McGlothlin v. State

OPINION ON STATE’S MOTIONS FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW

BAIRD, Judge.

Appellant was convicted of aggravated sexual assault and punishment was assessed at twenty years confinement and a fine of $10,000.00. The Court of Appeals affirmed. McGlothlin v. State, 835 S.W.2d 267 (Tex.App.—Eastland 1992). We granted appellant’s petition for discretionary review, summarily reversed and remanded the case to the Court of Appeals to conduct a harm analysis pursuant to Tex.R.App.P. 81(b)(2). McGlothlin v. State, 848 S.W.2d 139 (Tex.Cr.App.1992). The State Prosecuting Attorney and the District Attorney have filed motions for rehearing. For the following reasons, we will grant the motions for rehearing and revise the scope of the Court of Appeals’ review on remand.

I.

The Court of Appeals delivered its opinion on July 30, 1992, and relied, in part, on our decision in Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985). McGlothlin, 835 S.W.2d at 270, n. 1. However, in Vernon v. State, 841 S.W.2d 407 (Tex.Cr.App.1992), we held that Boutwell no longer had any legal force independent of Tex. R.Crim.Evid. 404(b). Vernon, 841 S.W.2d at 411. Therefore, in light of our decision in Vernon, we summarily reversed and remanded the case to the Court of Appeals for a harm analysis under Rule 81(b)(2). McGlothlin, 848 S.W.2d at 140.

*141II.

In its motion for rehearing, the State Prosecuting Attorney concedes:

We do not therefore contest this Court’s reversal of the judgment of the Court of Appeals. The Court of Appeals’ citation to Boutwell demonstrates some likelihood that the incorrect (as of November 4, 1992) legal standard in reaching its conclusion that the challenged evidence was admissible under Rule 404(b).

State Prosecuting Attorney’s mtn. for reh’g., pgs. 10-11.

However, the State asks that we revise the scope of the remand from merely a harm analysis under Rule 81(b)(2). The State contends we should remand the case for reconsideration in light of Vernon and for consideration of the issue of waiver, an issue raised but not addressed by the Court of Appeals. State Prosecuting Attorney’s mtn. reh’g., pg. 13.

III.

The State contends that although the Court of Appeals’ reliance on Boutwell was error, it does not necessarily follow that the Court of Appeals reached an erroneous result. The State argues that there is a “compelling argument to be made that, the evidence was admissible under Rule 404(b) even without the ‘automatic admissibility’ rule of Boutwell.” State Prosecuting Attorney’s mtn. reh’g., pg. 11. We agree that the Court of Appeals should be given the opportunity to determine the admissibility of the complained of evidence in light of the legal standard announced in Vernon.

Furthermore, the State contends the Court of Appeals, having determined the evidence admissible, never had the opportunity to address the issue of waiver. Although not totally clear from the record, it appears the waiver issue was raised when the case was argued before the Court of Appeals. Indeed both appellant and the State filed supplemental briefs with the Court of Appeals addressing the waiver issue. Therefore, the issue was properly before the Court of Appeals. Also, appellant in his petition for discretionary review conceded that the Court of Appeals did not address the waiver doctrine announced in DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985). Appellant’s PDR, pg. 7. We believe the Court of Appeals should be given that opportunity.

IV.

Accordingly, the motions for rehearing are granted, the judgment of the Court of Appeals is reversed and the cause is remanded to that Court for (1) reconsideration of its holding in light of Vernon, (2) the waiver issue and, if necessary, (3) to conduct a harm analysis under Rule 81(b)(2).