Hadden v. State

OPINION ON MOTION FOR REHEARING

The State has filed a motion for rehearing in which it argues that we have mis-characterized the record, and erred by finding the error preserved, by misinterpreting Tex.R.App.P. 81(b)(2), and by failing to reverse only for punishment. The motion for rehearing is overruled.

In support of its argument that we have mischaracterized the record, the State merely quotes one portion of the record, and ignores the preponderance of the officer’s testimony. Portions of the record not quoted by the State reveal that the police officer who testified volunteered facts indicating that appellant had been in contact with the police on previous occasions. Most significantly, under this first point the State does not quote or refer to the police officer’s statements in the record indicating that the defendant was suspected of organized crime activities. These statements were not a reasonable response to the questions asked, and they occurred after the court instructed the jury to disregard these statements, and the police officer agreed under oath not to make future improper references to extraneous offenses.

The statement of facts shows a pattern of conduct which can only be explained as an intentional and willful disregard of the rules of evidence, motion in limine, and the officer’s agreement, which is on the record, not to volunteer prejudicial information. The State’s first point of error in its motion for rehearing is overruled.

The State’s second point complains that the error was not preserved. We have already discussed this point above, however, recent authority from the Court of Criminal Appeals reinforces our holding that the error was preserved. See Fuller v. State, 827 S.W.2d 919, 925 (Tex.Crim.App.1992). Appellant’s second point of error is overruled.

The State’s third and fourth points of error complain that this Court erred in failing to properly apply the harmless error rule. The State’s position is that no error can be reversible in the guilt/innocence stage if the evidence of guilt is overwhelming. Essentially, it argues that appellate review of convictions is foreclosed after overwhelming evidence of guilt is admitted. We disagree.

If this were true, then defendants in cases in which the evidence of guilt was overwhelming would not be able to enforce their right to a fair trial by obtaining a new trial on appeal. This would provide the State with the opportunity to admit over*845whelming evidence of guilt, and then improperly admit inadmissible and highly prejudicial evidence, such as that involving extraneous offenses.1 We refuse to subscribe to the theory that once overwhelming evidence of guilt is admitted the State is free to ignore, with no chance of reversal on appeal, the rules of evidence and procedure which are designed to provide fair trials to all accused.

The Court of Criminal Appeals may have been troubled with scenarios such as this case when it wrote: “an appellate court should be concerned with the integrity of the process leading to the conviction. ... In addition, the Court must also determine whether declaring the error harmless would encourage the State to repeat it with impunity.” Harris, 790 S.W.2d at 587. Following the teachings of Harris, in our opinion, the repeated intentional admission of inadmissible evidence “disrupted the juror’s orderly evaluation of the evidence” ... thus, “the conviction was tainted.” Id. 790 S.W.2d at 588. The State’s third and fourth points of error are overruled.

By the State’s fifth point of error it complains that this Court erred in reversing for a new trial, and not for a new trial only on the punishment phase. We believe the proper remedy in this case, which involves the intentional proffer of inadmissible extraneous offenses, is a new trial. This will deter the State from intentionally seeking to present to the jury improper and inadmissible testimony in the future. Failure to remand for a new trial merely invites future problems. The state’s fifth point of error and its motion for rehearing are overruled.

. One might argue that this would never happen because the State would have no incentive to act improperly in cases in which it expected to admit overwhelming evidence of guilt; however, this is precisely what occurred at this trial.