Rankin v. State

974 S.W.2d 707, 1998 Tex. Crim. App. LEXIS 89, 1996 WL 165014

• Court: Court of Criminal Appeals of Texas
• Decided: July 8, 1998
• Docket: 0374-94
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MEYERS, Judge.

A jury found appellant, Randall Allen Rankin, guilty of aggravated sexual assault and assessed a sentence of fifty years confinement. The evidence at trial indicated that complainant, her sister and three of their friends were swimming and playing at one of their friends’ house when appellant offered them a chance to ride on his horse. Appellant took complainant, her sister Wendy and complainant’s friend Linda for a ride. Both Linda and Wendy testified that appellant fondled their “privates” during their respective rides. Complainant also testified that appellant had touched her “privates,” as well as her breasts. She went on to state that this unsolicited touching culminated in appellant’s painful insertion of his finger in her “private.”

Appellant, pursuant to Rule 404(b) and Rule 403, objected to both Linda and Wendy’s testimony as inadmissible extraneous offense evidence. The trial judge overruled this objection, allowing the testimony. Tex. R.Crim.Evid. 404(b) & Tex.R.Crim.Evid. 403. Appellant then asked the judge to deliver a limiting instruction as to the extraneous offense testimony. The judge declined to give the limiting instruction at that time, but delivered the instruction, instead, at the time of the final jury charge.

The Houston Court of Appeals, Fourteenth Supreme Judicial District, affirmed, concluding that the trial judge properly admitted the extraneous offense testimony to show a common scheme or plan, that the probative value of such evidence outweighed its prejudicial effect, and that the trial judge acted within his discretion when he administered the limiting instruction during the jury charge instead of when the evidence was admitted. Rankin v. State, 872 S.W.2d 279 (Tex.App.—Houston 1994). We granted discretionary review to determine whether the Fourteenth Court of Appeals erred in its determinations.

I.

A Rule íOJf(b)

Rule 401 defines relevancy¹ and Rule 402 states:

All 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 inadmissible. Tex.R.Crim.Evid. 402.

Pursuant to the above Rule, even when no statute or rule exists barring the admissibility of relevant evidence, a court may deny its admission because of a constitutional impediment. However, when the admission of relevant evidence stands unobstructed by a constitution, statute or rule, then the judge must allow it in.

Rule 404(b) exemplifies an exception as contemplated by Rule 402. Rule 404(b) exists, in large part, to counter the possibility that evidence may be admitted to show a defendant’s corrupt nature from which the jury may then render a verdict not on the facts of the case before them, but, rather, on their perception of the defendant’s character. Goode, Wellborn & Sharlot, Texas Practice: Teosas Rules of Evidence: Civil and Criminal Sec. 404.2 (1988), at 106. Rule 404(b) reads, in pertinent part:

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 ...

Under this rule, extraneous evidence introduced solely to show character conformity is inadmissible. But, reading Rule 404(b) in light of Rule 401 and Rule 402, if evidence 1) is introduced for a purpose other than character conformity, 2) has relevance to a “fact of consequence” in the case and 3) remains free of any other constitutional or statutory prohibitions, it is admissible.

If we view the above sentence as a three part admissibility test, then, as to the first part, this Court has consistently recognized what is apparent from the face of 404(b): “... the Rule’s list of ‘other purposes’ is ‘neither exclusive nor collectively exhaustive.’” Montgomery v. State, 810 S.W.2d 372, 388 (Tex.Crim.App.1991). As far- as we can discern, the second sentence in Rule 404(b) serves no purpose other than an exemplary one and, as is evident in this case, has sometimes been more a source of confusion than guidance.

The mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, in itself, make that evidence admissible. Admissibility of evidence under Rule 404(b), in fact, also hinges on the relevancy of the evidence to a “fact of consequence” in the case. Indeed, when a party makes a 404(b) objection, they are claiming that evidence is being introduced solely for character conformity or, in other words, that the evidence is irrelevant to anything other than character conformity. They need not explicitly state a Rule 402 objection since one is inherent in their Rule 404(b) objection. We find then, consistent with our analysis in Montgomery, 810 S.W.2d at 387, that a Rule 404(b) objection demands a relevancy analysis. To find otherwise might result in courts admitting evidence that is both highly prejudicial and irrelevant even after a proper 404(b) objection and despite the existence of Rule 401 and Rule 402. Such a result, we feel, would be absurd and contrary to one of the main purposes of the Rules.

When we say that evidence is relevant, we are necessarily saying, pursuant to Rule 402, that the evidence makes a fact of consequence in the case more or less likely. Rule 402, supra. As we stated in Montgomery, 810 S.W.2d at 387:

... a party may introduce ... evidence where it logically serves to ‘make ... more probable or less probable’ an elemental fact; where it serves ‘to make more probable or less probable’ an evidentiary fact that inferentially leads to an elemental fact; or where it serves ‘to make more probable or less probable’ defensive evidence that undermines an elemental fact.

Under Montgomery, then, it appears that “fact of consequence” includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. An evi-dentiary fact that stands wholly unconnected to an elemental fact, however, is not a “fact of consequence.” A court that articulates the relevancy of evidence to an evidentiary fact but does not, in any way, draw the inference to an elemental fact has not completed the necessary relevancy inquiry because it has not shown how the evidence makes a “fact of consequence” in the ease more or less likely.

In this case, the court of appeals latched onto the phrase “common scheme or plan,” and held the evidence admissible because it was being introduced for the purpose of showing that plan. Introducing evidence for a purpose other than character conformity does not, somehow, make that evidence magically admissible. The question of whether evidence should be admitted after a 404(b) objection necessitates a relevancy inquiry. Following the court of appeals’ analysis, the relevancy inquiry here would have been: 1) Does this evidence make the existence of a “common scheme or plan” more or less likely? and 2) Can we infer an elemental fact from the existence of a plan? This kind of relevancy inquiry is complicated and entirely unnecessary. Here, the court needed only to ask if the extraneous offense testimony was relevant to any fact of consequence in the case other than character conformity. The trial court, for example, could have admitted Linda and Wendy’s testimony as evidence relevant to show appellant’s intent. Testimony that the appellant sexually molested two girls just before he molested the complainant makes it more likely that appellant did not act accidentally, but with intent. In fact, it appears, as appellant deftly points out in his brief, that “common scheme or plan [was] only a theory for the prosecution to bridge the gap between the act and the intent so that the State [could] attempt to show that a defendant acted with a culpable mental state.” Brief for Appellant at 11, Rankin v. State, 872 S.W.2d 279 (Tex.App.—Houston 1994, PDR granted). The court of appeals, however, failed to bridge that gap.

Instead of focusing on how the evidence was relevant to show a fact of consequence in this case, the court of appeals attempted to show how the evidence tended to show a common scheme or plan.² Furthermore, the court did not attempt to show how the existence of a plan related to intent or any other fact of consequence in the case. Of course, it is not up to this court to make findings as to the relevancy of this evidence in the first instance. Because the court of appeals has not conducted a complete relevancy analysis, we remand this case to them so that they may make a determination on this issue.

B. Rule kOS

Rule 403 is yet another exception to the general rule of admissibility under 402. Rule 403 states:

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. Tex.R.Crim.Evid. 403.

Rule 403 acts as a further check on the admissibility of evidence. In other words, even though extraneous evidence meets all the requirements for admissibility under 404(b), the trial court may disallow it as excessively prejudicial. The court is not required to prohibit such evidence. The court must, however, engage in the balancing test of Rule 403 if a proper Rule 403 objection is made. Montgomery, 810 S.W.2d at 388.

The court of appeals here found the 403 objection preserved and they addressed the merits of that issue, finding that the probative value of the extraneous offense testimony outweighed its prejudicial effect. Rankin, 872 S.W.2d at 283. The appellant then, on appeal to this Court, objected to the Court of Appeals’ use of the extraneous offense testimony. Although we should not reverse a determination that results from a properly conducted Rule 403 balancing test merely because we disagree with the result, it is proper to reverse a lower court’s decision when the test they have employed is incorrect or incomplete. Arcila v. State, 834 S.W.2d 357, 361 (Tex.Crim.App.1992). In Arcila, this Court determined that it ought not reverse the lower court’s Rule 403 determination, noting that the Dallas Court of Appeals’ opinion "... evaluates [the] issues according to settled rules of law, accounts for all evidence relevant to the questions presented, and reaches a conclusion adequately supported by the law and the evidence.” Id. In this case, however, the Court of Appeals conclusively stated, “[w]e have reviewed the evidence, and find that the trial court did not abuse its discretion in admitting the extraneous acts.” Rankin, 872 S.W.2d at 283. The court failed to detail the evidence it used in arriving at its conclusion. In fact, it is difficult to find much Rule 403 analysis at all in the five sentences the Court of Appeals dedicated to that question. Although the Court of Appeals properly recognized that, when conducting a Rule 403 balancing test, the “probativeness” of the evidence “is the weightier consideration,” the court failed to discuss the factors necessary for a comprehensive Rule 403 analysis. Rankin, 872 S.W.2d at 283. As this Court has previously stated, and we now reiterate, a complete Rule 403 balancing test demands an inquiry as to all the factors set out in Montgomery, 810 S.W.2d at 389-90, 392-93. Their job, however, does not end there. They must also, consistent with Arcila, fully account for all the evidence relevant to their 403 analysis.

Although the decisions of the Texas Supreme Court in no way bind us, the above holding comports with that court’s holding in Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986), where it required that the court of appeals fully articulate both the evidence and reasoning behind them decision to reverse the verdict on insufficiency grounds. That court found that such an explanation creates a basis on which to determine whether the lower court employed the correct standard in coming to them decision. See also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652-53 (Tex.1988). Likewise, we hold that courts of appeals must fully explain their Rule 403 determinations, detailing both the evidence and reasoning used to arrive at those decisions, else we may be unable to discern whether the correct test was used in reaching any given result.

Appellant’s first ground of review is therefore sustained and, in conjunction with our disposition of appellant’s second ground of review, we remand this case to the court of appeals for an analysis consistent with our holdings.

II.

Our second ground of review’ involves Tex. R.Crim.Evid. 105(a) which states, in pertinent part:

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly ...

The question in this case does not go to the duty of the trial judge to give a limiting instruction, but, rather, to the timing of the instruction. Appellant argues that Rule 105(a) mandated a limiting instruction at the time the extraneous offense testimony came into evidence and that the comí; of appeals erred in affirming the trial court’s decision to administer the limiting instruction at the jury charge. The state urges that the timing of the limiting instruction is discretionary upon the trial judge. We feel that the appellant has the better of these two arguments.

The language of Rule 105(a) does not address the temporal aspect of when limiting instructions should be given, but, rather, sets out the circumstances under which an instruction must be given. Tex. R.Crim.Evid. 105(a). However, in analyzing the dispute before us today, we assume that the spirit of the rule and the contemplation of the rule-makers includes two separate notions: First, that limiting instructions actually curb the improper use of evidence and, second, that the rule should act in a way that not only “restrict[s] the evidence to its proper scope”, but does so as effectively as possible. Tex.R.Crim.Evid. 105(a). Working under these notions, logic demands that the instruction be given at the first opportunity. If limiting instructions impede the improper use of evidence, then an instruction given when the evidence is admitted limits that evidence to its proper scope immediately. An instruction given for the first time during the jury charge necessarily leaves a window of time in which the jury can contemplate the evidence in an inappropriate manner. For example, as in this case, if the State offered evidence to show that a defendant accused of child molestation had previously molested two other young girls, then that evidence may properly be considered to show intent to molest the complainant. However, jurors may also improperly use that evidence to form a negative opinion of the defendant prior to receiving limiting instructions from the judge. Jurors cannot be expected to know exactly how to use the evidence unless we tell them, nor can we guarantee that they will “remain open-minded until the presentation of all of the evidence and instructions ...” See Morrison v. State, 845 S.W.2d 882, 887 (Tex.Crim.App.1992). Additionally, we cannot tell how jurors have used the admitted evidence. Thus, the possibility exists that, unless we instruct the jury on evidence concurrently with its admittance, jurors may, unbeknownst to us, use that evidence improperly by forming an indelible perception of the defendant that will work unfairly to his inevitable detriment. As deftly stated by Professors Wright and Graham:

The purpose of ... midtrial limiting instructions is to insure that the jurors realize the proper use of each bit of evidence as it comes in. Where the jurors have been accumulating their impressions of the evidence over the course of the trial, it is impossible for them to go back at the close of the trial and reassess the evidence in light of the limiting instruction, even if they could appreciate which items of evidence the instruction was supposed to apply to. These difficulties are avoided by instructions at the time of introduction of evidence received for a limited purpose. 21 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure, Evidence § 5065.

Limiting instructions given for the first time during the jury charge thus do not constitute an efficacious application of Rule 105(a) since it allows for the possibility that evidence will be used improperly in clear contravention to the purpose of the rule. Since limiting instructions operate most effectively when given simultaneously with the relevant evidence, it would not do to grant trial courts “discretion” to deliver those instructions, after they had been properly requested, at a less opportune time.

Additionally, the trend among state courts favors limiting instructions concomitant with the admission of evidence. In State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516, 528 (1994), the Supreme Court of Appeals of West Virginia, reversing a first degree murder conviction and addressing Rule 404(b) evidence, stated not only that a limiting instruction “should be given at the time the evidence is offered,” but went on to “recommend that it be repeated in the trial court’s general charge to the jury at the conclusion of evidence.”³ See also, State v. McGhee, 193 , 465 S.E.2d 533, 539 (1995); Jupiter Inlet Corp. v. Brocard, 546 So.2d 1, 3 (Fla.App. 4 Dist.1988), rev. denied, 551 So.2d 461 (1989) (holding that the trial judge had to administer a contemporaneous limiting instruction when an Occupational Safety Hazard Act regulation was admitted into evidence); Yukon Equipment, Inc. v. Gordon, 660 P.2d 428, 435-36 (Alaska 1983), overruled on other grounds by Williford v. L .J. Carr Investments, Inc., 783 P.2d 235 (Alaska 1989) (stating that it “is important that a limiting instruction be given simultaneously” when hearsay evidence entered). In Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841, 845 (1977), the court left the timing of the limiting instruction to the discretion of the trial judge. The court, however, emphasized that “it is better to give the limiting instruction at the time the evidence is admitted.” Id.

In fact, the Tenth Circuit, recognizing some of these detrimental effects, has stated:

If evidence is admitted solely under the authority of Rule 404(b), the court must give a limiting instruction both at the time the evidence is admitted and in the general charge to minimize the danger that the jury might use the evidence as proof that the defendant acted in conformity with his past acts on the occasion for which he is being tried. U.S. v. Rivera, 837 F.2d 906, 913 (1988). But see, U.S. v. Grageda-Chavez, U.S. v. Barajas-Cardenas, 927 F.2d 611 (1991) (In an unpublished opinion, the Ninth Circuit declined to adopt the “strict rule” of Rivera).

Fed.R.Evid. 404(b), like Tex.R.Crim.Evid. 404(b), provides a mechanism for allowing the admission of extraneous offense evidence not introduced to show character conformity.

Both the Seventh and Fifth Circuits have indicated that limiting instructions may be given when evidence is admitted or at the jury charge. U.S. v. Annoreno, 460 F.2d 1303, 1307-08 (7th Cir.1972), cert. denied, 409 U.S. 852, 93 S.Ct. 64, 34 L.Ed.2d 95 (1972). United States v. Allen, 468 F.2d 612, 613 (5th Cir.1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973). But the Fifth Circuit, in Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 266 (1980), reh’g denied, 634 F.2d 1355 (5th Cir.1980), noted that, pursuant to Fed.R.Evid. 105, although limiting instructions may be requested and received at the end of a trial, they are “generally more effective at the time the evidence is presented ...” Id (emphasis added).

In the case at hand, appellant requested a limiting instruction not at the end of the trial, as in Lubbock Feed Lots, but at the time the trial court admitted the extraneous offense testimony into evidence. The trial judge denied this request, deferring the limiting instruction until the jury charge. Because we have determined that Tex.R.Crim.Evid. 105 requires a limiting instruction, upon proper request, when evidence is admitted and because we see no reason not to adopt the “better” and most effective application of Rule 105(a), we hold that the court of appeals erred in affirming the trial court’s decision to defer the limiting instruction until the jury charge. Having held the court of appeals in error, we remand this case to them so that they may determine whether such error is subject to an harmless error analysis under Tex.RApp.P. 81(b)(2), and, if so, whether the error is harmless in fact.

III.

We therefore remand this case to the court of appeals for the reconsideration of the following issues: Whether the extraneous offense testimony is relevant to a fact of consequence in this case. See Part IA. If the court of appeals finds it is, it should proceed to an analysis of whether it nevertheless should have been excluded under the balancing test of Rule 403, and articulate the application of that test to the facts of this ease in its opinion. See Part IB. If the court of appeals finds the evidence inadmissible, it should proceed to an harm analysis under Tex.R.App.P. 81(b)(2). Should the court find the evidence admissible, it should then proceed to decide whether the error in failing to give a timely limiting instruction is subject to an harmless error analysis, and, if so, whether it is harmless. See Part II.

The judgment of the court of appeals is vacated and the cause is remanded for that court to address as many of these issues as is necessary for the disposition of this case in a manner not inconsistent with this opinion.

MANSFIELD J., dissents.

1 . “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. Tex.R.Crim. Evid. 401.

2 . The court of appeals' analysis on this point falls short. The evidence showing extraneous offenses is no more indicative of a plan than of the possibility that the appellant did not know what was going to happen when he brought the horse over to the girls, but, instead, formed the intent to molest each girl separately.

3 . Although not before us today, Tex.Crim.Proc.Code Ann. art. 36.14 would seem to require limiting instructions in the jury charge. That statute states, in pertinent part:

"... in each felony case and in each misdemeanor case tried in a court of record, the judge shall, before the argument begins, deliver to the jury, except in pleas of guilty, where a jury has been waived, a written charge distinctly setting forth the law applicable to the case;”

Thus, pursuant both to our ruling today and to art. 36.14, jury instructions, if requested, should be given when the evidence is admitted and then again at the final jury charge.