IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
v.
THE STATE OF TEXAS
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
DISSENTING OPINION
I disagree that the court of appeals in this cause ignored a viable theory of admissibility under Rule 404(b), or that its balancing analysis under Rule 403 was flawed. (1) Because I cannot find fault with the court of appeals's conclusion that the error in admitting the so-called "car dumping" incident was harmful, I would affirm its judgment.
Rule 404(b)
The court of appeals held that the "car dumping" incident was not admissible either to prove motive or intent; nor was it admissible to rebut a defensive theory. (2) The majority today does not take issue with any of these holdings, essentially acknowledging that the "car dumping" incident logically served none of the non-character-conformity purposes adduced by the State. (3) Nor does the majority accept the State's invitation to overrule our opinion in Smith v. State. (4) Indeed, the majority reconfirms the core holding of Smith, viz: that to be admissible under Article 38.36(a) of the Code of Criminal Procedure, (5) evidence must be relevant to some non-character-conformity purpose. That is to say, it must tend to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without that evidence, and it must do so employing a logical inference other than character conformity. (6) In its opinion below, the court of appeals adhered to Smith scrupulously. (7)
Nevertheless, the majority faults the court of appeals insofar as it "failed to consider that in this case, the relationship between the Appellant and the victim was itself a material issue." (8) The only elaboration on this criticism comes a few sentences later, when the majority observes: "The court of appeals failed to consider that the circumstances surrounding the relationship at the time of the killing is relevant evidence under Article 38.36(a) and the car dumping incident is admissible under Rule 404(b) for the purpose of illustrating the nature of their relationship." (9) But the majority does not explain how "illustrating the nature of their relationship" in the context of this case advances the evidentiary ball in any way that does not exclusively involve impermissible inferences of character conformity.
Given how faithfully the court of appeals adhered to our Smith opinion, it is not at all surprising that it failed to come up with nature-of-the-relationship as an operative theory of admissibility under Rule 404(b). Nor did the State make this argument in its appellate briefs. We were quite explicit in Smith that, before evidence of "the previous relationship existing between the accused and the deceased" may be introduced, the proponent of that evidence must be able to identify some non-character-conformity purpose. It is true that the purpose does not have to be listed in Rule 404(b), since the rule itself is "illustrative," and not exhaustive. (10) But the evidence must logically serve to make more probable or less probable an elemental fact; make more probable or less probable an evidentiary fact leading inferentially to an elemental fact; or make more probable or less probable defensive evidence that undermines an elemental fact. (11) It goes without saying that the nature of the relationship is not, in itself, an "elemental fact." The majority today does not tell us how nature of the relationship may constitute an evidentiary fact that inferentially establishes or undermines an elemental fact. Nor has the State suggested any way that it does.
Later, albeit in the context of its discussion of Rule 403, the majority provides further insight when it explains that "the evidence was probative of the relationship between Appellant and [his wife], and was necessary to tie together the events beginning with their first separation, including the subject matter of their counseling sessions, which ultimately explained why [his wife] filed for divorce." (12) It is not self-evident how any of this makes more or less probable any fact of consequence to the determination whether the appellant murdered his wife, other than to show general animus or ill will toward her. But, once again relying appropriately upon our opinion in Smith, the court of appeals responded to the State's contention that the "car dumping" incident was admissible to show ill will and anger, thus:
An extraneous offense that merely shows general ill will cannot alone be sufficient. Otherwise, the court of criminal appeals would not have held that evidence under article 38.36 must still pass rule 404(b) muster. See Smith, 5 S.W.3d at 679. Here, the "car dumping" incident shows general ill will on one occasion. It simply is not probative of [the appellant's] motive to murder [his wife] two years later. (13)
All that the majority has done today is to re-cast the State's "ill will" theory of admissibility, which the court of appeals expressly rejected, as nature of the relationship evidence, and declare that the court of appeals ignored it. But the court of appeals did not ignore it. It simply found it too remote to be probative. I see no reason to disagree.
Rule 403
But even assuming that the majority is correct today to claim that nature-of-the-relationship evidence is somehow a legitimate purpose, apart from "ill will," under Rule 404(b), it does not adequately refute the court of appeals's conclusion that evidence of the "car dumping" incident was substantially more prejudicial than probative. The majority declares that the court of appeals's analysis was "inevitably skewed" by its failure to recognize the probative value of the evidence. (14) To the extent that the majority's nature of the relationship theory of admissibility is really just a reformulation of the State's ill will theory, it is not accurate to say the court of appeals failed to recognize it. In fact, the court of appeals recognized it, and rightly rejected it.
But again, even entertaining the assumption that the majority's nature of the relationship theory has some legitimate, non-character-conformity purpose under Rule 404(b), the evidence was still substantially more prejudicial than probative. As the court of appeals noted when it assumed (as I do, arguendo, and only for purposes of the Rule 403 analysis) that the "car dumping" incident had legitimacy as "motive" evidence, there was plenty of other evidence to show the appellant's anger and ill will toward his wife. (15) The State had no need to disclose the "car dumping" incident. That the appellant and his wife were in marriage counseling, that the counseling was not helping, and that his wife had filed for divorce, precipitating disputes about money and child custody, was all the evidence of either ill will, motive, or nature of the relationship that the State could possibly need. Adding the "car dumping" incident, even for its arguably explanatory value (if any), did not appreciably contribute to the inference that the appellant wanted (or intended, or had motive, or was angry at, and therefore resolved) to kill his wife. Aside from its character-conformity value, the "car dumping" incident did not enhance the state's nature of the relationship purpose under Rule 404(b). The State had no compelling need for it.
The majority also invokes the trial court's limiting instructions as reason to believe that "any potential prejudice was" insignificant. (16) But the trial court's instructions, both during the course of trial and in its charge to the court at the guilt phase of trial, limited the jury's consideration of extraneous misconduct only to the issues of intent and motive. The court of appeals concluded that evidence of the "car dumping" incident did not legitimately serve these purposes, and the majority does not contest that conclusion today. In fact, then, the limiting instructions only exacerbated the prejudicial impact of the evidence, for it likely led the jury to believe it could consider the evidence for impermissible character-conformity purposes in the false guise of "intent" or "motive."
Rule 44.2(b) (17)
The State argues in its brief on the merits on discretionary review that the court of appeals "erred by failing to correctly apply" Rule 44.2(b). Reading on, however, it is apparent that the State does not mean by this that the court of appeals somehow misconstrued the language of the rule, or ignored this Court's precedents construing it. The State just contends that the court of appeals reached the wrong result. Were this the only ground for review in the case, in all probability we would never have granted it, since we do not ordinarily exercise our power of discretionary review to correct the courts of appeals' applications of well-settled or uncontroversial legal principles. See Arcila v. State, 834 S.W.2d 357 (Tex. Crim. App. 1992). (18)
The State argues that the evidence aside from the "car dumping" incident was "overwhelming," and thus, any error was harmless. But the court of appeals disagreed, finding the evidence to be circumstantial, with exculpatory explanations offered for much of the otherwise seemingly inculpatory circumstances. (19) References to the "car dumping" incident were pervasive during the trial, and it was emphasized during the State's closing argument. (20) Relying upon our opinion in Burnett v. State, (21) the court of appeals declared itself in "equipoise" on the question whether the error affected the appellant's substantial rights, and rightly concluded it must reverse under these circumstances. (22) I cannot find any fault with this analysis, and thus, I would affirm the judgment of the court of appeals. Because the Court does not, I respectfully dissent.
Filed: June 28, 2006
Publish
1. Tex. R. Evid. 404(b), 403.
2. 3. Slip op. at 15, 16. The court of appeals found that the "car dumping" incident was
essentially too remote in time from the offense to supply evidence of motive, and that the intent of
whoever murdered the victim was self-evident. 4. 5 S.W.3d 673 (Tex. Crim. App. 1999).
5. Tex. Code Crim. Proc. art. 38.36(a).
6. 7. 8. Slip op. at 15.
9. 10. 11. 12. Slip op. at 17.
13. 150 S.W.3d at 613.
14. Slip op. at 17.
15. 150 S.W.3d at 616-617.
16. Slip op. at 17.
17. Tex. R. App. Proc. 44.2(b).
18. Although we nominally overruled 19. 20. 21. 88 S.W.3d 633, at 637 (Tex. Crim. App. 2002).
22.