Clark v. State

OPINION ON STATE’S MOTION FOR REHEARING

PER CURIAM.

The State argues in its motion for rehearing, that our opinion on original submission incorrectly held the extraneous offenses inadmissible in the instant case. *124We have reexamined this issue and find that our original opinion was correct.

In order for extraneous offenses to be admissible a two-part test must be met. First, the extraneous offense must be relevant to a material issue in the case other than the defendant’s character. Second, if the extraneous offense is relevant, it must possess probative value which outweighs its prejudicial effect. Plante v. State, 692 S.W.2d 487 (Tex.Cr.App.1985); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).

In applying the admissibility test, relevancy has become largely an issue of similarity. See Plante, supra; Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App.1985). The similarity of the extraneous offenses to the instant offense makes them clearly relevant to the material issue of intent.1

Determining whether the probative value of such extraneous offenses is substantially outweighed by their prejudicial effect is more troublesome. However, several guidelines exist. For example, the State may not introduce evidence of extraneous offenses as circumstantial evidence of an element of its case in chief if that element can readily be inferred from other uncontested evidence. Morgan, supra; Robinson v. State, 701 S.W.2d 895 (Tex.Cr.App.1985). This is true because the probative value of the extraneous offenses in such cases is minimal and the introduction of extraneous offenses is inherently prejudicial. Thus, in cases where proof of the act itself provides ample evidence of the element to be proved, and such has not been contested by the defendant, extraneous offense evidence is not generally admissible to prove that element because its probative value is almost always outweighed by its prejudicial effect. Morgan, supra.

In the instant case the extraneous offense evidence was introduced to show intent to commit the offense involved. Appellant’s actions in signing her own name to twenty-two checks made out to her employer and depositing them into her bank account shows the requisite culpable intent. No evidence was introduced, through direct or cross-examination, to offer any other alternative. Thus, the inclusion of the extraneous offenses was not necessary to shore up the State’s case or disprove an otherwise innocent intent. Cf. Morgan, supra. Consequently its comparative prejudicial impact outweighed its mimimal probative value in the instant case.

Further, it is clear that appellant was harmed by this inclusion. The State argues that if the acts themselves show intent introduction of the extraneous offense could not have harmed appellant by contributing to her conviction. We agree. By no means dispositive, the introduction and proof of the extraneous offenses virtually doubled the length of appellant’s trial. Although appellant was clearly eligible for probation, she received a ten-year prison sentence from the jury. With this in mind we think it reasonable that the introduction of the extraneous offenses contributed to the punishment assessed, if not the actual conviction. See Maynard v. State, 685 S.W.2d 60 (Tex.Cr.App.1985).

Accordingly, our opinion on original submission is affirmed, the judgments of the Court of Appeals and the trial court are reversed and the cause is remanded to the trial court for new trial.

ONION, P.J., and McCORMICK and WHITE, JJ., dissent.

. We agree with the State that the extraneous offenses are similar to the instant offense. The evidence in both reflect that appellant, as an employee, came into possession of blank checks or checks payable to her employers. She forged each check in such a way as to make them ultimately payable to her and she cashed the checks. The fact that some checks required her to fill her name in as payee in the front and same required her endorsement on the back is not a significant dissimilarity under the circumstances of the instant case.