Smith v. State

licensee, own- plaintiff is people used land When er when defendant knew out) respect to the condi- er with attempt keep negligent no them is made to but if Lighting premises of the Longbottom Sim-Kar tion (Pa. Co., 621, A.2d 622-28 Fixture posed an unreasonable a. the condition Commw.Ct.1994) (holding that defendant harm; risk of conclusively not con proved did school knowledge actual defendant had b. climbing to on roof evi people sent when danger; school undertook various dence showed knowl- plaintiff did not have actual c. access). prevent Finally, to measures edge danger; of the steps not take to evict known owner need ordinary to failed exercise d. defendant doing so would be undu trespassers when danger, plaintiff from protect to care Boydston, or See ly burdensome futile. failing adequately to warn both (quoting N.E.2d at 174 PROSSERand failing of the plaintiff condition 414: Keeton on The Law of ToRts reasonably to make that condition mere toleration of continued intru “[T]he safe. objection or interference would sion where Williams, State likely ... burdensome or to be futile is (Tex.1996) opinion denying (per ap- curiam and without more a manifesta itself error). mo- plication for writ of Mellon’s consent”). tion of judgment did not ad- summary tion case, present summary judg- liability if Holder were potential dress ment evidence shows Mellon knew licensee, we. to be a nor do found using garage nights on people sum, sum- properly placing after drinking and weekends for alcohol and mary burden on Mellon and re- judgment yet keep no sleeping, took action them the facts in solving all inferences from away. is There some evidence that Mellon favor, I conclude that fact issues Holder’s entry by impliedly public consented fail- risk foreseeability exist ing any to make attempt impede access garage criminal in the and Mel- conduct garage post trespassing or signs no knowledge actual risk. Be- lon’s public it knew in fact when enter- otherwise, I cause the Court concludes ing garage sleeping there. Mellon respectfully dissent. that it presented nothing indicate would unduly have been burdensome futile to

attempt public keep ga- from prob-

rage, but rather stated any noteworthy

lem “wasn’t corrective being

action taken.” Based on this sum- SMITH, Jerry Appellant, T. record, mary judgment I conclude cannot as a matter of law that Holder was a licensee, trespasser, rather than a on Mel- of Texas. STATE premises. Wiley lon’s v. National Ga- See Inc., rages, App.3d Ohio 488 N.E.2d No. 996-98. (Ohio li- Ct.App.1984) (conferring of Texas. Appeals of Criminal Court plaintiff censee status on who was assault- parking after parking

ed defendant’s June “off Sunday during on hours” with garage Rehearing Dissenting to Denial Opinion I Nor do implied permission). owner’s 15, 1999. Dec. posi- any support find for Justice Enoch’s to enter public tion that a license garage imply foot does not license car.

to enter Lamesa, Napper, appellant.

James J. Sammy McCrary, M. Assistant District Lemesa, Paul, Attorney, Matthew State’s Atty., Austin, for the State.

OPINION J., HOLLAND, delivered the Court, MEYERS, PRICE, in which WOMACK, JJ., joined. and JOHNSON juryA appellant, Jerry convicted T. Smith, of murder. Tex. Penal Ann. Code (1994). § 19.02 After he plead true to an allegation, court enhancement the trial as imprisonment. sessed at life Appeals The Court of affirmed convic (Tex.App. tion. Smith v. 1998). granted We discre —A m arillo tionary to determine review whether in holding Court of erred Appeals 38.36(a) of the Texas Code Criminal abrogates duty Procedure the trial court’s “intent, knowledge, and prove appellant’s with Rules of Criminal Evidence comply case,” not for particular in this opportunity We will reverse. conformity purposes. The trial character I. objection, but appellant’s court overruled for an granted appellant’s request instruc- victim, Edna Blod- On June charge limited use jury in the on the tion explanation. without gett, disappeared of this evidence.2 body recovered and The victim’s was never indicating physical there was no evidence phase of Throughout guilt-innocence of a criminal offense. A commission trial, numerous witnesses the State called jury grand appellant, indicted the victim’s testify concerning appellant’s physical trial, boyfriend, for Before live-in murder. neighbors of the victim. Several abuse of its intent to appellant the State notified bruises, they had and friends testified seen dur- extraneous offense evidence introduce abrasions, on the victim’s and scratches The trial court held a ing guilt phase. face, arms, They legs. and also testified admissibili- pre-trial hearing regarding the appellant, particu- that the victim feared ty of this evidence. Many he alcohol. larly when consumed about they indicated had been concerned hearing, argued At the the State safety appellant’s and the victim’s believed linking of physical due to the lack evidence up” killing “wind her. physical abuse would murder, it appellant to the victim’s was Timms, to its case that County essential State be Bill a former Garza showing appel- to admit allowed evidence to several do- Deputy, Sheriffs testified father, physically lant had his his victim. dispute assaulted calls made mestic ex-wife, emergency and the victim on numerous occa- to one responding He recalled had Appellant objected, claiming appellant sions. she claimed call that, Timms when during dog. to admit this her testified State wanted evidence killed home, he phase in con- the victim’s trailer guilt show he acted he entered character, and on the dog with his violent discovered her dead blood formity on the amount thus the crime which he was wall and curtain. Based committed 404(b). blood, opined Timms pattern on trial He of the which violates dog stomped to death. argued that if evidence was was kicked and further relevant, day, testified, it that later that same be exclud- He also should nevertheless criminal mischief appellant ed under Rule more he arrested 403 because was the mirrors and prejudicial probative. than The re- because he shattered all State car.3 sponded submitted to windows out of the victim’s was give contemporaneous did not in- 1. Effective March the Texas Rules of trial court Criminal Evidence and Texas of Civil Rules structions as the evidence admitted. merged form Texas Evidence were 404(b) Rules of Evidence. Rules appellant’s vic- 3.In addition to abuse of the substantially Evidence Rules of are tim, the introduced evidence show- State also predecessors as their in the Rules of same appellant history physically ing as- had Hence, scope Criminal Evidence. saulting Although father. his ex-wife and his application new rules would appeal appellant attacked the also admissi- Nevertheless, as the old ones. because same 404(b) bility his of this evidence over tried effective date of this case was before the objections, Appeals the Court addressed rules, apply the former Texas the new will separate- relating to each individual of Criminal Evidence. Rules Because ly due to the differences in law. currently us issue before relates charge, trial instructed the In the court uphold the jury appellant’s Appeal's evidence of extrane- decision to the Court of only be concerning ous acts of could considered violence court’s admission of evidence trial motive, oppor- determining victim, purpose of for the appellant’s physical our abuse intent, preparation, plan, knowledge, tunity, that issue. of the facts is limited to discussion identity, purpose. or and for no other appeal, On appellant probative claimed the trial value substantially is not out court erred in admitting this evidence over weighed by danger of unfair prejudice, 404(b) objections. his and 403 issues, Amar misleading confusion of the illo Court of Appeals disagreed, holding jury, by delay, consideration undue the evidence was admissible under Article presentation needless of cumulative evi 38.36(a), and thus the trial court did not dence. Id. have observe rules and 403.4 Appellant insists the Hernandez Smith 459-60 is correct because it based on rea- is our 1998). (Tex.App. Relying on — Amarillo soning in Fielder v. 101(c), Criminal Rule of Evidence (Tex.Crim.App.1988) and Werner v. 38.36(a) court reasoned Article excuses the 639 (Tex.Crim.App.1986), mod- 404(b) having State from to satisfy Rules grounds, on other Hamel v. ified and 403.5 court The concluded Rule 916 S.W.2d 491 (Tex.Crim.App.1996). Ap- 404(b), which creates a general ban on pellant although reasoning contends our evidence, character is with inconsistent Ar Fielder and Werner concerned Article 38.36(a) ticle because it authorizes the 38.36(a)’s predecessor statute, Section proffer State to extraneous offense evi Code, 19.06 of the Penal these decisions in a dence murder case if it involves the are still instructive because the rules are relationship accused and the substantively identical. Smith, victim. 968 S.W.2d at 460. The The State claims the Court of Appeals’ court also determined Rule which ex conflict does not with Hernandez cludes relevant that is substan it tially more because concerned Section not prejudicial probative, than is 38.36(a). argues inconsistent with Article Ar Article The Rule of 38.36 because State 101(c) ticle 38.36 no for Criminal pro specifically pro “makes allowance Evidence prejudicial bative versus balancing test.” legislative vides that in the enactments Id. Texas Code Criminal take Procedure precedence over evidentiary pro rules Appellant claims the of Appeals Court mulgated by Ap the Court of Criminal 38.36(a) in holding erred that Article over peals, and therefore the Court of Appeals 404(b) rides Rules and 403. He contends 38.36(a) correctly determined Article abro holding this conflicts with Hernandez v. 404(b) gates Rules and 403. State State, 914 (Tex.App. Waco, — insists is a conflict in murder there direct 404(b) pet.), no which held that Rules 38.36(a) cases because under Article extra and 403 abrogated by were not Article conduct 38.36(a)’s concerning neous bad statute, predecessor Section relationship the accused and victim Hernandez, 19.06 Texas Penal Code. admissible, is while that same evidence 914 S.W.2d at 232-33. The Hernandez 404(b). could be under Rule inadmissible court concluded that before a trial court evidence, The also Rule can admit extraneous State contends 403 is incon offense 404(b) pursuant to over sistent with the Code it authorizes Section and because (1) objections, it overly and 403 must find: exclusion of prejudicial relevant 38.36(a) evidence, to a evidence relevant material issue other whereas Article admits character, than the defendant’s and “all relevant facts and circumstances sur murder, prosecutions 38.36(a). 4. all the state or Tex.Code Crim. Proc. art. permitted defendant shall offer testi- mony 101(c) as to all and provides relevant facts circum- 5. Rule the Code Crimi- killing previ- stances and the nal Procedure when an in- controls there is relationship existing ous between the accused consistency between the Rules of Criminal deceased, together all with relevant Evidence and Code. going facts to show condition of the mind of the accused at the time the offense. or- Consequently, in rela construction.” rounding able to determine whether der for this Court existing between the accused tionship held Article Appeals correctly the Court cases, without in murder the deceased” 38.36(a) 404(b) abrogates Rules regard prejudicial nature. they can must whether first determine conclude congruously.9 We applied II. they can. decided When Court Werner State, supra,7 supra,6 Appeals Fielder v. held Court 38.36(a) 38.36(a) it abrogates is was Section because

what now 19.06 of Penal Code. At that bad acts the Texas limits time, virtually identical 19.06 was it excludes evidence Section and Rule 403 because version, ap except substantially prejudicial to its current which is more Smith, manslaughter all plied prosecutions probative. than See however, reasoning, as well as murder.8 Since our decisions assumes an This however, cases, legislature these evidentiary rule cannot be consistent Rules adopted the of Criminal Evidence. it limits statutory provision when Consequently, adopt we did have the benefit If we application. statute’s 101(c) construction, statutory of Rule which was the for the basis such a canon of Appeals’s in the instant the holding evidentiary Court of rule limits then when case. of Code provision, a Code application compliance rule abrogates with the without According 101(c), provi- to Rule when a de- Legislature’s intent and regard to sion from the Code of Criminal Procedure 101(c)’s express requirement Rule spite Evidence, conflicts with a Rule of the Code reasonably con- provisions be prevails. of Criminal Procedure Tex. strued. 101(c) pro- also Rule 101(c). R.CRim. Evid. “[wjhere 404(b) however, to vides, application If Rules and 403 possible, in- 38.36(a) evidence, however, consistency auto- and Rules Article [between Code matically in exclu- is to removed reason- resulted the evidence’s be Evidence] Werner, although may 6. we and circumstances sur- In held all relevant facts evidence 19.06, rounding previous rela- be it admissible under Section must tionship existing satisfy between the accused still the common law rules of evidence. Werner, deceased, together Relying with all relevant S.W.2d at 643-44. on going to show cases in this Court determined facts and which of mind of the accused at evidence admissible Article condition under 1257a Code, time the Penal the forerunner of Section offense. R.S., 28, 1973, rule, May Leg., ch. satisfy hearsay 63rd we See Act of must held 1123, extend, 426, change, 1973 Tex. Gen. Laws 1124. Section 19.06 did not or limit evidentiary rules. disagree appeals as to whether 9.The courts of 404(b) 38.36(a) and Rules 403 can Article Fielder, holding 7. our in In re-affirmed Umoja applied. Compare harmoniously Werner, stating way no Section 19.06 in 3, (Tex.App. S.W.2d 6-7 — Fort way any "broadens or in affects the rules of 1997, (Article 38.36(a) pet.) does Worth no way they apply, evidence that or abrogate obligation provide to not State’s Fielder, given apply any homicide case.” 404(b) to Rule notice its intend introduce Accordingly, held 756 S.W.2d offense); Bush v. extraneous before a trial court evidence, admit Section 1997, (Tex.App. no Worth — Fort rele- it must first find the evidence 38.36(a) (Article alter Rule pet.) does not vant to material issue other than defen- 404(b) prohibition the admission of character. dant’s charac offense evidence to show extraneous State, 968 conformity); Smith v. ter provided: 8. Texas Code section 19.06 Penal 452, (Tex.App. 459-60 — Amarillo 1998, (if voluntary granted) is admissible prosecutions pet. evidence In all for murder or 38.36(a), not trial court need manslaughter, the state or the defendant 404(b) 403). testimony permitted to observe Rules shall offer as sion then there would be no doubt that has failed include excepting Application there is a conflict. of Rules 404(b) the application of Rules and 403 404(b) 403, however, do act to 38.36(a) from Article subsequent our automatically bar admissible un- holding that Section 19.06 evidence must 38.36(a). Instead, der Article satisfy the rules of evidence to be admissi- prohibits the State from introducing evi- ble. 843 S.W.2d Grunsfeld purpose dence for the showing sole (when 523 (Tex.Crim.App.1992) examining accused acted in conformity past with his existing legislation amendments the re- bad character towards the victim and thus viewing legisla- presume court must murdered the victim. Tex.R.Crim. Evid. ture aware affecting of case law 404(b); Montgomery v. statute). relating to the (Tex.Crim.App.1990) (op. evidence, however, reh’g). may be When this Court decided Werner for purposes admissible other than charac- Fielder, substantially Section 19.06 was is, ter conformity; that court may trial 38.36(a). identical to Article admit past bad acts towards the victim to Legislature amended Section 19.06 add motive, show the accused’s opportunity, 38.36(b) what is now response intent, preparation, plan, knowledge, or our holding Fielder that expert testimo identity. As for Rule it acts to ex- ny regarding the accused’s state of mind is 38.36(a) clude Article where admissible where previously the deceased probative value the evidence is sub- family committed acts violence stantially outweighed prejudice, unfair legislature accused.11 re issues, confusion of misleading pealed Section 19.06 and re-codified jury, delay, considerations of undue Article 38.36 of the Crimi Texas Code of presentation needless of cumulative evi- nal during Procedure.12 At time no these dence. Legislature amendments did attempt 38.36(a) Harmonizing Article with Rules to overturn our holding evidence ad 404(b) and 403 is also with Arti- consistent subject missible under the statute was still plain cle language. Although 38.36’s general of rules evidence. See 101(c) presence of Rule indicates (Tex. e.g.,Connolly v. 983 S.W.2d 738 Legislature need not incorporate express Hall, Crim.App.1999); State 829 S.W.2d language dispensing 38.36 Article 184, 187 (Tex.Crim.App.1992) (prolonged 404(b) 403, the application of Rules and legislative following judicial silence inter absence such is some indica- pretation implies approval of statute Legislature’s tion of the intent. interpretation). Legislature If the intend past, Legislature has its made intent to 38.36(a) exempt ed to Article from Rules dispense evidentiary with certain rules 404(b) 403, through Also, clear it made specific language.10 would have important Legislature is through note intent clear express language. 17, 1991, R.S., e.g., April 10. Leg., See art. 11. See 37.07 Act 72nd Tex.Code Crim. Proc. ("evidence 3(a) § 48, 1, 474, ... 475, be offered includ- § ch. Gen 1991 Tex. Laws ing but not limited 29, criminal rec- 1993, repealed by May Leg., Act of 73rd defendant, general reputation, ord of his R.S., 900, 7.03, § ch. Tex. 1993 Gen. Laws character, regarding his an his char- 3764, 3764. acter, the circumstances of offense tried, and, being he is notwithstanding 1991, 1, 12. September See Act effective 72nd 405, Rules Texas Rules Criminal R.S., 48, 1, Leg., § ch. 1991 Tex. Gen. Laws "); Evidence art. Crim. Tex.Code Proc. 474, 475, repealed by September effective Act 405, § (“notwithstanding 2. Rules 404 and 1, 1994, R.S., Leg., 73rd ch. Evidence, Texas Rules of Criminal evidence of Tex. Gen. Laws 3614. crimes, wrongs, or by other acts committed the defendant the child ... shall be admitted”). judgment we vacate the Accordingly, if it was the recognize that We also for that Appeals and remand intention to shield evidence the Court legislature’s 88.36(a) consistent proceedings from court to conduct under Article admissible 404(b)’s against charac opinion. ban with this general Rule evidence, or Rule 403’s bal conformity ter test, simple have been a

ancing it would MANSFIELD, J., without dissented said so. have matter opinion. hand, quite a serious the other it is On J., concurring and filed a KELLER to read into the for this Court

matter in which dissenting opinion, something which omitted statute KEASLER, J., McCORMICK, P.J. and body. e.g., Coit v. lawmaking See joined. (Tex.Crim.App. 1991); Martinez case, appellant was con present (1938). Grafting girl live-in of the murder his victed 404(b) exceptions into and Rule 403 trial, had offered the State friend. At 38.36(a) matter because is serious assaults physical of previous authorize the admission it would girlfriend. against his appellant to show the accused of character evidence that evidence of Appeals held Court victim, would also elimi murdered the but physical assaults appellant’s previous to exclude nate a trial court’s discretion victim was admissible needlessly that is cumu relevant Procedure, Article of Criminal Texas Code lative, result in delay, would cause undue 38.36(a) 38.36(a) abrogates and that Article issues, or mislead the confusion duty comply with Texas the trial court’s jury- 404(b) Rules of Criminal Evidence State, 756 upon Fielder v. Relying largely 38.36(a) and Because Article (Tex.Crim.App.1988) Wer congruously and 403 can be Rules (Tex.Crim. ner v. 711 S.W.2d 639 101(c), by Rule applied as mandated majority con appellant and App.1986), grafting exception because into 38.36(a) does not abro that Article tend 38.36(a) plain language, contravenes its duty comply gate a trial court’s holds evidence admissible under Court 404(b) and 403. Rules 38.36(a) may ex be nevertheless 404(b) Rule or Rule 403. cluded under meaning 1. Plain timely a makes Consequently, if defendant 38.36, in Pros- entitled “Evidence 404(b) objections, before trial or 403 Murder,” in relevant provides ecutions for admit the un properly court can evidence part: 38.36(a), find it must der Article first (a) murder, for prosecutions conformity purpose In.all non-character permit- or the defendant shall proffered relevant to mate state which it is is issue, testimony as to all relevant to offer to a material ted rial issue.13 If relevant and circumstances wheth trial court must then determine facts relationship 'previous and the be ex er evidence should nevertheless existing the accused is probative value sub cluded because deceased, all relevant facts together with stantially outweighed by the factors going to show Rule 403. S.W.2d v. evidence." Rankin will relevant to material 13. The evidence 1998) reh’g). party (op. on (Tex.Crim.App. seeks purpose if the issue 719-20 to make "the exis depend to have submitted tends will issues are material What any consequence to the fact that is of tence prosecution and the defense. theories of the probable or more determination action Fielder, S.W.2d at 318. See without the probable than it would be less condition of the mind of the accused type third of evidence under the statute— the time of the offense. relating to the condition of mind of the (Lemon- added). appears be an “other” 404(b) (Emphasis provides Rule accused— conformity) purpose, which would satisfy part: relevant 404(b)’s requirements. And the first crimes, wrongs, Evidence other or type of appears evidence to encompass acts is not prove admissible to the char- evidence,” “same transaction contextual person acter of a in order to show that which we have found to be admissible un he acted conformity therewith. It 404(b) fashion, der Rule in a limited al however, may, be admissible for other though the limited fashion for which the purposes, motive, such proof op- evidence can be used ap rule intent, portunity, preparation, plan, pears to conflict with statutory the broad knowledge, identity, or absence of mis- language. See Pondexter take or accident.... (Tex.Crim.App.1996), 583-584 provides: And Rule 403 denied, 825, 118 cert. 85, 139 522 U.S. S.Ct. relevant, Although be ex- (same L.Ed.2d 42 transaction con probative cluded if its value is substan- textual evidence is admissible “when outweighed tially danger of unfair the offense would make or little no sense prejudice, issues, confusion of the bringing without also in the same transac misleading jury, or by the consider- evidence”). tion type And the second delay, ations of undue pre- or needless previous relationship between evidence— sentation of cumulative evidence. the parties appears to conflict with the — In determining applicability of Article dictates of Rule least —at keep we should in mind the most extent that evidence covers basic statutory rule of construction: a stat violent acts the defendant ute interpreted must be in accordance with victim. Pavlacka See plain meaning of its words unless the & 901-902 902 n. (Tex.Crim.App. ambiguous plain words are meaning or the 1994) (previous sexual assaults Boykin leads to absurd results. same prosecu victim held inadmissible (Tex. 785-786 786 n. & victim). tion for the sexual assault of Crim.App.1991). In analyzing the lan This type (previous second re statute, guage of a generally presume lationship) present is concern of the that every word has been for a pur used case. pose word, each clause, phrase, given sentence should be effect if rea inconsistency “Where possible, is to be sonably possible. Hardy, State v. 963 removed by reasonable construction.” 516, S.W.2d 520 (Tex.Crim.App.1997). 101(c). Texas Rule Criminal Evidence statutory

The language outlines three But inconsistency when cannot be re- (1) types moved, of admissible evidence: all rele trumps a statute a rule evidence. 101(c). vant surrounding facts and circumstances Rule question The before us is (2) all killing, relevant facts and “previous cir whether relationship” lan- cumstances rela in guage Article 38.36 can reasonably be tionship existing 404(b). between the accused and harmonized with Rules and 403 deceased, and all question relevant facts and answer that would be easi- going to show er if Legislature specific condition had included mind of accused at the time of in concerning the statute how the good the offense. While there is a deal of be statute should a vis construed vis those overlap between these particular For example, rules. Texas and Procedure, evidence that is under Code of admissible Rule Criminal Articles 37.07 404(b), 38.37, also appears Legislature there to be conflict included lan- rule guage and the statute. The specifically trumping Rules 404 and

681 statute, strued, changing that 3(a); § without Article 37.07 intended the presume In we have privileges, § 2. the context continue should failure to men same construction Legislature’s held that the Hardy, 963 to that statute.” Safety applied in a Code Rule 509 Health tion State, v. 891 (quoting at Marin 523 Legis S.W.2d was indication provision 267, (Tex.Crim.App.1994)). 271-272 rule. not intend override that lature did (Tex. the stat- 516, accurately determine whether Hardy, 523 To v. 963 S.W.2d State rules, we displace the However, does indeed the relevant ute Crim.App.1997). background the historical statutory must examine portions of all three of these enactment, statute’s adoption relating both after the provisions were enacted reenactments, changes pri- and to our Evidence Rules of Texas Criminal 1986). (the provision. of this judicial constructions adopted were Rules 38.36 was enact portion relevant of Article background 2. Historical earlier, in former nearly sixty years ed penal Article 1257a of the 1927 code. See a. Common law Werner, (1927); 711 S.W.2d Article 1257a enacted, long 1257awas Before Article predates at 643. Because statute common line of decisions existed Rules, of a reference the absence into permitted law that admission significance. Rules is of little violent conduct instances of fact, Proce In Texas Code of Criminal in murder accused deceased dure, predates most common prosecution. Perhaps the Rules, held to Rule has been override involving pri was that scenario addressed 404(b)’s prohibition against the admission a hus of violent conduct or instances despite offenses the fact that of extraneous wife; prior violent against his such band reference to Rule the statute contains no held to be admissible. uniformly were acts 404(b). State, 289, Kemp v. 565, 21 S.W. 31 Tex.Crim. Hall denied, cert. (Tex.Crim.App.1992), 307 508 (1893); 368, Spears v. 41 368-369 918, 2361, 124 113 L.Ed.2d 268 U.S. S.Ct. (1900); 527, 56 S.W. 348 Tex.Crim. (1993); Vuong Paschal denied, (Tex.Crim.App.), cert. 506 U.S. (1915). Hall, quot S.W. (1992). 595, 121 L.Ed.2d 113 S.Ct. of a the trial saying: as “On ed Wharton 404(c) Although of the Texas Rules of his wife the the murder of husband for Criminal Evidence contains a sentence a course of ill right prove has a state limit stating “Nothing that: herein shall by the husband of wife.” treatment provisions of the Code of Article 37.071 Ev. (quoting Whart. Crim. S.W. (c) Procedure,” has of Criminal subsection (9th Ed.) 51). in Hall held The Court from Rule 404 in the new dropped been assaults introduced extraneous I rules of evidence.1 believe that unified rebut theo case admissible to (c) dropped because was subsection malice, insanity, to show temporary ry to be redundant. deemed will, motive, explanation ill assault making Moreover, purpose the “real interpreting Court is Paschal, we held alleged.” will Id. from a clean slate. As the statute of con below, prior instances violent evidence of Fielder and Werner were shown his wife were by a husband of cases that duct only the latest of number con the fact that the despite interpreted statutory provision. admissible have wife’s meets, eight years before the duct occurred Legislature par- the after “When Relying upon S.W. at 1060. judicially con- death. 174 ticular has been statute 1998, dence. 1. In the civil and criminal rules merged of Texas Rules Evi- become the

Hall, we held that such evidence was “ad justify excuse or the homicide.” Texas (1925). Code, missible as evidence of a Penal specific intent to Article 1256 kill, animus, motive, and show malice.” 1927, Legislature repealed the the Paschal, 174 at S.W. 1060. relating articles to manslaughter. Session Laws, 168, 3, Leg., § 40th

However, p. S.B. we did limit this rule (1927). Legislature The deleted “malice strictly to the husband-wife context. We aforethought” from description the applied the same rule to the murder of a murder, offense of wife, but it created another divorced stating: long “The contin- subsection in the requiring statute the trial ued ill treatment of by the deceased court to define malice aforethought in all appellant, however, was admissible under a cases requiring the trial court to in- long line of cases this state.” Stanton v. that, struct jury in the absence of 519, 994, 70 Tex.Crim. 158 S.W. aforethought, malice the sentence assessed (1918). And, Hall, again relying upon Laws, cannot years. exceed five Session applied rule in prosecution for a 413; 3a, 40th Leg., p. S.B. Texas parent’s murder of his child: Code, Penal Articles 1256 1257b [The evidence of whippings] severe (1927). to show systematic introduced In addition, cruel proportion Legislature treatment was out all added of precursor Article punishment. what would be correct evidence, provided connection, also in this follows: shows had that she sores her body about In all prosecutions for felonious homi- produced by reason of these severe cide the State the defendant shall be whippings. This permitted testimony was introducible for to offer as to all will, purpose malice, of showing ill relevant facts and circumstances sur- part rounding killing cruel treatment on the ap- pellant relationship existing towards his child. ac- deceased, together cused and the Betts v. 124 S.W. all relevant facts and go- (1909). ing to show condition the mind b. 1257a homicide, the accused time of which may by jury be considered Before criminal homicide was di- determining punishment to be as- vided categories: into three negligent Provided, however, sessed. pun- where homicide, manslaughter, and murder. See Jury ishment by assessed does not 14, 15, Texas Penal Chapters Code and 16 years, exceed five the Defendant shall (1925). Negligent homicide involved death suspended have the benefits sen- by negligence caused or carelessness tence act. where apparent danger there was an

causing Code, Laws, 2,§ death. Texas Penal Leg., Articles Session 40th p. S.B. (1925). 413; Manslaughter Code, and 1232 in- Texas Penal Article 1257a (1927). “voluntary volved caption homicide committed un- of the bill refers to der the pas- adding immediate influence of sudden the language Article 1257a as “in- cause, sion arising adequate from an serting but the Penal new Code a article neither justified by excused nor relating law.” numbered 1257a what Code, (1925). Texas proved, Penal jury, and considered Murder another per- determining involved to be as- Laws, son with aforethought” “malice and was sessed for murder.” 40th Session “distinguishable from every species Leg., 168, p. other emergency S.B. provision, commented, homicide absence circum- con- stances which negli- cerning whole, reduce the offense to as a “that this the bill law gent or manslaughter, juries homicide or which will so define murder as to enable to

683 five-year than a greater in homi- could not assess intelligently render verdicts more finding of malice. absent necessity of sentence doing away with the cide cases charges to the confusing complicated Likewise, punish- was a Article 1257a Laws, jury manslaughter.” Session as facts and circum- provision. ment 168, 4,§ Leg., p. S.B. 40th explic- in that article were stances outlined that understanding Legislature’s by itly A full circumscribed “may be requires understand- change in the statute facts and those determining the aforethought.” jury of “malice ing meaning by considered 1927, From its manslaugh- murder and Before both to be assessed.” punishment (or kill of an intent could not cover required proof ter article 1257a language, by showing the use of a proof constructive that could be used kinds of evidence se). deadly weapon per Collins murder. guilty that someone was of prove (1927). 403, 72, pun- phrased 299 S.W. 405 malice was as 108 Tex.Crim. But because issue, encompass additional mental ele- required Murder the article could ishment (often re- aforethought” ment of “malice that could be used of evidence “malice”). Id. at 404. malice. simply ferred to the existence of dispute show or traditionally defined as “a state evidence seems Malice was And the relevance of such showing mind a heart sur- or condition of the the circumstances readily apparent: duty fatally bent regardless killing, of social relation- rounding Id. Malice has also been on mischief.” circum- parties, ship between not; by namely, what it is malice of mind of showing defined the condition stances present bearing was not if the crime was commit- all have a the accused could pas- the influence sudden im- ted “under acted under the whether the accused sion, adequate cause.” arising passion from an aris- mediate influence sudden 224, course, 4 Spearman Tex.App. 23 adequate an cause. Of ing from (1887). 1931, Legisla- impact 587 In also type S.W. of evidence could definition of crime negative response ture confirmed this jury’s general moral 1257c, passed years malice when it determining proper number provided that “murder without malice is the defendant. to sentence jus- voluntary homicide committed without the case that be In we decided immediate tification or excuse under the pronouncements for later came the basis passion arising influence of a sudden from In Mercer v. Fielder and Werner. cause, meant adequate which it is (1928), Tex.Crim. commonly produce a such cause as would attempted defendant offer resentment, degree anger, rage, or ter- him that people warned that several ordinary person temper ror in a suffi- him. Id. at 692. going to kill deceased was incapable the mind of cool cient to render sought to warnings “the We observed that Laws, Leg., H.B. reflection.” Session of third opinions mere proved were (1931). essence, 1, p. malice intend to the effect deceased parties passion arising was the absence of sudden Id. Relying MU” the defendant. ed to adequate cause. The crimes of from an com the defendant upon Article distin- manslaughter murder in refus that the trial court erred plained presence or absence guished Id. at 693. testimony. such ing permit malice. type tMs explained We have been inadmissible testimony effect of would legislation The 1927 had the under our of 1257a is- before the enactment changing guilt-innocence malice from a State, 45 Tex.Crim. decisions Crockett presence to a issue. sue (Tex.Crim.App.1903) pun- determined the 77 S.W. or absence malice 32, the Britton v. fact, range for murder. ishment (1927), instructing jury and we held that S.W. 541 required law repealed in of under the supersede holdings 1257a did not the the rules Mercer, cases. 13 S.W.2d at 693. that manslaughter, clearly those law of meant cited address evidence Both of the cases a new Legislature the did not establish opin found to be an inadmissible that was that rule of evidence but codified old rules (statement Crockett, 77 S.W. at 5 ion. prior statute was in had existed when the “may have been a mere idle surmise on the is consistent with effect. That conclusion declarant”); Britton, 294 part of the S.W. plain language the which (trial in excluding at 543 court did not err outlines what the “State or defendant shall concerning witness the conclusions of the offer,” cap- the permitted with going likelihood that the deceased was tion which stated that Article of S.B. defendant). kill passage In a that the proved, to “what 1257a related in upon indirectly would later be relied jury.” considered Werner, opined about effect of the shown, the rules that ex previously As upon the rules of evidence: statute prior manslaughter statute isted under nothing There is in the act to indicate rule that prior included the common law attempting was accused violent conduct this, announce a rule of evidence—and prosecu admissible in a same victim was body that that notwithstanding the fact of tion the accused for the murder con- general principles was aware of the prior This violent conduct was the victim. in

trolling admissibility of evidence reasons, of but admissible for a number trial of homicide cases as announced that one of those reasons was juris- in the decisions of this and other malice, the distin violent conduct showed that dictions. We are not led to believe knowledge guishing element between murder Legislature, acting judicial precedents, pre-1927 would have failed under the statute manslaughter expressly to have extended the rules of under the and the new issue evidence in cases of homicide had such in revised murder statute enacted 1927. body. been the intention of On 510 S.W.2d 354-355 See Carver (T contrary, logical to conclude seems 1257a evi ex.Crim.App.1974)(Article legislative it was intention to show malice or dence admissible secure to the accused the malice). benefit of Mercer held was absence What rules evidence available evidence, was inadmis manslaughter respecting repealed law statute, remained pre-1927 sible under the of relevant facts and under the 1927 statute. inadmissible showing the condition subsequently upon was relied Mercer the accused at the time of the mind of 434, 27 Wiggins v. It follows that reversible the homicide. State, 119 and Russell v. S.W.2d 236 error is not manifested. (1931). Like 45 S.W.2d Tex.Crim. Mercer, add- (emphasis at 693 Mercer, at Wiggins involved a defendant’s ed). legislative Although Mercer cited tempt opinion. to offer an inadmissible accused, intent to secure benefits to Mercer, Citing Wig applied the statute expressly gins court stated: “It has been manner to the accused and the State. equal question did held that the enactment accused be- Clearly, we referred to the Id. at 239 the rules of evidence.” extend party complaining cause that was rehearing)(emphasis (opinion on motion for admis- attempting justify error and added). Russell, com appellant And, Article 1257a. sion of evidence under to admit trial court’s refusal plained of the Legisla- Mercer stated that the although out-of-court statement. into evidence an evidence,” did not “announce a rule ture held that the evi at 623. We Leg- phrase concerning light of the rejected appellant’s hearsay the benefits of dence islature’s intent “secure”

685 form, such as improper in an 1257a made the dence that Article contention Mercer, testimony. hearsay or Citing Id. admissible. explained: we related Article 1257a Because article, held the entire codify we have construing

In it did punishment, concerning of ex- the ad not have the effect doctrine does common law of evi- tending broadening or the rules of offenses missibility prior cases, reason, merely se- the com in homicide but dence victim. For same of the the extent applied the accused the benefit still cures to mon law doctrine prove guilt under rules of evidence available was offered that evidence —(cid:127) manslaughter. this distinction repealed significance law of although that Texas muted the fact perhaps Russell, (emphasis at add 45 S.W.2d at the time. See unitary trials conducted ed). 150 Tex.Crim. Childers (bifurcated Carver, trial at 354 510 S.W.2d mo (1947)(opinion on 202 S.W.2d 930 with the advent appeared requirement a rehearing), again we addressed tion for Procedure). the 1965 Code of Criminal inadmissi claim that otherwise defendant’s Mercer, Wiggins, after two cases decided opinion evidence was admissible ble Russell, common upon relied we Wiggins Citing 1257a. Id. at 932 prior vio the admission support law to Russell, Article 1257a we stated that by the accused perpetrated acts lent evidence,” “does not extend the rules offense. charged victim of the against the rejected conten and we the defendant’s In Steward Childers, 202 at 932-933. tion. S.W.2d (1934), upheld the admis subsequent holding in a case And defendant, of evidence that sion the intro Article 1257a did not authorize struck at shooting, his wife’s day before evidence, “It hearsay duction stated: things at pick, with an ice threw her twice settled, however, general is well out, her, shotgun, got a threw the dishes changed, limited rules of evidence were not at to kill her. Id. going said he was or extended such statute.” Brooks objected at trial that 114. The defendant (Tex.Crim.App. 475 S.W.2d constituted question the transaction 1972) Childers, (citing Wiggins, and other from the one and distinct offense separate cases). also Jones v. See to inflame the trial and was calculated (Ar (Tex.Crim.App.1974) the defendant. jury against minds ticle 1257a “does not extend the rules the trial court’s decision upholding Id. In make inadmissible evidence to admissible commen the evidence we cited to admit Childers). hearsay”; citing Brooks and Penal Annotated tary in Branch’s Texas Childers, previ Mercer, Russell, concerning the Code Wiggins, an accused and Brooks, things two ous troubles between and Jones have at least menaces, (1) prior as “Antecedent all of evi- deceased: in common: addressed saults, quar and former grudges, former inadmissible dence that were proven parties all ad- rels between of Article passage and malice of the the state of mind inadmissible on show evidence that was dressed offense, alleged at the time of took accused the form the evidence the basis of (either for its commis motive improper and to establish than its content rather Steward, statements). We The in- sion.” hearsay opinion or subsequent that, important, more while found even that can be drawn is ference commentary: defen in the “When section permitted the introduction Article 1257a of his wife for the murder is on trial dant all facts and circumstances intent to murder assault with de- or for an relationship between the previous treatment, her, ill a course of accused, proof of the statute did fendant as indignities, slights such evi- the introduction of not authorize saults, separation, may and of made to at the time of the homicide” and existed prove authority jury malice and motive.” Id.As could not be used as a instruction. Id. at 829-830. supporting commentary we cited Hall.

Steward, 75 S.W.2d at 114. We overruled Riles and Scott Wheeler State, State, 140, 383, v. 156 Tex.Crim. 239 S.W.2d

In Clark v. 151 Tex.Crim. 208 (1951). Wheeler, 105, interpret 106 In we (1948), again a S.W.2d 637 we addressed construing ed as Article 1257a to Riles parent-child scenario. defendant was punish limit the evidence it describes to murder, by whipping step convicted of his ment issues. held that such a con We severely boy died of son so that the his error, struction was in and that the evi injuries day. Citing the next Id. at 638. might outlined in 1257a dence Article Betts, in our decision we held that guilt punishment: admissible for as well as that, occasions, the de on legislature authority has the to whipped severely fendant “had the child evidence, if prescribe rules of was admissible on the issue of malice and effect of Article Vernon’s Ann. ill on part appellant will of the towards P.C., testimony Clark, be to limit the use as the child.” 208 S.W.2d at 639. of to facts and circumstances cases, explored Arti several other we previous relationship punishment 1257a’s a cle status as issue to the existing parties ques- between the potential upon and its effect the admissibil testimony punishment, tion then such ity relating guilt. of evidence In Riles longer by could no be offered the state 141 v. Tex.Crim. 150 S.W.2d of the by question or the accused on the (1941), by, 1043 overruled Wheeler accused, condition of mind of the on (1951), 156 Tex.Crim. 239 S.W.2d 105 question guilt, going issues to the we held that the text of Article 1257a upon such as the issue self-defense provides statutory a rule of evidence but theory appearance danger; of the jury should not submitted as a instruc than that of upon any question other support tion. Id. at 1044. In of our hold punishment. applied ing observed statute legislature think it clear that the We at only punishment. Id. 1045. We held intention, had no such but on the other limiting that evidence of the circumstances intended, in connection with the hand punishment in 1257a outlined aforethought submission of malice was an “undue limitation” because such malice, point murder without out by jury evidence “could also be utilized proper evidence mentioned as for con- passing upon when the whole case.” Id. arriving by jury sideration simply held that the statute should We event punishment to be assessed operate guide as a to the court whether guilty. found the defendant was than as a to admit such evidence rather Wheeler, (emphasis at 106 add- jury Apparently, Id. we be instruction. ed). went on to hold that the text of We including lieved that the instruction given jury a Article 1257a should be as jury jury charge could mislead the into instruction. Id. not consider believing they that could also it overruled of Wheeler and the cases type purpose of evidence for the Likewise, relevant here: agreed propositions in Scott v. on two determining guilt. (1) applied to the the statute itself determination, (1945), by, overruled Wheeler (1951), evidence outlined in the statute Tex.Crim. 239 S.W.2d n guilt. a could also be relevant to Wheeler stated that the statute “is but rule appears disagreement with A&sand Scott evidence enacted as that Article upon their conclusion guide admitting to the court in relevant to center only a rule of evidence: “Inso cause 1257a was adequate evidence on whether or Id. Article 1257a....” Hill, Jamison, sible virtue Riles Scott far as the at 370-371. the substance of cases hold that charge, given in the 1257a should not.be State, 163 Tex.Crim. Stephen guide only serve

but should (1956), the accused 293 S.W.2d admissibility of upon the passing court in malice and without of murder convicted now, are, expressly testimony, they here Id. years imprisonment. to two sentenced Wheeler, at 106 overruled.” complained The defendant at 789. added). held Although Wheeler (emphasis that, testimony trial court’s admission jury in offense, that Article 1257a authorized charged years prior six struction, Arti case did not hold that the deceased three had stabbed defendant jury instructions. applied cle 1257a that Arti We observed times. Id. at 790. is, that Article proof previous That did not hold of the Wheeler “authorized cle 1257a evidence; simply a rule of the accused relationship existing 1257a was not between merely response In 1257a was not Id. held that Article and the deceased.” too was fact, subsequent claim that the incident In defendant’s rule of evidence. remote, previous our decision cited Article 1257a as be we interpreted cases we admissible, Paschal, had held which the admis ing enabling a rule of evidence law, epi of a violent the common of extraneous offenses. sion the vic years before occurring eight sode (but not In a line of cases after Wheeler tim’s death. Id. Wheeler), previous we held that vio citing State, Tex.Crim. In v. Brown against the victim lent acts the accused (1961), ad the trial court 349 S.W.2d in a admissible under Article 1257a own from the defendant’s mitted evidence for the prosecution against the accused quar “showing previous written statement murder of the victim. In Martin v. threats, that he had cut rels (1952), 210, 248 157 Tex.Crim. S.W.2d a knife about the wrist with deceased on deceased, the defendant shot killed Appel Id. at 724. three months before.” living with former who was the defendant’s inflam that the acts were complained lant trial court ad wife. Id. at 127-128. The upholding In matory prejudicial. Id. incident, prior mitted of a court, we observed that the trial appellant feed a bullet into proof previous of the 1257a “authorizes former wife and the deceased house of his existing the accused relationship between at present. was Id. while deceased deceased, with all rele together and the objected that the evi 129. The defendant going to show facts and circumstances vant offense. proof dence constituted of another accused at the mind of the the condition of admissi Id. held that the evidence was We (citing Id. Ste killing.” of the the time 1257a the de ble under Article because ). phen the occasion. Id. present ceased was State, 442 In Coleman offered evi- (Tex.Crim.App.1969), the State In Firo pre- had that the defendant (1954), county dence to show “the assistant the deceased and choked viously stated beaten testifying for the attorney, wife) (his then left that the deceased him on deceased had come see and filed for daughter their bore home with day homicide and that she of the part upon Relying Id. Id. at 370. In find- divorce. marks.” fresh bruise the evidence held that error, explained: ing no reversible admissible, previous cited our and we injuri- was could have been “Such a statement and Steward. Cole- in Brown jury if be- decisions appellant ous to the man, quoted also at 339. We had inflicted appellant lieved that the Annotated Penal commentary in Branch’s injuries, if any think such injuries. We acts violent Code that indicated be admis- appellant, inflicted would against directed victim provides testimony same were ex- for the admission of empt from the usual rules admit- to all relevant facts and sur ting extraneous “The rule rounding previous offenses: as to and the rela go tionship the exclusion of other offenses which the accused and the de Alford, show the defendant is a bad man ceased.” 505 S.W.2d at 815. generally do not forbid evidence to show c. 19.06

that he had made assaults injured person, upon the deceased or the modern of the version Tex- persons proof third or others where such as Penal Code became effective. The term proof forms a relevant link in the chain of aforethought” dropped “malice was from of the case on trial.” Id. code, Legisla- and the created, separate ture from the offense (Tex. Dunlap 462 S.W.2d 591 “murder,” “voluntary an offense entitled Crim.App.1971), the defendant con manslaughter,” essentially the which was victed of assault with to murder intent his same as murder without malice offense wife. Id. at trial court 592. The admitted pre-1927 manslaughter. offense of evidence that the defendant had choked penal Article 1257a from the old code was occasions, his wife on two and the trial carried over into 19.06 of the new code permitted court to ask the defen State very significant with one alteration —the if pulled pistol dant he had ever her longer section no contained limit- observing before. Id. After that there was § ing applicability punishment. 19.06 no in difference the rules of evidence con provided: cerning previous relationship In all for murder prosecutions or vol- in parties a murder or an assault to untary manslaughter, the state or the case, murder the evidence found to be permitted defendant shall be to offer admissible under Id. Article 1257a. We testimony as to all relevant facts and 1257a, V.A.P.C., that: pro stated “Article killing testimony vides for the admission of as to previous relationship existing and the all relevant facts and circumstances sur deceased, between the accused and the rounding killing rela together with all relevant facts and cir- tionship existing between the accused and going the condition cumstances to show the deceased. The evidence admissi was of the mind of the accused at the time ble. No error is shown.” Id. of the offense. (Tex. 813 S.W.2d Alford (1974). § Texas Penal Code With Crim.App.1974), the defendant was con change, that made clear its by shooting victed of murder with malice intent that evidence outlined killing estranged his wife. Id. at 814. in former Article 1257a would admissi- that, trial court admitted evidence five phas- guilt punishment ble at both the killing, months before the the defendant es of the trial. attempted had wife to death. choke his statute, however, change in the did complained Id. at 815. The defendant that This showing change pre- constituted a of an not of evidence. As evidence rules discussed, already un law viously extraneous offense that was admissible the common recognized rule of this evi- exception general der no ex guilt. dence in relation to the issue of cluding argued such matters. Id. He that Moreover, post the evidence was insufficient to raise an none of the cases -Wheeler “previous self and that extrane Article 1257a in the construing issue of defense to no other con violence the same victim” context ous offense was relevant distinguish guilt between the Relying upon Dunlap, appear tested issue. trial. phases that was of the And held admission of evidence 1257a, clues that provide authorized under Article “which some of those cases 19.06, § indicate several passage would that the evidence was ad- Since the pre cases have that like its guilt. mitted to show For held example, decessor Article not render does in Stephen defendant was convicted of hearsay evidence admissible. Fazzino given without light- murder malice and (Tex.Crim.App. imprisonment possible— est sentence of 1976); Love v. convicted, years (having two been he could (Tex.Crim.App.1979); Allridge by getting have done better a sus- (Tex.Crim.App.1988), 153-154 sentence). Hence, punishment pended denied, 1040, 109 rt. 489 U.S. S.Ct. ce unlikely a significant would be considered (1989). 1176, 103 L.Ed.2d points concern of defendant’s of error. time, Werner, Alford, And in first perhaps we mentioned the defen- we held to be allegation dant’s that evidence inadmissible self-defense was not for lack of relevance. The statute allegation an issue and his the evi- attempted to defendant introduce into evi any dence was irrelevant other issue. testimony psychiatrist dence Because the was crime commit- Alford victim killing defendant’s action see Alford, ted 505 S.W.2d at (the Syndrome was a of Holocaust result trial in that defendant’s case would defendant was the child of a Holocaust Alleging have been bifurcated. that self- survivor). Id. at 641-642. The defendant defense was not raised would make no claimed that this was relevant if the sense evidence had indeed been in- done substantiate troduced at punishment phase self-defense. Id. at 644. We cited Wheel trial. Had the made defendant such an general er for proposition that “the obvious blunder in argument, his it would rules of changed likely seem that we would have mentioned by extended limited” former the mistake in opinion especially our af- — Werner, 1257a. 711 S.W.2d at 643. We having allegation ter mentioned the —in- also Russell and for the cited Childers simply analyzing stead of the issue under proposition that the statute render did not Article 1257a. admissible otherwise inadmissible testimo (Tex. Shaw 530 S.W.2d 838 ny hearsay such or improper as Crim.App.1976), analyzed the admissi Werner, 711 evidence. at 643. bility of previous evidence of violence And other the we cited several cases for § the same victim under 19.06. The not general proposition statute did defendant on two convicted counts of Id. at hearsay. override the rule analyzed murder and to im sentenced on both life 643-644. then the relation We Syndrome the prisonment. ship Id. at 839. The between Holocaust victim’s testified, Id. at We nine-year-old law self-defense. 644-646. son over defen had raised found that self-defense not been objection, dant’s that the defendant would evidence, had, even by but if it victim, hit sometimes that he threat evidence was irrelevant to self-defense be fist, ened her with his and that once cause must be from a self-defense viewed shooting” defendant “was at her. Id. Re perspective and person” “reasonable § lying upon held that the evi show, Syndrome Holocaust evidence would dence “was admissible to show condi most, at that the defendant was not a tion at of mind of the accused the time Id. at person. reasonable 644-646. of the offense.” Id. also observed that We holding there were “numerous cases that however, Wheeler, did not stand such evidence is admissible to show the by Werner. Nowhere in proposition cited state of mind at the time of the appear offense to did there a statement Wheeler to general establish motive for commission.” the rules of evi- effect extended, or lim- changed, Id. at 839-840. dence Wheeler, exclusively ited Article 1257a. See Fielder relied on Werner in pas- most, Fielder, sim. At could § Wheeler be cited for analyzing 19.06. See holding place that Article 1257a did not attempt- at in Fielder defendant limits on the testimony might ed on what expert to offer trial guilt phase specifying loosely syn- be called “battered women types punishment of evidence relevant to a drome.” The defendant wanted to intro- Moreover, determination. Wheeler was concerning severity duce case, really jury instruction not an evi- compared the abuse she had suffered Nevertheless, dence case. women, battered the level of fear other appear in fact attributed Wheeler did abuse, produced by often such and testi- Childers, Mercer, Russell and as well as mony concerning the fact that women of- upon which those cases were based. And stayed relationships ten in such language employed by is liter- Werner why at reasons was so. Id. 315- ally changed, correct: the rules were not distinguished 317. We on the Werner extended, Legisla- or limited because the ground that the evidence offered in Fielder ture the common law rules that codified explain relationship was relevant existed at the time. The did between the defendant “and the deceased.” initially only so as to the is- original). Id. at 320 (emphasis sues, later, Legislature changed but the statute reflect the common law rules reiterating In addition to con- Werner’s concerning guilt punishment. both § clusion that 19.06 did not broaden Further, in April was decided Werner evidence, opined rules of Fielder also 1986, and the Evidence Rules Criminal two, encompassed only opposed as were not until of that adopted December (1) three, all of evidence: facts year. common applied law still surrounding and circumstances hence, decided, time there Werner was probative which are of the material condi- yet existed no variance tion of the mind of the accused at the time statute and the rules of evidence. Werner offense, all facts and circum- single even a made not reference previous stances relation- admissible, holding line of under Ar- cases accused and the ship existing between the ticle evidence of violent probative which are of the mate- deceased victim, nor did conduct the same at rial condition of the mind of the accused (much overrule) cite less Werner even time of the the offense. Shaw, § in which construed 19.06 like Although authority Fielder cited no fashion. no in of this gave support for and reason fact, in in And the evidence Werner was construction, relied the Court have any irrelevant bases of upon “together” the fact that the word Syndrome §in contained 19.06. Holocaust phrase of mind” in precedes the “condition was not a fact or circumstance holding that the “condition of mind” relationship the offense or the between the in phrase phrases modifies the other two parties. Syndrome And Holocaust did not interpretation would the statute. Such any tendency have to show more or less interpret language and the emphasize probable any condition of mind relevant to § 19.06 as follows: prosecution. the Even if the defendant relevant and circumstances sur- all facts Syndrome, had the- it would not have ne- (2) (1) killing and rounding: culpable a mental state of intent or gated existing between previous relationship the of- knowledge required to establish deceased, together the accused and the And, in explained fense of murder. as with all relevant facts and Werner, Syndrome evidence was not of the mind going to show the condition any of mind relevant to establish state the offense. of the accused at the time of involved in the law of self defense. 404(b), However, under Rule Pav Legislature really if the intend- inadmissible see lacka, 5,n. the common modify 892 S.W.2d at 902 ed that condition mind clause circumstances, contemplated appears first it law have two para- type a of motive evidence. simpler could have enacted much graph, example: d. 38.36 all relevant facts circumstances sur- the text of September Effective

rounding 38.36(a). § to Article 19.06 was moved existing relationship ac- in law was dele- only change tending cused and the show deceased “voluntary manslaughter” tion of from mind the condition of of the accused at change reflected the provision the time of the offense. —a voluntary of the Legislature’s abolition shows, And, as simpler paragraph this (turning manslaughter offense the “sudden construction advocated Fielder would into passion” issue issue phrase render redundant “all relevant However, Leg- prosecutions). murder precedes facts circumstances” that placed provisions islature also additional to show phrase “going the condition of 38.36(b): of the If mind accused.” the “condition of murder, if a defen- prosecution phrase” mind a modifier simply justification as a dant raises defense statute, portions the other of the the use of 9.31, 9.32, provided by Section “all facts relevant and circumstances” Code, defendant, in Penal order phrase twice the statute would seem the defendant’s reasonable be- establish unnecessary. The more conclusion consis- deadly lief that use of force or force was tent of the statute is necessary, immediately permit- shall be that the phrase “condition mind” is a ted to offer: (i.e.third) separate circumstance outlined in the statute. Fielder n (1) relevant evidence defendant interpretation family had of acts of dicta, been victim regard the statute in is as was deceased, by the violence committed unnecessary case, of the resolution family violence is defined Section should not continue its erroneous Code; 71.01, Family interpretation. expert testimony regarding even Fielder n construction relevant

However, if mind of the defen- condition correct, statute were the resolution offense, including time dant at the of the issue us would be the before same. those relevant facts and circumstances law, construing The cases Ar common family are the relating to violence that ticle 19.06 in the context of expert’s opinion. basis of prior violent acts the same victim provisions clearly are evi- have indicated that such acts are necessar These additional malice, will, intent, ily ill for in a murder dentiary prosecu- relevant to show rules use place and motive—all of which to the tion. That the Legislature relate con would into as the provisions dition of mind of the accused at the time of such the same article (i.e. indica- § the offense. “malice” “sudden text former 19.06 is some While from cause”) that passion arising adequate Legislature from an tion that believed § prosecu will in rule of evidence may only and ill arise some 19.06 embodied viable (or Moreover, tions, prosecutions. for knowledge) issues of intent murder every motive 19.06 in an placement are issues that arise former text prosecution. Chapter article 38 of murder And while Pavlacka within the Code that violent acts Criminal Procedure is evidence that indicated use against the victim to show motive believed and intended same showing rule of evidence that simply subterfuge for char statute established a conformity, the evidence would control over court-made rules rendering acter evidence as do other subject statutes contained which case it would be to exclusion chapter. though even the evidence would otherwise course, be admissible. Of would courts

3. Conclusion take into account the rule of ad broader Article 38.36 is a codification of the missibility by established Article 38.36 common law concerning admissibility determining unfairly whether evidence is certain of evidence based upon prejudicial. subject matter of evi subject adopted matter. When we properly dence admitted under Article Evidence, Rules of Criminal we enacted unlikely provide 38.36 would be grounds some rules that were at variance with However, finding prejudice. unfair ev But, common law by codifying doctrines. produces idence that a highly prejudicial law, the common the Legislature set in subject effect that is unrelated to the mat evidence, stone certain principles of by ter sanctioned the statute could be ex they related to prosecutions, murder cludable Rule Mosley 403. See could not later changed by judicial (Tex.Crim.App. rule-making. ofOne the common law doc- 1998). by trines codified the statute is the doc- I majority’s concur with the decision to trine that instances of violent remand the Appeals case the Court of by against conduct the accused the victim analysis conduct under Rule 403. I of the charged offense are admissible. majority’s dissent to the decision re- Such instances of conduct constitute “facts analysis mand the case for an under Rule previ- circumstances 404(b). ous relationship between the accused and deceased,” those McCORMICK, P.J., delivered a are though relevant even such relevance dissenting opinion to denial of state’s may due to tendency their to show rehearing, motion for in which 404(b), character conformity. Rule MANSFIELD, KELLER and Pavlacka, holding our irreconcilably KEASLER, JJ., joined. statute, conflicts with the and hence the I respectfully dissent to the de- Court’s statute, rule, not the should control. rehearing. nial of the State’s motion for hand, On the other the rules original opinion Court’s on submission

hearsay, and relating other rules “harmonizes” 38.36 and Rule proper form in which evidence must be by deciding “relationship” admitted, by are not affected Article 38.36. subject admissible under Article 38.36 is The statute was intended to address 404(b). still be excluded admissibility subject of evidence construction, however, This does not Hence, matter. while of previous 404(b). “harmonize” Article and Rule violent acts of the accused It meaningless. renders Article 38.36 Un- is, victim in my opinion, admissible under original der the Court’s submis- such evidence must still be 404(b) governs sion Rule in proper pre- admitted form. Evidence of “relationship” evidence because there is not, vious violent in- conduct could rely point party no for a on or to offer stance, hearsay be admitted via statements this evidence under Article This 38.36. they exception unless conformed to an con- pointless would be a exercise. Article hearsay tained within the rules. practical significance 38.36 has no deter- I would hold Rule 403 is also still mining “relationship” applicable. That rule often embodies con evidence. subject cerns that are unrelated to the instance, matter of opinion original the evidence. For evi The Court’s on submis- cumulative, needlessly inconsistency dence perceives sion an where none that an in- mistakenly exists. It believes

consistency exists between Article 38.36 404(b). Having

and Rule decided exists,

inconsistency the Court’s therefore, submission,

original finds nec-

essary inconsistency to remove this construction” Rule

“reasonable

101(c).

But is no inconsistency there 404(b).

Article 38.36 Rule “relationship” categorically deems have apart

evidence to relevance from 404(b) conformity pur-

character for Rule does make

poses. This not Article 38.36 At Ar- Rule inconsistent. most to, “exception”

ticle 38.36 creates an not with, 404(b).

inconsistency excep- An inconsistency.

tion is synonymous in this only reasonable construction

case would be follow the lan- “plain”

guage Article 38.36.

I respectfully dissent.

MANSFIELD, KELLER and JJ.,

KEASLER, join this dissent.

Roy Lynn CAMPBELL, Jr., Appellant,

The STATE of Texas.

No. 552-97. Texas, Appeals

Court of Criminal

En Banc.

Nov.

Case Details

Case Name: Smith v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Dec 15, 1999

Citation: 5 S.W.3d 673

Docket Number: 996-98

Court Abbreviation: Tex. Crim. App.