IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0310-20
MICKEY RAY PERKINS, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE ELEVENTH COURT OF APPEALS
BROWN COUNTY
NEWELL, J., delivered the opinion for a unanimous
Court. YEARY, J., filed a concurring opinion in which
SLAUGHTER, J., joined.
Is the State required to accept a defendant’s stipulation of
evidence regarding an unadjudicated extraneous offense offered for
Perkins – 2
non-character conformity purposes rather than introduce testimony
regarding the commission of that offense into evidence during the
State’s case-in-chief? No. We decline to extend our holding in Tamez
v. State involving jurisdictional DWI convictions to the situation
presented in this case. We affirm the court of appeals opinion in this
regard. However, Appellant rightly complains that the court of appeals
failed to review the trial court’s decision to admit testimony of
Appellant’s unadjudicated aggravated assault over Appellant’s Rule 403
objection. Consequently, we remand the case for the court of appeals
to determine whether the trial court’s admission of this evidence ran
afoul of Rule 403.
Background
As she was driving, Carrol Weathermon saw blood drops in the air
in front of her car. To the right-hand side of the road, she saw Appellant
standing over Lana Hyles who was on the ground. Weathermon did not
know Hyles or Appellant prior to that day. She began honking her horn
and saw Appellant grab Hyles by the hair pulling her toward a car parked
in the grass to the side of the road. Weathermon called 911 and
continued honking her horn. Weathermon opened her passenger door
and Hyles crawled inside as her nose bled. Weathermon took Hyles to
the emergency room.
Perkins – 3
At trial, Hyles testified that she and Appellant met that afternoon
at the Brownwood Regional Medical Center so that Appellant could
borrow her vehicle. Hyles previously dated Appellant, and, according to
Hyles, Appellant was to drop her off at home but began heading in the
wrong direction. Hyles advised Appellant to take her home, which led
to an argument. The argument became physical when Appellant pushed
her head into the console of the car and choked her causing her pain
and difficulty breathing. Hyles bit Appellant’s finger and exited the
vehicle as it slowed down. She did not recall being on the ground or
Appellant physically trying to force her back to the car. After Appellant
left in Hyles’s car, she got into Weathermon’s car.
But according to Appellant, Hyles caused her own injuries.
Appellant testified that Hyles asked him to bring her pain medication
following a procedure she had that morning. Afterwards, he was
supposed to help her run errands. Appellant explained that while they
were driving, Hyles became angry at Appellant for telling her ex-
husband that he had seen her with drugs. Then, as Appellant was
driving, Hyles slammed the car into either park or reverse from the
passenger seat. Appellant claimed he was forced to hit the brakes,
Perkins – 4
causing Hyles to hit her face on the dash. 1 Hyles was bleeding from a
gash in her nose and got out of the vehicle. Appellant attempted to
persuade Hyles to get back into the car but denied ever approaching
her.
At the hospital, Hyles refused stiches or medical treatment for the
laceration to her nose and left after less than an hour against medical
advice. Hyles testified that her nose was swollen and bruised, and she
had two black eyes and a small scar as a result of the cut to her nose.
Ultimately, Appellant was charged by indictment with aggravated
assault against a person with whom he had previously had a dating
relationship. 2
Appellant’s Unadjudicated Extraneous Offense
After Hyles testified, the State announced its intent to offer
testimony regarding an unadjudicated extraneous assault committed by
Appellant six months prior against a different victim, Sarah Rogers. 3
The State argued the evidence was admissible under Article 38.371 of
1
On cross-examination, Hyles denied Appellant’s version of events and likewise denied that
she had confessed to three people that Appellant never slammed her face into the dashboard.
2
TEX. PENAL CODE § 22.02(b)(1).
3
Initially, the State intended to offer three witnesses related to the extraneous offense
including Rogers, the responding officer, and an investigating deputy.
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the Texas Code of Criminal Procedure, 4 the doctrine of chances, and
Rule 404(b) of the Texas Rules of Evidence to show motive, intent,
absence of mistake, or lack of accident. The State also urged that the
evidence was admissible to rebut the defensive theory, suggested
through cross-examination, that Hyles caused the injury to her face.
In response, Appellant offered to stipulate to assaulting Rogers in
exchange for the State’s agreement not to call Rogers to testify. The
State rejected the offer and noted its intent to offer Rogers’s testimony
despite Appellant’s offer to stipulate. Appellant then objected to Rogers
testifying on the grounds that it would confuse the jury and be more
prejudicial than probative.
The trial court held a hearing outside of the presence of the jury.
Rogers testified that Appellant assaulted her after she woke him up
following a night of drinking. She alleged he grabbed her by the neck,
struck her several times in the head and ribs with a closed fist, and
4
Article 38.371 provides that in a prosecution for an offense committed against a person in
a dating relationship with the defendant:
“subject to the Texas Rules of Evidence or other applicable law, each party may
offer testimony or other evidence of all relevant facts and circumstances that
would assist the trier of fact in determining whether the actor committed the
offense described…including testimony or evidence regarding the nature of the
relationship between the actor and the alleged victim…This article does not
permit the presentation of character evidence that would otherwise be
inadmissible under the Texas Rules of Evidence or other applicable law.”
TEX. CODE CRIM. PROC. art. 38.371.
Perkins – 6
dragged her by the hair before she was able to escape. She suffered a
brain bleed and rib fractures. The State also proffered testimony from
Investigator Charles Woods that Appellant claimed he awoke to Rogers
attacking him, so he pushed her off him causing her to hit a nightstand
resulting in her injuries. Following the hearing, Appellant again objected,
arguing that the circumstances of the prior assault were different from
the instant offense and thus did not establish a pattern or motive.
Appellant also argued the testimony would be more prejudicial than
probative and had the potential to confuse the jury.
Ultimately, the trial court ruled that the State was not required to
accept Appellant’s stipulation and concluded that the probative value of
the evidence outweighed the prejudicial nature of the evidence. The trial
court further held that the evidence was admissible under Rule 404(b)
to show intent, motive, and absence of mistake and to rebut Appellant’s
defensive theory. 5 The trial court gave a limiting instruction prior to
Rogers’s testimony. 6 The second day of Appellant’s two-day trial was
5
The trial court prohibited the proffered testimony from Investigator Woods during the State’s
case-in-chief.
6
Neither party objected to the trial court’s proposed limiting instruction. The trial court thus
instructed the jury as follows:
Perkins – 7
devoted in large part to extraneous offense testimony. The State’s entire
rebuttal case was related to the assault against Rogers and other
testimony offered by Rogers. In total, the State presented three
witnesses over approximately 40 transcript pages related to Rogers’s
testimony.
Direct Appeal
On appeal, Appellant argued that the trial court erred by admitting
Rogers’s testimony regarding the details of the extraneous offense over
his objection and offer to stipulate to the assault. The State responded
that the trial court’s ruling should be upheld because the extraneous
offense was admissible under Rule 404(b) and that the trial judge’s Rule
403 ruling was within the zone of reasonable disagreement. Further, the
State argued that even if the trial court erred, Appellant was not
harmed.
The court of appeals held that the State was not required to accept
Appellant’s offer to stipulate to the commission of the unadjudicated
You are instructed that the evidence from Sarah Rogers concerning an alleged
offense or offenses, other than the offense alleged in the indictment in this
case, may only be considered if, number one, you believe beyond a reasonable
doubt that the Defendant committed such other offense, if any; and, two, even
then, you may only consider such evidence in determining the intent, motive,
or -- of the Defendant, or absence of mistake or lack of accident, or to rebut a
defensive theory, if any, in connection with the offense alleged against him in
the indictment. You are not to consider this evidence for any other purpose.
Perkins – 8
offense. 7 The court of appeals distinguished Appellant’s case from
Robles v. State, which involved a jurisdictional DWI enhancement. 8 The
court of appeals then relied upon Rodriguez v. State for the proposition
that the State “may adduce its testimony as it sees fit, and it may or
may not agree to a stipulation.” 9
The court of appeals then considered the admissibility of the
extraneous offense evidence. It properly set out the legal standards
attendant to Rules 404(b) and 403 of the Texas Rules of Evidence. 10
The court held that the trial court’s Rule 404(b) ruling was not outside
the zone of reasonable disagreement, but it does not appear that the
court performed the requested review of the trial court’s Rule 403 ruling.
The entire analysis is as follows:
It is clear from the trial court’s statement that the trial court
found Rogers’s testimony to be admissible under Rule 404(b)
and also conducted the necessary two-prong test under Rule
403. See Patterson v. State, 496 S.W.3d 919, 929 (Tex.
App.---Houston [1st Dist.] 2016, pet. ref’d.) (when the trial
court weighs the relevance of the evidence against its
prejudicial impact, it need not formally announce on the
7
Pekins v. State, No.11-18-00037-CR, 2020 WL 976941 at * 3 (Tex. App.—Eastland 2020,
pet. granted).
8
Id. at *2 n.2 (citing Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002) (holding it is
error to admit evidence of prior convictions over offer to stipulate to jurisdictional priors
because of the danger of unfair prejudice).
9
Id. (citing Rodriguez v. State, 373 S.W.2d 258, 259 (Tex. Crim. App. 1963).
10
Id. at *3.
Perkins – 9
record that it has conducted this balancing test). The trial
court’s ruling under 404(b) was not outside the zone of
reasonable disagreement. See Grider v. State, 69 S.W.3d
681, 689 (Tex. App.---Texarkana 2002, no pet.) (upholding
the admission of testimony from defendant’s prior girlfriend
about a previous assault). Further, because “[w]e generally
presume a jury followed a trial court’s instruction regarding
consideration of evidence,” any potential harm was mitigated
by the trial court’s limiting instruction to the jury. [Hung
Phuoc Le v. State, 479 S.W.3d 462, 471 (Tex. App.---
Houston 14th Dist.] 2015, no pet.)] 11
The court of appeals did not discuss the probative strength of the
evidence, the risk of prejudice, the amount of time necessary to develop
the evidence, or the State’s need for the evidence. 12 Instead, the court
of appeals concluded that the trial court did not abuse its discretion in
admitting the extraneous offense.
Discretionary Review
Appellant raised two grounds for discretionary review.
I. The Court of Appeals erred in holding the evidence
legally sufficient to establish serious bodily injury.
II. The Court of Appeals erred in holding the trial court
acted within its discretion in allowing the State to
introduce extensive details about an extraneous
offense during the guilt-innocence phase when Perkins
was willing to stipulate to it.
11
Id.
12
See Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1999) (opinion on
rehearing) (setting out relevant criterial for balancing probative value of extraneous offense
evidence against the potential for unfair prejudice).
Perkins – 10
We granted review only on the second issue.
Appellant appears to only challenge two aspects of the court of
appeals opinion: 1) the refusal to require the State to accept an offer
of stipulation; and 2) the lack of a Rule 403 analysis. He argues that
the stipulation, if accepted, would have rendered the details of the
unadjudicated extraneous offense unfairly prejudicial. And he argues
that the court of appeals failed to conduct a proper review of the trial
court’s Rule 403 decision.
On Appellant’s first critique, we agree with the State that it was
not required to accept Appellant’s offer to stipulate. But on the second,
we agree with Appellant that the court of appeals did not conduct an
analysis of whether the probative value of Appellant’s unadjudicated
aggravated assault was substantially outweighed by the danger of unfair
prejudice. Therefore, we affirm the court of appeals holding that the
State was not required to accept Appellant’s offer to stipulate, but we
remand to the court of appeals to conduct an analysis of whether the
trial court abused its discretion in admitting the unadjudicated offense
evidence over Appellants Rule 403 objection.
Stipulations to Prior Offenses
Perkins – 11
As the court of appeals pointed out, generally the State may agree
or not to offers for the stipulation of evidence as it sees fit. 13 However,
in Tamez v. State, we recognized a limited exception to this general
rule. 14 There, the State charged the defendant with felony DWI and
alleged six different DWI convictions as jurisdictional elements in the
indictment. 15 The defendant agreed to stipulate to two of the six DWI
convictions if the State were foreclosed from mentioning his other
convictions in any way to the jury. 16 This Court held that the State was
required to accept the defendant’s stipulation to two jurisdictional
convictions because proof of any remaining DWI convictions would only
serve to improperly prove the defendant’s “bad character” and inflame
the jury’s prejudice. 17 Judge Cochran summed up the scope of the
holding in Tamez as follows:
1. In a felony D.W.I. case;
2. When the defendant offers to stipulate to the two
jurisdictionally required D.W.I. prior convictions;
13
Buitron v. State, 519 S.W.2d 467, 471 (Tex. Crim. App. 1975) (citing Rodriguez v. State,
373 S.W.2d 258 (Tex. Crim. App. 1963)).
14
Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000).
15
Id. at 199.
16
Id.
17
Id. at 202-03.
Perkins – 12
3. The defendant has made an offer the State cannot
refuse; and
4. That written stipulation substitutes for the admission of
other extrinsic evidence of the defendant’s prior D.W.I.
convictions. 18
The Court justified this exception as a balance between Article
36.01 of the Code of Criminal Procedure and the United States Supreme
Court’s interpretation of Federal Rule 403 in Old Chief v. United States. 19
As we noted in Tamez, Article 36.01 of the Code of Criminal Procedure
authorizes the State to read the indictment allegations of two
jurisdictional DWI convictions, which are required when prosecuting a
felony DWI. 20 However, in Old Chief, the United States Supreme Court
explained that when the fact of a conviction is an element of an offense,
the details of the conviction have very little probative value in the face
of an offer to stipulate. 21 In those circumstances, allowing the
government to prove the particular felony that led to the defendant’s
status as a felon could substantially prejudice the defendant by allowing
18
Robles v. State, 85 S.W.3d 211, 216 (Tex. Crim. App. 2002) (Cochran, J. dissenting).
19
Old Chief v. United States, 519 U.S. 172 (1997) (a trial court abuses its discretion when it
admits the full record of a prior conviction for assault, over an offer to stipulate to the prior
conviction element in a felon in possession of a firearm case).
20
Tamez, 11 S.W.3d at 201 (citing TEX. CODE CRIM. PROC. art. 36.01).
21
Old Chief, 519 U.S. at 190-92.
Perkins – 13
the jury to improperly focus on the previous crime rather than the
charged offense. 22 Consequently, the Supreme Court held that the
government was precluded from proving what felony the defendant had
previously been convicted of if he chose to stipulate that he was indeed
a felon. 23
In Tamez, we harmonized Article 36.01 with the reasoning of Old
Chief by requiring the State to accept the defendant’s offer to stipulate
to two DWI convictions, but still allowing the State to read only two
allegations of DWI convictions contained in the indictment.
In cases where the defendant agrees to stipulate to the two
previous DWI convictions, we find that the proper balance is
struck when the State reads the indictment at the beginning
of trial, mentioning only the two jurisdictional prior
convictions, but is foreclosed from presenting evidence of the
convictions during its case-in-chief. This allows the jury to
be informed of the precise terms of the charge against the
accused, thereby meeting the rationale for reading the
indictment, without subjecting the defendant to substantially
prejudicial and improper evidence during the guilt/innocence
phase of trial. Following this logic, any prior convictions
beyond the two jurisdictional elements should not be read or
proven during the State’s case-in-chief---as long as the
defendant stipulates to the two prior convictions---as they
are without probative value and can serve only to improperly
22
Id. at 191 (“the only reasonable conclusion was that the risk of unfair prejudice did
substantially outweigh the discounted probative value of the record of conviction, and it was
abuse of discretion to admit the record when an admission was available.”).
23
Id.
Perkins – 14
prove the defendant’s “bad character” and inflame the jury’s
prejudice. 24
As the State correctly points out, the exception recognized in
Tamez was born out of and applied to a case in which the existence of
prior convictions must be alleged in an indictment and proven in the
State’s case-in-chief. We have not extended this exception beyond that
context. In this case, Appellant’s aggravated assault conviction did not
need to be alleged in the indictment or proven as part of the State’s
case-in-chief. Accordingly, the rationale articulated in Old Chief and
Tamez for requiring the State to accept Appellant’s offer to stipulate to
otherwise extraneous convictions does not apply to Appellant’s case. 25
We affirm the court of appeals holding that the State was not required
to accept Appellant’s offer to stipulate to the unadjudicated offense.
Admissibility of Extraneous Offenses
Extraneous-offense evidence is generally admissible if the
evidence is relevant to a fact of consequence apart from its tendency to
24
Tamez, 11 S.W.3d at 202-03.
25
Appellant relies upon our decision in Robles v. State, 85 S.W.3d 211 (Tex. Crim. App.
2002). Though Robles dealt with a slightly different factual scenario than Tamez---the State
only alleged two jurisdictional convictions in Robles, but it alleged six in Tamez---it still
presented an application of our holding in Tamez. Nothing in Robles suggests that our holding
in Tamez applies to unalleged, non-jurisdictional offenses the State offers for non-character-
conformity purposes.
Perkins – 15
prove character conformity. 26 But even if a court determines that
evidence is relevant and admissible for a non-conformity purpose, Rule
403 may still preclude its admission if the trial court determines that the
probative value of the evidence is substantially outweighed by the risk
of unfair prejudice, confusing the issues, misleading the jury, undue
delay or needlessly presenting cumulative evidence. 27 Unfair prejudice
refers to the evidence’s “tendency to tempt the jury into finding guilt on
grounds apart from proof of the offense charged.” 28 In considering a
Rule 403 objection, the trial court must engage in a balancing test that
considers: (1) how compellingly the extraneous offense evidence serves
to make a fact of consequence more or less probable; (2) the potential
of the evidence to impress the jury in some irrational, but nevertheless
indelible way; (3) the time the proponent needs to develop the evidence,
during which the jury will be distracted from consideration of the
indicted offense; and (4) the proponent’s need for the evidence. 29 We
26
Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).
27
Tex. R. Evid. 403.
28
State v. Melcher, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).
29
Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019).
Perkins – 16
review a trial court’s decision to admit or exclude extraneous offense
evidence under Rules 404(b) and 403 for an abuse of discretion. 30
As mentioned above, Appellant argues that the court of appeals
erred in failing to conduct an appellate review of the trial court’s Rule
403 analysis. We agree with Appellant. As we explained in Mozon v.
State:
In reviewing the trial court’s balancing test determination, a
reviewing court is to reverse the trial court’s judgement
“rarely and only after a clear abuse of discretion.” The
reviewing court, however, cannot simply conclude “the trial
court did in fact conduct the requiring balancing test and did
not rule arbitrarily and capriciously.” The trial court’s ruling
must be measured against the relevant criteria by which a
Rule 403 decision is made. 31
In this case, the court of appeals merely held that the trial court
conducted the required balancing test. It did not measure the trial
court’s ruling against the relevant criteria by which a Rule 403 decision
is made. There was no consideration of (1) how compellingly the
extraneous evidence serves to make a fact of consequence more or less
probable; (2) the potential the other offense evidence has to impress
the jury “in some irrational but nevertheless indelible way”; (3) the time
30
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
31
Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (internal citations omitted).
Perkins – 17
needed to develop the evidence; or (4) the force of the proponent’s need
for this evidence to prove a fact of consequence. 32
Conclusion
The court of appeals properly held that the State was not required
to accept Appellant’s offer to stipulate to the unadjudicated assault. We
affirm the court of appeals holding in this regard. However, the court
of appeals upheld the trial court’s admission of extraneous offense
evidence without conducting a proper review of the trial court’s Rule 403
ruling. We remand the case for consideration of this aspect of
Appellant’s argument.
Filed: September 7, 2022
Publish
32
Id. (setting out the relevant criteria a reviewing court is to consider when evaluating a
trial court’s Rule 403 decision).