APPELLANT
APPELLEE
After finding appellant guilty of the offense of burglary of a habitation, Tex. Penal Code Ann. § 30.02(a)(1) (West 1989), the jury assessed punishment at seventy years' confinement. In a single point of error, appellant asserts that the court erred in admitting into evidence at the punishment phase of the trial extraneous, unadjudicated offense, and their details over timely objection. We will reverse the trial court's judgment and remand for a new hearing on punishment.
Appellant's point of error raises the issue of whether the 1989 amendment to Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (West Supp. 1993) permits evidence of extraneous offenses other than final convictions at the punishment stage of the trial in noncapital offenses. (1)
The pertinent portion of art. 37.07, § (3)(a), amended effective September 1, 1989, provides:
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 any matter the court deems relevant to sentencing, including 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 reflects portion added by amendment).
Over the appellant's objection, the court admitted evidence at the punishment phase of the trial of an aggravated robbery in which the complaining witness identified the appellant as the person who robbed her. It is undisputed that this is an extraneous unadjudicated offense that occurred three days prior to the instant offense.
The Court of Criminal Appeals, in Grunsfield v. State, No. 1037-91 (Tex. Crim. App., October 28, 1992), affirming Grunsfield v. State, 813 S.W.2d 158 (Tex. App.--Dallas 1991), held that evidence of extraneous unadjudicated offenses was improperly admitted during the punishment phase of a noncapital case. The court, in construing art. 37.07, § (3)(a), reasoned that in giving "meaning to the provision as a whole," evidence of extraneous unadjudicated offenses does not come within, "the court's historical construction of the term prior criminal record." The court remanded the cause to the trial court for further proceedings consistent with Tex. Code. Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993). (2)
The State urges that appellant failed to preserve error for review by not obtaining an adverse ruling to his objection. In Cook v. State, 741 S.W.2d 928, 939 (Tex. Crim. App. 1987), the only response defense counsel received from the court to his objection to the prosecutor's argument was, "Counsel stay within the record, please." The court held that in order to preserve error for review a defendant must pursue his objection until an adverse ruling is received.
Prior to the beginning of the punishment phase of the trial, in a hearing out of the presence of the jury, the prosecutor made it known that the State intended to introduce evidence of an extraneous aggravated robbery offense. Defense counsel objected "to the introduction of any extraneous offense . . . he certainly hasn't been convicted . . . it doesn't fall under the exception of prior criminal record." The court stated that it felt it would be helpful to hear the evidence surrounding the extraneous offense before making a ruling. Out of the presence of the jury, Pam Arwood identified appellant as the person who robbed her at gunpoint at her video store on October 19, 1989. At the conclusion of Arwood's testimony, defense counsel again voiced the objection that an unadjudicated extraneous offense is not admissible at the punishment phase of the trial. The court responded that it would "allow the evidence in." When Arwood was called in the presence of the jury, defense counsel again objected to evidence of extraneous offenses and the court overruled the objection. At the conclusion of Arwood's testimony, appellant's motion that all the testimony "from this witness be stricken from the record" was overruled by the court. Unlike Cook, we find that appellant received adverse rulings from the court on his objections.
After the Grunsfield court determined that unadjudicated extraneous offenses were not admissible at the punishment phase of the trial, the court stated that it became necessary to determine whether the error requires remand to the trial court for a new hearing on punishment under Tex. R. App. P. 81(b)(2). Rule 81(b)(2) provides that an appellate court will 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." The only prior offense for which appellant was shown to have been convicted was misdemeanor possession of marihuana. We are unable to determine beyond a reasonable doubt that the trial court's error in allowing the jury to hear testimony about the unadjudicated offense of aggravated robbery made no contribution to the punishment assessed. We sustain appellant's point of error.
We reverse the trial court's judgment and remand the cause for further proceedings pursuant to Tex. Code Crim. Proc. Ann. art. 44.29(b) (West Supp. 1993).
Tom G. Davis, Justice
[Before Justices Jones, B. A. Smith and Davis*]
Reversed and Remanded
Filed: January 13, 1993
[Do Not Publish]
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).
1. Tex. Code Crim. Proc. Ann. art. 37.071, § 2(a) (West Supp. 1993) addresses the matter of evidence that may be introduced at the punishment phase in a capital case.
2. Art. 44.29(b) provides for the retrial of the punishment phase of the trial where an appellate court awards a new trial to a defendant on the basis of an error or errors made at the punishment phase of the trial.