this Court will “ordinarily” remand to the court of appeals to resolve issues not yet addressed, rather than address them in the first instance, “since in our capacity as a discretionary review court, we review ‘decisions’ of the courts of appeals”
How later courts described this case
- this Court will “ordinarily” remand to the court of appeals to resolve issues not yet addressed, rather than address them in the first instance, “since in our capacity as a discretionary review court, we review ‘decisions’ of the courts of appeals”
Written by the judges who cited it.
The opinion
In the Court of Criminal
Appeals of Texas
══════════
No. PD-0310-20
══════════
MICKEY RAY PERKINS,
Appellant,
v.
THE STATE OF TEXAS
═══════════════════════════════════════
On Appellant’s Petition for Discretionary Review
From the Eleventh Court of Appeals
Brown County
═══════════════════════════════════════
YEARY, J., filed a concurring opinion in which SLAUGHTER, J.,
joined.
Today, in answering the only ground for review we agreed to
consider in this case, the Court decides that: (1) the court of appeals did
PERKINS – 2
not err to say that the State was not required to accept Appellant’s offer
to stipulate to evidence of extraneous misconduct, Majority Opinion at
11–14, 1 and (2) the court of appeals should have conducted a more
comprehensive Rule 403 analysis to determine whether the extraneous
offense evidence was substantially more prejudicial than probative. Id.
at 14–17; TEX. R. EVID. 403. I agree with both of these conclusions, and
I therefore join the Court’s opinion. I write further only to address why
I believe Appellant’s offer to stipulate to the fact of a prior conviction
was properly rejected.
As I understand Appellant’s argument, unless the State agrees
with a defendant’s offer to submit evidence of extraneous misconduct
only in the form of a stipulation to the fact of a conviction, so as to avoid
presenting the details of such misconduct to the jury, extraneous
misconduct will essentially prove to be more prejudicial than probative
under Rule 403—practically as a matter of law. 2 The court of appeals
rightly (if only implicitly) rejected this argument, and this Court agrees.
1Indeed, Appellant concedes in his brief on the merits on discretionary
review that “[t]he Court of Appeals correctly noted that[,] in general, the State
may adduce its testimony as it sees fit, and [it] need not accept a stipulation.”
Appellant’s Brief at 19.
2Although it is already set out verbatim in the Court’s opinion, Majority
Opinion at 9, I will repeat Appellant’s second ground for review here for
convenience’s sake:
The Court of Appeals erred in holding the trial court acted
within its discretion in allowing the State to introduce extensive
details about an extraneous offense during the guilt-innocence
phase when [Appellant] was willing to stipulate to it.
Appellant’s Petition for Discretionary Review at 3.
PERKINS – 3
But I would prefer that the Court more explicitly say, at least in a case
like this one, that it is sometimes the details of extraneous offenses
themselves, not the mere fact of conviction for misconduct, that makes
misconduct evidence relevant and supports the determination that it is
indeed more probative than prejudicial, for purposes of Rule 403.
There is no doubt that there may be some contexts in which an
offer to stipulate can cause a court to determine that the introduction of
the specific details of an extraneous offense is substantially more
prejudicial than probative under Rule 403. Even the United States
Supreme Court has made that determination in a case where the mere
fact of the prior conviction was more important than the details. In Old
Chief v. United States, 519 U.S. 172 (1997), the United States Supreme
Court examined whether a defense offer to stipulate to the mere fact of
a prior conviction would render admission of the Government’s evidence
of the specifics of the prior offense objectionable under Federal Rule of
Evidence 403.
The Court observed in Old Chief that, in situations in which “the
fact of [a] qualifying conviction is alone what matters under [a]
statute[,]” stipulation of the mere fact of the prior conviction is enough—
by itself—to establish the applicable element of the Government’s case.
Id. at 190. In such circumstances, the Court explained, a trial court’s
ruling to admit evidence of the specifics underlying a prior conviction,
over a defense offer to stipulate to the bare fact of the prior conviction,
could amount to an abuse of discretion. Id. at 191–92; see also id. at 190
(“[R]ecognition that the prosecution with its burden of persuasion needs
evidentiary depth to tell a continuous story has . . . virtually no
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application when the point at issue is a defendant’s legal status,
dependent on some judgment rendered wholly independently of the
concrete events of later criminal behavior charged against him.”).
However, this is not true in situations in which the details
themselves are what make the evidence relevant. 3 Appellant’s argument
at trial, made evident prior to Rogers’s (the victim in the extraneous
offense case) testimony, by Appellant’s own counsel’s cross-examination
of Hyles (the victim in this case), was that she (Hyles) was responsible
for her own injury, and that he (Appellant) was not responsible for
causing it. The State needed to be able to respond to this defensive
theory by offering evidence to the jury suggesting that Hyles did not, in
fact, cause her own injury.
To do that, the State sought to prove that a similar incident
involving Appellant had occurred in the past, and that, therefore,
Hyles’s injury was demonstrably less likely to have been self-caused. To
prove this, the evidence of the details of Appellant’s prior assault against
Rogers was relevant and strongly probative; it tended to show that this
second incident, involving injury to Hyles, was not a self-inflicted
3 See Old Chief, 519 U.S. at 189 (“[T]he accepted rule that the
prosecution is entitled to prove its case free from any defendant’s option to
stipulate the evidence away rests on good sense. A syllogism is not a story, and
a naked proposition in a courtroom may be no match for the robust evidence
that would be used to prove it. People who hear a story interrupted by gaps of
abstraction may be puzzled at the missing chapters, and jurors asked to rest a
momentous decision on the story’s truth can feel put upon at being asked to
take responsibility knowing that more could be said than they have heard. A
convincing tale can be told with economy, but when economy becomes a break
in the natural sequence of narrative evidence, an assurance that the missing
link is really there is never more than second best.”).
PERKINS – 5
injury—any more than Rogers’s injuries were self-caused in the
extraneous case. This highly probative information would not have been
self-evident from merely stipulated evidence of the fact of Appellant’s
prior conviction alone. And to the extent that this relevant evidence may
have caused Appellant some prejudice, it was very unlikely to be the
kind of “unfair prejudice” contemplated by Rule 403. 4
Appellant points out that, in Robles v. State, this Court held that
the trial court erred in denying a defendant’s motion to suppress
evidence of prior convictions when the defendant offered to stipulate to
them. Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002). As the court
of appeals concluded, however, Appellant’s case is distinguishable from
Robles. Perkins v. State, No. 11-18-00037-CR, 2020 WL 976941, at *2 n.2
(Tex. App.—Eastland) (mem. op., not designated for publication). In
Robles, the Court concluded that, “[w]hen the accused offers to stipulate
that the jurisdictional convictions exist, the probative value of evidence
of the same convictions is substantially outweighed by the danger of
unfair prejudice.” Robles, 85 S.W.3d at 213 (emphasis added).
Just as in Old Chief, it was the simple fact of the prior convictions
that was relevant to prove the offense on trial in Robles, rather than the
details of the offenses underlying the convictions themselves. Id. And
because the details of the prior convictions were not relevant to a
4“‘Unfair prejudice’ does not, of course, mean that the evidence injures
the opponent’s case—the central point of offering evidence. Rather it refers to
‘an undue tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one.’” Cohn v. State, 849 S.W.2d 817, 820
(Tex. Crim. App. 1993) (citing Steven Goode, et al., TEXAS PRACTICE: TEXAS
RULES OF EVIDENCE: CRIMINAL AND CIVIL § 403.2, at 93 (1988)).
PERKINS – 6
contested issue in the guilt-innocence phase, the risk of unfair prejudice
was comparatively great. Id. at 212–13. 5
In contrast, here, the details of the extraneous misconduct were
relevant to a contested issue during the guilt-innocence phase of
Appellant’s trial—specifically, whether the injury to Hyles was caused
by her own actions, or whether Appellant was indeed guilty of the
charged offense. The fact that a similar situation occurred previously
indicated that it is less likely that Hyles was responsible for causing her
own injury in this case. The specifics of the evidence were relevant and
probative to aid the jury in deciding the contested issue, which was
introduced into the guilt phase of the trial by Appellant, by the
suggestion that Hyles’s injuries were self-caused. The trial court did not
abuse its discretion to conclude that, simply because the State’s evidence
detailed the specifics of the extraneous misconduct, it was necessarily
inadmissible because substantially more prejudicial than probative
under Rule 403.
The State’s refusal to agree to Appellant’s offer to stipulate only
to the fact of a prior conviction is not, of course, wholly determinative of
the Rule 403 analysis, and because Appellant also complains, albeit
5 “Each judgment [in Robles] contained a notation that it was a DWI-
third offense. Also, the judgments contained the sentences that were imposed
in each case. Therefore, a jury could have gleaned, during the guilt-innocence
phase, that the DWI charged [t]here was the appellant’s fifth alcohol-related
offense and that the appellant had not served his full term for his last prior
conviction. That kind of evidence is prejudicial and possesses no probative
value.” Robles, 85 S.W.3d at 213.
PERKINS – 7
almost in passing, 6 that the court of appeals failed to conduct a full-
blown Rule 403 analysis, by explicitly taking into account all of the non-
exclusive factors the Court today identifies in its opinion, Majority
Opinion at 15–17, I agree that the cause should be remanded to the court
of appeals for further consideration.
FILED: September 7, 2022
PUBLISH
6 Appellant observed that “[t]he [c]ourt of appeals acknowledged the
four-part test under Rule 403 . . . yet utterly failed to conduct any analysis as
to how the facts of this case fit into the test.” Petition for Discretionary Review
at 19; Appellant’s Brief at 19. Nowhere does he explicitly argue that this Court
should return the case to the court of appeals to address this deficiency in the
first instance. He argues only that we should remand the cause for the court of
appeals to conduct a harm analysis. Appellant’s Brief at 23. But I agree that a
remand is the more appropriate course to take than for this Court to conduct
the proper Rule 403 analysis for the first time. See, e.g., Davison v. State, 405
S.W.3d 682, 691 (Tex. Crim. App. 2013) (this Court will “ordinarily” remand to
the court of appeals to resolve issues not yet addressed, rather than address
them in the first instance, “since in our capacity as a discretionary review
court, we review ‘decisions’ of the courts of appeals”).