Grunsfeld v. State

OPINION ON PETITIONS FOR DISCRETIONARY REVIEW

MALONEY, Judge.

In separate cases, appellants Robert Charles Grunsfeld and Jerred J. Hunter1 were each convicted by a jury of aggravated sexual assault and sentenced to life imprisonment. The Court of Appeals for the Fifth District in Dallas County reversed Grunsfeld’s conviction and remanded the case for a new trial. Grunsfeld v. State, 813 S.W.2d 158 (Tex.App.—Dallas 1991). The Fort Worth Court of Appeals affirmed Hunter’s conviction in an unpublished opinion. Hunter v. State, No. 2-90-170-CR (Tex.App.—Fort Worth Aug. 30, 1991). We have consolidated these two cases, as they both seek review of the same issue.

We granted the State’s Petition for Discretionary Review in Grunsfeld and Appellant’s Petition for Discretionary Review in Hunter to determine whether Article 37.-07(3)(a) V.A.C.C.P., as amended, allows admission of unadjudicated extraneous offense evidence in the punishment phase of a trial on a noncapital offense. We will affirm the decision of the Court of Appeals in Grunsfeld and reverse the decision of the Court of Appeals in Hunter. We remand both cases to their respective trial courts for a new punishment hearing pursuant to article 44.29(b) V.A.C.C.P. A brief discussion of the facts of each case is helpful in understanding the context and application of article 37.07(3)(a).

The victim testified at appellant Gruns-feld’s trial that following a date with Grunsfeld, he took her to his mother’s house where he repeatedly raped her. The victim further testified that Grunsfeld assaulted her with a stun gun throughout the alleged offense. In the punishment portion of the trial, the State called a witness who testified that Grunsfeld assaulted her several months prior to the subject offense. The State also called two other witnesses who each testified that they had been raped by Grunsfeld several months after the subject offense. Grunsfeld objected claiming that the witnesses’ testimony constituted extraneous offense evidence and did not fall within article 37.07(3)(a). The trial court nevertheless allowed the testimony of these witnesses over Grunsfeld’s objection. Grunsfeld’s mother testified that Grunsfeld had never been convicted of a felony offense, thus establishing his eligibility for probation. The Dallas Court of Appeals held that the trial court erred in admitting the evidence of the unadjudicated extraneous offenses and reversed and remanded the case to the trial court. Grunsfeld.

During appellant Hunter’s trial, the victim testified that she gave Hunter a ride in her automobile after a meeting which they had both attended. Upon arrival at Hunter’s supposed destination, a deserted building, the victim testified that Hunter sexually assaulted her and then drove to a second location where he sexually assaulted her again. She further testified that Hunter choked her with his arm, causing her to lose consciousness and that Hunter threatened to kill her if she reported the incident. At the punishment phase of the trial the State called D.B. who testified that on the day before the subject offense she gave appellant Hunter a ride home from a school that they both attended. When they arrived at the designated location, Hunter sexually assaulted her at gunpoint and choked her with his arm. D.B. further testified that Hunter threatened to kill anyone whom she told about the incident. Appellant Hunter timely objected to D.B.’s testimony as inadmissible under article 37.-07(3)(a) and as not relevant under the Rules of Evidence. Hunter’s mother testified that Hunter had not previously been convicted of a felony, thus establishing his eligibility for probation. The Fort Worth *523Court of Appeals affirmed Hunter’s conviction, holding that article 37.07(3)(a) was intended to have the same meaning and effect as article 37.071(a)2, consequently permitting evidence of unadjudicated extraneous offenses during punishment of non-capital offenses.

The relevant portion of article 37.07(3)(a), amended effective September 1, 1989, provides:

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may, as permitted by the Rules of Evidence, be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including the prior criminal record of the defendant, his general reputation and his character. The term prior criminal record means a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.

Article 37.07(3)(a) V.A.C.C.P. (Vernon Supp.1991) (emphasis on portion added by amendment).

The State contends that the amendment to article 37.07(3)(a) effectuates the legislature’s intent to overturn this court’s ruling in Murphy v. State, 777 S.W.2d 44 (Tex.Cr.App.1989) (opinion on rehearing)3, by now allowing the admission of “any matter the court deems relevant to sentencing,” including unadjudicated extraneous offenses, consistent with their admission in capital cases. The State argues that the term “including” is one of inclusion, not limitation and therefore, admissible evidence is not limited to a defendant’s prior criminal record, general reputation and character, but may include anything the trial court deems relevant, including unadjudicated extraneous offense evidence. Appellants claim that the plain language of the amended provision and the legislative history support a conclusion that evidence of unadjudi-cated extraneous offenses remains inadmissible under article 37.07(3)(a).

A primary tenet of statutory construction is the importance of legislative intent. Ward v. State, 829 S.W.2d 787, 790 (Tex.Cr.App.1992); Dillehey v. State, 815 S.W.2d 623, 625 (Tex.Cr.App.1991); TEX. GOV’T CODE ANN. § 311.023(3) (Vernon 1988). Such intent may be derived from the language of the statute, its legislative history and the “context of the entire law in which it is written.” Grunsfeld, 813 S.W.2d at 168. As pointed out in the State’s brief, when examining amendments to existing legislation, it is presumed that the legislature was aware of caselaw affecting or relating to the statute. Welch v. Welch, 369 S.W.2d 434, 437 (Tex.Civ.App.—Dallas 1963, no writ).

In light of the legislative history and the timing of the amendment, and in an effort to ascribe meaning to each word contained in the subject provision, as amended, we agree with the Dallas Court of Appeals in Grunsfeld in construing article 37.07(3)(a), to provide that even if deemed relevant to sentencing by the trial court, evidence is not admissible at punishment, unless (1) it is permitted by the Rules of Evidence 4, and (2) if the evidence sought to be admitted is evidence of an extraneous offense, it satisfies article 37.-07(3)(a)’s definition of prior criminal record.5

*524We note that these two criteria did not come about as a result of the 1989 amendment, but were in place before the recent amendment. The only change accomplished by the amendatory language is the statutory recognition that evidence other than prior criminal record, general reputation and character is admissible. At the time of the passage of the subject amendment, this issue was questionable under this court’s original opinion in Murphy. To that extent, we agree with the State that the subject amendment was very likely directed at this court’s opinion in Murphy.6 Although not patently apparent from the face of the original opinion, in separate dissenting opinions thereto, both Presiding Judge Onion and Judge White construed the plurality opinion in Murphy to hold that article 37.07(3)(a), as it then existed, prohibited the admission of any evidence other than prior criminal record, general reputation, and character.7 Based upon this view of the court’s original opinion, it is probable that the legislature also reached the same conclusion in reading the original opinion and was prompted to amend article 37.07(3)(a) by insertion of the word “including” to clarify that the article’s list of admissible evidence was not exhaustive and other evidence is admissible so long as it is deemed relevant to sentencing.

Although the amendment’s embrace of the term “including” renders the list following it nonexclusive8, retention of the *525term “prior criminal record” and its definitional provision indicates an intent to maintain limitations on the admission of extraneous offense evidence, including unadjudi-cated extraneous offenses.9 There is no other apparent reason for its retention. If, as the State contends, the retained definition does not control admission of extraneous offense evidence, its retention in article 37.07(3)(a) would serve no purpose. Further, as appropriately noted by the Dallas Court of Appeals, “[i]t would not make sense that the legislature intended that extraneous, unadjudicated offenses and their details be admissible, but that prior convictions must be final before being admissible and even then that details of the underlying offenses are to be excluded.” Grunsfeld, 813 S.W.2d at 172. Why would the legislature insist that a conviction be “final,” in assurance that it comported with due process safeguards, yet admit evidence of unadjudicated offenses which have not been tested by the rigors of due process? Our construction gives meaning to the provision as a whole and accounts for each portion of the questioned article. The construction urged by the State, that evidence of extraneous offenses is now admissible despite the retained reference to and definition of “prior criminal record” would render a large portion of article 37.07(3)(a), useless, contrary to well-established rules of construction which presume that each word contained in a statute is used for a purpose.10 See Polk v. State, 676 S.W.2d 408, 410 (Tex.Cr.App.1984) (citations omitted); Huggins v. State, 795 S.W.2d 909, 912-13 (Tex.App.—Beaumont 1990, pet. ref’d) (concurring opinion).

The State’s further contention that article 37.07(3)(a), should be applied as broadly as article 37.071(a), is also unfounded in light of the retained portions of the provision. The form of the Bill submitted to the Senate by the Senate Committee on Criminal Justice proposed deletion of article 37.-07’s references to prior criminal record, general reputation and character and the definition of prior criminal record. However, when brought up for consideration by the Senate, a floor amendment was offered and passed which reinstated those references and definition.11 If the legislature *526did not intend that extraneous offense evidence admissible at the punishment phase be limited by the term “prior criminal record”, the passage of the floor amendment would have been nonsensical.

Here, the trial courts allowed evidence of unadjudicated, extraneous offenses during the punishment phase in the trials of two noncapital offenses.12 Pursuant to this court’s historical construction of the term “prior criminal record” the evidence of extraneous unadjudicated offenses was improperly admitted. Accordingly, we find that the trial courts in both Grunsfeld and Hunter abused their discretion in admitting evidence of unadjudicated extraneous offenses under article 37.07 § 3(a).13

When we find error in the proceedings of the court below, the error is reversible unless we determine “beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Harris v. State, 790 S.W.2d 568, 584 (Tex.Cr.App.1989); TEX.R.APP.P. 81(b)(2). The evidence admitted in both cases implicated appellants in offenses which were very similar in detail to the subject offenses. In light of its highly prejudicial nature, we cannot say beyond a reasonable doubt that the admission of the evidence by the trial courts did not contribute to the punishment of appellants.

For the reasons herein stated, we affirm the decision of the court of appeals in Grunsfeld, reverse the decision of the court of appeals in Hunter and remand both cases to their respective trial courts for proceedings consistent with article 44.-29(b) V.A.C.C.P.

MILLER, J. joins with note: Although I am satisfied that Judge MALONEY’s analysis is most adequate to resolve the issue presented herein, I also join Judge CLINTON’S concurring opinion.

. The term "appellants” shall hereinafter refer to Grunsfeld and Hunter collectively.

. At the time of the subject offenses, Article 37.071(a) provided in relevant part that "[i]n the [punishment phase of a capital offense], evidence may be presented as to any matter that the court deems relevant to sentence." Article 37.071(a) V.A.C.C.P.

. In Murphy, we held that extraneous offense evidence was not admissible at punishment to attack the “suitability" of the defendant for probation. Murphy, 777 S.W.2d at 67 (opinion on rehearing).

. Article 37.07(3)(a) was amended in 1985 to provide that evidence offered thereunder must be permitted by the Rules of Evidence.

. The Dallas Court of Appeals held that:

... evidence of extraneous, unadjudicated offenses, even if deemed relevant to sentencing by the trial court, would have to meet two tests. First, it would have to be evidence permitted by the rules of evidence. Second, if it is part of a defendant’s prior criminal record, as it has been considered in the past, it must comply with the statutory definition of that term.

*524Grunsfeld, 813 S.W.2d at 166. Although we agree with the court of appeals’ conclusion that two limiting factors apply to the admission of extraneous offense evidence, we do not see the necessity to apply them in the order recited by that court. Also, if the evidence fails to satisfy one of the limitations, we see no need to advance to an analysis of the evidence under the other limiting factor.

. The State is overly broad, however, in its contention that the amendment evidenced the legislature’s disapproval of this court’s decision in Murphy, as the State fails to delineate between this court’s original opinion and its opinion on rehearing. The subject amendment was passed by Senate vote on May 28, 1989 and by House vote on May 29, 1989, three weeks before this court rendered its decision on rehearing on June 21, 1989.

The State argues that the legislature’s amendment of article 37.07(3)(a) was an attempt to overturn this court’s holdings in Murphy, citing Murphy, 777 S.W.2d at 60, 61 and 64. The State further contends that "it is presumed that the legislature was aware of these holdings when it amended article 37.07(3)(a).” The State also supports its argument by pointing to Judge Duncan’s concurring opinion in which he noted that it was not the function of this court to expand article 37.07(3)(a) beyond its limiting language. The State’s reliance on this court’s holdings in Murphy on pages 60, 61, 64 and Judge Duncan’s concurring opinion all refer to our decision on rehearing, which the legislature could not possibly be "presumed” to be aware of since the opinion on rehearing was not delivered until several days after the amendment was passed by both houses and signed by the governor.

. This court’s opinion on rehearing clarified that, point. On rehearing, this court stated that article 37.07(3)(a), as it then existed, "is not exhaustive in setting out evidence admissible at the punishment phase to show circumstances of the offender.” Murphy, 777 S.W.2d at 64 (opinion on rehearing). Evidence such as "family background, religious affiliation, education, employment history and the like are appropriate considerations in assessment of punishment." Id. However, the court also said that the State was "limited in form ... to prior criminal record, and opinion or reputation testimony" when presenting character evidence under article 37.-07(3)(a), as it then existed. Id. at 61 (opinion on rehearing).

Following Murphy, we confirmed that evidence other than that specifically identified in the article 37.07 was admissible at punishment. Hedicke v. State, 779 S.W.2d 837 (Tex.Cr.App.1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990). In Hedicke, we recognized that opinion evidence to prove character was also admissible although, pursuant to Murphy, evidence of specific conduct was still inadmissible. Id. at 839, 842.

.The Code Construction Act provides that:

‘Includes’ and ‘including’ are terms of enlargement and not of limitation or exclusive enumeration, and use of the terms does not create a presumption that components not expressed are excluded.

TEX.GOVT CODE § 311.005(13) (Vernon Supp. 1992). Clearly the reference to prior criminal record, general reputation and character does not amount to a list of "limitation or exclusive enumeration”. However, the Code Construction Act does not provide that use of the terms "includes” or "including” will render any following list of components immune from limitations the legislature may choose to impose. Accordingly, insertion of the term "including” does not mean that "any matter the court deems relevant to sentencing” is not subject to other limitations the legislature may see or may have seen fit to impose.

. The definition of “prior criminal record” has not been modified since its inclusion in article 37.07(3)(a) in 1967. Pursuant to this definition, this court has consistently held that evidence of specific acts (good or bad), including extraneous, unadjudicated offenses are inadmissible. Hedicke, 779 S.W.2d at 839; Drew v. State, 777 S.W.2d 74 (Tex.Cr.App.1989); Murphy, 777 S.W.2d at 61 (opinion on rehearing); Elder v. State, 677 S.W.2d 538, 539 (Tex.Cr.App.1984); Ramey v. State, 575 S.W.2d 535, 537 (Tex.Cr. App.1978); Sherman v. State, 537 S.W.2d 262, 263-64 (Tex.Cr.App.1976); Lege v. State, 501 S.W.2d 880, 881-82 (Tex.Cr.App.1973); Mullins v. State, 492 S.W.2d 277, 278-79 (Tex.Cr.App.1973). We see no reason to construe that definition any differently now.

. We acknowledge that numerous courts of appeal, with the exception of Grunsfeld, Jolivet v. State, 811 S.W.2d 706 (Tex.App.—Dallas 1991, pet. granted) and Blackwell v. State, 818 S.W.2d 134, 140-41 (Tex.App.—Waco 1991, pet. filed), have held that the subject amendments render article 37.07(3)(a) and article 37.071(a) virtually identical in language and therefore, in application. Slott v. State, 824 S.W.2d 225 (Tex.App.—Beaumont 1992, pet. filed); Gallardo v. State, 809 S.W.2d 540, 541-43 (Tex.App.—San Antonio 1991, pet. granted); Hubbard v. State, 809 S.W.2d 316, 319-20 (Tex.App.—Fort Worth 1991, pet. granted); Cannon v. State, 807 S.W.2d 631 (Tex.App.—Houston [14th Dist.] 1991); Hunter v. State, 805 S.W.2d 918, 920-21 (Tex.App.—Beaumont 1991, pet. granted); McMillian v. State, 799 S.W.2d 311, 313-14 (Tex.App.—Houston [14th Dist.] 1990, pet. granted); Huggins v. State, 795 S.W.2d at 911. However, none of these courts found it necessary to entertain any discussion of legislative history. Based solely upon the similarity of the language between article 37.07(3)(a) and 37.071(a), they summarily concluded that since evidence of extraneous offenses is admissible in the capital context it must also be admissible now in the noncapital context. Only Gallardo even recognized the retention in the statute of the reference to prior criminal record and its definition, but apparently dismissed its retention as meaningless. Gallardo, 809 S.W.2d at 542.

.The court of appeals in Grunsfeld detailed the legislative history of the subject amendment and our own research has confirmed the accuracy of that discussion. The subject amendment was passed by the 71st Legislature as a part of a larger piece of legislation — House Bill 2335. When initially passed by the House, HB 2335 did not contain an amendment to article 37.07 § 3(a). Upon receipt of HB 2335 by the Senate, it was referred to the Senate Committee on Criminal Justice (the "Committee”). The Committee’s Report to the full Senate proposing changes to HB 2335 contained an amendment to 37.07 § 3(a) which deleted the reference to a *526defendant’s prior criminal record, his general reputation and character and the definition of prior criminal record. As proposed by the Committee, the amendment revised article 37.07 § 3(a) to read virtually identically to article 37.071(a). As stated by the court of appeals in Grunsfeld, "[o]bviously, the deleted language would not be needed if evidence ‘as to any matter the court deems relevant to sentencing’ was to be allowed.” Id. However, for unknown reasons, two days later when the Committee’s Report was brought up for consideration before the Senate, Senator McFarland (Senate sponsor of HB 2335 and chair of the Committee) offered a floor amendment to the form of HB 2335 proposed by the Committee’s Report. The floor amendment revised the Committee’s version of the amendment to article 37.07 § 3(a) to retain the references to a defendant’s prior criminal record, general reputation and character as well as the definition of prior criminal record. McFarland’s floor amendment passed and no further changes were made to the amendment of article 37.07 § 3(a) before final passage of HB 2335. Review of the legislative history does not reveal any explanation for this apparent change of heart. We can think of no other reasonable explanation for the retention of those references and the accompanying definition other than the intent of the legislature to maintain a limitation on the admission of extraneous offenses at punishment in a noncapital offense. As aptly stated by Judge Burgess in his concurring opinion to the court of appeals decision in Huggins, "[t]he legislature could have deleted all references to 'prior criminal record’ but chose not to do so.” Huggins, 795 S.W.2d at 913. The legislative history shows that the legislature clearly considered amending article 37.07 § 3(a) to be identical to article 37.071(a), but deliberately chose not to do so.

. We note that appellants offered evidence only to establish that they were eligible for probation. Such a showing did not "open the door” to evidence of specific conduct. Murphy, 777 S.W.2d at 68.

. We will not reach an analysis of the admissibility of the subject evidence under the Rules of Criminal Evidence or an analysis of its “relevancy to sentence” as determined by the trial court since we hold that the evidence of appellants’ specific conduct is inadmissible under article 37.07 § 3(a)’s definition of "prior criminal record.”