Lead Opinion
Appellant was convicted by a jury of third degree felony theft of property of the value of $200 or more but less than $10,000.1 The jury assessed punishment at four years confinement in the Texas Department of Corrections. In his direct appeal to this Court, we originally reversed appellant's conviction based on the admission in evidence of an extraneous offense during the guilt-innocence stage of the trial. We granted the State leave to file motion for rehearing. We will withdraw our opinion on original submission, but we will reverse the judgment of the trial court, based on improper jury argument.
"First, it must be determined that the extraneous offense evidence is relevant to a material issue in the case other than defendant's character. [footnote omitted]. Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect." Plante v. State,
, 491 (Tex.Cr.App. 1985), citing, Williams v. State, 692 S.W.2d 487 (Tex.Cr.App. 1983). 662 S.W.2d 344
Prior to the elucidation of this test in Williams, a list of exceptions found in Albrecht v. State,
We will now determine the admissibility of the extraneous offense by examining the surrounding facts and applying them to each prong of the two-part test. *897
The appellant presented evidence through the testimony of his ex-wife and common law wife that it was he, rather than Jones, who had run short of funds. When he told Jones that "he just didn't know how long he could stick it out," the client allegedly said, "I have got two rings that I never wear and maybe I could put those in your pot and that would help you out." The appellant's witnesses then testified that he accepted the rings and appropriated them for his own use with Jones knowledge and consent. Evidence also showed that appellant later attempted to include the cost of returning the rings as part of a settlement on his client's lawsuit. The State impeached the ex-wife's testimony with an earlier recorded conversation that took place with the prosecutor at his office.
Over objection, the trial court admitted rebuttal evidence by the State of an extraneous transaction between the appellant and William Ross, another client.2 In March of 1976, Ross was in need of cash and wanted to sell part of a box in Texas Stadium. Appellant proposed to sell the box for $50,000 as a joint venture comprising appellant, Ross and several other people. Ross executed some blank documents of transfer and received a $3,000 down payment. Ross later discovered that appellant sold the box to an advertising company. Ross never received any payment for the sale and did not give appellant permission to retain any money from the sale. Appellant later billed Ross for the service and other alleged services in the amount of $80,200.
Appellant was charged with unlawfully appropriating property with the intent to deprive the owner of the property. V.T.C.A. Penal Code, §
The extraneous offense was offered as rebuttal evidence of appellant's intent to deprive Jones of her property through deception. This Court has recognized that the prior act of a person may well be relevant in determining intent under similar *898 reoccurring circumstances. This acceptance of the relevancy of an extraneous offense for proof of intent is based on:
"the doctrine of chances — the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them." 2 Wigmore, Evidence, § 302 (Chadbourn rev.ed. 1979). See also, Plante v. State,
, 491-92 (Tex.Cr.App. 1985). 692 S.W.2d 487
We find, therefore, that the presence or absence of deceptive intent was a material issue in the case and that introduction of the extraneous offense was relevant to the determination of that issue.
Presence of similarity between the prior act and the offense charged has been an important measure of probative value.Plante, supra at 492 ("there must be similarity in the various instances in order to give them probative value"), quoting 2 Wigmore, Evidence, § 302 (Chadbourn rev.ed. 1979); Williams, supra at 347 ("uniquely similar actions").
The extraneous offense used at the instant trial as proof of appellant's intent is highly similar in nature to the offense for which he was tried. The extraneous offense and the charged offense both involved an attorney-client relationship. In both cases, the clients were financially in trouble. In both cases, the client transferred a piece of property to appellant for a sale which would benefit the client. In neither case was the transfer initially used as consideration for attorney's fees. In both cases, the property was sold by appellant without the client's effective consent, the funds being retained by appellant. In both cases, evidence of appellant's use of deception to obtain initial possession of the property was present. And, in both cases, appellant later attempted to justify his continued retention of the property as payment for his services. Such close factual similarity lends substantial probative value to extraneous transaction.
A second factor used to measure probative value is closeness in time of the extraneous transaction to the charged offense.Plante, supra at 495 (18 months too remote); McDonald v. State,
A third factor used to measure probative value is the availability of alternative sources of proof. Morgan v.State,
In the instant case the State introduced strong direct evidence that appellant intended to appropriate Jones' property without her effective consent. Appellant vigorously tested the State's case through cross-examination of Jones. Appellant then offered direct evidence through his ex-wife and present wife, providing an entirely different version of the transfer of the rings. In doing so, appellant presented a viable defensive theory explaining his intent, thereby controverting the State's theory that Jones was deceived. Given such a defensive theory of mistake, misunderstanding or outright conflict, the issue of intent was clearly joined.
The issue became clearer when a signed receipt was introduced by the State in its case-in-chief. The receipt shows that transfer of the diamonds was for the purpose of appraisal and that the gems would be returned at the client's written request. This receipt was only inferrentially controverted by appellant's defensive theory. Because of the damaging nature of the receipt, the probative value of the extraneous offense was somewhat lessened. However, it did retain some probative value.
Taking into account the various factors of strong similarity, close proximity in time, and the presence of some controverting evidence in the form of cross-examination and defensive theory, we find that the extraneous transaction had probative value as to appellant's intent to deceive Jones. We now must measure the prejudicial effect.
The prejudice inherent in the admission of an extraneous offense can be lessened in several ways. We will examine each factor that lessens the prejudice inherent in the use of an extraneous offense.
Introduction of the evidence as a transaction rather than as a criminal offense lessens the prejudicial effect.Plante, supra, at 494. The State offered the Ross act as an extraneous transaction. Appellant, through cross-examination, made it clear that no civil or criminal action had resulted from the transaction. The State merely argued that the Ross transaction was probative evidence of appellant's intent to deceive Jones. The State did suggest in argument the possibility of future criminal indictment based on the transaction, but this was in response to appellant's argument that no wrong occurred because no indictment had been pursued. We find the introduction of the act as a transaction lessened the prejudicial effect.
A proper instruction on the limited use of an extraneous offense will also lessen the prejudice. Plante, supra. Appellant received an instruction that properly stated the law and referred to the offense only as a transaction. No objection was made by appellant as to its form. The instruction, therefore, lessened the prejudicial effect.
Taking into account the introduction of the offense as a transaction, the proper instruction to the jury, and noninflammatory jury argument, the prejudicial effect of the extraneous transaction was low.
Given the probative value of the extraneous transaction and its low prejudicial effect, the extraneous transaction was properly admitted.
In his third ground of error, appellant claims the trial court erred in admitting a tape-recorded conversation between the prosecutor and a defense witness, appellant's ex-wife. Appellant argues that the recorded conversation was tainted by prosecutorial misconduct because the State failed to inform the appellant of the existence of the tape and violated an agreement with the defense witness not to reveal the conversation at any time.
We find that the State complied with all pre-trial discovery agreements. In addition, the evidence was in no way exculpatory or beneficial to appellant's case. Under these circumstances, the State was not obligated to provide appellant with the tape prior to trial. Quinones v. State,
The State had qualifiedly agreed not to use the conversation at trial if the ex-wife was called as a witness for the State. Appellant called her to testify, thus breaching the agreement. In any event, reversal of the conviction would not be the proper sanction. Id., at 942. We find no merit in the third ground of error.
In his fourth and fifth grounds of error, appellant claims that the trial court should have sustained his objection to jury argument by the State during the punishment stage. The State, after presenting two reputation witnesses who testified against appellant, argued:
"Now, Ladies and Gentlemen, I will just say this, you may think that the testimony was short from two witnesses that I put on the stand in the punishment stage but I submit to you that their testimony was very, very important for this reason, that those were the only questions I was allowed by law to ask that type of witness and (sic) this part of the trial — ."
After defense counsel's objection was overruled, the State continued to argue:
"On the other hand, Mr. Corbitt [defense attorney] could ask these witnesses upon what do they base their statements if he wanted to but no, I submit to you it is a reasonable deduction from the failure to ask those witnesses any questions that the answers would have been adverse to his client — ."
Counsel for appellant again objected. The trial court overruled the objection.
The State's argument was an invitation for the jury "to speculate about extraneous matters the State is barred from introducing through testimony of its reputation witnesses."Green v. State,
The State did not present any evidence of previous convictions. Appellant testified, after filing an application for probation, that he had no prior felony convictions. The jury, though authorized to consider probation, refused to recommend probation and sentenced appellant to four years confinement. It is quite possible that the jury refused probation because of speculation as to matters not in the record. Green, supra. *901 Therefore, we are unable to say with confidence that the argument was harmless. The State's motion for rehearing is overruled.
The judgement is reversed and the cause is remanded to the trial court.
ONION, P.J., concurs in result.
TEAGUE, J., joins Nos. 4 and 5.
Addendum
The culpable mental state element prescribed by statute for the offense of theft is "intent to deprive the owner of property." V.T.C.A. Penal Code, §
On original submission a majority of a Court panel analyzed the factual situation and concluded:
"In some cases in which intent cannot be inferred from the act itself, extraneous offenses can have high relevancy value. [Citations omitted.] In this case, however, intent was not a contested issue; both the State's and the appellant's evidence was that appellant appropriated the rights with intent to deprive the owner of property. The contested issue was whether the appropriation was lawful, that is, whether it was with the owner's consent. [parenthetical reference omitted.] Since intent was not a contested issue, the value of the evidence of the extraneous offense to prove intent was very low, and the value would not have outweighed its prejudicial effect. [Citation omitted.]"
Judge McCormick dissented without opinion.
In his motion for rehearing the local district attorney asserts the extraneous offense was properly admitted "to show his intent to deprive the owner of the benefits of the property." In a supplemental petition the State Prosecuting Attorney contends the evidence was similarly admissible and also on the issue of "whether he intentionally acted in the knowledge that he did not have the owner's effective consent," or put another way, "Did the appellant honestly think he had the client's effective consent to appropriate the rings?" Neither representative of the State claims a theory about deception.
Now the majority opinion says that consent is not effective if induced by deception, and no one can dispute that proposition. The majority says abstractly that "deceptionclearly is a material issue to a prosecution for theft under this statute." However, it would not be an issue in a particular case unless raised by evidence. The majority also coins the term "deceptive intent. " Finally it says the extraneous offense was offered as evidence of "appellant's intent to deprive Jones of her property through deception." Draft opinion, p. 4. But we are never informed what the relevant "deception" is — and there are five kinds delineated in V.T.C.A. Penal Code, s131.01(2) — or how and when "deceptive intent became a material issue in the case."1
Despite efforts to purify them, e.g., Morgan v.State,
In other particulars, the opinion is less than clear. Concerning measuring probative value by "availability of alternative sources of proof," Slip opinion, p. 6, take the following comment:
*902"However, the presence of some controverting evidence will enhance the probative value, including those cases where
the controverting evidence is presented in the form of a defensive theory. See Albrecht, supra, at 101, n. 6."
Aside from the inherent ambiguity in the statement, the phrase "some controverting evidence" seems to put admission of a extraneous offense at risk when an accused in any slight way raises a modicum of doubt about a small aspect of proof offered by the State.
When it comes to "prejudicial effect," Slip opinion, p. 7, the majority indirectly resorts to an observation initially made in Crawley v. State,
After pages expounding bad law regarding extraneous offenses, misconduct and transactions, the majority ultimately upholds reversal of the judgment of conviction on account of prosecutorial argument having nothing to do with those matters. That most injudicious manner of deciding a cause in this Court today is but a thinly disguised methodolgy to create "precedent" for allowing the camel to come on inside the tent tomorrow.
I join only the judgment of the Court reversing the conviction.
MILLER, J., joins.