*1 RANKIN, Appellant, Allen Randall Texas, Appellee.
The STATE of
No. 0374-94. Texas,
Court of Criminal
En Bane.
April
Opinion Withdrawing in Part on Decision 8, 1998. July
Grant of Reconsideration *2 Clarkson, Houston, ap-
M. Cаtherine pellant. Houston, Klibert, Atty., Dist. Asst.
Julie Austin, Paul, Atty., State’s Matthew State. PETITION APPELLANT’S
OPINION ON REVIEW FOR DISCRETIONARY MEYERS, Judge. Allen Ran- appellant, Randall
A found kin, and guilty aggravated sexual assault fifty years confine- a sentence of assessed trial indicated that The evidence at ment. of their and three complainant, her sister swimming playing at one of friends were appellant offered house when their friends’ Appel- ride on his horse. them a chance to Wendy and complainant, her sister lant took Both for a ride. complainant’s friend Linda Wendy Linda and testified during respec- “privates” fondled their testified that Complainant also tive rides. “privates,” her as well appellant had touched went on to state her breasts. She appel- touching culminated this unsolicited in her finger of his painful lant’s insertion “private.” 404(b) and Appellant, pursuant to Rule 403, objected Linda and Wen- to both of- extraneous dy’s as inadmissible judge The trial overruled fense evidence. testimony. Tex. objection, allowing & Tex.R.Crim.Evid. R.Crim.Evid. judge to deliver a Appellant then asked extraneous of- as to the testimony. judge declined fense time, but de- limiting instruction instead, instruction, at the time of livered the jury charge. final Appeals, Fourteenth The Houston Court District, affirmed, conclud- Supreme Judicial judge properly admitted ing that the trial a com- testimony to show offense extraneous probative value plan, mon scheme outweighed prejudicial of such evidence effect, judge acted within that the trial lim- administered his discretion when he in- jury charge during iting instruction 1) 402, if Rule 401 and Rule light admitted. stead of when char- for a other than is introduced (Tex.App.— Rankin v. S.W.2d 279 2) “fact conformity, to a 1994). relevance discretionary acter granted We Houston 3) remains consequence” case to determine whether the Fourteenth review statutory other constitutional free of Appeals erred in Court of its determinations. prohibitions, it is admissible. *3 a three view the above sentence as we I. then, test, part admissibility to the first as íOJf(b) A Rule part, consistently recognized 404(b): apparent from the face of what is relevancy1 Rule 401 defines and Rule purposes’ is Rule’s list of ‘other “... states: collectively nor exhaus ‘neither exclusive admissible, except All evidence relevant Montgomery v. 810 S.W.2d tive.’” constitution, by provided by as otherwise 372, (Tex.Crim.App.1991). we As far- as statute, by rules these rules or other discern, in Rule the second sentence can authority. prescribed pursuant statutory to 404(b) purpose than an ex serves no other Evidence which is relevant is inadmis- and, as is in this emplary one evident sible. Tex.R.Crim.Evid. 402. been a of confu has sometimes more source Rule, Pursuant to above even when no guidance. sion than barring statute or rule exists admissibili- fact intro party The mere that a ty may deny a of relevant than for a other duces evidence a impedi- admission because of constitutional conformity, any the other character or of However, ment. when of rele- the admission 404(b), purposes in Rule enumerated vant evidence stands a con- unobstructed not, itself, that in make evidence admissible. rule, stitution, judge statute or then Admissibility Rule of evidence under allow it in. fact, hinges relevancy of the in also on the 404(b) exemplifies exception Rule consequence” a “fact of evidence to 404(b) contemplated by as Rule 402. Rule 404(b) Indeed, a a party makes case. exists, large part, possibility in to counter the objection, they claiming are that evidence may be a that evidence admitted to show solely con being introduced for character corrupt defendant’s nature from which or, words, formity other that the jury may render a verdict not on the anything other than character is irrelevant but, rather, them, facts of the case before They a conformity. explicitly need state perception defendant’s character. objection is inherent since one Goode, Sharlot, then, 404(b) Wellborn & Texas Practice: objection. find their Rule We TeosasRules Evidence: and Crimi Civil Montgomery, with our consistent 404(b) (1988), 404(b) nal 404.2 at Rule Seс. 106. objec at that a Rule reads, part: pertinent analysis. To find tion demands a admitting might result in courts otherwise crimes, wrongs, Evidence of other or acts highly prejudicial both evidence that is prove
is not admissible
the character
404(b) objec
proper
after a
irrelevant even
in order to
he acted in
person
a
show that
despite
of Rule
tion
existence
however,
conformity
may,
therewith.
It
feel,
result,
402.
a
would
and Rule
Such
as
purposes,
such
admissible
contrary
main
to one of the
be absurd
motive,
intent, prepa-
proof
opportunity,
purposes of the Rules.
ration,
knowledge, identity, or ab-
plan,
or
...
sence of mistake
accident
say
rele
When we
that evidence is
rule,
vant,
necessarily saying, pursuant
intro-
we are
Under this
extraneous
conformity is
that the evidence makes
solely to show character
duced
fact of
But,
likely.
in the case
or less
reading Rule
more
inadmissible.
having
probable
probable
or
than it
action more
less
Evidence” means evidence
“Relevant
Tex.R.Crim.
any tendency make the
fact
be without
evidence.
existence
would
consequence to
Evid. 401.
the determination
that is of
402, supra.
Montgom- Testimony
appellant sexually
molest
As we stated in
ery,
just
ble or
probable’
evidentiary
less
fact
gap
bridge
the act and the
between
inferentially
leads to an elemental
attempt
intent so that
the State
[could]
fact; or where it serves ‘to make more
culpable
show
a defendant
acted with
probable
probable’
or less
defensive evi-
Appellant
mental state.” Brief for
dence that undermines an elemental fact.
(Tex.App.—
Rankin
7H holding in objection holding comports with that court’s proper 403 if a Rule 403 Co., made. at 388. S.W.2d v. Ford Motor Pool (Tex.1986), required court where appeals The court of here found the 403 fully articulate both the evidence appeals objection preserved they addressed reasoning behind them decision re- issue, proba- merits finding of that insufficiency grounds. the verdict verse tive offense testimo- value extraneous explanation That court found that such ny outweighed prejudicial Ran- effect. kin, then, wheth- a basis on which to determine at 283. The creates S.W.2d Court, appeal objected stan- employed the correct to this to the Court er the lower Appeals’ coming use of the extraneous offense See also them decision. dard Co., testimony. Although we Caterpillar should not reverse Tractor Cropper (Tex.1988). Likewise, properly a determination that from a results we 652-53 merely balancing conducted Rule 403 test fully explain courts of hold that result, disagree with it is because we determinations, detailing both proper a lower to reverse court’s decision reasoning to arrive at the evidence and used employed incor- the test decisions, else be unable to those incomplete. rect or Arcila v. test was used in discern whether correct (Tex.Crim.App.1992). reaching any given result. Arcila, ought this Court determined that it ground Appellant’s first of review there- *5 the lower court’s Rule 403 deter- reverse and, conjunction with our sustained in fore mination, noting that the of Dallas Court aрpellant’s ground disposition of second of Appeals’ "... evaluates issues [the] review, court we remand this case to the of law, according rules to settled accounts analysis an with our consistent all questions pre- evidence relevant to the holdings. sented, adequately reaches a and conclusion supported by the law and the evidence.” Id. however, Appeals the Court of II. stated, conclusively the “[w]e have reviewed ground involves Tex. Our second of review’ evidence, find that the not trial court did 105(a) states, perti- in R.Crim.Evid. which in admitting abuse extrane- its discretion the part: Rankin, nent ous acts.” at The in failed to detail the it used evidence as When evidence which is admissible fact, arriving at its conclusion. In it is diffi- not party purpose or for one but ad- one cult to in find much at all party or for another missible as to another Appeals
the five sentences the Court of dedi- court, admitted, upon re- purpose is the question. cated Although to that the Court quest, shall restrict that, properly recognized jury scope and the accord- proper instruct test, conducting balancing a Rule 403 the ingly ... “probativeness” the evidence “is consideration,” weightier failed to the court go question in this case does necessary discuss the factors for a compre- judge duty of the trial to the Rankin, analysis. hensive Rule instruction, rather, but, timing to the limiting previously As this S.W.2d at 283. Court has argues Appellant instruction. of the stated, reiterate, complete we now 105(a) limiting mandated a instruction balancing inquiry test demands time the extraneous offense at the comí; as to factors set all the out into evidence and that came 389-90, job, Their 392-93. affirming the trial court’s appeals erred however, They not end does there. limiting to administer the instruction decision Arcila, also, fully account for consistent with jury charge. urges that the at the The state analy- all the relevant to their 403 limiting instruction is discre timing of the sis. judge. feel that tionary upon the trial We better of these two Although the decisions of the Texas Su- us, way arguments. the above preme in no bind 105(a) unfairly his will work of the defendant that language of Rule aspect deftly stated temporal
not address the of when detriment. As inevitable but, limiting given, instructions should be Wright Professors and Graham: rather, sets out the circumstances under limiting in- purpose ... midtrial given. must be Tex. which an instruction jurors real- to insure that the structions is 105(a). However, analyzing R.Crim.Evid. of evidence proper ize the use of each bit dispute today, we assume that before us jurors as it comes in. Where contemplation of spirit of the rule and the accumulating impressions of the been separate rule-makers includes no two trial, it course of the evidence over the First, limiting instructions actual tions: at the close impossible go for them to back and, ly improper curb the use of evidence trial and reassess the evidence second, way act in a that the rule should instruction, limiting even light of the prop the evidence to its “restrict[s] appreciatе items of evi- they could effectively possi scope”, er but does so as ap- supposed to dence the instruction was 105(a). Working un ble. Tex.R.Crim.Evid. ply to. These difficulties are avoided notions, logic demands that der these at the time of introduction instructions given opportunity. instruction be at the first purpose. a limited received for impede improper instructions Wright W. Gra- A. & Kenneth Charles given use of instruction Procedure, ham, Jr., Federal Practice admitted limits that when the evidence is § 5065. Evidence scope immediately. proper evidence to its during given An for the first time given first time Limiting instructions for the necessarily jury charge leaves window during jury charge thus do not constitute contemplate can of time which 105(a) application of Rule since an efficacious inappropriate For evidence in an manner. will possibility for the that evidence it allows case, if example, as in this the State offered improperly in clear contravention be used that a accused of evidence to show defendant limiting in- of the rule. Since *6 previously child molestation had molested effectively giv- operate most when structions girls, that young other evidence two evidence, simultaneously relevant en with the may to intent to properly be considered show grant to trial courts “discre- it would not do However, jurors complainant. the molest instructions, they after tion” to deliver those that evidence to may improperly also use oppor- requested, at a less properly had been negative opinion of the defendant form a tune time. limiting from prior receiving instructions to among courts Additionally, the trend state judge. expected be the Jurors cannot concomitant with limiting instructions favors exactly the evidence unless know how to use v. In State the admission of evidence. them, they guarantee that we tell nor can we 516, McGinnis, 147, 193 455 S.E.2d W.Va. presenta open-minded until the will “remain (1994), Supreme 528 the all of the evidence and instructions tion of reversing dеgree first mur- Virginia, West 882, 845 ...” Morrison v. See addressing Rule der conviction and Additionally, we (Tex.Crim.App.1992). 887 limiting in- only that a stated not jurors have used the admit cannot tell how at the time the given “should be struction Thus, possibility the exists ted evidence. offered,” “recom- but went on to evidence is that, jury evidence unless we instruct the in the trial court’s repeated that it be admittance, mend jurors may, concurrently with its charge jury the at the conclusion us, general im use that evidence unbeknownst also, McGhee, 193 v. perception of evidence.”3 See State by forming an indelible properly jury, except pleas guilty, where a in today, er to the Although Tex.Crim.Proc. not before us waived, require charge jury dis- 36.14 would seem to been a written Code Ann. art. jury charge. limiting That applicable tinctly setting instructions law to the the forth states, part: pertinent case;” statute felony Thus, ruling today and in each misde- "... in each case and to pursuant to our both record, the 36.14, instructions, in a court of case tried requested, meanor jury should art. shall, begins, argument deliv- judge before the
713
Processors,
250,
(1980),
(1995);
164,
533,
266
Jupi
F.2d
465 S.E.2d
W.Va.
Beef
(5th
1,
Cir.1980),
Brocard,
denied,
Corp.
reh’g
ter Inlet
v.
546 So.2d
being
tried. U.S.
837 F.2d
(1988).
see,
Grageda-
But
U.S.
therefore remand this case to
We
*7
Chavez,
Barajas-Cardenas,
U.S. v.
927
of the fol-
appeals
of
reconsideration
(1991) (In
opinion,
an unpublished
F.2d 611
of-
lowing
the extraneous
issues: Whether
adopt
the Ninth Circuit declined to
testimony
of conse-
is relevant to a fact
fense
Rivera).
rule” of
“strict
IA. If
quence in this case.
Part
See
404(b),
is,
proceed
Fed.R.Evid.
like Tex.R.Crim.Evid.
appeals finds
it
court of
it
should
allowing
provides a mechanism for
analysis of
it nevertheless
to an
whether
of extraneous offense evidence
admission
been
under the balanc-
should have
excluded
conformity.
to show
not introduced
character
403,
appli-
ing
test of
and articulate
that test to
facts of this ease in
cation of
Both the Seventh
Fifth Circuits
If the court of
opinion. See Part IB.
its
may be
indicated that
instructions
inadmissible,
it
appeals finds the evidence
given
evidence is
or at the
admitted
proceed
to an
under
Annoreno,
should
harm
jury charge.
460 F.2d
U.S.
81(b)(2).
(7th
denied,
Tex.R.App.P.
the court find
1303, 1307-08
Cir.1972),
Should
409
cert.
admissible,
pro-
(1972).
then
64,
it should
852,
93
appellate court has ruled like the one here. objection and the should defendant’s no offense. claimed he committed trial and recall that testified 1. The reader
715 And, major- the conspicuously absent from Rule 403 how ity any about the opinion is discussion discretionary petition Appellant's for re I am analyzes Rule 403 not civil issues. side grounds complaining view no contains about any require appel- civil cases that aware of Appeals’ analysis, the Court of 403 “fully account all the evi- lаte courts to for parties have the not briefed this issue. See Here, analysis.” dence relevant to their State, v. Cornealius S.W.2d any majority pretense of har- abandons J., (to (Baird, (Tex.Cr.App.1995) dissenting) side, monizing civil and the criminal side raised, reach issue an that has not been main ma- which one of the rationales argued by parties patently briefed or offered for its recent jority of this Court unfair). Therefore, I would be not even ad decision Clewis. dressing the in this case. Rule 403 issue When, the intermediate as this does, majority But since the I have to they appellate “have reviewed courts state disagree analysis. Again, with their court and find the trial did law, majority change they intends to admitting the ex- not its discretion abuse say should so. Iam aware of this acts,” presume they should have traneous require prior Court’s cases that intermediate appropriate factors set out considered appellate “fully courts for all account circumstances, such Montgomery. Under anаlysis.” evidence relevant to their 403 prepared this be to demon- Court should appellate courts how the intermediate strate majority apparently relies on Mont- misapplied Montgomery instead re- gomery support proposition. for already inter- manding cases to overworked However, only Montgomery out sets some account,” “fully appellate courts to mediate appellate relevant factors for trial courts and in most will reach the same cases analyzing courts to consider when This they did seems result before. issues. See 810 S.W.2d at judicial waste of time and re- incredible 389-90, Montgomery 392-93. man- sources. appellate “fully date that courts account for 105(a) all analy- the evidence relevant to their 403 sis.” 105(a), brings us This to Tex.R.Crim.Evid. which, part, in relevant states: majority What we also learn from the is admissible as to “When evidence which continue to be enamored with how party or one but not ad- one for things side, are done on the civil beсause party as to or for another missible another they rely holding on civil for cases their admitted, court, upon re- purpose is appellate intermediate courts should “ful- quest, shall restrict ly for account all the evidence relevant scope jury accord- proper and instruct the analysis.” Cropper Caterpil- See v. ingly (Emphasis Supplied). ...” (Tex. Co., lar Tractor 754 S.W.2d 652-53 Co., 105(a) 1988); Motor language Pool Ford of Rule “plain” 105(a) (Tex.1986); see also timing Clewis of a Rule silent on (harmoniz- instruction, (Tex.Cr.App.1996) and I rule of statuto- know no ing ry permitting judiciary with the criminal and civil side re- construction spect appellate sufficiency particular review of is- rewrite a rule when it is silent on sues) (mot. Boykin file extension time to mot. matter. See However, reh’g granted). (Tex.Cr.App.1991). these civil 105(a) “plain” require changes meaning cases of Rule intermediate “fully by legislating requirement into the rule account” when it reverses a *9 hold, I jury “plainly” in a case on “factual” that not there. would vеrdict civil insuf- “plain” language of Rule ficiency grounds. Cropper, 754 S.W.2d consistent with the See 105(a) 105(a), timing of a Rule limit- application at 652. These cases have no ing court’s dis- analyze 403 instruction is within trial how courts Rule issues a not be set aside absent on side cannot be read to cretion and should the civil Such a majority showing of an abuse of discretion. support what the does here. 716
holding provide would trial courts with dis- instruction within the discretion of the trial 105(a) court). giving majori- cretion to defer the of a Rule I not would characterize the limiting ty’s holding being supported by instruction those situations where the over- approach. whelming weight authority jur- that would be the “better” The from other And, majority’s “ivory interpretation really tower” isdictions. I do not see what out- 105(a) accomplish Rule fails to this. Trial of-state federal do with cases courts, Court, and not interpreting are the best one of our own rules of criminal position to make the call on a evidence. 105(a) limiting instruction. majority’s interprеtation The of Rule 105(a) states, majority opinion
The
“[BJecause we
also fails to take into account those
approach
have determined that Tex.R.Crim.Evid. 105 situations where the “better”
would
instruction,
requires
limiting
upon proper
giving
a
be for the trial court to defer the
of a
Covil,
request,
limiting
example,
when evidence is admitted and be-
instruction.
For
adopt
majority
cause we
opinion,
see no reason not to
the which is cited in the
illus-
’
application
practical
‘better
advantages
leaving
and most effective
of Rule
trates the
105(a),
105(a)
we hold that
timing
limiting
the court of
of the Rule
instruction
Covil,
affirming
erred
the trial court’s decision to
the trial court’s
See
within
discretion.
limiting
jury
(giving
limiting
defer the
instruction until the
of the
in-
378 A.2d
845
charge.” (Emphasis Supplied).
majori-
struction when the evidence was admitted
ty ignores
“plain” language
misleading
try
of Rule
have been
because “to
105(a)
merely adopts
“they
explain
what
believe”
the exact
for which the evi-
past
“better” rule.
I have in thе
criti-
was admitted before the rest of the
dence
result-oriented,
presented might
cized this kind of
un-
lawless de-
evidence was
have been
See,
defendant).
cision-making.
e.g., Bauder v.
fair” to the State or to the
(McCor- Sometimes,
(Tex.Cr.App.1996)
approach
cases and one federal ease
if a
not
defendant does
instruction,
(10th
Rivera,
906,
request
limiting
v.
837
the evi-
See U.S.
F.2d
913
“when
Cir.1988);
McGinnis,
147,
admitted,”
State v.
193
dence is
then the trial court has
W.Va.
516,
(1994);
Equip
obligation
limit
S.E.2d
Yukon
no
ment,
Gordon,
428,
charge.
majority
Inc. v.
660 P.2d
this issue in
435-36
addresses
(Alaska 1983),
grounds,
opinion by advising
on other
three of its
us
overruled
footnote
Investments, Inc.,
V.A.C.C.P.,
36.14,
require,
L.J. Carr
Article
would
Williford
(Alaska 1989); Jupiter
Corp. upon
request,
giving
P.2d 235
Inlet
the defendant’s
Brocard,
1,
(Fla.App.
limiting
jury charge
546 So.2d
Dist.
(Fla.1989).
1988),
denied,
request
if the
a limit-
rev.
551 So.2d
even
defendant did
However,
ing
ad-
also cites one out-of-
instruction “when the evidence was
However,
federal
Article 36 .14 would
state ease and three
cases
do not mitted.”
Lots,
support
holding.
require
giving
limiting
of a
instruction in
See Lubbock Feed
Processors,
250,
because,
jury charge
if the defendant
Inc. v. Iowa
630 F.2d
Beef
(5th
Allen,
Cir.1980);
properly request one
U.S. v.
468 F.2d
does not
“when
(5th
admitted,”
612,
Cir.1972),
denied,
then the evidence is
cert.
410 U.S.
evidence is
935,
(1973);
1389,
an accused
be tried
for the offense
II.
charged
he
and not his criminal
petition, appellant challenged
In his
propensities. Owens v.
appeals’
the court of
review of the admissibil
(Tex.Crim.App.1992).
Evidence of
ity
Spe
of the extraneous offense evidence.
crimes,
however,
wrongs,
may,
or acts
cifically,
ap
he contended that the court of
apart
if it
relevance
be admissible
from
peals
holding
erred in
that the evidence was
tendency
prove
conformity.
character
automatically
404(b);
admissible as evidence of a
Tex.R.Crim. Evid.
plаn.
common scheme or
This
con
Consequently,
if a defendant
appellate analysis
defi
objects
cluded
was
grounds
on the
that the evidence is
relevant,
focusing
cient because
on how
“[i]nstead
or consti
violates
offense,
proponent
relevant to show a fact of
tutes an extraneous
that the evidence has
in this
the court of
show
relevance
showing
attempted
apart
character.
Id. at 387.
to show how the evidence tended
from
designated
purposes”
if the
an exem-
3. The evidence will also be admissible
proponent persuades the court that it is relevant
plary
nor collective-
one and is
exclusive
"neither
upon
logical
anticipated by
inference not
ly
Montgomery, 810
at 388.
exhaustive.”
the list of "other
rulemakers. This is the reason
*12
satisfy the
offense must
plan.”
or
admit the extraneous
a common scheme
We
to show
in Rule
evidence set out
of
not con- definition of relevant
appeals
the court
had
concluded
391. Ex-
complete relevancy analysis
Montgomery,
401.
810
at
S.W.2d
ducted
generally
will
al-
evidence
the ease.4
traneous offense
remanded
relevant,
permissible pur-
ways
but the
be
The
contends that
the issue
State now
proponent
offering it
pose for which the
is
original
not the
before us on
submission was
instance,
may
where intent is
not be. For
propriety
analysis,
the
the
of
but
correctness
from the
issue and it is not inferable
material
of the conclusion that the trial court did not
itself,
probative
of
acts
of
act
evidence
other
abuse its discretion.
State also contends
the trial court’s
such intent is relevant and
that, contrary
original
on
to our decision
proper.5
such
is
decision to admit
evidence
submission,
of appeals
the court
did address
however,
evidence,
the state’s direct
Where
relevancy
plan
of the common scheme or
crime
clearly
intent element of the
shows the
automatically
evidence and
admit the
did
by
is uncontradicted
and that evidence
court set
evidence.
State contends the
by
undermined
cross-exami-
defendant or not
effectively
appropriate
out the
case law
witnesses,
offer of
nation of the
state’s
relevancy
addressed
of the evidence
unjustified
due to the lack of
crimes is
when it concluded the evidence was admissi-
Similarly,
tending
relevancy.6
evidence
to
to
ble
show that
used the horse-
alleged touching
an
not acci-
show that
was
satisfy [appellant’s]
back rides “as a tool to
by
would not be relevant
dental
mistake
“progres-
sexual desires” but as a means of
yet make a claim of
the defendant has
sively
authority
exploit[ing] his
dominion
Prior,
at
accident.
959.
S.W.2d
Rankin,
girls[.]”
over the
because it is not for this failing to make of the error in timely court’s findings instance, as to in the first limiting instruction.
we remand this appeals. case to the court of judgment court of vacated and the cause remanded for that III. Rule 403 court to address the above issues in a man- The State also contends that we ner consistent opinion with this Court’s should not have resolved the Rule 403 issue original submission and this on re- *13 because did not raise the issue hearing. ground his brief and it was not a on which granted this Court review. After re-examin KELLER, J., concurring opinion, filed a ing part IB of original opinion this Court’s McCORMICK, P.J., MANSFIELD, agreement are with the State. We find WOMACK, JJ., joined. and analysis that a Rule premature once this Court deсided to remand the case for the KELLER, Judge, concurring on motion appeals court of relevancy to address the rehearing. establishing a common scheme or remands this cause to the plan. relevancy of the evidence admit appeals court of in order for it to determine ted under determining is crucial to whether the evidence of extraneous acts was probative whether the value of the evidence was, relevant. the court finds that it it is outweighed by prejudicial effect. perform balancing a Rule 403 test and Therefore, premature per it was for us to then, necessary, decide whether the failure form a balancing Rule 403 test before the instruction at the time the appeals court opportunity had an pass evidence was admitted was harmless. I find on whether it was reasonable for the trial myself disagreement reasoning with the court to find the evidence relevant. For II opinion. Part instance, in disputed the absence of a issue the offer of other crimes evidence II, In majority espouses Part two merely prejudicial. seen as Robinson v. (1) propositions disagree: I with which that (Tex.Crim.App. the Court of must articulate how a 1985) (“where there is little or no controvert plan common scheme or would be relevant to ing by evidence offered ... defendant use (2) consequence a fact of and that of an unnecessary extraneous offense is and an extraneous is not relevant if offense value”).8 virtually probative offers no State does not need the evidence. The ma- reasons, foregoing
For the part jority opinion IB of suggests our that a conclusion that opinion original submission is withdrawn. certain evidence is relevant to show a com- This ease is appeals remanded to the court of plan mon scheme or insufficient to estab- for it to consider whether the extraneous lish that evidence’s relevance to the criminal offense prosecution. is relevаnt to a fact of But evidence of a common consequence. If the court plan finds scheme or is relevant to show intent. relevant, this evidence to be it every should then intent pros- While is not an element of perform ecution, balancing one; hence, test. If the it is an element of this court finds the evidence admissible under Appeals adequately the Court of addressed 403, it analysis should conduct a harm the relevance of the extraneous offenses Montgomery, following opponent; we set out the useful State had other con- vincing of this factor: evidence to establish the ultimate issue criteria, to which the extraneous misconduct was rele- Therefore we hold that where relevant vant; probative objectively value of the miscon- possible, viewed as lead to the not, danger duct evidence was either in com- prejudice alone or conclusion that the of unfair evidence, substantially outweighed particularly probative bination with other value of proffered compelling; that the misconduct was of such a court disregard should declare that the trial erred in nature that a it failing gleaned proffered purpose to exclude it. Relevant criteria but its would not include, alia, likely from the authorities inter have been efficacious. seriously the ultimate issue was not contested S.W.2d 392-93. Appeals ade- I the Court of to show a As believe tended when it concluded relevancy of the evi- quately addressed plan. scheme or common 404(b), I not remand would dence under proposition, I believe for the second As I dissent on that issue. for consideration that the threshold determination join II otherwise Part need is not the State’s relative affected Court. (or thereof) Even if in for the evidence. lack true, Montgom it said in some cases as we McCORMICK, P.J., and MANSFIELD (Tex.Crim. ery WOMACK, JJ., join. App.1990) rehearing), that deter (opinion exclusively a function mining relevance is not logic, I think that in most cases rule just that. It not take much fоr
will be be relevant —it need
any tendency a fact of to make *14 probable. or less Whether State
more logical the evidence does not affect
needs act relation between extraneous AWADELKARIEM, E. Husham issue, nonconformity purpose although it Appellant, may probative whether the value well affect substantially outweighed of such evidence is Hence,
by prejudicial effect. its whether The STATE of Texas. needs the evidence is not a consider State No. 0570-97. ation under Rule 404 but under 403. Texas, Appeals of Criminal Court of by At least some the cases cited Banc. En my majority support position. seem to (Tex. Morgan v. June Crim.App.1985), involving a case admissibili ty of extraneous acts of sexual assault
children, disposed the court of the relevance “[Wjhere thus, guilty
issue intent knowl
edge the offense essential element of prove to obtain a con State
viction, materiality saying.” goes its without disputed question involved the admissi relevance.
bility of the but (Tex.Crim.
Prior v. similarly,
App.1983), the admissi discussed
bility of extraneous acts when intent was about the offense
established case, however,
itself. There is not
slightest suggestion that the acts extraneous irrelevant.
were says that “evidence
So when the alleged touching
tending to show mistake would not be accidental yet has to make
relevant the defendant accident,” disagree. I
claim It is relevant tendency to make fact
because (intent) probable. more Such under Rule be inadmissible it is not irrelevant. but