*1 claimants to physical submit to examina- tions, witnesses, subpoena administer Gary Lynn MURPHY, Appellant, oaths, inquire pun- into matters fact contempt ish for in the same manner and to degree the same as a district court. Tex. Texas, Appellee. The STATE of (Vernon Rev.Civ.Stat.Ann. art. 4§ No. 102-86. Supp.1988). Therefore, light of these functions, agree I appeals. with the court of Texas, Appeals Court of Criminal “litigation” contemplated term En Banc. 166b(3)(d) Rule should be read to encom- pass proceedings before the IAB. This April conclusion is consistent this court’s holding Thomas, recent in State v. Rehearing On June (Tex.1989), wherein the equated being a “contested case” to courts,” the same as an action “in the
thereby allowing Attorney General to
intervene under its authority constitutional Thus, take action “in the courts.” I filing
would hold that the of a claim with
the IAB constitutes the commencement of Therefore,
a lawsuit. pre-hearing re-
port privileged and it was not within
the discretion of the trial court to order its
production.
Also, two-prong analysis suggested
by the court is unworkable. How can a
party establish a trial court decide investigation
whether an made to an
IAB good award was made “with cause proceed
believe” that the claim would later litigation? longer enough It is no for a
party to establish this in his or her own regards
state of mind with par- to another
ty’s conduct, enough. which was difficult succeed,
To party must now not possessed
demonstrate clairvoyant that it
knowledge of the IAB’s future reaction to parties
the claim and the response to that (subjective approach),
reaction but it must
also demonstrate how others in the same or
similar circumstances would react to the (objective
claim approach). I submit that
today’s requires litigants decision
judges to accomplish impossible. reasons,
For the I above dissent.
PHILLIPS, COOK, J., join C.J. and dissenting opinion.
in *2 Murphy
trial. 1985). granted the We (Tex.App. Dallas,— discretionary on review petition for State’s ground for review: following appel- properly ruled “The trial intro- could be bad acts lant’s extraneous punish- during the into duced evidence appel- response phase ment of trial probation.” application for lant’s decision of the Court affirm the We will Appeals. ap- appellant filed a sworn
Prior to trial probation pursuant to Art. 42.- plication for 3a(a), punish- During the V.A.C.C.P. appellant phase of the trial testified ment following is all the in his own behalf. by during pun- appellant offered ishment: “Q. (by appellant’s attorney) State record, again, please. your name for the Gary Murphy. (by appellant) A. Q. person You are one and the same jury, just guilty found who ago? just a few minutes Yes, A. sir.
Q. you ever been convicted Have any other this or jurisdiction? state or a federal A. No. Lollar, Lown, Bradley appeal Ruth on Q. you placed on the Have ever been Dallas,
only, appellant. for felony probation in this or Henry Vance, Wade and John At- Dist. jurisdiction? or federal state Klein, tys., Phillips Michael A. Robert A. No.” Warder, Dallas, Attys., Janice Asst. Dist. Huttash, Atty. In rebuttal the State offered five wit-
Robert State’s and Carl E.F. Dally, Austin, testify unadjudicated nesses to offenses Sp. Atty., Asst. State's present by appellant committed the State. appel- Gladys offense. Work testified that purse her on lant assaulted her and stole September Officer R.W. Dobbs appellant he arrested told the OPINION ON STATE’S PETITION FOR driving September while intoxicated DISCRETIONARY REVIEW days appellant led state 1983. Two later MILLER, Judge. troopers according 25 mile car chase on a charged Appellant was with murder and testimony Trooper Richard Shea. to the guilty by jury. Appellant filed an found appellant assault- Marie Holt testified and the as January 1984. On the same ed her on imprisonment life day, appellant sessed Hale found sit- Officer I.C. $10,000 sniffing fine. The Dallas Court of ting and a near his vehicle wrecked preceding on the Appeals paint. Appellant objected reversed and remanded ground that the trial court had erred acts of miscon- evidence because involved admitting unadjudicated part evidence of of duct on the that were objections during punishment phase Appellant’s final convictions. fenses overruled, were they and the pre- was allowed should set his to consider these law. assessing incidents when scribed punishment. Regardless of whether the be assessed or the support In its petition brief of its the State offered review, discretionary the State attacks the and the defendant as to the crimi- Appeals Court of holding respects; in two defendant, nal record offenses are inde- *3 reputation and his character.” pendently they admissible because are rele- [emphasis supplied] probable vant to show future conduct of 1965, 317, 2, Leg., p. Acts 59th ch. 722. vol. appellant, the and that Art. 37.07 as inter- 1967, the article was amended in one preted by Allaben v. very important aspect, as follows: (Tex.Cr.App.1967), punishment allows such (b) Except provided Section 2. as in Ar- evidence on the issue of 37.071, if finding guilty ticle of is re- Taking Allaben, the second attack first: turned, responsibility it shall then be the supra, dealt with the admissibility of defen- judge of the punishment to assess the sive concerning the defendant’s offense; applicable the provided, how- post-offense psychiatric treatment as it re- ever, (1) in criminal action application lated to the defendant’s jury may where the recommend bation. The Court held that it error tion and the defendant filed his sworn evidence, stating, exclude such id. at 519: motion for before the trial be- hearing “Evidence to be offered at the gan, (2) in other cases where punishment pursuant provisions to the writing defendant so at the time elects 2(b), Article Section Vernon’s Ann. court, plea open he enters his C.C.P., by no means limited to the punishment by shall be assessed record, prior defendant’s criminal jury. finding guilty same If a is re- reputation and his character. turned, may, the defendant with the con- legally mitigate Evidence admissible to state, change sent of attorney for the punishment or evidence that is relevant his election of pun- one who assesses the to the any, if ishment. is also admissible.” (c) Punishment shall be assessed on each [emphasis supplied] finding guilty count on which a has been returned. At the time of the defendant’s trial in prior Sec. Evidence of criminal record Allaben, supra, importantly and more in all finding criminal cases after a writing opinion, the time of the of the guilty. 2(b),V.A.C.C.P., Section read: (a) Regardless plea of the and whether “(b) finding returned, If guilty punishment judge be assessed responsibility shall then be the jury, or the be offered punishment applica- assess as state and the defendant charged ble offense where the prior defendant, criminal record of the absolutely same is not fixed law to general reputation and his character. particular penalty except some when the prior The term criminal record means a defendant, upon finding the return of a final conviction a court of or guilty, requests punishment probated suspended sentence that jury. assessed the same In the prior any final con- occurred event the defendant elects to have the charged. viction material to the fix cases where [emphasis supplied] law, fixed 659, 22, Leg., p. Acts 60th ch. they shall instruct the find Aug. eff. person defendant is same who statutory prohibi- was convicted conviction or With this amendment a enhancement, alleged against unadjudi- convictions tion the introduction of citing jury, probation was before pun during the issue offenses cated extraneous Allaben, supra); Holmes proof , phase of a trial as ishment State (Proper to (Tex.Cr.App.1973) strictly imposed. Eld S.W.2d record had been that defendant (Tex.Cr.App. establish er Administra drug unit Veteran’s abuse 1984); Ramey v. probation was before hospital tion because citing justification, one Nevertheless, in- prosecutors quickly Allaben, supra). also cases holding in por- quoted and underlined voked the above Holmes, supra, at 729. cited Allaben, supra, they whenever entirely does not Although rationale our introduce, sought evi- Ap- of the Court comport with that bearing question upon dence initial hold- agree with their peals’,1we still jury, unadjudicated that was before the of- extraneous that admission Overlooking offenses. V.A.C.C.P. fenses violated amendment, as as the fact that well might Thus, support Allaben whatever *4 Allaben, supra, dealt the introduction with position at the time given the State’s have other than extraneous transac- evidence written, 1967 amendment to was offenses, tions which constituted this Court 37.07, supra, precedential rendered it of no holding blindly to the adhered Allaben admissibility on the narrow issue of value day in this it became the order of the unadjudicated extraneous offenses sole- State, 478 958 Court. Davis v. S.W.2d application for meet defendant’s ly to (Tex.Cr.App.1972), proper we held it was second at- probation. find the State’s We the defendant had committed rob- holding Appeals’ to be tack on the Court of bery charged one month before the merit. without question because was a and that: contends, notwithstanding also The State unadju- provision of Art. general rule “While the is that independently admis- dicated offenses were by of misconduct the accused acts which they relevant show sible because were have not resulted final convictions can- appellant. conduct of the probable future admitted, not this court has re- been more traditional therefore turn to a We legally luctant to exclude admissible evi- admissibility of extrane- treatment dence which is relevant to a fair determi- ous offenses. nation of an accused State, Tex.Cr.App., v. Allaben bation. admissibility extra- Generally, the of an 517; 418 ...” citations S.W.2d [further using by neous offense is determined germane]; omitted as two-prong test: “First, State, 24 it must be determined v. 502 S.W.2d See also Cleveland to a mate- (Defendant's offense is relevant (Tex.Cr.App.1973) prior mari the de- in the case other than issue of rial issue juana purchase admissible on the Allaben, fendant’s character. citing supra); probation, [Footnote omitted.] McCrea Second, possess proba- must State, (Tex.Cr.App.1973) evidence 494 821 v. S.W.2d outweighs its inflamma- (Permissible if he had tive value to ask defendant tory prejudicial effect.”2 drug or addicted to because ever been Allaben, Allaben, holding supra. for their the Court true basis own discussion of 1. In their distinguished present Appeals case from discussion of the and authoritative For a recent Cleveland, Holmes, McCrea cases Davis and correct a false allows the State to doctrine that Characterizing permit- cases defendant, these cited above. impression by see Prescott v. left ting to correct a of extraneous offenses evidence State, (Tex.Cr.App.1988). S.W.2d 128 744 impression a defendant before created false impression jury, they said that no such false compare 403: current Tex.R.Cr.Evid. 2. See and (see summary appellant created had been relevant, Although excluded two, ante). evidence, paragraph appellant’s substantially probative out- value is if its reading cases makes it clear Our of those danger prejudice, weighed by unfair impression or false characterization whatever issues, misleading the confusion of the them, language might used in have been 48 State, (Tex.
Plante
question
692
491
best decided on a case
case
S.W.2d
State,
Cr.App.1985), citing
according
facts of
Williams
to the individual
basis
(Tex.Cr.App.1983).
S.W.2d 344
also
This Court
made the ob-
each case.3
(Tex.Cr.
Boutwell
sought by
here
servation
App.1986) (opinion on
motion for
State’s
probation ap-
regard
past
offenses and
Robinson v.
rehearing), and
concerning probability that
plications and
S.W.2d 895
apt
to abide
the accused will
be as
occa-
the terms of
on several
us,
In the case before
the evidence admit-
Cleveland, Davis,
McCrea,
sions. See
ted concerned
commission of
Holmes, supra.
were to
But even we
offenses a few months
case the evidence was
to the commission
the instant offense.
concede that in this
relevant,
upon
way
The issue
which this
find that our
evidence was
in some
we
admitted was whether
was a wor-
on the second issue —wheth-
determination
thy
candidate for
In order to
prejudicial
er the evidence was too
—ren-
determine
the trial
erred
ders the
inadmissible.
admitting
for its
this evidence
intended
extra
prohibiting
The rules
admission of
purpose,
preceding
apply
must
two-
we
rule
neous offenses arise
prong test.
upon
tried
is entitled to be
an accused
First,
the evidence
relevant
pleading
made in the
accusation
State’s
sought
issue
to be established?
“Relevan-
and not
some collateral crime. See
cy” has
defined as
“that which makes
(Tex.Cr.
Moore v.
proposition
at issue more
less
at 199.
App.1985), and cases cited therein
ble.” Garza v.
*5
Also, admission of extraneous offense
State,
(Tex.Cr.App.1986), citing Waldrop v.
issues,
evidence,
many
albeit relevant
(1940).
138 Tex.Cr.R.
In my 37.07, pursuant to 42.12, (a), on 3a that provide in Article yet to means limited byis no determining appli- jury omitted] [citation discretion prior criminal defendant’s informed to the probation need be cation for reputation and his character. permitted in Arti- beyond that any evidence mitigate legally admissible Evidence 37.07, more evidence on 3—much cle
51
analy-
any relevancy
inquiry
that
is
The first
relevant
pinpoint
material
sis is to
fact
issue.
any,
to the
is
By filing
probation application, appellant
a
also admissible.
automatically created
contested issue:
Allaben, supra at 519.
suitability
probation.
order
Contrary
conclusion,
Al-
to the majority’s
relevant, we
determine what
is
laben n
interpretation
of 37.07 was not in
presented
fact
must first set out the
issues
way
subsequent
affected
determining
whether a defen-
amendment which added the last sentence
placed
should
Be-
dant
“prior
defining
to this section
determining
jury’s
cause the
discretion
“prior
record.” The term
criminal record”
broad,
suitability
is so
may
limited,
have
but the list of the
assessment
intuitive than
more
techni-
types
of evidence be offered is
nature,
cal
issues are diffi-
exemplary
still
and not exhaustive.1
explicitly
Possibly,
cult
delineate.
why
majority ignores
this task.
Allaben
correctly interpreted
37.07 as it
Although
issues for
was then and as
fact
it was at
time of the
determining
consider in
a defendant’s suita
case.2 It
instant
is for this reason
I
bility
not statutorily
are
set
disagree
majority’s discarding
with the
out, they
gleaned
can
from
stated statu
progeny. See,
Allaben
its extensive
tory purposes and case law.
Probation
State,
v.
e.g.,
656,
Wilkerson
736 S.W.2d
privilege,
punishment,
considered a
not a
State,
Baxter v.
(Tex.Cr.App.1987);
659
imprisonment
an alternative to
where the
812,
(Tex.Cr.App.1983);
645 S.W.2d
816
given
defendant is
chance to
rehabilitate.
State,
v.
Thomas
481,
(Tex.
638
483
S.W.2d
Thus, the issues
become
defendant’s
State,
v.
Cr.App.1982);
Cleveland
502
potential,
rehabilitative
likelihood of recidi
24 (Tex.Cr.App.1973);
S.W.2d
McCrea v.
vism, danger
community,
and suita
State, 494
(Tex.Cr.App.1973);
S.W.2d 821
See,
bility
probationary
to a
environment.
State,
v.
Basaldua
(Tex.Cr.
481
851
S.W.2d
V.A.C.C.P.;
Art.
Art.
Y.A.C.
State,
Davis v.
App.1972);
958,
478 S.W.2d
C.P.;
3,
Y.A.C.C.P.;
Sec.
V.T.
State,
v.
(Tex.Cr.App.1972);
959
Brumfield
1.02; Baxter,
C.A.,
supra;
Penal
Code Sec.
732,
445
(Tex.Cr.App.1969);
S.W.2d
741
Thomas,
supra
483-484,
6-7;
Tezeno
fn.
State,
Santiago
v.
(Tex.Cr.
tion of the probation, (Tex.Cr.App.1984). Distinguishing Allaben they are entitled to know the defendant’s (Tex.Cr.App.1967), history, just criminal judge provid- as the is facts, Appeals on its Court also pre-sentence ed in a report when he consid- departures general observed that from the See, ers the same. Sec. Y.A. rules had been tolerated this Court C.C.P. There nothing that a show “only where defendant has created a jury cannot be as impartial fair and as a false impression jury” before the and held or that history criminal that in the instant case no such false im- every not as important bit juries’ pression was created. common sense determination of the issues. petition The discretionary State’s re- probative value of the instant extrane- granted view was to determine the correct- juries’ ous offenses in the intelligent as- ness of the decision of Ap- the Court of sessment of the sentencing alternatives is peals. Upon further consideration it immense. Because majority withdraws Appeals, given clear that the probative such and admissible evidence particular circumstances of the instant from the members of the I must case, right reached the result and its ratio- respectfully dissent. nale is sufficient justified to have petition Court’s refusal of the State’s ONION, P.J., joins this dissent. first plurality, instance. The while reach- ONION, Presiding Judge, concurring ing the same Ap- result as the Court of part dissenting in part. peals, has so varied the lay rationale as to Appellant Murphy was convicted the basis for future mischief. jury of the murder of his wife. At the plurality upon 21-year-old seizes penalty stage after the State legislative amendment to Article evidence, rested offering without appel- V.A.C.C.P.,merely defining “prior criminal lant testified before the in support of (Acts 1967, record” Leg., p. 60th ch. his sworn motion merely 659, 22, 28, 1967) Aug. eff. as the basis stated that he had not been previously con- holding for now evidence that victed of a placed on probation. permitted penalty stage at the aof He thus established his eligibility “prior bifurcated trial as limited to bation. 3a(a), See Article V.A.C. defendant, record of the reputa- Appellant C.P. was not cross-examined. plurality and his character.” The also Appellant then rested. Thereafter would find that such amendment the on the issue of introduced 21-year-old Allaben has been “rendered objection over five witnesses who related precedential of no ... value on the narrow the details of several recent extraneous admissibility unadjudicated issue of ex- unadjudicated offenses. solely traneous offenses to meet a defen- appeal appellant, alia, On inter com- probation.” Allaben, dant’s plained of the admission of this evidence at course, did not deal with his 1984 trial. The Ap- Dallas Court of held offenses. Allaben trial court peals, opinion the late Justice defendant, should have allowed the a sex Allen, James reversed the conviction on the offender, penalty stage to show at the (now ground basis of this point) of error. sought psy- the bifurcated trial that he had Relying upon panel opinion in Ramey problems chiatric treatment for sexual (Tex.Cr.App. when the motion for was before 1978), Appeals jury. Court of found that The error was however held to 37.07, supra, gener- established as a harmless. *10 history changed by the to Article plurality
The
of the
1967 amendment
overlooks the
merely defining “prior criminal
system in Texas. The uni- 37.07
bifurcated trial
record,”
explain
in
in
tary
long prevailed
plurality
trial
Texas
then the
fails to
system
felony
plea
guilty
of not
of
cases where the
how defendant
introduce evidence
693,
jury.
was before the
Article
V.A.
temporary insanity
caused
intoxication
(1925),
Y.T.C.A.,
and its forerunners.
In such
Penal
mitigation
penalty,
C.C.P.
of
if
guilt,
8.04,
cases the
determined the
and
jury
Code,
may es-
or how a defendant
§
necessary,
stage
in a
eligi-
one
his
jury
tablish
evidence before
jury charge.
unitary
42.12,
The
trial with one
bility
for
under Article
system
language
of
Arti-
trial
and
said
course,
3a(a), supra.
may be
Of
there
§
cle 693 was retained in
of Article 37.07
examples.
§
other
Bar
early
in the
drafts of the State
Com-
applies many con-
supra,
Article
mittee's
on the
work
1965 Revision of
where
It is not limited
situations
texts.
Code Criminal Procedure.
§
request-
filed his
the defendant has
motion
proposed
an
Proce-
draft was
“Alternative
jury.
probation at the hands of the
dure,”
procedure,
a bifurcated trial
to be
occurs, however, un-
Where that situation
only
used
within the discretion
the trial
42.12, 3a(a), supra,
sworn
der Article
§
parties
consent of
judge and with
both
sup-
proof
must
must
motion
show and
felony
plea
jury cases where the
was
port
has never
the fact that the defendant
guilty.
provided
It
that either
State
felony
any
been convicted of a
this or
“may” independently
the defendant
es-
must
other state. Thus the defendant
penalty stage of the trial introduce evi-
eligibility
before
tablish
prior
dence
the defendant’s
jury
entitled to
order
reputation.
his character or
Such
favorably persuade
grant
To
provide
“Alternative Procedure” was to
mere
probation is the
limited to
defendant
legislation.
experimental
for future
basis
eligibility?
his
Article
evidence of
While
proposal
response
The
was made in
to con-
3a(a),
requires
§
unitary system
stant criticism
prohibit
evi-
eligibility it does not
the defendant’s
blindfolded the
as to
his back-
by the defendant
dence
outrage of
prior criminal record and to the
ground
his suc-
and evidence indicative of
jurors
first
of the defendant’s
who
learned
granted.
completion
probation if
cessful
prior
after verdict
learned
convictions
given probation
a motion
Where
that such had been inadmissible.
interpretation of Arti-
then
involved
process a
legislative
Somewhere
42.12, supra,
con-
cles
must be
37.07
phrase
was deleted from
crucial
history
and the
light
sidered
statute,
unitary
sys-
proposed
and the
Suspended Sen-
decided under the
cases
The “Alter-
gone
tem was
with the wind.
(Articles 776-780 inch V.A.C.C.
tence Law
procedure
“the”
native Procedure” became
1925)
history
as well as the
P.—
though
Article
the 1965 version of
in Texas
Adult Probation Laws
2, retained the “Alternative Procedure”
(Acts
Procedure
1965 Code
Criminal
label.
1049,
1947,
Leg.,
ch.
p.
50th
452—codified
“prior
The term
criminal record” was
781b,
Acts
as Article
V.A.C.C.P.—1925
oversight
but this
was corrected
defined
466,
226,
Leg.,
p.
ch.
codified
55th
Neither in the
the said 1967 amendment.
1925).
781d,
Article
V.A.C.C.P.—
did
nor
1967 version of the statute
first
Suspended
Law was
Sentence
Legislature expressly state that
grant
juries to
permitting
in 1913
enacted
may offer at the
party
either
felony cases
in certain
suspended sentences
the defendant’s
penalty stage
trial is
judges
In 1931
certain conditions.
(as
defined),
under
record
now
prior criminal
sen-
grant suspended
permitted to
were
reputation.
It could have easi-
character or
(Acts 1931,
Leg., ch.
42nd
tences
its intention.
done so if
was
ly
1925).
776a,
at the
4—See
basically unchanged
time
law was
V.A.C.C.P.—
776, 776a and
V.A.C.C.P.—
Articles
If the
1984 trial.
law
defendant,
sought
eligibility
proba
provided
to establish
permitted
be,
to show
might
as the
must
State
case
conviction,
any,
call
and to
eligibility
establish his
sen-
suspended
*11
repu
the
witnesses
to
defendant’s “bad”
as
(no prior felony conviction)
tence
tation,
cross-examine defense
and to
wit
the unitary
vided in
trial then in existence
impeach
was limited in
nesses. The State
general
was
that evidence
to
limited
“the
ing
the defendant or witnesses
reputation of the defendant” which was
732a,
(1925),
terms of Article
Y.A.C.C.P.
interpreted
reputation
to mean the
for be-
(1965). Only
Y.A.C.C.P.
now Article
peaceable
law-abiding
a
citizen.
convictions,
suspended
probated
final
or
State,
Campbell
See
v.
73 Tex.Cr.R.
impeachment.
sentence could be utilized for
(1914);
State,
164
850
Long
S.W.
120
v.
rule
trial was that extrane
(1931).
Tex.Crim.
FOR REHEARING hearing, bearing proposi- ishment *12 not defen- only, to whether or the tion as CLINTON, Judge. the proper person is a to have on dant The in issue this cause is whether unad- fact, probation, on in street or should judicated extraneous offenses are admissi- on bearing and not penitentiary, jury assessing pun- ble for a consider any part other punishment.”1 of recommending probation ishment and when permitted trial Accordingly, the court applies pleads a defendant prior prosecution to adduce evidence five and guilty guilty, but is found then offenses, unadjudicated the oldest of which support application. his testifies in committed six months be- had been some murder; Appellant guilty found viz: offense, purse fore the instant a jury his at con- assessed snatching robbery; driving while intoxicat- and, course, finement for life did in a paint; fleeing officers by sniffing ed probation. recommend in- county influence of three chase under jury After the returned its verdict haling paint; a misdemeanor assault guilt judge promptly convened strangulation, within an hour near followed punishment hearing, and called for an- public by an arrest for intoxication prosecution The announced nouncements. that, parties sniffing paint. both With punishment.” that “the State rest on will closed. Thereafter, ap- the court of substance charge instructed The following Appel- peals occurred: found your desire in “if you on its functions stand, lant stated his name and took jurors recommend discretion response only questions three testified this case.”2 just person that he is the had Appeals noted the The Dallas Court guilty, he had not before found been “on the evidence anywhere and trial court had admitted offense convicted ac- relevant to the placed felony the basis that it was had that he never probation,” and The cused’s prosecution chose not Then, ruling on same defends that him. the State question Appellant rested. that, clear “currently It found presence under- basis. outside the alleged against jury. than the offense impression fenses other left false with the no case, used, might qualified, you have cannot if this State’s witnesses him in indictment in "reputa- properly any purpose testified as to testimony un- consider said law-abiding being peaceable citi- and tion for zen and that was ‘bad.’ The beyond you a reasonable less find and believe ” however, oth- such doubt that the defendant committed approach. did not use committed, offenses, any even if were er you may the same in deter- consider then throughout by supplied emphasis All mining to the Court recommend opinion indi- unless otherwise writer of this given probation in this that the defendant case, cated. any such you consider shall not Moreover, ruling for the consistent testimony, any, any purpose.” other limiting court, charge placed in the charge twelve conditions enumerated then instruction, viz: may impose,” essential- probation "the Court that if there instructed "You are further pay a he ly and that the first eleven regard- testimony you case any in this monthly probation fee. having of- committed defendant’s rule, general unadjudicated prior ex criminal record of the defen- traneous offenses is under dant, inadmissible ar general reputation and his char- 37.07,” ticle and held the rule con acter. The term criminal record the instant case. Allaben v. means a trolled conviction in a court final State, (Tex.Cr.App.1967), S.W.2d 517 probated or a or suspended sen- upon relied, which the State was found tence that has occurred distinguishable on its facts in that there conviction material to the final offering defendant was to show he had charged.’’3 offense sought psychiatric treatment for his sexual provision genesis This had its in the 1965 problems, opinion and the “does not deal Procedure, also, Code of Criminal wherein with the admission of an ex by provisions 37.07, supra, of Article traneous offense.” It also alluded to guilt bifurcation of assessments of impression” “false cases and “fair determi accomplished for the nation” notion of Davis v. first time. S.W.2d 958 (Tex.Cr.App.1972), distin State, Allaben the Court guished concluded, them and unadju- “The remarked that evidence admissible at the dicated testimony admitted newly punishment phase created of trial: trial court was admitted in violation of arti *13 “is no means limited to the defen- State, 37.07(3).” Murphy v. cle 700 S.W.2d general dant’s his (Tex.App. 1985). 747 — Dallas reputation and his character. Evidence granted We review of that decision to legally mitigate punish- admissible to examine the primary State’s contention ment or evidence that is relevant to the application probation, “an for this application any, for is also put alone into issue [appellant’s] suitabili- admissible.” ty probation and, for such, as made rele- Id., subsequent at 519. In cases the Court showing vant that evidence likely fu- held unadjudicated extraneous offenses ad- ture criminal conduct.” State’s Petition for Allaben, authority supra, missible on Review, Discretionary p. Tex.R.App. 7. application probation where was made. 200(c)(1),(2) Pro. (3). Rule and State, Davis v. example, For
I. defendant testified punishment phase of trial that he had not realized his observed, As the appeals court of it is companion had intended to robbery commit currently “general considered the rule” actually pulled gun until he a on a loan acts, neither bad nor the officer. The State was allowed to rebut offenses, adjudicated details of may ad testimony this with evidence the defendant punishment mitted at the phase in non- a robbery compa- had committed a at a loan State, capital prosecution. E.g., Ramey v. ny only a month per- before. This Court 575 S.W.2d Sher (Tex.Cr.App.1978); 535 error, observing: no State, ceived man v. 537 (Tex.Cr.App. S.W.2d 262 1976); Lege State, v. (Tex. 501 880 general S.W.2d “While the rule is that State, Mullins v. Cr.App.1973); 492 S.W.2d acts of misconduct the accused which 277 This rule have not resulted in final convictions can V.A.C.C.P., derives from admitted, not be this court re has been 3(a), which at the time of legally § to exclude luctant admissible evi cause read follows: dence which is relevant to a fair determi
“(a) Regardless plea application nation of an accused’s and State, Allaben v. supra; whether the be assessed (Tex. Santiago v. or the S.W.2d 758 [444 Rendon v. Cr.App.(1969) offered the state and the defendant See also ]. “Megardless plea," defining “prior In 1967 the statute was amended to move this and 2(b), provision 1967, 1739, appeared Leg., p. § from where it had criminal record." Acts 60th version, 659, 22, 28, the 1965 language, rendering and to add underscored Aug. § ch. eff. provision applicable 58 548, 317; just recapitulation of these 170 more than Tex.Cr.R. 232,
Ward understanding Tex.Cr.R. particular cases. An S.W.2d 465.” relative history admissibility of evidence useful, Texas is also Id. at 959. Cleveland now to that we turn. (Tex.Cr.App.1973), the defendant filed an and testi- thereof, support fied in that he II.
had never
of a felo-
before been convicted
consti
With enactment of the first
ny,
honorably
but also that he had been
tutionally
suspended
law
valid
sentence
enjoyed
discharged
military
7,5
8,
Leg., p.
Acts
ch.
see
33rd
good
family life.
work record and
On
time
the first
this Court was confronted for
allowed
crossexamination the State was
admissibility
character
questions
with
he
elicit the defendant’s admission that
had
bearing specifically
exclusive
purchased marihuana on a
occasion.
this,
unitary
Discerning
upon
in a
ly
no
the Court ob-
issue
error
“always
served:
ad
trial. Before that time it was
missible
“The issue of
for this
[the accused]
[defen-
unlikely
dant],
plead guilty
posses-
had
character was such as to make
who
marihuana,
squarely
sion of
the act
perpetrated
that he would have
jury.
dealing
We
here
are not
charged upon him.”
Criminal
Wharton’s
testimony
proper un-
...
which was not
Evidence,
(9th
1884).
ed.
Proof
37.07, [supra].
der Article
Other issues
to this
limited to evi
character
end was
rendering
can become involved
relevant
reputation for
good
dence of the accused’s
testimony admissible.”
id.,
trait,
“char
particular
character
Id.,
also,
being
essentially “convert
McCrea
at 26. See
acter”
deemed
id.,
Brown
(Tex.Cr.App.1973);
58;
“reputation,”
ible” with
*14
State,
728,
(Tex.
State,
Holmes v.
(1882).
502 S.W.2d
729
v.
Only
lee
Tex.App.
13
255
State,
v.
Basaldua
Cr.App.1973);
481
after the accused had admitted evidence
851,
854
reputation
char
good
particular
to a
respond
trait could
with
acter
the State
State
that
the court of
The
maintains
evidence;
kind,
then, only in
character
cases,
erred in
these
appeals
interpreting
the
suffered a bad
with evidence
accused
State, supra,
along with Davis
v.
to hold
that
of character.
reputation for
same trait
attempts
after
first
that
to
Penal
generally,
Annotated
See
Branch’s
impression
to his “suitabil-
create a false
148,
(1st
1916).
Code,
p. 84
Like the
ed.
State,
in
ity”
may
for
the
the
accused,
prohibited
from ad
State was
obtaining
interest of
a “fair determina-
particular
to
ducing evidence of
misconduct
tion,” respond
proof
with
Wharton’s, 61;
misconduct,
prove character.
counter
specific
acts of
to
State,
35, 42,
ap- Holsey v.
Tex.App.
24
5 S.W.
impression.4 We believe a reasoned
State,
(1887); Thompson
38 Tex.
v.
this issue involves
523
proach to resolution of
Indeed,
cases
appeals
two of the
opined:
59
373,
335,
974,
(1897).6
(1914);
120 Tex.Cr.R.
Long
Cr.R.
42
As is
S.W.
977
(1932).
repu-
Evidence
today,
case
the State
could
sometimes
a statu-
though
peaceableness,
tation
specific
admit
relevancy
misconduct if its
consideration,
pre-
tory
was not deemed
lay
tendency
in its
to
some mate
establish
requisite
sus-
to
recommendation
case,
rial
independent
issue in the
of what
State, 122
pended sentence. Martin v.
might
tendency
ever
also have had to
174,
(1932).
812
Tex.Cr.R.
establish
some detrimental trait
ac
per
cused’s character
But whatever
construing
provisions
se.
these
Caselaw
specific
relevance
that,
misconduct
have
application
made clear
whenever
had in
suspended
made,
aid of
the old rule
assessment
sentence was
initiating inquiry
unitary procedure
prohibiting
was
the State
overshadowed
accused,
longer
no
into the character
rights
preserving
these rules
applied.
application
put
itself
the ac
guilt
accused to
a determination of
“reputation” in
E.g.,
cused’s
issue.
Over
“character/rep
innocence absent uninvited
172,
by v.
92 Tex.Cr.R.
proving
reputation.”
931,
former, however,
118,
(1922).
tion;
237
933
91 Tex.Cr.R.
S.W.
unlike
held, accordingly,
expressly
The Court
not
authorize
statute did
bation
were “not
any
acts misconduct
admissible
evidence in
admission
character
directly combating
reputation
good
possible explanation for this
form. One
State, 106 Tex.
the accused.” Skelton v.
expected
trial
is that
it
omission
(1927).8
90,
238, 240
Cr.R.
291 S.W.
routinely
statu-
exercise the
court would
State,
349,
also,
Bowman v.
Tex.Cr.R.
98
alternative,
781b,
2,
provided in Art.
tory
State,
v.
(1924);
Pettiett
100
criminal record” From this thing one meaning, per that, amendment, certain: “a under Suspend final convic- whereas tion in a ed probated court of or Sentence Law State was allowed to suspended proof character, sentence that has initiate occurred but form “reputation” final conviction testimony, material to under its charged[,]” descendant, the offense authorized. *17 Second, evidence could may present come in State of the ac- evidence of character at cused’s By “character.” interpret any punishment this hearing, form, we limited in legislature to have opinion however, meant record, testi- opin criminal mony of the accused, character of reputation as ion or testimony. Not immedi- whether, extraneous transaction Only proof an
ately clear is if so what “oth- issues,” some material se, supported inference per er character “can besides it conformity was than one of character rendering relevant testi- become involved However, know we admissible at trial. mony su- admissible.” Cleveland State, su- from, alia, inter pra, at Does su- Article Brumfield appro- pra, least it is that at to some extent pra, permissible limits of define the admis- priate to consider the criminal character proof punishment phase of tri- sible at assessing punishment. the accused al, merely prov- or limit methods of does it not have Legislature would character, Otherwise leaving open ing whether evi- permitted the to invoke his State may dence “relevant” to some other community, or infamy in the purpose? how We next consider admissi- opinions to his character bad individual bility punishment phase at phase. do we at How new is to be determined current bifurcat- at may be determine what else admissible ed scheme. punishment phase trial? III. of ad- rule Application traditional evidence, original mitting even of an extraneous plurality On submission offense, long it is applied traditionally test so “relevant” we have issue,” admissibility is in most instances an employed of ex “material to determine evi- guilt unsatisfactory measure of or whether traneous misconduct at inno permitted phase According expressly dence other than that cence of a criminal trial. test, 3(a), supra, is admissible an extraneous act well-worn lies if, apart punishment phase. problem may quite from at the The become admissible defining particular “issues” are may what the probativeness it have whatever may “character,” may “rele- it is to a that evidence not be show relevant materi before prove. We have remarked relevancy al issue in the case and its value vant” during pun- E.g., material issue outweighs potential prejudice. its “[t]he (Tex.Cr. is, phase obviously, punish- ishment what Williams v. State, 623 App.1984); Morgan v. 692 S.W.2d ment to assess[.]” Hoffert While (Tex.Cr.App.1985). This test reflects S.W.2d obvious, that, permissi especially it is subject to that is indeed not precept the broad deciding relevance. generally helpful purposes proof, are ble methods which more informed considerations reliabil guilt consequence” facts “of at the relevance, admissibility of evidence ity than narrowly by or phase trial are drawn relevancy. Relevancy de a function of extrapolated penal provisions from readily turn, upon materiality. In other pends, statutory justifications. An extrane- words, Rules of from the new borrow may of an proof offered as ous offense Evidence, to determine whether Criminal fact, culpable identity ultimate such as “relevant,” necessary to it is intent, or it be offered to establish re to establish or tends know motive, fact, from evidentiary such as consequence to fact that is of fute “some may be inferred. an ultimate fact action.” Tex.R. determination the material case we know what either Crim.Evid, Rule Legislature sup- are because issues point plied have fixed them. Thus we unitary In the old navigate questions of relevance which to context of extrane- applied rule not guilt phase of trial. same preventing with a view to ous offenses There, phase. proof true of the inferring guilt from juries “fact- exceptions,10the from certain general.” aside “a criminal the accused was find already an affirmative constitute example, does 10. For the State must deadly weapon, use or exhibition previously convicted in order has been accused (Tex.Cr.App. Polk v. range under under V.T.C.A. to enhance 1985), otherwise Code, issue has jury’s and the verdict 12.42. Where the Penal *18 York, New not determine the existence of characteristics." Williams v. finder” does 1079, 1083, 241, 247, 69 S.Ct. Deciding punishment facts. 337 U.S. discreet what (1949). are L.Ed. These factors process, to assess is a intrin- normative they sense tend that sically factbound. Because the material “relevant” indistinct, probable identi- make or less some punishment issue at is so rele- to more punish- fact at the vancy proffered cannot be de- fiable issue of ultimate phase. Calling To ment circumstances of processes. termined ex- deductive real- offender “relevant” is metaphor, tend the nautical we have offense and the given steer, say more we that infor- polestar ly rudder to no to no than to deem a but for the factfinder to by. appropriate steer mation its consider exercise of unfettered discre- reality, In what is “relevant” deter- punishment tion to within assess whatever punishment mining proper ques- is more prescribed range it In the sees fit. policy logic. creating than of gap policy Legislature, left separate punishment proceeding in has held evidence of circum- “the Legislature clearly intended remove stances of the offense itself or ... unitary the blinders inherent in a trial. defendant himself” to be admissible at 37.07, Unfortunately, outside of Article punishment phase. Stiehl v. 3(a), guidance given it has clear no § (Tex.Cr.App.1979). as to considerations should inform the what jury’s punishment decision. Manifestly, one circumstance of the know, nevertheless, Although do char
We certain offender is his character. regarded widely information has been acter is thus “relevant” at the punishment. phase, appropriate “relevant” assessment of consideration axiomatic, discretion, It example, punish- inform the admissi factfinder’s bility ment fit the particular qua should crime. Ac- of evidence of character charac cordingly, routinely wholly the trial ter is instructs nonetheless circumscribed jury may 37.07, supra. syn it consider all evidence admit- Article From our § guilt phase making punish- opsis history already ted at the its we have deter its ment determination. Additional evidence mined that neither the State nor the ac may specific the circumstances the offense cused may introduce evidence of punishment phase, e.g., unadjudicated proof admitted at the char conduct as of his State, supra, proffered provision. Davis v. unless the acter under this also find We only upon evidence bears an issue untenable acts admit necessar- ily against proponent punishment phase prove resolved ted at the some verdict, guilty apart as in the offender from Dixon v. 506 circumstance of pe- per Though Modern se. bifurcation character that, thought created nological along also bolds 1965 removed the blinders and offense, possibility with the circumstances of the for admission of evidence unimaginable prior unitary proceed “[hjighly relevant —if not essential —to ... ing, coming expressly of an sentence to describe appropriate selection is the possession possi- Legislature con of the fullest information new vista concerning the life speak ble defendant’s and tinued to the familiar vernacular guilt only mitigates punish phase "proof at the that fact of such release submitted proven Code, 20.04(b). punishment phase also be at the must Penal § ment” under V.T.C.A. reap of Article (Tex.Cr. for the State the benefit Robinson 8(b), 3g(a)(2) or Article V.A.C.C.P. particular App.1987). can be Whenever issue To obtain recommendation a consequence” punish identified that is “of plead an accused must he has proof proceeding, questions of burden of ment never before been convicted of offense. Significantly, immediately mind. no come to 3a(a), V.A.C.C.P. issue assigned proof ever been burden of aggravated kidnapping one accused of what to assess. broad "issue” of place may victim and in a safe released his alive (Tex.Cr.App. Wright punishment phase, at the the bur be submitted 1971). accused, falling upon apparently since den *19 Thus, he filed his of character. albeit in terms ana- nal issue the moment sworn 37.07, inception, chronistic from application. agree its Article that it is We where 3(a), supra, affords the indicator of Legislature put specific clear the has a fact § Legislature appropri- what the deemed in punishment phase, e.g., see in issue at the punishment decision, specif- ate to the viz: 10, ante, tending n. ic It conduct. seems incredible that admitted, irre- refute that fact should be Legislature would bothered to limit have spective of whether it also constitutes a proof se, per by excluding of character form of character evidence that would oth- end, specific conduct to that 37.07, rejected under Article erwise be contemplating while at the same time iden- 3(a), supra. Thus we must decide wheth- § always tical evidence would be admissible er, quite apart considerations category, as “relevant” to the broader cir- offender, Legis- of the offense and the cumstances of the offender. Loath to nul- “suitability” lature has indicated that intent, lify apparent legislative hold we probation necessarily a fact “of conse- 37.07, 3(a), supra, that precludes Article § quence” jury’s decision whether specific admission of char- conduct show If recommend so we would anything acter or else under the rubric of proof specific constrained to hold that pun- circumstances of the offender at the misconduct is indeed admissible as evidence phase mitigation ishment either in fact, determining “relevant” to Article aggravation punishment. 37.07, 3(a), supra, notwithstanding.11 § say This is not to that evidence of the circumstances of the offender is limited to IY. permitted by “character” evidence as Arti pun the offense is a Where 3(a), supra. cle § years, ishment does not exceed ten recognized since Allaben v. provides, Adult Probation Act as it almost circumstances, that other such as his fami has, always judge may place that a a defen affiliation, ly background, religious edu regular probation dant on “when it shall cation, like, employment history and the appear to the satisfaction of the court that appropriate are considerations in assess justice the ends of and the best interests of punishment. E.g., ment of Coleman v. public as defendant well as the will be (Tex.Cr.App.1969); thereby.” subserved (Tex.Cr. State, 442 Miller v. S.W.2d 340 findings granting Upon V.A.C.C.P. such App.1969). But see Thomas v. probation is a matter of and un- “absolute n. 6 discretion” for the court. Kem reviewable short, reiterate that Article we (Tex.Cr. ner v. setting supra, is not exhaustive However, App.1979). statute does not out evidence admissible at the require any finding. jurjr that a make such phase circumstances of the offend to show 3a(a): id., jury may Compare “the recom precludes evi simply er. hold that it We probation period for a term of mend of conduct for that dence of acts ten years in no event for more than ... but purpose. proof years ... when the sworn motion argue appellant’s But the State does show, in their jury shall and the shall find misconduct in this cause is a that the defendant has never verdict offender, and for that circumstance felony[.]” convicted of a been appropriate punishment con- reason is an Therefore, considering appli- proper it, Rather, understand sideration. as we find that probation cation for must specific miscon- asserts that the State previously convict- defendant has not “rele- appellant’s trial was duct admitted appropri- that an felony, determine ed specific question of his “suita- vant” to the not more years is a term of ate a mate- bility” for which became analysis assumed, its deciding, able to conduct nal submission was 11. Because it without was "rele- misconduct "suitability” issue of whether was a material origi- issue. punishment phase, plurality vant" to that at the Flores, failure of the finding that decide to recommend than ten and charge in its of all grant to inform the in its verdict the court make, im must which could be findings Unlike tion. conditions of probation is not statute leaves to the an unbridled it recommend posed should making charge to exercise in its determi- error, discretion fundamental (within prescribed conditions, nation of listing apparently some given, *20 range) pro- its recommend decision to rights appellant’s “adequately protected State, supra, Kemner v. at 409. bation. thereby.” not harmed and that he was 697, State, 700 617 Henderson S.W.2d v. 37.07, V.A.C.C.P., 3(b), in- Article § (Tex.Cr .App.1981). give “the such structs that shall ad- may as nec- ditional written instructions 3a, Article su- At a time when § in essary.” When Article versions pra, trial court to conditions limited the 42.12, 3a, supra, provided upon that rec- § 6, through then set forth in O’Neal § probation by jury of a “the ommendation Henderson, the to Court neither Flores may impose only court those conditions applica- to explained why a failure describe hereof,” in 6 which are set forth Section is probation not harmful ble conditions of the found: defendant, explicated to a nor the reason good practice it is “While considered to “good practice” that it is to enumerate charge in the the pro- enumerate court’s in probation conditions of bationary may conditions which the court dichotomy puzzlement: if charge. is a The impose probation by is recommended abject jury appro- inform the of failure to jury, the failure to so enumerate the the probation of not reversi- priate conditions is is to said conditions not harmful the ac- error, reason must be that such ble the nor the court’s cused restrictive of au- jury to information is not essential enable the thority under statute.” matter of to exercise its discretion the State, (Tex.Cr. 66, yet recommending probation; v. 513 69 the notion Flores “good practice” it is to inform the App.1974). though Even the accused re that so it, along quested jury an utter inform seems the lines of failure to to follow Kemner, i.e., reasoning jury probation of conditions was the Court not “guided” exercising him or jury harmful to error. that is thus reversible O’Neal State, 391, to recom- (Tex.Cr.App.1 v. 421 S.W.2d 396 its discretion to decide whether 967).12 granted.13 probation The Court to mend continued adhere to Later, however, jury; probation to be submitted to the the Court refused find a could they charge fundamentally be.” Villa Court did hold that had to defective for “ 244, State, (Tex.App.— give jury guidelines’ nueva v. Corpus 703 S.W.2d failing to ‘minimum to 1985), history (emphasis PDR no Christi deciding or not rec- be followed whether to Finding by appeals). the “correct rule court of probation," was ommend because what con- v. S.W.2d 66 of law stated in Flores charge enough tained in inform (Tex.Cr.App.1974),”and since 42.- under Article discretion, jury’s viz: court, 12, jury,” trial not the § "it is the case, charge present “The court’s in the probation, which determines conditions 42.12(B)(3a) [sic], with su accordance thought appeals "there is no fundamen court instructing jury pra, consider all the tal, overriding reason to submit them together the case the law sub facts of Thus, jury.” did in re trial court not err charge it in the as the enu mitted to well charge fusing conditions to include in its certain followed de merated conditions to be requested appellant. Ibid. granted, probation in the fendant event Heathington v. To the same effect jury its discretion on enabled to exercise 1986), 326, (Tex.App. no — Amarillo question of or not to recommend whether history. PDR appellant. probation See O'Neal limiting 1967) provision of 3a condi- (Opinion § Since (Tex.Cr.App. S.W.2d 391 probation Thus, jury to those Rehearing). recommended tions Appellant’s Motion for 1981, 67th 6 was deleted Acts present contained in Leg., charge we hold that court's September p. effective Ch. adequately protected the case 1, 1981, appearing charges in acknowl- form thereby. rights Arti and he was not harmed edged been modified. have works C.C.P.” cle Vernon's Ann. option- formerly provided opinion recognized The A writer at 409. Kemner stating probation: its charges one possible conditions of al relative read to mean "that
Today, 3a(a), ago declared, under Article years su- Nineteen the Court pra, “Requirements the law purpose remains to rec- and the probation wholly ommend is a decision tion are a matter law and common within jurors. knowledge.” Logan discretion Also the law still is that a in- need not Adult any form jury condition of prescribes precisely Probation Act when It follows applicant that what those qualified conditions and how one becomes be is of consequence eligible no when jury be considered jury.14 is made to a bation. The Act does not raise is not predict there future suggest conduct. factual issue That jurors one de- applicant condition is the must conclude an is “suit- against fendant shall no probation; commit able” for it contemplates law, therefore, germane merely delib- will exercise its discretion erations *21 jury determining to decision of a as to to proba- recommend recommending probation. tion.15 actually “a matter imposed Obviously recommendation is that rests within tions on defendant. jury" the "rights” sound discretion sans a list of those often found were ade- conditions, making quately protected fully charge and no of a failure mention to on enumerating applicable "right" discretion but all conditions do not conditions extant include a longer suggests jury1 as of 1979. He be told what to make no the latter. of informa- Compare given. McClung, Jury Charges tion that is Since an for Texas enumeration (Revised Edition, required January place, conditions is not we Criminal first Practice 1981) 306-307, (Revised statutory believe an on McClung, op instruction defini- with cit. 1, V.A.C.C.P., 1985) tion Article § Edition Blackwell, to will better serve inform the exercise its McCormick & Texas Criminal discretion. Forms and Trial Manual 8 Texas Prac- 284-285, noting give tice while that a failure to error, significance presents 15. Of uncertain it is not is the reversible a revised fact that the enumeration, Legislature presentence charge has never authorized still in- with an viz: here, vestigation reports jury scrutiny pertinent for jury As in consider- is told: ing whether to recommend now “In this defendant case the has filed [his 42.12, 4, Article V.A.C.C.P. Part of the United sworn motion If the cetera]. et Supreme holding States Court’s rationale for by you years assessed not more than is ten ... reports such process do not violate federal you due and further find that he has not ever been guarantees ..., was that: you may convicted of a recom- penitentiary probated mend the time be probation report "the modern draws on infor- years years, not to term exceed 10 and concerning every aspect mation of a defen- you you may if assess a fine recommend type [it dant's life. The and extent of this infor- paid probated]. or totally impractical impos- mation make if not probation conditions open testimony sible court cross-exami- include, but court shall not be limited to procedure endlessly de- nation. Such a could following: lay administration a retrial nine are listed with direction to add [first collateral issues.” requested York, others "as authorized statute and Williams 337 U.S. at S.Ct. v. New 1084-85, Perhaps State”] defendant at failing at 1343-44. 93 L.Ed. granted by provide juries Probation expressly presen- must to with a report Legislature recommends it in their verdict. tence assumed If you probation ordinary evidentiary principles any do not DESIRE recommend evi- nothing you say your "suitability” will about it in dence to the verdict. "relevant” accused’s (For Concluding probation Instructions come in at the [such as arriv- would full, phase. language “by at amount view in Williams fair above, however, way opinion there is another to con- and free exercise of of the individ- 81.05).” Legislative jurors" strue the silence vis-a-vis informa- see cetera] ual et appropriate jury’s probation tion to the deci- probation Conceivably Legislature Even when conditions are enu- simply be- sion. merated, charge give jurors does not practical the stock lieved evidence was that no more slight jury’s how the necessary even a hint about nine standard to inform discretion wheth- 6(a) may "guide" already provided probation in § conditions first er to than was recommend probation, partic- contemplated in its deliberations admissible show circum- ularly jurors are also told that the trial circumscribed when stances of the offender—as 37.07, 3(a), supra. court alone will the terms and condi- determine probation. The placed on heightened public violate the law if
With a awareness matters, theory trial court allowed surely jurors today on which the about such present “rebuttal” evidence approach prosecution their and deliberations determina- knowledge appreci- a common is untenable. tion with objective that an societal
ation ultimate
probation being asked to recom- Y. probationer. mend is rehabilitation of the appeals construed court of (Tex. Sanders allow language in Davis Yet, Cr.App.1978). its sole function is to isit proof of misconduct where recommend, leaving good judgment first necessary of an to a “fair determination of the trial what conditions will be probation.” accused’s imposed, experi- and then to trained and agree that parties 959. We supervising enced adult officers spe may “open the door” to admission of enforcement of those behavioral restraints punishment phase; this cific conduct at the requirements against probationer so, fact, applica regardless of whether to the end that rehabilitation achieved. is made. leading jury’s From evidence own testimony spe- elicits When accused jurors finding guilt know well that de- good attempt support in an cific conduct engaged fendant in conduct violative of the jury argument that he a later deserves law, they applicant learn much about sentence, lenient or is “suitable” for person as a that criminal conduct and tion, objection will be taken. State’s well *22 by parties other evidence per- adduced Likewise, prevent can the State the accused taining to the circumstances of offend- unadjudi- first proving instance er, including his character. The comes cated bad or details of crimes acts applicant to understand has never be- resulting urg- in as a convictions basis for felony in fore been convicted of a this or ing deny probation punish the jury to or any having inquiry other state —such been however, harshly. option, oppo- At its expressly put in issue may forgo objection nent of such evidence 3a, supra. It may hear testimo- eliciting with a to other evidence view concerning ny applicant variety from a tendering specific By it. conduct to rebut persons background, family, employ- about propo- in first instance explained, ment and the like. As we have nent has in consented admission effect to III., part ante, see this latter evidence does specific conduct to inform the acts of “issue,” any particular not bear on for jury’s deciding pun- in both what discretion there is none the must resolve. Rath- assess, ishment to and whether to recom- er, testimony is for such available con- probation. to mend He will be heard jury may give assessing sideration as the complain of evidence of like kind. rebuttal considering probation. Its Thus, example, for an accused who initiates informed, unfettered discretion thus punish- at the specific conduct its jury makes determination as to whether instance phase, ment shows in the first or probation. to recommend before, that he has “in never been trouble” Accordingly, comply that he with the law past we hold that whether can proba- “opened the door” applicant placed conduct an include may may to rebuttal evidence which propensity tion reveal a trait or specific See, e.g., proof bad acts. Ham- the law not relevant to a material violate (Tex.Cr.App. application for ilton v. issue tendered 1972); proceeding in a before a Valerio matter, Cf. Hammett v. jury. For that neither is a selfserv- (Tex.Cr.App.1986).16 ing applicant that he will not 713 S.W.2d declaration highlighted has been trouble Hammett the im- Whether the accused 16. In the Court evidence, guilt phase usually peachment matter to attack a collateral function of such Nevertheless, testifying where the accused vol- veracity of trial. the truth and accused. misconduct, forgotten We have not cases de- acts of and the trial court cided Suspended admitting under the erred in them. Law, Sentence State could not Accordingly, judgment of the court “reputation” specific just via conduct be- appeals is affirmed.
cause it object specific chose not to conduct evidence p. from the accused. See TEAGUE, Judge, concurring. Obviously ante. para- the Court’s Gary Murphy, appel- Lynn henceforth mount concern those cases towas avoid lant, by jury committing was convicted prejudice infecting undue the determination murder, by intentionally the offense of kill- guilt unitary proceed- innocence in the punish- wife. assessed ing. danger No such of contamination ex- $10,000 imprisonment ment at life and a punishment phase ists at the in the current punishment stage fine. The facts at scheme, bifurcated and we see no reason governed parties door,” “open effec- V.A.C.C.P., appellant reflect that took the tively agreeing specific conduct is an proved up application stand and appropriate jury consideration in assess- so, probation. doing appellant merely punishment, ment of spite of Article previously testified that he had not been 37.07, 3(a), supra. Texas, felony any convicted of a indicated, To the extent cases have Union, juris- State of the or in federal however, that evidence that is admissible diction. No other testified on witnesses offender, show circumstances of the but appellant. objec- over behalf conduct, does specific not amount to will tion, permitted present five witness- automatically “open the door” to evidence es who testified that had commit- rebuttal, simply conduct in be ted misdemeanor criminal both application cause has been appellant’s guilt had not offenses for which made, they disapproved. E.g., are Cleve adjudicated. The trial admitted State, supra, land v. p. discussed ante at these extraneous criminal of- 58; (Tex. Baxter v. they fenses on the basis that were relevant Cr.App.1983) (Plurality Opinion).
Appellant
Appeals
testified
that he had
The Dallas
held
that
previously
placed
not been
convicted
on the trial court committed reversible error
felony probation,
admitting
by
testimony
strict satisfaction of
into
probation eligibility requirement.
unadjudicated
The
crimi
about the
appeals
appellant
holding,
court of
found that
made nal offenses.
In
the court of
so
proper objection
argument
appeals rejected
to the five extraneous of
the State’s
that
against
fenses admitted
him. Under these
under this Court’s decision of Allaben v.
State,
appellant
(Tex.Cr.App.1967),
circumstances it cannot be said
517
opened
*,
specific
progeny
unadjudicated
the door to admission of
Allaben’s
trouble,
State,
(Tex.Cr.App.1972);
unteers that he has never been in
v.
Given the
they
were not final
nor had
probated
suspended
Section
as was worded when the
resulted in final
sen-
hearing
what
tences. There
is also no evidence
Allen,
opinion
testimony
2. Justice James K.
who wrote
allow the
was not reversible error.
*25
cause,
Appeals
correctly
Allaben,
context,
for the Court of
in this
Despite that appears the coniusion inference drawn as to be his actual reign, 37.07, disposition.” Id., it to me that In is clear Art. 632. when Art. 3(a), straight supra, was enacted forward in what can § § Legislature only way that character during punish- admitted into evidence proven could be direct stage evidence was ment trial. For example, a reputation testimony. Therefore, personal State, evidence, as direct can only introduce opinions as to a defendant’s moral charac as a defendant’s criminal record Ray, supra, ter were inadmissible. § from a convictions court of And, conduct, good, acts either prior probations, not, completed whether or (Tex.Cr. S.W.2d Ward v. 591 810 addition, any suspended sentence. In App.1979), 1 Wharton’s Criminal Evi prior conviction, it can introduce a (13th 1972) 230, bad, dence ed. Garcia § not, from a court of record or it 400 (Tex.Cr.App.1970), charged. material to the offense For ex- equally were inadmissible. This remained ample, Chestnut September, law until 1986 when the (Tex.Cr.App.1978), interpreting Art. adopted. Rules of Criminal Evidence were 3(a), supra, this Court confirmed the ad- § Now, 405(a) reputation under Rule both missibility of three assault convictions opinion testimony acceptable are meth from Municipal during punish- proving ods of However, one’s character. stage aggraváted ment robbery pros- an evidence, specific as direct instances of con ecution. duct are still inadmissible. of admissibility standards relative It always general has been rule in introduction “prior defendant’s jurisdictions Texas and most clearly are record” stated and during guilt/innocence stage of a trial have not caused either the bench or bar a defendant introduce could evidence much difficulty. difficulty with Art. good through reputation character testimo- 37.07, 3(a), supra, plagued that has § ny. similarly It has been the rule bench and bar is the role that a defendant’s that the State not introduce could reputation play punish character character, of a defendant’s bad unless the stage ment trial. of the At the it outset defendant made an issue. it Art. emphasized, must 3(a), and the creation bifurcated § past, “reputation” and “character” are changed Specifi- that somewhat. thing. not the same “Character” “[i]s 37.07, 3(a), cally, authorizes person’s trait, disposition group —i.e. the State to evidence of introduce a defen- traits, or the sum of his traits..." dant’s character before the defendant even Or, Wigmore on Evidence § “[c]har- makes it an issue. Smith v. acter qualities refers to the inherent However, S.W.2d 659 person.” Ray, 1A R. Law Evidence 37.07, 3(a), in my opinion Art. was enact- (Texas 1980). Practice 3rd ed. ed with an awareness of the restrictions however, “Reputation,” “applies to the col applicable then of one’s charac- ...,” opinion community lective as to Thus, punishment stage ter. because id., qualities (character). one’s inherent As necessarily incorporated of the trial con- device, reputation testimony an evidentary beyond cerns that went the defendant’s recognized exception hearsay is a guilt or proprie- innocence and included the rule and is used to one’s character. ty jury recommending probation in a (Tex.Cr. S.W.2d 630 Moncrief given Legislature approved case the a de- App.1986). parture existing procedural from restraints Court noted that Profes- and authorized the State to introduce as Moncrief recognized Roy Ray sor that in addition reputation direct evidence testimony as to reputation were there two other means community’s perception of the defen- “(1) proving personal opin- one’s character: But certainly dant’s character. does person ion of who complete know the not mean that it endorsed a ... de- witnesses (3) person evidentary parture conduct of from standards ad- *27 pending use of missibility firmly expressly forbade the that had become estab- impeach- words, practice. charges lished In other as vehicle of Texas to be used pro- though even Art. altered ment. change it not common law cedure did bar, testified In the case at neither Consequently, rules evidence. aof felo- he never been convicted that had the State introduce nor defendant could After- ny placed on or been opinion evidence of defendant’s bad or had admitted rebuttal wards the State Further, good character. Art. which he had evidence five other offenses 3(a), supra, did not the State to authorize committing. This was charged with been acts specific introduce of misconduct to obviously reputation evidence so it not character, prove a nor defendant’s bad did under that should have been admitted not specif- it authorize a defendant introduce however, theory. was, It good good acts of ic conduct to specific of misconduct which is not acts State, supra. character. v.Ward Further, permitted. appellant’s testi- During cross-examination the rules were obviously reputation mony testimo- was and are If a defen- somewhat different. ny of his Nor it inadmissi- character. was good dant introduced evidence of his char- testimony opinion ble witness, reputation through acter concern “a character did not because impeach was State then able witness trait, traits, the sum his group of ploy you the absurd of “have heard” traits_” Wigmore, supra. His testimo- (not know”) you the more reasonable “did ny fact that simply a historical was questions thereby indirectly develop 42.12(b), supra. admissible because Art. the existence of of misconduct. acts Quite simply, testimony there was no State, supra. But, purpose v.Ward Thus, impeach. the State to inquiry to test the character wit- have offenses should not reputation nesses’ “not testimony and admitted.2 person discredit the on whose behalf the just It that this case does seem testifying.”
witness
Brown v.
should be that difficult.
(Tex.Cr.App.1972). Al-
ny Ray, supra, of other witnesses.”
Thus, not be used extrinsic evidence could impeachment by
in lieu of tion, cross-examina- 608(b),
See now: Rule Tex.R.Cr.Evid. 38.29, Y.A.C.C.P., addition, then previously testimony beyond noted. How- recognize limitations I that a defendant’s ever, obviously respond did in this case. not occur “open allow the State door”