Escobar v. State

O’CONNOR, Justice,

dissenting.

I dissent. In point of error three, the appellant contends the trial court abused its discretion in admitting evidence of his earlier criminal conduct when it admitted the State’s exhibits five and six, the appel*258lant’s prison identification card and parole papers.

I do not believe the appellant’s identification card from the TDC or the appellant’s parole papers were relevant. Thus, under Tex.R.CRIM.Evid. 402, the papers should not have been admitted. If the documents had any relevance, I believe their probative value was substantially outweighed by the danger of unfair prejudice. Thus, under Tex.R.CRIM.Evid. 403 and 404(b), the papers should not have been admitted.

On cross-examination of Officer Rios, the appellant’s counsel questioned him about a joint report that he filed with the other officers. Rios stated the officers had not been able to confirm to whom the apartment was leased, and during the search, the officers did not find any rent receipts or lease documents. Officer Rios admitted that another person, Mr. Salazar, was listed as the occupant of Apartment 3 on their report, and he would have been jointly responsible for anything found there. All the defense counsel questions went to the issue of the lease of the apartment and joint possession; none of the questions challenged Officer Rios’ identification of the appellant.

The State then recalled one of the other officers and offered exhibits five and six, the identification card and the parole papers. After the appellant objected, the State argued that the appellant’s papers were relevant to prove the appellant lived in the apartment and, on that limited ground, the court admitted them. Neither document contains an address for the appellant. The presence of the documents in the apartment did not help the State prove the proposition that the appellant lived at that address. The presence of the documents in the apartment merely supports the proposition that the appellant was in the apartment. The appellant, who was arrested outside the apartment, did not challenge the prosecution on the grounds of mistaken identity.

Once a defendant objects to evidence on the ground that it constitutes an extraneous offense, it is incumbent upon the State to satisfy the trial court that the “other crime, wrong, or act” has relevance apart from its tendency “to prove character of a person in order to show that he acted in conformity therewith.” Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990) (op. on reh’g); Tex.R.CRIM.Evid. 404(b). If the trial court determines the evidence has no relevance apart from the evidence of character, then the evidence is absolutely inadmissible. Montgomery, 810 S.W.2d at 387. The trial court has no discretion to admit it. Id.

The majority holds the record supports the State’s argument that the appellant’s counsel opened the door when he cross-examined Officer Rios about who lived in the apartment, and whether appellant had any connection to the apartment. The record does not support the majority’s characterization of the cross-examination. The cross-examination was limited to whether the officers found any lease documents (no), and whether their report showed that Mr. Salazar was the occupant (yes). Nothing in the cross-examination can be interpreted as challenging a connection between the appellant and the apartment. The State was not required to prove that the appellant lived in the apartment.

The majority holds that the State persuaded the trial court that the evidence showed some “other crime, wrong, or act” was relevant, apart from character conformity, in that it tended to establish identity. The appellant’s parole papers and identification card, found on the bedside table, did not prove the appellant lived in the apartment. As the majority concedes, the evidence that the appellant was arrested outside the apartment on the day after the drug transaction tends to make the fact that it was the appellant who delivered the heroin more probable. The appellant’s identification from TDC and his parole papers did not provide any relevant evidence, merely prejudicial evidence. Tex.R.Crim. Evid. 401. I do not believe the State’s exhibits five and six were admissible.

I would sustain point of error three and reverse.