Smith v. State

OPINION

HOLLAND, J.,

delivered the opinion of the Court,

in which MEYERS, PRICE, WOMACK, and JOHNSON JJ., joined.

A jury convicted appellant, Jerry T. Smith, of murder. Tex. Penal Code Ann. § 19.02 (1994). After he plead true to an enhancement allegation, the trial court assessed punishment at life imprisonment. The Court of Appeals affirmed the conviction. Smith v. State, 968 S.W.2d 452 (Tex.App. —Amarillo 1998). We granted discretionary review to determine whether the Court of Appeals erred in holding Article 38.36(a) of the Texas Code of Criminal Procedure abrogates the trial court’s duty *675to comply with Rules of Criminal Evidence 404(b) and 403.1 We will reverse.

I.

On June 3, 1993, the victim, Edna Blod-gett, disappeared without explanation. The victim’s body was never recovered and there was no physical evidence indicating the commission of a criminal offense. A grand jury indicted appellant, the victim’s live-in boyfriend, for murder. Before trial, the State notified appellant of its intent to introduce extraneous offense evidence during the guilt phase. The trial court held a pre-trial hearing regarding the admissibility of this evidence.

At the hearing, the State argued that due to the lack of physical evidence linking appellant to the victim’s murder, it was essential to its case that the State be allowed to admit evidence showing appellant had physically assaulted his father, his ex-wife, and the victim on numerous occasions. Appellant objected, claiming the State wanted to admit this evidence during the guilt phase to show he acted in conformity with his violent character, and thus committed the crime for which he was on trial which violates Rule 404(b). He further argued that if the evidence was relevant, it should nevertheless be excluded under Rule 403 because it was more prejudicial than probative. The State responded the evidence was submitted to prove appellant’s “intent, knowledge, and opportunity in this particular case,” not for character conformity purposes. The trial court overruled appellant’s objection, but granted appellant’s request for an instruction in the jury charge on the limited use of this evidence.2

Throughout the guilt-innocence phase of trial, the State called numerous witnesses to testify concerning appellant’s physical abuse of the victim. Several neighbors and friends testified they had seen bruises, abrasions, and scratches on the victim’s face, arms, and legs. They also testified that the victim feared appellant, particularly when he consumed alcohol. Many indicated they had been concerned about the victim’s safety and believed appellant’s physical abuse would “wind up” killing her.

Bill Timms, a former Garza County Sheriffs Deputy, testified to several domestic dispute calls made by the victim. He recalled responding to one emergency call in which she claimed appellant had killed her dog. Timms testified that, when he entered the victim’s trailer home, he discovered her dog dead and blood on the wall and curtain. Based on the amount and pattern of the blood, Timms opined the dog was kicked and stomped to death. He also testified, that later that same day, he arrested appellant for criminal mischief because he shattered all the mirrors and windows out of the victim’s car.3

*676On appeal, appellant claimed the trial court erred in admitting this evidence over his 404(b) and 403 objections. The Amarillo Court of Appeals disagreed, holding the evidence was admissible under Article 38.36(a), and thus the trial court did not have to observe rules 404(b) and 403.4 Smith v. State, 968 S.W.2d 452, 459-60 (Tex.App.—Amarillo 1998). Relying on Criminal Rule of Evidence 101(c), the court reasoned Article 38.36(a) excuses the State from having to satisfy Rules 404(b) and 403.5 The court concluded Rule 404(b), which creates a general ban on character evidence, is inconsistent with Article 38.36(a) because it authorizes the State to proffer extraneous offense evidence in a murder case if it involves the relationship between the accused and the victim. Smith, 968 S.W.2d at 460. The court also determined Rule 403, which excludes relevant evidence that is substantially more prejudicial than probative, is inconsistent with Article 38.36 because Article 38.36 “makes no allowance for a probative versus prejudicial balancing test.” Id.

Appellant claims the Court of Appeals erred in holding that Article 38.36(a) overrides Rules 404(b) and 403. He contends this holding conflicts with Hernandez v. State, 914 S.W.2d 226 (Tex.App.—Waco, 1996, no pet.), which held that Rules 404(b) and 403 were not abrogated by Article 38.36(a)’s predecessor statute, Section 19.06 of the Texas Penal Code. Hernandez, 914 S.W.2d at 232-33. The Hernandez court concluded that before a trial court can admit extraneous offense evidence, pursuant to Section 19.06 and over 404(b) and 403 objections, it must find: (1) the evidence relevant to a material issue other than the defendant’s character, and (2) the probative value is not substantially outweighed by its danger of unfair prejudice, confusion of the issues, misleading the jury, by consideration of undue delay, or needless presentation of cumulative evidence. Id.

Appellant insists the Hernandez opinion is correct because it is based on our reasoning in Fielder v. State, 756 S.W.2d 309 (Tex.Crim.App.1988) and Werner v. State, 711 S.W.2d 639 (Tex.Crim.App.1986), modified on other grounds, Hamel v. State, 916 S.W.2d 491 (Tex.Crim.App.1996). Appellant contends although our reasoning in Fielder and Werner concerned Article 38.36(a)’s predecessor statute, Section 19.06 of the Penal Code, these decisions are still instructive because the rules are substantively identical.

The State claims the Court of Appeals’ opinion does not conflict with Hernandez because it concerned Section 19.06, not Article 38.36(a). The State argues Rule of Criminal Evidence 101(c) specifically provides that legislative enactments in the Texas Code of Criminal Procedure take precedence over the evidentiary rules promulgated by the Court of Criminal Appeals, and therefore the Court of Appeals correctly determined Article 38.36(a) abrogates Rules 404(b) and 403. The State insists there is a direct conflict in murder cases because under Article 38.36(a) extraneous bad conduct evidence concerning the relationship of the accused and the victim is admissible, while that same evidence could be inadmissible under Rule 404(b). The State also contends Rule 403 is inconsistent with the Code because it authorizes the exclusion of overly prejudicial relevant evidence, whereas Article 38.36(a) admits “all relevant facts and circumstances sur*677rounding the killing and the previous relationship existing between the accused and the deceased” in murder cases, without regard to its prejudicial nature.

II.

When this Court decided Werner v. State, supra,6 and Fielder v. State, supra,7 what is now Article 38.36(a) was Section 19.06 of the Texas Penal Code. At that time, Section 19.06 was virtually identical to its current version, except that it applied to all prosecutions for manslaughter as well as murder.8 Since our decisions in these cases, however, the legislature adopted the Rules of Criminal Evidence. Consequently, we did not have the benefit of Rule 101(c) which was the basis for the Court of Appeals’s holding in the instant case.

According to Rule 101(c), when a provision from the Code of Criminal Procedure conflicts with a Rule of Evidence, the Code of Criminal Procedure prevails. Tex. R.CRim. Evid. 101(c). Rule 101(c) also provides, however, that “[wjhere possible, inconsistency [between the Code and Rules of Evidence] is to be removed by reasonable construction.” Consequently, in order for this Court to determine whether the Court of Appeals correctly held Article 38.36(a) abrogates Rules 404(b) and 403, we must first determine whether they can be applied congruously.9 We conclude they can.

The Court of Appeals held Article 38.36(a) abrogates Rule 404(b) because it limits the admissibility of prior bad acts and Rule 403 because it excludes evidence which is substantially more prejudicial than probative. See Smith, 968 S.W.2d at 460. This reasoning, however, assumes an evidentiary rule cannot be consistent with a statutory provision when it limits the statute’s application. If we were to adopt such a canon of statutory construction, then when an evidentiary rule limits the application of a Code provision, the Code abrogates compliance with the rule without regard to the Legislature’s intent and despite Rule 101(c)’s express requirement that the provisions be reasonably construed.

If application of Rules 404(b) and 403 to Article 38.36(a) evidence, however, automatically resulted in the evidence’s exclu*678sion then there would be no doubt that there is a conflict. Application of Rules 404(b) and 403, however, do not act to automatically bar evidence admissible under Article 38.36(a). Instead, Rule 404(b) prohibits the State from introducing evidence for the sole purpose of showing the accused acted in conformity with his past bad character towards the victim and thus murdered the victim. Tex.R.Crim. Evid. 404(b); Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1990) (op. on reh’g). The evidence, however, may be admissible for purposes other than character conformity; that is, the trial court may admit past bad acts towards the victim to show the accused’s motive, opportunity, intent, preparation, plan, knowledge, or identity. As for Rule 403, it acts to exclude Article 38.36(a) evidence only where the probative value of the evidence is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence.

Harmonizing Article 38.36(a) with Rules 404(b) and 403 is also consistent with Article 38.36’s plain language. Although the presence of Rule 101(c) indicates that the Legislature need not incorporate express language in Article 38.36 dispensing with the application of Rules 404(b) and 403, the absence of such language is some indication of the Legislature’s intent. In the past, the Legislature has made its intent to dispense with certain evidentiary rules clear through specific language.10 Also, it is important to note that the Legislature has failed to include language excepting the application of Rules 404(b) and 403 from Article 38.36(a) subsequent to our holding that Section 19.06 evidence must satisfy the rules of evidence to be admissible. Grunsfeld v. State, 843 S.W.2d 521, 523 (Tex.Crim.App.1992) (when examining amendments to existing legislation the reviewing court must presume the legislature was aware of case law affecting or relating to the statute).

When this Court decided Werner and Fielder, Section 19.06 was substantially identical to Article 38.36(a). In 1991, the Legislature amended Section 19.06 to add what is now Article 38.36(b) in response to our holding in Fielder that expert testimony regarding the accused’s state of mind is admissible where the deceased previously committed acts of family violence against the accused.11 In 1994, the legislature repealed Section 19.06 and re-codified it as Article 38.36 of the Texas Code of Criminal Procedure.12 At no time during these amendments did the Legislature attempt to overturn our holding that evidence admissible under the statute was still subject to the general rules of evidence. See e.g.,Connolly v. State, 983 S.W.2d 738 (Tex.Crim.App.1999); State v. Hall, 829 S.W.2d 184, 187 (Tex.Crim.App.1992) (prolonged legislative silence following judicial interpretation of statute implies approval of interpretation). If the Legislature intended to exempt Article 38.36(a) from Rules 404(b) and 403, it would have made its intent clear through express language.

*679We also recognize that if it was the legislature’s intention to shield evidence admissible under Article 88.36(a) from Rule 404(b)’s general ban against character conformity evidence, or Rule 403’s balancing test, it would have been a simple matter for the Legislature to have said so. On the other hand, it is quite a serious matter for this Court to read into the statute something which was omitted by the lawmaking body. See e.g., Coit v. State, 808 S.W.2d 473, 475 (Tex.Crim.App.1991); Martinez v. State, 134 Tex.Crim. 180, 114 S.W.2d 874, 878 (1938). Grafting Rule 404(b) and Rule 403 exceptions into Article 38.36(a) is a serious matter because it would not only authorize the admission of character evidence to show the accused murdered the victim, but would also eliminate a trial court’s discretion to exclude relevant evidence that is needlessly cumulative, would cause undue delay, result in confusion of the issues, or mislead the jury-

Because Article 38.36(a) and Rules 404(b) and 403 can be congruously applied as mandated by Rule 101(c), and because grafting an exception into Article 38.36(a) contravenes its plain language, this Court holds evidence admissible under Article 38.36(a) may be nevertheless excluded under Rule 404(b) or Rule 403. Consequently, if a defendant makes timely 404(b) or 403 objections, before a trial court can properly admit the evidence under Article 38.36(a), it must first find the non-character conformity purpose for which it is proffered is relevant to a material issue.13 If relevant to a material issue, the trial court must then determine whether the evidence should nevertheless be excluded because its probative value is substantially outweighed by the factors in Rule 403.

Accordingly, we vacate the judgment of the Court of Appeals and remand for that court to conduct proceedings consistent with this opinion.

MANSFIELD, J., dissented without opinion.

. Effective March 1, 1998, the Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence were merged to form the Texas Rules of Evidence. Rules 404(b) and 403 of the Rules of Evidence are substantially the same as their predecessors in the Rules of Criminal Evidence. Hence, the scope and application of the new rules would be the same as the old ones. Nevertheless, because this case was tried before the effective date of the new rules, we will apply the former Texas Rules of Criminal Evidence.

. In the charge, the trial court instructed the jury that the evidence of appellant’s extraneous acts of violence could only be considered for the purpose of determining motive, opportunity, intent, preparation, plan, knowledge, or identity, and for no other purpose. The trial court did not give contemporaneous instructions as the evidence was admitted.

.In addition to appellant’s abuse of the victim, the State also introduced evidence showing appellant had a history of physically assaulting his ex-wife and his father. Although on appeal appellant also attacked the admissibility of this evidence over his 404(b) and 403 objections, the Court of Appeals addressed the evidence relating to each individual separately due to the differences in the law. Because the issue currently before us relates only to the Court of Appeal's decision to uphold the trial court’s admission of evidence concerning appellant’s physical abuse of the victim, our discussion of the facts is limited to that issue.

. In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex.Code Crim. Proc. art. 38.36(a).

. Rule 101(c) provides that the Code of Criminal Procedure controls when there is an inconsistency between the Rules of Criminal Evidence and the Code.

. In Werner, we held although evidence may be admissible under Section 19.06, it must still satisfy the common law rules of evidence. Werner, 711 S.W.2d at 643-44. Relying on prior cases in which this Court determined evidence admissible under Article 1257a of the Penal Code, the forerunner of Section 19.06, must satisfy the hearsay rule, we held Section 19.06 did not change, extend, or limit the evidentiary rules.

. In Fielder, we re-affirmed our holding in Werner, stating Section 19.06 in no way "broadens or in any way affects the rules of evidence that apply, or the way in which they apply in any given homicide case.” Fielder, 756 S.W.2d at 318. Accordingly, we held before a trial court may admit Section 19.06 evidence, it must first find the evidence relevant to a material issue other than the defendant’s character.

. Texas Penal Code section 19.06 provided:

In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

See Act of May 28, 1973, 63rd Leg., R.S., ch. 426, 1973 Tex. Gen. Laws 1123, 1124.

.The courts of appeals disagree as to whether Article 38.36(a) and Rules 404(b) and 403 can be harmoniously applied. Compare Umoja v. State, 965 S.W.2d 3, 6-7 (Tex.App.—Fort Worth 1997, no pet.) (Article 38.36(a) does not abrogate State’s obligation to provide Rule 404(b) notice of its intend to introduce extraneous offense); Bush v. State, 958 S.W.2d 503 (Tex.App.—Fort Worth 1997, no pet.) (Article 38.36(a) does not alter Rule 404(b) prohibition against the admission of extraneous offense evidence to show character conformity); with Smith v. State, 968 S.W.2d 452, 459-60 (Tex.App.—Amarillo 1998, pet. granted) (if evidence is admissible under Article 38.36(a), trial court need not observe Rules 404(b) and 403).

. See e.g., Tex.Code Crim. Proc. art. 37.07 § 3(a) ("evidence may be offered ... including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence "); Tex.Code Crim. Proc. art. 38.37 § 2. (“notwithstanding Rules 404 and 405, Texas Rules of Criminal Evidence, evidence of other crimes, wrongs, or acts committed by the defendant against the child ... shall be admitted”).

. See Act of April 17, 1991, 72nd Leg., R.S., ch. 48, § 1, 1991 Tex. Gen Laws 474, 475, repealed by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 7.03, 1993 Tex. Gen. Laws 3764, 3764.

. See Act effective September 1, 1991, 72nd Leg., R.S., ch. 48, § 1, 1991 Tex. Gen. Laws 474, 475, repealed by Act effective September 1, 1994, 73rd Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3614.

. The evidence will be relevant to a material issue if the purpose for which the party seeks to have it submitted tends to make "the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rankin v. State, 974 S.W.2d 707, 719-20 (Tex.Crim.App.1998) (op. on reh’g). What issues are material will depend on the theories of the prosecution and the defense. See Fielder, 756 S.W.2d at 318.