Montgomery v. State

810 S.W.2d 372, 1991 Tex. Crim. App. LEXIS 146, 1990 WL 70660

• Court: Court of Criminal Appeals of Texas
• Decided: June 19, 1991
• Docket: 1090-88, 1091-88
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

A jury found appellant, Patrick Logan Montgomery, guilty of two counts of indecency with a child and assessed a sentence of ten years’ confinement for each offense. He appealed. The Dallas Court of Appeals held that the trial court did not abuse its discretion in allowing the jury to hear testimony which appellant claimed constituted improper proof of an extraneous offense. Montgomery v. State, 760 S.W.2d 323, 324-325 (Tex.App.—Dallas 1988). We granted appellant’s petition to review this holding¹ and now affirm.

During the trial of this case, over appellant’s objection, the judge allowed the State to introduce testimony that appellant had on several occasions paraded around in front of his minor daughters, the complainants, in the nude with an erection. Before the Court of Appeals, appellant argued that the trial court erred when it allowed the State to introduce this testimony, arguing that:

“It is well settled that an accused may not be tried for some collateral crime or for being a criminal generally. For this reason, the courts have generally prohibited the introduction of testimony about extraneous offenses ...

“The extraneous offense proffered by the State was prejudicial to the Defendant and was not material or relevant. The extraneous offense should not, therefore, have been admitted in the trial of this cause.”

Appellant, citing Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985), and Coleman v. State, 577 S.W.2d 695 (Tex.Cr.App.1978), insisted that the aggrieved evidence, to be admissible, must fall into one of the “six generally accepted exceptions to the rule against admission of extraneous offenses.” Appellant specifies these “generally accepted” exceptions as:

“1) [to] show the context in which the criminal act occurred ...; 2) to circumstantially prove identity where the State lacks direct evidence on this issue; 3) to prove scienter, where intent or guilty knowledge cannot be inferred from the act itself; 4) to show malice or state of mind where malice is an essential element of the State’s case and it cannot be inferred from the criminal act; 5) to show the accused’s motive; or 6) to refute a defensive theory raised by the accused.”

Because the aggrieved testimony did not fit snugly into any exception, appellant argued to the Court of Appeals that the trial court erred when it allowed the jury to hear this testimony.

Before this Court, appellant repeats the argument he made before the Court of Appeals and prays that we reevaluate the evidence to find that the trial court erred when it permitted the aggrieved testimony to go before the jury. For the reasons below, we decline appellant’s invitation.

THE TRIAL COURT’S ROLE

Initially, we reject appellant’s invocation of the common-law’s mechanistic rules which tended to favor exclusion of evidence. Appellant was tried after adoption of the Texas Rules of Criminal Evidence. The new rules favor the admission of all logically relevant evidence for the jury’s consideration. See Crank v. State, 761 S.W.2d 328, 342 n. 5 (Tex.Cr.App.1988). Finding a piece of evidence to be “relevant” is the first step in a trial court’s determination of whether the evidence should be admitted before the jury as “[a]ll relevant evidence is admissible_ Evidence which is not relevant is not admissible.” Tex.R.Crim.Evid. 402. “Relevant evidence means having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Crim.Evid. 401; Fed.R.Evid. 401. “Relevancy is not an inherent characteristic of any item of evidence but exists as a relation between an item of evidence and a matter properly provable in the case.” Advisory Committee’s Note to Fed.R.Evid. 401.² As this Court said in Waldrop v. State, 138 Tex.Crim. 166, 133 S.W.2d 969 (1940):

“Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being one which, if sustained would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue more or less probable.” 133 S.W.2d at 970 (emphasis added).

See also Brown v. State, 757 S.W.2d 739, 743 (Tex.Cr.App.1988) (McCormick, P.J., concurring); Johnson v. State, 698 S.W.2d 154, 160 (Tex.Cr.App.1985); Plante, 692 S.W.2d at 491. Thus, evidence merely tending to affect the probability of the truth or falsity of a fact in issue is logically relevant. Moreover, the evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence. See Advisory Committee’s Note to Fed.R.Evid. 401 (“The fact to be proved may be ultimate, intermediate or evidentia-ry; it matters not so long as it is of consequence in the determination of the action”).

In deciding whether a particular piece of evidence is relevant, a trial court judge should ask “would a reasonable person, with some experience in the real world believe that the particular piece of evidence is helpful in determining the truth or falsity of any fact that is of consequence to the lawsuit.” See United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir.1976) (rule of thumb is to inquire whether a reasonable man might believe probability of truth of consequential fact to be different if he knew of proffered evidence, quoting Weinstein & Burger, Weinstein’s Evidence, ¶401[07], at 401-27 (1985)). If the trial court believes that a reasonable juror would conclude that the proffered evidence alters the probabilities involved to any degree, relevancy is present.

From Tex.R.Crim.Evid. 401, the trial court next moves to Tex.R.Crim.Evid. 402³ to decide whether the logically relevant evidence should be admitted. Under the rules of evidence, once the proponent of an item of evidence shows that the evidence is logically relevant to some issue in the trial under Rule 401, it is admissible under Rule 402 unless the opponent of the evidence demonstrates that it should be excluded because of some other provision, whether constitutional, statutory, or evidentiary.⁴

In the case before us, appellant claims that the evidence constitutes proof of an extraneous offense and that its probative value does not outweigh its prejudicial affect. Although not cited in appellant’s brief on the merits appellant attempts to invoke Tex.R.Crim.Evid. 404(b). That Rule provides:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State’s case in chief such evidence other than that arising in the same transaction.”

The exclusion of other wrongs evidence under Rule 404 is based, not on its lack of probative value, but rather on its unfair prejudicial effect. See Blakely, Article IV: Relevancy and Its Limits, 20 Hous.L.Rev. 151,190 (1983). The Advisory Committee’s Note to Fed.R.Evid. 404(b) states that the Rule offers “no mechanical solution” to excluding or admitting evidence of other wrongs committed by the defendant. Rather, the Committee indicated that the trial court should assess such evidence under the usual rules for admissibility: “The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of other factors appropriate for making decisions of this kind under Rule 403.”⁵ In short, Rule 404(b) is simply a specific codification for a general balancing determination under Rule 403. It must also be remembered that the enumerated exceptions to Rule 404(b) — proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident — are “neither mutually exclusive nor collectively exhaustive.” Cleary, McCormick On Evidence, section 190 at 558 (3d Ed.1984). “There are numerous other uses to which evidence of criminal acts may be put.” Id.

Rule 403 provides that “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.” It is with the adoption of this rule that Texas evidentiary law has altered. Under the former common-law rules in Texas, the proponent of a piece of evidence was required to show that the probative value of his offered evidence outweighed its prejudicial effect. See Bush v. State, 628 S.W.2d 441, 444-445 (Tex.Cr.App.1982). See also Williams v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1983). Under the new rules, however, there has been a alteration in focus; now it is the opponent’s burden to not only demonstrate the proffered evidence’s negative attributes but to show also that these negative attributes “substantially outweigh ” any probative value. Crank, 761 S.W.2d at 342 n. 5; Rodda v. State, 745 S.W.2d 415, 417-18 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d). Judge Clinton observed in Crank that “[t]he plain language of Rule 403 shifts the focus somewhat from the test enunciated in Williams [v. State, 662 S.W.2d 344, 346 (Tex.Cr.App.1983) ] and its progeny. The approach under Rule 403 is to admit all relevant evidence unless the probative value is substantially outweighed by the danger of unfair prejudice to a defendant.” 761 S.W.2d at 342 n. 5 (emphasis in the original).

Most objections based upon the balancing required under Tex.R.Crim.Evid. 403 attack the prejudice to the aggrieved party (as appellant does in the case before us). It must be remembered, however, that virtually all evidence proffered by a party to a lawsuit will be prejudicial to the opposing party. In United States v. Figueroa, 618 F.2d 934, 943 (2d Cir.1980), the court explained:

“All evidence introduced against a defendant, if material to an issue in the case, tends to prove guilt, but it is not necessarily prejudicial in any sense that matters to the rules of evidence_ Evidence is prejudicial only when it tends to have some adverse effect upon a defendant beyond tending to prove the fact or issue that justified its admission into evidence. ... The prejudicial effect may be created by the tendency of the evidence to prove some adverse fact not properly in issue or unfairly to excite emotions against the defendant_ When material evidence has an additional prejudicial effect, Rule 403 requires the trial court to make a conscientious assessment of whether the probative value of the evidence on a disputed issue in the case is substantially outweighed by the prejudicial tendency of the evidence to have some other adverse effect upon the defendant.” 618 F.2d at 943.

As such, only “unfair” prejudice provides the basis for exclusion of relevant evidence. See United States v. Jamil, 707 F.2d 638, 644-645 (2nd Cir.1983) (“prejudice” does not constitute showing of “unfair” prejudice). See also Advisory Committee’s note to Fed.R.Evid. 403 (“Unfair” prejudice means an “undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”)

THE APPELLATE COURT’S ROLE

Concomitant with adoption of the Texas Rules of Evidence, there should be a corresponding reluctance on the part of an appellate court to reverse trial court decisions which admit or exclude evidence. Courts and commentators universally recognize that with the enactment of Federal Rule 403 there was a conscientious decision to give the trial court a considerable freedom in evaluating proffered evidence’s probative value in relation to its prejudicial effect. See United States v. Robinson, 560 F.2d 507, 512-516 (2d Cir.1977) (applying “arbitrary-irrational” standard of judicial discretion); United States v. Wyers, 546 F.2d 599, 603 (5th Cir.1977) (rule well established that trial court’s rulings as to relevancy and materiality not disturbed absent clear abuse of discretion); United States v. Cohen, 544 F.2d 781, 786 (5th Cir.1977) (same) cert. denied, 431 U.S. 914, 97 S.Ct. 2175, 53 L.Ed.2d 224 (1977). See also Construction Ltd. v. Brooks-Skinner Bldg., 488 F.2d 427, 431 (3d Cir.1973) (if sitting as trial judge, appellate court might well have concluded that prejudicial nature of evidence outweighed probative worth; appellate court, however, could not say that action of the trial court constituted abuse of discretion).⁶ Opinions from this Court have held the same. See, e.g., Marras v. State, 741 S.W.2d 395, 404 (Tex.Cr.App.1987); Stone v. State, 574 S.W.2d 85, 89 (Tex.Cr.App.1978).

The reason that appellate courts must afford a trial court great discretion in its evidentiary decisions is not based exclusively upon the wording of Rule 403.⁷ Appellate courts, bound by cold appellate records, must afford the trial courts discretion because the trial court judge is in a superior position to evaluate the impact of the evidence. The trial judge sees the witnesses, the defendant, the jurors and counsel; he alone is able to witness the participants’ mannerism and reactions. As the court in Robinson opined: “[W]e cannot weigh on appeal ... the intonation and demeanor of the witnesses preceding the testimony in issue ... nor can we determine the emotional reaction of the jury to other pieces of evidence ... or judge the success of impeachment by cross-examination through observation of the jurors.” 560 F.2d at 512-516.

The State, in its brief on the merits, directs this Court’s attention to United States v. Long, 574 F.2d 761 (3rd Cir.1978), as providing the proper standard of appellate review for these cases. There the Federal Appellate Court concluded:

“If judicial restraint is ever desirable, it is when a Rule 403 analysis of a trial court is reviewed by an appellate tribu-nal_

“In view of ... the use of ‘may’ in the final version of Rule 403, it is manifest that the draftsman intended that the trial judge be given a very substantial discretion in ‘balancing’ probative value on the one hand and ‘unfair prejudice’ on the other, and that he should not be reversed simply because an appellate court believes that it would have decided the matter otherwise because of a differing view of the highly subjective factors of (a) the probative value, or (b) the prejudice presented by the evidence. This inference is strengthened by the fact that the Rule does not establish a mere imbalance as the standard, but rather requires that the evidence ‘may’ be barred only if its probative value is ‘substantially’ outweighed by prejudice.”

We agree; the trial court should be allowed the discretion to exclude or admit evidence before the jury and an appellate court should not set aside the trial court’s rulings absent a showing in the record that the trial court has abused that discretion. Marras, 741 S.W.2d at 404.

In an early opinion from this Court, there was an attempt to define “abuse of discretion.” Remarkably, the Court wrote:

“We are cited to many cases of the different states of the Union relative to what is meant by an ‘abuse of discretion’ and while not lending itself to an absolute measuring stick by which such abuse could be understood, the opinions seem to be in fair agreement that an abuse of discretion usually means doing something differently from what the reviewing authority would have felt called upon to do.” Williams v. State, 159 Tex.Crim. 443, 265 S.W.2d 92, 95 (1954).

The Williams’ Court cited no such authority for its proposition and “abuse of discretion” has never been so defined in any other jurisdiction. If this were the test, then the trial court judge would have virtually no discretion to do other than that which the appellate court would do. The appellate court would then be the “superior trial judge”; such is the antithesis of abuse of discretion, not its embodiment. A more appropriate test for a determination of whether the trial court abuses its discretion is aptly stated by the Texas Supreme Court:

“The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Another way of stating the test is whether the act was arbitrary or unreasonable. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-242 (Tex.1985), cert. denied 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986) (citations omitted).

Thus, judicial rulings will be affirmed if the trial court follows the appropriate analysis and balancing factors, though the appellate court might disagree with the weight given to those individual factors. In short, a trial court judge is given a “limited right to be wrong,” so long as the result is not reached in an arbitrary or capricious manner. See Rosenberg, Judicial Discretion, 38 Ohio Bar 819, 823 (1965).

APPLICATION OP THE LAW TO THE FACTS

Given that the trial court is granted great discretion in its ability to admit or exclude evidence, we now turn to this case to determine if the record demonstrates that the trial court judge abused her discretion. The two indictments under which appellant was tried allege that he “knowingly and intentionally engage[d] in sexual contact with [the two complainants] ... then younger than 17 years and not then the spouse of [appellant], by contact between the hand of [appellant] and the genitals of [the] complaint[s], with the intent to arouse and gratify the sexual desire of the [appellant].” Thus it was incumbent upon the State to prove, beyond a reasonable doubt, that appellant had contact with the two complainants and that this contact was done for his sexual gratification.

Linda Lou Rockwell, appellant’s ex-wife, was the State’s second witness to testify at the trial. Upon direct examination, Rockwell testified that appellant frequently walked around the house in front of his children while he was unclothed. She stated that at these times he had an erection. This testimony was elicited along with and after she had testified concerning appellant’s other conduct in front of his children: She once found one of the complainants in the shower with him. She observed that when the younger of the two complainants kissed appellant, the girl’s mouth was open and she inserted her tongue. Rockwell had observed appellant bathe the little girls. At one time, she heard appellant discuss their genitals; he referred to one of the complainants and said she had a “fat pussy.” At other times after the girls bathed appellant would ask the children if they had “washed their slits,” referring to their vaginal area. At other times, appellant would say to the girls, “You and I were meant for each other”; “Give me your hot love”; “My lips were made for kissing”; and “Press my hot lips.”⁸

It is clear to us that the aggrieved testimony, when consider in the context of the other evidence at trial is relevant; it provides the “small nudge” toward proving appellant’s sexual motive if he touched the complainants. Having found the evidence to be relevant we must determine if the record reveals that the trial court abused its discretion in choosing to admit the evidence.

There are a number of possible factors that the judge could have considered in her determination to permit the jury to hear this testimony: 1) The trial court could have considered the inherent circumstantial nature of the evidence tending to prove that appellant committed the charged offenses with the intent to sexually arouse himself. The offense involved in this case is an improper touching with a hand as opposed to penetration with a sexual organ. The manner appellant acted around his own children was the only proof of appellant’s possible sexual motive if the touching did in fact occur. 2) The court could have considered the State’s burden of proving appellant’s intent beyond a reasonable doubt when there is no other available evidence to prove sexual gratification. This is coupled with the State’s having to sustain appellate challenges to the sufficiency of evidence where the Court of Appeals is required under Texas law to consider reasonable hypothesis inconsistent with guilt. Without some evidence of appellant’s motives, the possibility that any touching was done innocently exists as an outstanding hypotheses. 3) Also, the trial court could have considered the age of the complainants. At the time of the trial, the two girls were seven and ten years old. Appellant challenged their competency to testify at trial and it would have been reasonable for the trial court to conclude that the young girls would not be able to relate that appellant’s touching their vaginal areas was done with the specific intent to cause his sexual arousal. It should be remembered that appellant was solely responsible for the welfare of his daughters at the time of the offense and the record demonstrates that he assumed responsibility for bathing the children. Absent the above testimony, it is possible that any touching was done innocently making the need for the evidence greater. Given these factors, we cannot say that the trial court judge abused her discretion in allowing the jury to hear the aggrieved testimony. Another trial court judge may have done differently and could have easily excluded the testimony, but we, in our role as an appellate court, cannot say that the trial court abused its discretion.⁹

Exemplary of an appellate court exceeding its proper role as an appellate court and not allowing the trial court to use its discretion to admit or exclude evidence is the Court of Appeals’ dissenting opinion in this case which appellant adopts in his brief on the merits as being a correct statement of the law.¹⁰ The dissenting Justice would have omitted the aggrieved testimony from the jury’s consideration because

“[ajlthough the great majority of society would doubtless condemn such a display of nudity, we must acknowledge that a significant segment adamantly argues that there is nothing wrong with nudity. We also know that primitive societies around the world have accepted nudity as normal. In final analysis, the brand of ‘unnatural’ reflects no more than the contemporary attitued (sic) of the majority in this corner of the world.”

However the Justice would have weighed the factors in his determination to admit or exclude the evidence is superfluous to a determination of whether the trial court abused its discretion. As stated previously, “the mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer, 701 S.W.2d at 242. Moreover, even if the dissenting Justice were sitting as the trial court judge in this case, his decision to exclude the evidence because he accepted nudity as the norm would be an incorrect standard. If a particular trial court judge could determine that he, 'personally, does not find a logical connection between the proffered evidence and the fact in issue, he is bound to admit the evidence if he believes that a “reasonable man” might conclude that the evidence is relevant. See United States v. 478.34 Acres of Land, 578 F.2d 156, 160 (6th Cir.1978) (holding that judge himself need not be convinced of probative value of evidence if he or she determines that jury reasonably could so find). See generally Weinstein and Burger, Weinstein’s Evidence, 11401[09] at 401-63 (1985).

The dissent also argues that the source of the aggrieved testimony limits its usefulness, writing that “it is quite obvious” the appellant’s ex-wife could not be “considered an objective, unbiased witness.” The dissent deems the witness’s motive— acrimony stemming from the parties’ divorce — “drastically reduces the value of the extraneous offenses as proof that the indicted offense actually occurred.” In making this credibility argument, an appellate court judge steps way out of line.

It would have been improper for the trial court to omit relevant testimony on the basis that she did not believe the particular witness. See United States v. Thompson, 615 F.2d 329, 333 (5th Cir.1980). Accord Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988) (“In determining whether the Government has introduced sufficient evidence to meet Rule 104(b), the trial court neither weighs credibility nor makes a finding that the Government has proved the conditioned fact by a preponderance of the evidence.” 108 S.Ct. at 1501 (emphasis added).) As put by Professor Wright:

“[I]t seems relatively clear that in the weighing process under Rule 403 the judge cannot consider the credibility of the witnesses. In the first place, credibility is a question for the jury; to permit the judge to exclude evidence on the grounds that he thinks it incredible would be a remarkable innovation and may even be a violation of the right of trial by jury. In the second place even if the jury were not involved, in order to assess the credibility of a witness the judge would have to hear his testimony so as to assess his demeanor, know what evidence is available to corroborate his testimony, and perhaps even look at the impeaching evidence that the opponent plans to introduce. Rule 403 presupposes that the judge can determine the admissibility by assessing logical inferences at the time it is offered. If the judge were to assess credibility as well, it is difficult to see how this could be done without first hearing nearly the entire trial.” Wright and Graham, Federal Practice And Procedure, Section 5214, at 265-66 (1977) (footnotes omitted).

When the appellate justice determined that he would have omitted the aggrieved testimony on the basis of the witness’s lack of credibility he doubly erred. First, he was in no position to usurp the functioning of the jury that could see the witness and make its own credibility assessment; and second, even the trial court judge should not have weighed such factors in a determination to exclude evidence.

The only proper basis for the trial court to exclude the evidence in this case is that provided in the Texas Rules of Evidence and the only proper basis for an appellate court to reverse a trial court’s decision is when the record demonstrates that the trial court has abused its discretion. The record before us does not demonstrate that the trial court judge abused her discretion when she allowed the jury to hear that appellant appeared nude with an erection in front of his children. We therefore affirm the judgment of the trial court and the majority opinion of the Court of Appeals.

BERCHELMAN, J., not participating.

1 . We also granted appellant’s petition to review the Court of Appeals' holdings that appellant did not properly preserve error, if any, for appellate review. Montgomery, 760 S.W.2d at 329. Upon further consideration, however, we have determined that the granting of the petition for this purpose was improvident in that the error was properly preserved.

2 . Rules 401, 402 and 403 of the Texas Rules of Criminal Evidence are identical in all material aspects to the same numbered rules in the Federal Rules of Evidence from which they were derived. Although this Court is not bound by lower federal court decisions, when the Texas Rule duplicates the Federal Rule, greater than usual deference should be given to the federal court’s interpretations. See Campbell v. State, 718 S.W.2d 712, 716 (Tex.Cr.App.1986); Rodda v. State, 745 S.W.2d 415, 418 (Tex.App.—Houston [14th Dist.] 1988, pet. refd); Cole v. State, 735 S.W.2d 686, 690 (Tex.App.—Amarillo 1987, no pet.) The State Liaison Committee, appointed by the Legislature in 1981 to propose codified rules of evidence, consistently considered the Federal Rules, although it rejected verbatim adaption. Caperton and McGee, Background, Scope and Applicability of the Texas Rules of Evidence, 20 Hous.L.Rev. 49, 51 (1983).

3 . Rule 402 provides that ”[a]ll relevant evidence is admissible, except as otherwise provided by Constitution, by statute, by these rules, or by other rules prescribed pursuant to statutory authority. Evidence which is not relevant is not admissible."

4 .There will be occasions when the trial court judge must detour from Rule 401 to Tex.R.Crim. Evid. 104 before moving to Rule 402. For example, and contrary to assertions made in appellant’s brief on the merits, in Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 99 L.Ed.2d 771 (1988), the Supreme Court in an unanimous opinion, held that Rule 104(b) applies to all preliminary issues of relevancy including the admission of extraneous offenses under Fed.R.Evid. 404(b). Rule 104(b) provides that "when relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence to support a finding of fulfillment of the condition.” The Supreme Court . concluded that evidence of an extraneous offense "should be admitted if there is sufficient evidence to support a finding by the jury that the defendant committed the similar act.” 108 S.Ct. at 1499. That is, if a hypothetical juror could reasonably conclude that the defendant committed the extraneous offense and that offense is otherwise admissible, the judge shall admit it into evidence. See 108 S.Ct. at 1499. Accord Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990) (relevant extraneous offense evidence admissible if juror could reasonably conclude that the act occurred and the defendant was the actor notwithstanding that the defendant has been acquitted of having committed the extraneous offense).

5 . The Supreme Court agrees, finding that "with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e., prejudice, confusion or waste of time.” Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1500, 99 L.Ed.2d 771 (1988), citing Advisory Committee’s Note to Fed.R.Evid. 404(b).

6 . Commentators are in general agreement that appellate courts should afford trial courts the discretion to admit and/or exclude evidence from the jury’s consideration. See generally Herasimchuk, The Relevancy Revolution in Criminal Law: A Practical Tour through the Texas Rules of Criminal Evidence, 20 St. Mary's L.J. 737, 782 n. 113 (1989); Goode, Wellborn & Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, Section 403.1 at 91 n. 15 (Texas Practice 1988).

7 . Indeed, Tex.R.Crim.Evid. 403, like its federal counterpart, provides that the trial court “may" exclude evidence under that rule, implying that the trial court is not required to do so. As originally drafted, Rule 403 of the Federal Rules of Evidence read:

“(a) EXCLUSION MANDATORY. Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, or confusion of the issues, or of misleading the jury.

"(b) EXCLUSION DISCRETIONARY. Although relevant, evidence may be excluded if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

Both the Department of Justice and the Senate Judiciary Committee rejected this preliminary draft. The Department opposed the rule's “absolute standard of inadmissibility.” The Department of Justice Report 9 (1971) (reprinted in Weinstein and Burger, Weinstein’s Evidence, ¶ 403[01] at 403-7 n. 4 (1985)). It determined that such a standard would "require reversal on appeal whenever an appellate court disagreed with the trial court’s exercise of discretion.” Id. The Committee concluded that "this matter is best left to the discretion of the trial judge." Id. The Chairman of the Senate Judiciary Committee was more adamant in his reasons for rejection:

"My difficulty lies with the failure of Subdivision (a) to see the ultimate issue in terms that emphasize the sound discretion of the trial judge and to uphold his ruling on appeal, absent abuse of discretion, in what will always be a balancing situation. I see no reason to purport to draw a hard and fast line that no one will be able to trace in practice. The adoption of the present draft will provide criminal defendants with another standard ground for appeal and lead to needless reversals and retrials in criminal cases." Letter of Chairman of the Senate Judiciary Committee to Standing Committee on Rule of Practice and Procedure (August 12, 1971) (reprinted in Weinstein and Burger, Weinstein’s Evidence, ¶403[01] at 403-8 n. 4 (1985)).

Sentiments such as these lead to the rule’s current wording that "recognizes the desirability of discretionary power to exclude evidence, but attempts to limit the exercise of discretion by stating what policy considerations that are to justify its use.” Wright and Graham, Federal Practice and Procedure, Section 5212, at 256-57 (1977).

8 . The Court of Appeals' majority opinion determined that the trial court could have admitted this testimony because "the evidence served its proper function of revealing the familial relationship which provided the context of the charged offense.” Montgomery, 760 S.W.2d at 325. The Court of Appeals then concluded that "the probative value of the extraneous offense outweighed any possibility of prejudice.” 760 S.W.2d at 325. This holding implies that the majority undertook to reevaluate the evidence— something it should not have done. The Court of Appeals should have determined if the trial court abused its discretion in admitting the evidence before the jury.

9 . There is a justified concern that evidence may be unduly prejudicial to the defendant but the rules of evidence offer protection:

‘‘[T]he protection against unfair prejudice [associated with the introduction of extraneous offense evidence under Fed.R.Evid. 404(b) ] emanates ... from four sources: first, from the requirement of Rule 404(b) that the evidence be offered for a proper purpose; second, from the relevancy requirement of Rule 402 — as enforced through Rule 104(b); third, from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice, see Advisory Committee’s Note on Fed.R.Evid. 404(b) ...; and fourth, from Federal Rule of Evidence 105, which provides that he trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted.” Huddleston, 108 S.Ct. at 1502) (footnote omitted).

10 . Only the majority opinion was published in this case.