IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY
I join the Court's opinion to the extent that it holds that appellant fails the third prong of the Peterson (1) test, because the habeas trial court was within its discretion to believe that the prosecutor did not act intentionally or recklessly with respect to the mistrial. I disagree, however, with the Court's conclusions regarding the first two prongs of the Peterson test. The prosecutor's conduct was not manifestly improper and any alleged error was curable.
Peterson dictates that the impropriety be "manifest," and the manifest nature of the impropriety is judged from an objective standpoint. (2) In this vein, we noted that when "the law itself is unsettled or application of the law in the particular situation is debatable, the prosecutor's conduct cannot be said to be manifestly improper." (3)
The Court acknowledges that there was no violation of Rule 411. (4) Rule 411 prohibits only evidence of the fact of insurance and does not operate to prevent evidence of an insurance investigation or the conclusions derived from such an investigation. (5) Appellant's possession of liability insurance had already been revealed to the jury, without objection, and in fact, that information is not likely to have made any particular impression on the jurors because automobile liability insurance is required by law.
There are also at least some good arguments for admitting, under the hearsay rule, the evidence sought by the disputed question. The insurance company's admission of fault appears to be a statement against interest. (6) Even if it were not, this type of evidence appears to be admissible - as the Court suggests - to impeach the defendant's expert witness. (7)
The Court says that the State's question was a violation of Rule 403 (8) because it was unfairly prejudicial. Most commonly, an unfair prejudice claim flows from the admission of evidence for a limited purpose under some other evidentiary rule, such as Rule 404(b), (9) and the question is whether the probative value of the evidence to show a limited purpose (e.g. motive) outweighs the prejudice flowing from the improper purpose the other rule of evidence is designed to protect against (e.g. character conformity). (10) But the Court does not claim that appellant suffered any prejudice emanating from Rule 411, Rule 801 (hearsay), or any other rule. Rather, the Court reaches a generalized "unfair prejudice" conclusion without citing any Texas cases for support. I cannot agree that the prosecutor's conduct, under those circumstances, can accurately be characterized as manifestly improper.
The Court claims that an insurance carrier might have any number of reasons to admit fault, but that is difficult to imagine. Insurance companies rarely ever admit fault, even when they settle. Moreover, it is not clear from the record where and how this admission of fault was made. The "admission of fault" may simply be the conclusion made by the insurance company adjustor at the end of his investigation. It was the defendant's burden to show otherwise at the habeas hearing, and he did not attempt to do so.
Finally, any error associated with the question could have been cured by requiring the State to bring the insurance witnesses into court to testify, as the State claimed it was ready to do. Any admission of fault abstractly made by the insurance company (if such were even the case) could then be placed in its proper context. The investigator's association with the defendant's insurance company would be a fact relevant to assessing the credibility of his testimony and of the investigation in general.
Date filed: October 4, 2006
Publish
1. 117 S.W.3d 804 (Tex. Crim. App. 2003).
2. Id. at 816 n. 55.
3. Id.
4. Rule 411 provides:
Evidence that a person was or was not insured against liability is not admissible
upon the issue of whether the person acted negligently or otherwise wrongfully.
This rule does not require the exclusion of evidence of insurance against liability
when offered for another issue, such as proof of agency, ownership or control, if
disputed, or bias or prejudice of a witness.
5. See Advisory Committee's Note, Fed. R. Evid. 411; Stephen A. Saltzburg, Daniel J.
Capra, and Michael H. Martin, Commentary, Fed. R. Evid. 411 (U.S.C.S.).
6. A statement against interest includes, among other things, a "statement which was at
the time of its making so far contrary to the declarant's pecuniary . . . interest, or so far tended to
subject the declarant to civil . . . liability, . . . that a reasonable person in declarant's position
would not have made the statement unless believing it to be true." Tex. R. Evid. 803(24).
7. Ramirez v. State, 815 S.W.2d 636, 651 (Tex. Crim. App. 1991)(learned treatise not
relied upon by expert witness may be admissible "to demonstrate any deficiency in the expert's
knowledge and to help the jury determine the weight to be given the testimony"); Michael H.
Graham, Evidence: Text, Rules, Illustrations, Problems, Revised 2nd Ed., 274-275 (1989)
"facts, data, or opinions" not relied upon by expert witness may be admissible to test
"qualifications, knowledge, fairness, and basis of the expert's opinion"). See also Moranza v.
State, 913 S.W.2d 718, 726-727 (Tex. App.-Waco 1995, pet. ref'd)(expert witness that relied
upon a report properly impeached with missing portion that was not relied upon).
8. Rule 403 provides:
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.
9. Rule 404(b) provides in relevant part :
Evidence of other crimes, wrongs or acts is not admissible to prove the character
of a person in order to show action 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. . .
10. See, for example, Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991).