Murphy v. State

777 S.W.2d 44, 1989 Tex. Crim. App. LEXIS 142, 1988 WL 28678

Opinions

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was charged with murder and found guilty by a jury. Appellant filed an application for probation and the jury assessed punishment at life imprisonment and a $10,000 fine. The Dallas Court of Appeals reversed and remanded on the ground that the trial court had erred by admitting evidence of unadjudicated offenses during the punishment phase of the trial. Murphy v. State, 700 S.W.2d 747 (Tex.App.—Dallas, 1985). We granted the State’s petition for discretionary review on the following ground for review:

“The trial court properly ruled appellant’s extraneous bad acts could be introduced into evidence during the punishment phase of trial in response to appellant’s application for probation.”

We will affirm the decision of the Court of Appeals.

Prior to trial appellant filed a sworn application for probation pursuant to Art. 42.-12 § 3a(a), V.A.C.C.P. During the punishment phase of the trial appellant testified in his own behalf. The following is all the evidence offered by appellant during punishment:

“Q. (by appellant’s attorney) State your name for the record, again, please.

A. (by appellant) Gary Murphy.

Q. You are one and the same person who was just found guilty by this jury, just a few minutes ago?

A. Yes, sir.

Q. Have you ever before been convicted of a felony offense in this or any other state or a federal jurisdiction?

A. No.

Q. Have you ever been placed on the felony probation in this or any other state or federal jurisdiction?

A. No.”

In rebuttal the State offered five witnesses to testify to unadjudicated offenses committed by appellant prior to the present offense. Gladys Work testified that appellant assaulted her and stole her purse on September 15, 1983. Officer R.W. Dobbs told the jury that he arrested appellant for driving while intoxicated on September 20, 1983. Two days later appellant led state troopers on a 25 mile car chase according to the testimony of Trooper Richard Shea. Marie Holt testified that appellant assaulted her on January 27, 1984. On the same day, Officer I.C. Hale found appellant sitting near his wrecked vehicle sniffing paint. Appellant objected to the preceding evidence because it involved acts of misconduct on the part of appellant that were not final convictions. Appellant’s objections were overruled, and the jury was allowed to consider these incidents when assessing punishment.

In its brief in support of its petition for discretionary review, the State attacks the Court of Appeals holding in two respects; that the unadjudicated offenses are independently admissible because they are relevant to show probable future conduct of the appellant, and that Art. 37.07 as interpreted by Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), allows such punishment evidence on the issue of probation.

Taking the second attack first: Allaben, supra, dealt with the admissibility of defensive evidence concerning the defendant’s post-offense psychiatric treatment as it related to the defendant’s application for probation. The Court held that it was error to exclude such evidence, stating, id. at 519:

“Evidence to be offered at the hearing on punishment pursuant to the provisions of Article 37.07, Section 2(b), Vernon’s Ann. C.C.P., is by no means limited to the defendant’s prior criminal record, his general reputation and his character. Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.”

[emphasis supplied]

At the time of the defendant’s trial in Allaben, supra, and more importantly at the time of the writing of the opinion, Article 37.07, Section 2(b), V.A.C.C.P., read:

“(b) If a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense charged where the same is not absolutely fixed by law to some particular penalty except when the defendant, upon the return of a finding of guilty, requests that the punishment be assessed by the same jury. In the event the defendant elects to have the jury fix the punishment in cases where the punishment is fixed by law, the court shall instruct the jury that if they find the defendant is the same person who was convicted in the prior conviction or convictions alleged for enhancement, they should set his punishment as prescribed by law.

Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.” [emphasis supplied]

Acts 1965, 59th Leg., vol. 2, p. 317, ch. 722.

In 1967, the article was amended in one very important aspect, as follows:

Section 2. (b) Except as provided in Article 37.071, if a finding of guilty is returned, it shall then be the responsibility of the judge to assess the punishment applicable to the offense; provided, however, that (1) in any criminal action where the jury may recommend probation and the defendant filed his sworn motion for probation before the trial began, and (2) in other cases where the defendant so elects in writing at the time he enters his plea in open court, the punishment shall be assessed by the same jury. If a finding of guilty is returned, the defendant may, with the consent of the attorney for the state, change his election of one who assesses the punishment.

(c) Punishment shall be assessed on each count on which a finding of guilty has been returned.

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.

(a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged. [emphasis supplied]

Acts 1967, 60th Leg., p. 1739, ch. 659, § 22, eff. Aug. 28, 1967.

With this amendment a statutory prohibition against the introduction of unadjudi- cated extraneous offenses during the punishment phase of a trial as proof of prior criminal record was strictly imposed. Elder v. State, 677 S.W.2d 538 (Tex.Cr.App.1984); Ramey v. State, 515 S.W.2d 535 (Tex.Cr.App.1978).

Nevertheless, prosecutors quickly invoked the above quoted and underlined portion of Allaben, supra, whenever they sought to introduce, as punishment evidence bearing upon a question of probation that was before the jury, unadjudicated extraneous offenses. Overlooking the 1967 amendment, as well as the fact that Allaben, supra, dealt with the introduction of evidence other than extraneous transactions which constituted offenses, this Court blindly adhered to the Allaben holding and it became the order of the day in this Court. In Davis v. State, 478 S.W.2d 958 (Tex.Cr.App.1972), we held it was proper to prove the defendant had committed a robbery one month before the charged offense because probation was a question before the jury and that:

“While the general rule is that specific acts of misconduct by the accused which have not resulted in final convictions cannot be admitted, this court has been reluctant to exclude legally admissible evidence which is relevant to a fair determination of an accused application for probation. Allaben v. State, Tex.Cr.App., 418 S.W.2d 517; ...” [further citations omitted as not germane];

See also Cleveland v. State, 502 S.W.2d 24 (Tex.Cr.App.1973) (Defendant's prior marijuana purchase admissible on the issue of probation, citing Allaben, supra); McCrea v. State, 494 S.W.2d 821 (Tex.Cr.App.1973) (Permissible to ask defendant if he had ever been addicted to any drug because the issue of probation was before jury, citing Allaben, supra); Holmes v. State, 502 S.W.2d 728 (Tex.Cr.App.1973) (Proper to establish that defendant had been in the drug abuse unit of a Veteran’s Administration hospital because probation was before the jury, citing as one justification, the holding in Allaben, supra). See also cases cited in Holmes, supra, at 729.

Although our rationale does not entirely comport with that of the Court of Appeals’,¹ we still agree with their initial holding that admission of the extraneous offenses violated Art. 37.07, § 3, V.A.C.C.P. Thus, whatever support Allaben might have given the State’s position at the time it was written, the 1967 amendment to Art. 37.07, supra, rendered it of no precedential value on the narrow issue of admissibility of unadjudicated extraneous offenses solely to meet a defendant’s application for probation. We find the State’s second attack on the Court of Appeals’ holding to be without merit.

The State also contends, notwithstanding the provision of Art. 37.07, that the unadju-dicated offenses were independently admissible because they were relevant to show probable future conduct of the appellant. We therefore turn to a more traditional treatment of the admissibility of extraneous offenses.

Generally, the admissibility of an extraneous offense is determined by using a two-prong test:

“First, it must be determined that the extraneous offense is relevant to a material issue in the case other than the defendant’s character. [Footnote omitted.] Second, the evidence must possess probative value which outweighs its inflammatory or prejudicial effect.”²

Plante v. State, 692 S.W.2d 487, 491 (Tex.Cr.App.1985), citing Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983). See also Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1986) (opinion on State’s motion for rehearing), and Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985).

In the case before us, the evidence admitted concerned appellant’s commission of unadjudicated offenses a few months prior to the commission of the instant offense. The issue upon which this evidence was admitted was whether appellant was a worthy candidate for probation. In order to determine whether the trial court erred by admitting this evidence for its intended purpose, we must apply the preceding two-prong test.

First, was the evidence relevant to the issue sought to be established? “Relevancy” has been defined as “that which makes the proposition at issue more or less probable.” Garza v. State, 715 S.W.2d 642, 644 (Tex.Cr.App.1986), citing Waldrop v. State, 138 Tex.Cr.R. 166, 133 S.W.2d 969 (1940). The new Rules of Criminal Evidence, effective September 1, 1986, define the term in Rule 401:

“Relevant evidence” means evidence 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.

To be relevant, the evidence need not establish the proposed issue, but need only make its existence more or less probable. Stated another way, such evidence must at least be “a brick in the wall.”

In the instant case, appellant applied for probation and testified that he was eligible. The State introduced evidence indicating that appellant would be a poor candidate for probation because he had not been able to conform his conduct to the law in the past. Whether the fact that an accused has committed criminal acts in the past makes it arguably less probable that he or she will follow the law in the future, is a question best decided on a case by case basis according to the individual facts of each case.³ This Court has made the observation here sought by the State, with regard to past offenses and probation applications and concerning probability that the accused will not be as apt to abide by the terms of probation, on several occasions. See McCrea, Cleveland, Davis, and Holmes, supra. But even if we were to concede that in this case the evidence was in some way relevant, we find that our determination on the second issue — whether the evidence was too prejudicial — renders the evidence inadmissible.

The rules prohibiting admission of extraneous offenses arise from the general rule that an accused is entitled to be tried upon the accusation made in the State’s pleading and not on some collateral crime. See Moore v. State, 700 S.W.2d 193 (Tex.Cr.App.1985), and cases cited therein at 199.

Also, admission of extraneous offense evidence, albeit relevant to many issues, is inherently prejudicial to the defendant’s right to a fair trial. Id. As was stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), at 100:

“Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial,

[emphasis added.]

Given the inherently prejudicial effect of extraneous offense evidence, social policy requires that such evidence be excluded unless its probative value clearly outweighs its prejudicial effect. See Williams, supra. See also Kelley v. State, 677 S.W.2d 34 (Tex.Cr.App.1984), and Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App.1983).

In the instant case, at least two factors militate against the probative value of the admitted evidence. First, although some of the offenses involved assaultive conduct, all of the offenses were unadjudicated. The probative value of an unadjudicated offense will be less than that of an offense for which defendant, by due process of law, has been convicted. Second, the offense occurred before appellant’s arrest for the instant offense. The probandum of the State, that the appellant would likely break the law in the future because he had done so in the past, was weakened by the fact that in regards to some of the extraneous offenses he had not been arrested, charged or indicted for these offenses prior to commission of the instant offense. Thus, appellant had not been brought before the law and confronted with responsibility for his actions.

The evidence was also highly prejudicial. Appellant had just been found guilty of stabbing his wife to death during an argument. Two of the extraneous offenses involved assaults against other women that occurred within six months of the instant offense. The similarity of these violent crimes was clearly prejudicial beyond the mere generic idea that appellant would continue to commit crimes.

On the facts of this case, the evidence introduced against appellant concerning the five acts of misconduct was beyond dispute more prejudicial to appellant than probative of his ability to abide by the laws in the future. Thus, even if we were to concede relevance under the facts of this case, the evidence should not have been admitted under Williams, supra, and the trial court erred by so doing.⁴

A determination that the trial court erred by admitting evidence of an extraneous offense does not end our inquiry. We must also determine whether the error was reversible. In cases such as the one before us, prior caselaw has been that a judgment will not be reversed for the erroneous admission of evidence unless there is a reasonable possibility that the evidence complained of contributed to the punishment assessed. Prior v. State, 647 S.W.2d 956, 960 (Tex.Cr.App.1983), and Templin v. State, 711 S.W.2d 30 (Tex.Cr.App.1986). See also Plante, supra, Bordelon v. State, 683 S.W.2d 9 (Tex.Cr.App.1985), Johnson v. State, 660 S.W.2d 536 (Tex.Cr.App.1983), and Ward v. State, 657 S.W.2d 133 (Tex.Cr.App.1983).

Our current standard is embodied in Texas Rule of Appellate Procedure 81(b)(2), which states:

(2) Criminal Cases. If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. [Emphasis supplied]

In the case at bar, the evidence presented during the guilt-innocence stage of the trial established that the victim and appellant had frequent quarrels during the seven years they were married. A number of quarrels involved acts of violence by the victim against appellant. Just prior to the stabbing in question, the victim and appellant argued, and the victim threatened to divorce appellant. Appellant’s testimony also shows that the victim cut appellant with the knife three times before he stabbed her. Appellant had never before been convicted of a felony and was therefore eligible for probation.

As previously stated, the jury assessed the maximum punishment of life imprisonment and a $10,000 fine. The State’s entire contention concerning the extraneous offenses was that they were relevant to appellant’s application for probation. Even in view of the facts of this case, we cannot conclude beyond a reasonable doubt that the extraneous offenses made no contribution to the punishment. Thus, the trial court committed reversible error in admitting evidence of five prior acts of misconduct.

Accordingly, the decision of the Court of Appeals reversing the judgment of the trial court and remanding it to that court is affirmed.

McCORMICK, TEAGUE and DUNCAN, JJ., concur in the result.

Footnotes

1

. In their own discussion of Allaben, the Court of Appeals distinguished the present case from the Holmes, Cleveland, Davis and McCrea cases cited above. Characterizing these cases permitting evidence of extraneous offenses to correct a false impression created by a defendant before the jury, they said that no such false impression had been created by the appellant (see summary of appellant’s evidence, in paragraph two, ante). Our reading of those cases makes it clear that whatever characterization or false impression language might have been used in them, the true basis for their holding was Allaben, supra. For a recent and authoritative discussion of the doctrine that allows the State to correct a false impression left by a defendant, see Prescott v. State, 744 S.W.2d 128 (Tex.Cr.App.1988).

2

. See and compare current Tex.R.Cr.Evid. 403:

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.

3

. It may, for instance, be more probative if the extraneous offense was committed by a defendant after charges were brought against him.

4

. We note that the current germane portion of Art. 37.07 reads as follows:

Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty, (a) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

[emphasis supplied]

Acts 1987, 70th Leg., ch. 1101, § 15, eff. Sept. 1, 1987.

The rules of evidence arguably applicable to situations such as the case at bar are Tex.R.Cr. Evid. 608 and 609, 401 (quoted supra) through 405, and especially 404(c), which states:

"(c) Character relevant to punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused....”

[emphasis supplied]

It would seem then that our holding today is unaffected by the promulgation of these rules.