Rogers v. State

853 S.W.2d 29, 1993 Tex. Crim. App. LEXIS 71, 1993 WL 91550

• Court: Court of Criminal Appeals of Texas
• Decided: March 31, 1993
• Docket: 0268-90, 0269-90
• Status: Published

Opinions

CLINTON, Judge,

concurring.

I join the majority opinion in this cause, but only with the following supplement. The majority observes that:

“[ejvidence that appellant uses and sells one type of controlled substance (marijuana) could arguably make it more probable that appellant would also be inclined to be in possession of another type of illegal substance (methamphetamine).”

Majority opinion at 32. Thus the majority finds that the trial court could have been justified in finding appellant’s sale and use of marijuana relevant to show he possessed methamphetamine, presumably under Tex. R.Cr.Evid., Rules 401 and 402. The majority then proceeds to inquire whether it is admissible under any of the “exceptions” enumerated in Tex.R.Cr.Evid., Rule 404(b). It is important to note in this process that the relevance the majority discerns under Rules 401 and 402 is purely of the “character conformity” variety. Rule 404(b) prohibits the use of such evidence, albeit relevant in that respect, unless the evidence may also tend to establish a fact of consequence quite apart from its “character conformity” value, by way of showing, e.g., motive, intent, etc. Otherwise, the riile-makers have already determined as a matter of law that the evidence is substantially more prejudicial than probative. See Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion).

Rule 404(b) does not contain an exhaustive list of ways that evidence of “other crimes, wrongs, or acts” may establish a fact of consequence other than by character conformity. However, the majority makes the same mistake it did in Lockhart v. State, 847 S.W.2d 568 (Tex.Cr.App.1992, rehearing denied February 24, 1993), to interpret Mayes v. State, 816 S.W.2d 79 (Tex.Cr.App.1991), to hold that evidence of “other crimes, wrongs, or acts” that are part of the “same transaction” as the offense prosecuted are admissible under Rule 404(b). Mayes did not decide that question, but left it open. Lockhart v. State, supra, (Clinton, J., dissenting, at 575). In any event, I am willing to join the majority’s addition of “necessity” to the list of permissible uses of “other crimes, wrongs, or acts” evidence under Rule 404(b), majority opinion at 33, bearing in mind the following three qualifications.

First, it should be understood that by “necessity” is meant that it is impossible to present a coherent picture of the charged offense without inadvertently proving the “other crime, wrong, or act.” In this sense, of course, it is not so much that the proponent of the evidence can put it to some “purpose” other than character conformity, under Rule 404(b), as much as that he simply cannot present his case without also incidentally proving the extraneous offense. Second, because the evidence is only admitted out of “necessity,” and does not genuinely serve a “purpose” other than character conformity, a limiting instruction should always be given upon request of the opponent of such evidence. Third, and again because “necessity” is not truly a “purpose” other than character conformity to which “other crimes, wrongs, or acts” can be put, neither this Court nor trial courts should allow the word to degenerate into a talisman for admissibility, as over the years “res gestae” did. To avoid that potentiality, trial courts should require the proponent of the evidence, upon objection, convincingly to explain that coherent proof of the charged offense unavoidably establishes the “other crime, wrong, or act” as well, just as the proponent must satisfy the trial court that one of the actual “purposes” to which such evidence may be admitted under Rule 404(b) genuinely applies. Montgomery v. State, supra, at 387.

With these qualifications, I join the judgment and opinion of the majority.