Monroe v. State

BLEIL, Justice,

dissenting.

The majority correctly concludes that the trial court erred in admitting evidence of unadjudicated extraneous offenses.

Under Rule 81(b)(2), once an error is discovered, the appellate court is obligated to reverse the judgment unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or to the punishment. Tex.R.App.P. 81(b)(2); Mallory v. State, 752 S.W.2d 566, 570 (Tex.Crim.App.1988). The *146majority finds that evidence of extraneous offenses committed against four convenience store clerks was cumulative and had little prejudicial impact.4 With much mitigating evidence, Monroe nevertheless received eighteen years’ confinement. The sentence most certainly might have been lower had the trial court excluded the improper evidence. To conclude beyond a reasonable doubt that the jury would not have assessed a different punishment had the testimony of four witnesses been excluded is unsupported speculation.

I cannot agree with the majority’s determination that, beyond a reasonable doubt, the erroneous admission of evidence tending to show that Monroe had robbed other convenience store clerks’ made no contribution to the punishment Monroe received. For this reason, I would hold that the trial court’s errors in the punishment stage of the trial require a partial reversal of the judgment and a remand to the trial court for a new trial of the punishment stage of the trial. See Tex.Code Crim.Proc.Ann. art. 44.29(b) (Vernon Supp.1993).

I also write to express my disapproval of what appears to be a trial tactic on the part of the Harris County district attorney’s office.

The tactic employed in this case is like that employed in Munoz v. State.5 Munoz was charged with sexual assault offenses against three women victims. He was convicted of assaulting each of them on three separate occasions on a jogging trail next to a bayou in Houston. After the jury found him guilty, the State called five women to give their opinion as to whether he was a law-abiding or peaceful man.

Each of these five witnesses “met” Munoz while on a bayou jogging trail in Houston. Four of them opined that he was not peaceful and law abiding. The fifth opined that he had attacked her on the trail and, after an objection and an instruction to disregard her testimony was given, the State did not ask her for her opinion. 803 S.W.2d at 757-68. Patently, the State called these witnesses to show unadjudicated extraneous offenses under the guise of eliciting opinions of Munoz’s character as a peaceful and law-abiding person.

Here, Monroe was charged with aggravated robbery of a convenience store clerk. Upon conviction, the State paraded seven different persons who had “met” Monroe while they were at work as a convenience store clerk. How convenient. Purportedly, they were called as opinion witnesses to prove Monroe’s character as a peaceful and law-abiding citizen pursuant to the rules of evidence. Tex.R.Crim.Evid. 405. The opinions given were that Monroe was not a peaceful and law-abiding citizen. However, it is obvious that the greater reason for this parade of convenience store clerks was to convey to the jury that he had probably robbed or attempted to rob them also — extremely serious unadjudicated extraneous offenses. Had the prosecutor admitted that this was the purpose of the evidence, Rule 404(b) would prohibit its admission. Tex. R.Crim.Evid. 404(b).6

While there is a fine line between astute trial tactics and foul play, this prosecutorial practice crosses the line and should be condemned. This practice is one which, because of common sense and because of the common law, an attorney should know not to do it, and a judge should know not to tolerate it. See Skidmore v. State, 838 S.W.2d 748, 757 n. 7 (Tex.App.—Texarkana 1992, pet. ref'd) (Bleil, J., concurring). The majority correctly recognizes that a proper consideration is *147whether declaring the error harmless would encourage the State to repeat it with impunity. Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App.1989). Nevertheless, the majority declares this error harmless, giving prosecutors the green light to continue a practice which ought to be soundly condemned. This is another reason why I cannot join in the majority’s decision.

. Seven persons who had met Monroe while they were convenience store clerks testified. As noted by the majorhy, three of the clerks testified without timely and proper objection. The testimony of the other four clerks was admitted over timely and proper objections by defense counsel.

. This decision is cited by the majority and is found at 803 S.W.2d 755 (Tex.App.—Houston [14th Dist.], pet. ref'd, 809 S.W.2d 501 (Tex.Crim.App.1991).

. The prosecutor's position is no more valid than if she had called say, a rose not a rose, but a red flower. Long ago, Shakespeare gave ample retort to such a proposition, saying a rose "[b]y any other name would smell as sweet.” William Shakespeare, Romeo and Juliet act 2, sc. 2, 1. 44 (Tucker Brooke et al. eds., 3rd ed. 1935).