I dissent from the disposition of the case and the analysis of the Court in the application of Rules 404(b) and 403 of the Rules of Criminal Evidence. That analysis concerns the admissibility of the marihuana found on the person of the defendant after a complete search at the jail.
Rule 404(b) renders inadmissible evidence of other crimes for the purpose of proving the character of a person to show he acted in conformity with that trait in the commission of the charged offense. For example, in the *Page 773 prosecution for possession of a drug, evidence may not be admitted that he had earlier possessed other drugs in order to show he generally has drugs and is, therefore, guilty of the present offense. In Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App. 1990) (opinion on reh'g), the court explicitly held that the other crime must be relevant to one of the enumerated exceptions set out in Rule 404(b), e.g., to show motive, intent, identity, etc., in order to be admissible. If the proffered evidence has no relevance apart from the defendant's character, it is not admissible.
In Rogers v. State, 853 S.W.2d 29 (Tex.Crim.App. 1993), the court held the listing of purposes for which evidence of other crimes is admissible under Rule 404(b) is not exclusive, and added another reason such evidence is admissible: that of necessity, which is narrowly construed. It is held that "[o]nly if the facts and circumstances of the instant offense would make little or no sense without also bringing in" the evidence of the other crime will it be admitted. Id. at 33. The concurring opinion agrees that "necessity" means that it would be "impossible to present a coherent picture of the charged offense without inadvertently proving the 'other crime, wrong, or act.' " Id. at 36.
Appellant was charged with possession of cocaine. The cocaine was found, along with a syringe and marihuana, under the back seat of a police cruiser after he had been removed from it. The central question in the case was whether the cocaine was appellant's, as no contraband was found on him when he was searched prior to being placed in the patrol car. After the syringe, cocaine, and marihuana were found in the car, appellant was subjected to a thorough search that revealed small bags of marihuana in his sock and shoe. Evidence of the finding of this marihuana was objected to and its admissibility is the subject of my disagreement with the majority.
There was evidence that appellant was squirming around in the back of the police car with his hands handcuffed behind his back while being transported to the police station. The state argues that the marihuana found in appellant's sock and shoe is relevant to his opportunity to remove the cocaine, syringe, and marihuana from his pockets while handcuffed in the back of the police car. The supposition is that he removed contraband from areas accessible while so confined, but was unable to remove that which was hidden in areas of his person he could not reach.
I believe the evidence was properly admitted because it was relevant to matters other than the character of the defendant as a "possessor of contraband drugs." First, it tended to show the opportunity of appellant to discharge some but not all contraband from his person, and second, it tended to show the search of appellant before he was placed in the police car was indeed cursory.
No drugs were found on appellant when he was first arrested. That search was described as a "pat down" search for weapons. How cursory the search was is relevant, because it failed to reveal any drugs or syringes. That it also failed to reveal other drugs on appellant is relevant to the thoroughness of that initial search.
I would hold the evidence of possession of marihuana in his sock and shoe was not relevant solely to prove the character of the appellant, but was relevant, and thus admissible, for other purposes, to show opportunity to discharge the drugs in the rear seat of the cruiser, and the incompleteness of the initial search.
I respectfully dissent.