreement, appellate will not in- court not, appellate nothing meant more than ruling The tercede. trial court’s judge however, court should not reverse trial unreviewable. Where of rea say by ruling late can was within zone with confidence that whose perception expe- disagreement. no did not mean to reasonable of common sonable We 392

say that appellate review of the dice. It should judgment reverse the “rarely only court’s decision whether to evi- exclude after a dence clear abuse of altogether preclud- under Rule 403 is discretion.” United States 590, long Maggitt, (CA5 1986). v. 784 F.2d appears ed so as it 597 that the trial court probativeness a balancing conducted reviewing But judgment the trial court’s prejudice timely when called do so. requires for abuse of discretion more of an appellate deciding court than that the trial provides by Rule 403 its terms that rele judge required did in fact conduct the bal “may” vant evidence be excluded. It could ancing simply arbitrarily and did not rule argued permissive be that use of the capriciously. appellate court must “may”, in presump combination against measure the ruling trial court’s evidence, tion admissibility of relevant relevant criteria which a Rule 403 deci contemplated shows that the rulemakers sion is to be approach made. This is con that a trial court’s decision to ex whether sistent with Fifth appellate Circuit’s clude evidence under Rule 403 would E.g., review under the federal rule. Unit subject appellate review. The federal Beechum, ed v. supra; States United rule has not been way, construed this Benton, (CA5 States 637 F.2d 1052 Graham, supra, however. See Wright & 1981); Emergy, United States v. 682 F.2d 5224, Indeed, at 323-24 & n. Fifth § (CA5), denied, 1044, 493 cert. 459 U.S. 103 Circuit has commented that it reads 465, (1982); S.Ct. 74 L.Ed.2d 615 United require rule “to prejudice exclusion when Shaw, (CA5 1983), States v. 701 F.2d 367 outweighs value.” United denied, 1419, cert. U.S. S.Ct. Preston, States v. F.2d n. (1984). 79 L.Ed.2d 744 It is also faithful to (5th Cir.1979), denied, cert. 446 U.S. long this Court’s determining tradition of (1980). 100 S.Ct. 64 L.Ed.2d 794 admissibility of extraneous offense evi crimes, wrongs, context of “other appeal on by reviewing only evidence, Wright acts” Professors and Gra relevance but the State’s ham have observed that: E.g., need for it as well. Albrecht “the discretion of the trial arises in (“Evidence supra, at 100 of extraneous of balancing pro- connection with the fenses committed the accused has been worth bative of the evidence for some (2) circumstantially held admissible: ... To purpose relevant against identity show where the state direct lacks possibility arises (3) prove this issue. To scien- will be used for the forbidden inference ter, guilty knowledge where intent or is an propensity. is to balancing It essential element of the state’s case and appellate courts will afford ‘def- (4) cannot be the act inferred from itself. judgment erence to the of the trial court.’ mind, To malice or state of when However, even supervi- here is an malice essential element of the state’s sion is available in cases abuse case and cannot inferred from added.) (emphasis discretion.” act_”) added; (emphasis criminal Id., 5250, at 544. omitted); § footnotes Prior v. (Tex.Cr.App.1983). S.W.2d 956 appellate judi- This deference is a rule of restraint, intended, again, cial once to avoid Therefore we hold that relevant where anomaly the having appellate of courts criteria, possible, objectively viewed as as usurp system a function that assigns the to lead to the that conclusion the of the trial courts. See United States v. outweighed unfair substantially (CA3 1978). Long, appel- 574 F.2d 761 The probative the proffered value the evi- late court should not conduct a dence, de novo court should declare making review of the record with a view to failing that trial court erred in to ex- wholly independent judgment a whether it. gleaned clude Relevant criteria probative value include, alia, of evidence of “other the authorities inter crimes, wrongs, substantially acts” seriously ultimate issue was not contested outweighed by the danger preju- by opponent; of unfair that the State had other on the relevancy and also grounds ulti- convincing to establish the of- getting into extraneous grounds this is miscon- issue to the extraneous mate testimony from There relevant; value fenses.” was duct was appellant inap- not, used either several witnesses misconduct evidence was of the daugh- relating to his language evi- in propriate with other combination alone made statements He is said to have dence, compelling; ters. particularly “You your me hot love.” a nature that such as: “Give was of such misconduct “Press each other.” disregard any but I made for instruction to it for and were jury his your to He described likely lips have hot mine.” proffered purpose would not its “fat having as Accordingly, daughter oldest efficacious. when second been daughters his pussy,” more such relevant and would instruct record reveals one or conducing bathing, forget “Don’t to reasonably they risk that were to a when criteria taught had his your Appellant evi- slit.” tendered wash value kiss, or more substantially outweighed by daughters unfair to French one slept in his bed. All of appellate court should them sometimes prejudice, then an during the court irration- admitted that the trial acted this evidence was conclude it, case-in-chief, any evidence failing exclude and thus abused before ally State’s specific of- proffered has no discretion. The was ap- alleged indictments. On “wrong” to be if that means fenses in the “right” complained only of admis- appears appel- peal appellant admit evidence which court, testimony that he walked affording all due deference sion of the late decision, to be in front of the children with the trial court’s nevertheless around substantially prejudicial proba- more erection.

tive.4 i. v. State Boutwell OF THE LAW TO

IV. APPLICATION appeals court of held the extra- The THE OF THIS FACTS CASE misconduct at issue was admissible neous 404(b) A. Rule Relevance credibility of the it enhanced the because reasoning complainants, that: child Appellant simultaneously tried un- [appellant’s] inappropriate indecency der two indictments for “evidence toward his chil- against two his three conduct directed child committed sexual place charged daughters. young appellant’s One of for- dren was relevant relationship wives, daugh- mother context mer not the of his offense ters, his experience, [appellant] and children. testified that in her between ‘to aid the “quite frequently” “walk The evidence was admissible lant would inherently evaluating the properly in the around nude” front of his children testimony of a minor questionable “[wjith erections.”5 Prior admission responsible for his wel- testimony, objected against “on the an adult daughters balancing minor ... Appellate around in front of his review of court's However, on-the- under Rule 403 would facilitated no wit- nude with an erection." articulation of the considerations appellant’s record governed as at trial characterized conduct ness & court’s Weinstein decision. argument, paraphrasing "parade.” In final 401[01], Although Berger, supra, at 401-14. ¶ testimony as to what he denied own case, to do so we we are called in this done, said, having prosecutor “he did ever required Circuit has the fed note that Fifth parade nude...." around in the courts, upon request, make the eral district appeals State’s describes the considerations, pain of reflect record those showing “that had walked around Robinson, 700 F.2d remand. United States daughters, an erection in front nude with (CA5 1983), denied, U.S. at 213 cert. complainants.” spite at 760 S.W.2d 324. In 1008, 1003, (1984); 104 L.Ed.2d S.Ct. 79 235 during the State oral of much rhetoric from Zabaneh, (CA5 United States v. 837 F.2d 1249 rehearing "penis pa- argument about the 1988). rade,” appeals’ we now adhere to the court of original majority depicts evidence. 5. On submission characterization of the testimony showing “paraded as authority fare or in position a or con logically such purpose, serves a it trol over the minor.’ Boutwell may 404(b), have [v. relevance under Rule su- ], [164,] State 719 S.W.2d at 178-179 apart pra, conformity. character (Tex.Cr.App.1985) (Opinion on State’s [ rehearing)].” motion for Specific ii. Intent State, 323, Montgomery v. 760 S.W.2d at original On (Tex.App. 1988). majori submission the —Dallas ty appeals’ eschewed the court of reliance State, supra, Boutwell v. was decided upon Boutwell and concluded instead that before the effective date of new rules appellant’s conduct was relevant inasmuch of criminal present evidence. Under prove “appellant’s as it tended to 404(b), sexual extraneous misconduct cannot be if complainants.” used motive he touched the “to the character person of a order to he conformity Slip show that acted in at at op. subject 381. It is least therewith.” The evidence must some serve reasonable debate whether the other purpose 404(b) under Rule in order to appellant frequently walked around objection. be admissible over In Boutwell daughers front his naked and with an purpose Court identified a to which erection, in with combination other evi extraneous sexual misconduct evidence of inappropriate behavior toward may put long part been a them, tendency did have a gener show a law, although Texas expressly recog- alized “intent to gratify” arouse and his nized in the list. Albrecht We held that own sexual desire his vis-a-vis children. such may be relevant to counter- turn support This in would an inference act perceived a societal aversion to the that, daughters’ if did fact touch his parents notion that par- others in loco genitals with his on the hand occasions actually entis would commit sexual crimes alleged, it specific was a manifestation of against their own children.6 Because inces- that same intent and gratify to arouse his usually secrecy, tuous crimes occur in desire, sexual an elemental fact in these depend State’s case may upon credibili- prosecutions. It have would been better ty of complainant. the child Where the prosecutor purpose had the articulated this accused calls credibility question, into trial, response appellant’s objection at evidence of other identical or similar acts only ruling, facilitate the court’s perpetrated by sexual par- misconduct a thereof, as well review but against ent his own child well serve to request also to enable ap up testimony shore logic if in it child propriate limiting instruction. See Rule (relevant shows a lascivious attitude to cul- 105(a), supra. requested Appellant no such pable intent) willingness and a to act on it articulation, however, we (relevant hold it was prohibited conduct) not an abuse of might discretion loathe otherwise be to attribute to a parent have toward child. court to found the evidence had Where under the rele particular apart circumstances of the conformity. case vance from character disagreement majority holding given charged with the If acter. in a father was case incest, victim, daughter with would, with his extraneous incestuous acts were inadmissi- cases, in most the state was against restrict- ble a defendant father commit- who had intercourse, proof single ed act to one daughter, ted sexual intercourse his minor seem almost incredible that father should Judge Ramsey, separate opinion in a in Skid- guilty of an this kind offense of more v. 57 Tex.Cr.R. 123 S.W. child his loins.” (1909), opined: Judge Ramsey’s largely view was vindicated a improbability "The of such an without offense year half later in Battles v. precedent subsequent relationship some (1911), Tex.Cr.R. 140 S.W. 783 which in necessary a similar character renders for the paved way opinion turn for the Court’s rule, protection society so well estab- Boutwell. This view is not without its detrac lished, on, throwing light that as as corrobora- See tors. Mannie v. upon, tive of the pet. ref’d) (Thomas, incident act relied it is (Tex.App. — Dallas J., permissible concurring). to show acts of similar char- relevant, the evidence is if it B. for which or Balancing Rule 40S jury spe otherwise distracts “the separate Appellant voiced no cifically charged offense” and invites them objection evidence based convict on a moral or emotional basis Nevertheless, perhaps following the 403. response than as a to the rather reasoned new pattern preceding of caselaw Second, weighing relevant evidence. rules, appeals court of observed value, against probative the court prejudice relevancy this must be of evidence “[t]he any into appeals inquiry failed to make against potential preju for balanced need for the evidence. the State’s supra, at Montgomery, dice.” 325. At no The State elicited point appellate process, including in the crimes, wrongs lant’s “other or acts” in the original response appellant’s petition case-in-chief, early going during its before rehearing, complained has the State any attempt present was made to evidence appellant preserve That failed to error. particular appellant of the for which events question is therefore not us. Tal before inquiry stood trial. Without at least some State, (Tex.Cr. v. 742 S.W.2d lant of the as to what other State evidence App.1987); Rochelle 791 S.W.2d specific intent, to appellant’s had relevant then, (Tex.Cr.App.1990). proceed, We position reliably trial court not in a appeals’ to review court of conclusion probative assay the value of this testi- “that the value of extraneous mony against the need of the State outweighed any prej possibility Indeed, admitting it. as the case supra, State’s udice.” Montgomery, developed, it became clear that the State’s concluding value For need was minimal at best. the events outweighed prejudice, appeals the court of themselves, daughters related reasoned: by Department of Human Services “The possibility jury convicted caseworker, unequivocally served to estab- [appellant] exposure for indecent rather appellant’s gratify intent to arouse and lish indecency than a child does not out- his own sexual desire. weigh the probative value the evi- pursuant Ar- The caseworker testified dence. The contested evidence did not 38.072, ticle Y.A.C.C.P. She related that pattern establish a of chronic child abuse daughter told eldest her such as would cause the jury to convict genital had her in her touched [appellant] general criminality while Appellant's daughter area. second oldest maintaining reasonable doubts as to the graphic descrip- in her was somewhat more specifically Rather, charged offense. tion caseworker: proper served its function “Q. you Did her whether not she ask revealing relationship the familial had secrets? provided the charged the context of of- Yes, I A. did. fense.” Id. See also Mannie (Tex.App. pet. at 756 Q. you Did ask her who those secrets — Dallas ref’d); Pacheco v. S.W.2d were with? (Tex.App. Amarillo, 1989, pet.). no — A. Yes. two analysis. We note deficiencies Q. say they Who did she were with? First, question solely is not Daddy. A. jury likely a function whether the would offense, convict wrong Q. you What did ask her next? “general criminality.” Evidence me A. I asked her if she could tell crimes, wrongs, “other or acts” also about secret. prejudice” create “unfair the cir under Q. say? did What she likely cumstances a would be more impermissible

draw conformi A. said her character She father —the secret ty permissible inference touching inference was that her father was her genital

and then she indicated her area A. He told me pull panties. my down by touching. Q. Okay. And you did do that? Q. say touching Did she what he A. Yes. her with? Q. your right, Because he’s daddy, and His A. hand. you mind him? Q. you get Did anything use further A. Yes. regarding information from her that? Q. Okay. Then you what did do? Yes, A. I did. A. I did what he told me to do. Q. And you what did use? Q. And what was that? The anatomically A. dolls. correct pull my panties. A. To down Q. What did she do with those dolls? Q. And then what? A. She took the male laid doll and it on pulled A. Then he panties. down his top the female doll. She took the penis from the male doll stuck it Q. And then what did he do? thighs between and then she moved A. molested He me. hips the male doll’s back and forth. Q. put She penis of the male doll— Q. How did he do that? I pants assume his were down? By touching A. me. Yes.

A. Q. Between the thighs Q. female did he you What touch with? doll? A. His hands. Yes. A. Q. put He his hands where? off, Q. And pants were her too? my private.” A. On Yes.

A. anatomically dolls, With correct child Q. And then she male moved the doll’s appellant then demonstrated how had hips back and forth? “private” her This touched with his hand. A. Yes.” put anything time denied “he else she be- legs Appel-

tween beside his hand.” [her] trial, appellant’s daughter At lant’s oldest daughter second oldest also testified appellant put “pee described the same had event as follows: hand on her place.” Appellant had told “not to her also “Q. ... you jury] Now will tell [the anybody.” tell your you daddy about secret had? presented Thus the State A. Yes. way each child was touched in a that can Q. A_Tell happened? What hardly over here parental Look be attributed to normal happened.

me what caretaking. That both instructed anyone children not to reveal the event to My dad anybody. A. told me not tell wrongdoing shows a consciousness of Well, now, Q. okay it’s to tell so will in turn leads to an inference that you tell us now? did, when he touched the children as Yes. A. appellant harbored specific intent Q. Okay. Tell me happened. what Did gratify arouse and his own sexual desire. your daddy come a room? fully The children themselves not have [Objection leading overruled] appreciated significance A. Yes. conduct, this would not but diminish Q. What say did he he came in when their impact testimony. Appellant’s las- room? readily apparent civious intent would be Not to tell anybody. A. Thus, of adults. State had compelling evidence to show Q. happened your ... What when dad- touched his children with the intent walked dy gratify into the room? arouse and his own sexual desire. Nor, By contrast, out, probative value. marginal as it turned did the State need “revealing prejudice the familial relation- from such testi- danger of unfair ship provided sexually the context Both mony is substantial. related charged to offense.” Such evidence serves involving and misconduct chil- misconduct testimony. up complainant’s a shore child Many inherently inflammatory. are dren Boutwell, But as the observed Court appellant society condemn for our would supra prerequisite at admission of a to they believed his conduct whether purpose evidence for this “was at sexual arousal directed his chil- showed deny act or defendant must first under- dren, an arousal undifferentiated sexual impeach complainant in some mine simply imprudently displayed, or an inci- are way before extraneous acts admissi- coupled erection a dental damnable specific This no more ble.” was nonchalance. In event there was application of the former rule that extrane- potential grave improper decision on an preju- ous offenses are more inadmissible basis, jurors may sight lost have Id., probative. dicial than Unless they specific were issues called offense, denied the or im- accused and out of a decide convicted peached complainant, preju- the child against parental his demeanor. revulsion weightier proba- dice was deemed than the portion A substantial the State’s case tive value. the instant cause the testi- showing was such extraneous devoted mony shoring up. needed no two com- misconduct, most appellant’s and evi- Id., plainants “corroborated” one another. responsive dence was to it. Under these testimony n. 1. Their was also would not circumstances a instruction by prior buttressed consistent statements danger. likely have neutralized the We separately made that each casework- probativeness conclude that was minimal Appellant’s er. cross-examination of these potential great. while the was was and He witnesses brief inefficacious. Because all factors militate favor of challenge did not the children’s stories. rested, finding probativeness of the evi- After State testified outweighed substantially by spent his own behalf. He of his bulk testimony denying prejudice, various extraneous of unfair we conclude acts and statements to him dur- attributed that the trial court abused its discretion ing Although the State’s case-in-chief. he it. appeals admit The court of erred generally having denied ever touched Accordingly, re- conclude otherwise. we manner, daughters inappropriate in an judgment appeals verse the of the court of particular testimony did not contest the and to that court for remand cause Appellant the children or the caseworker. determination of whether the error in ad- baldly daughters did assert that his had mitting the evidence was harmless under been “coached” in their either 81(b)(2), supra. one of his ex-wives caseworker. persuasively

The State countered these as- II, III, I, As to Parts and sertions, however, by showing that neither P.J., McCORMICK, WHITE, J., had former wives had recent in the result. concur children, access the case- worker had no motive to coach them. McCORMICK, P.J., IY, As to Part compelling We conclude the State had no JJ., WHITE, CAMPBELL and dissent. appellant frequently need show that naked, erection, around walked with an children, presence of his either to

specific up testimony intent or shore complainants. probativeness prej-

Inherent and inherent weight also

udice favor exclusion. relevant, only such

Though

Case Details

Case Name: Montgomery v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jun 19, 1991

Citation: 810 S.W.2d 372

Docket Number: 1090-88, 1091-88

Court Abbreviation: Tex. Crim. App.