Perkins, Mickey Ray

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

NEWELL, J., delivered the opinion for a unanimous

Court. YEARY, J., filed a concurring opinion in which

SLAUGHTER, J., joined.

Is the State required to accept a defendant’s stipulation of

evidence regarding an unadjudicated extraneous offense offered for

Perkins – 2

non-character conformity purposes rather than introduce testimony

regarding the commission of that offense into evidence during the

State’s case-in-chief? No. We decline to extend our holding in Tamez

v. State involving jurisdictional DWI convictions to the situation

presented in this case. We affirm the court of appeals opinion in this

regard. However, Appellant rightly complains that the court of appeals

failed to review the trial court’s decision to admit testimony of

Appellant’s unadjudicated aggravated assault over Appellant’s Rule 403

objection. Consequently, we remand the case for the court of appeals

to determine whether the trial court’s admission of this evidence ran

afoul of Rule 403.

Background

As she was driving, Carrol Weathermon saw blood drops in the air

in front of her car. To the right-hand side of the road, she saw Appellant

standing over Lana Hyles who was on the ground. Weathermon did not

know Hyles or Appellant prior to that day. She began honking her horn

and saw Appellant grab Hyles by the hair pulling her toward a car parked

in the grass to the side of the road. Weathermon called 911 and

continued honking her horn. Weathermon opened her passenger door

and Hyles crawled inside as her nose bled. Weathermon took Hyles to

the emergency room.

Perkins – 3

At trial, Hyles testified that she and Appellant met that afternoon

at the Brownwood Regional Medical Center so that Appellant could

borrow her vehicle. Hyles previously dated Appellant, and, according to

Hyles, Appellant was to drop her off at home but began heading in the

wrong direction. Hyles advised Appellant to take her home, which led

to an argument. The argument became physical when Appellant pushed

her head into the console of the car and choked her causing her pain

and difficulty breathing. Hyles bit Appellant’s finger and exited the

vehicle as it slowed down. She did not recall being on the ground or

Appellant physically trying to force her back to the car. After Appellant

left in Hyles’s car, she got into Weathermon’s car.

But according to Appellant, Hyles caused her own injuries.

Appellant testified that Hyles asked him to bring her pain medication

following a procedure she had that morning. Afterwards, he was

supposed to help her run errands. Appellant explained that while they

were driving, Hyles became angry at Appellant for telling her ex-

husband that he had seen her with drugs. Then, as Appellant was

driving, Hyles slammed the car into either park or reverse from the

passenger seat. Appellant claimed he was forced to hit the brakes,

Perkins – 4

causing Hyles to hit her face on the dash. 1 Hyles was bleeding from a

gash in her nose and got out of the vehicle. Appellant attempted to

persuade Hyles to get back into the car but denied ever approaching

her.

At the hospital, Hyles refused stiches or medical treatment for the

laceration to her nose and left after less than an hour against medical

advice. Hyles testified that her nose was swollen and bruised, and she

had two black eyes and a small scar as a result of the cut to her nose.

Ultimately, Appellant was charged by indictment with aggravated

assault against a person with whom he had previously had a dating

relationship. 2

Appellant’s Unadjudicated Extraneous Offense

After Hyles testified, the State announced its intent to offer

testimony regarding an unadjudicated extraneous assault committed by

Appellant six months prior against a different victim, Sarah Rogers. 3

The State argued the evidence was admissible under Article 38.371 of

1

On cross-examination, Hyles denied Appellant’s version of events and likewise denied that

she had confessed to three people that Appellant never slammed her face into the dashboard.

2

TEX. PENAL CODE § 22.02(b)(1).

3

Initially, the State intended to offer three witnesses related to the extraneous offense

including Rogers, the responding officer, and an investigating deputy.

Perkins – 5

the Texas Code of Criminal Procedure, 4 the doctrine of chances, and

Rule 404(b) of the Texas Rules of Evidence to show motive, intent,

absence of mistake, or lack of accident. The State also urged that the

evidence was admissible to rebut the defensive theory, suggested

through cross-examination, that Hyles caused the injury to her face.

In response, Appellant offered to stipulate to assaulting Rogers in

exchange for the State’s agreement not to call Rogers to testify. The

State rejected the offer and noted its intent to offer Rogers’s testimony

despite Appellant’s offer to stipulate. Appellant then objected to Rogers

testifying on the grounds that it would confuse the jury and be more

prejudicial than probative.

The trial court held a hearing outside of the presence of the jury.

Rogers testified that Appellant assaulted her after she woke him up

following a night of drinking. She alleged he grabbed her by the neck,

struck her several times in the head and ribs with a closed fist, and

4

Article 38.371 provides that in a prosecution for an offense committed against a person in

a dating relationship with the defendant:

“subject to the Texas Rules of Evidence or other applicable law, each party may

offer testimony or other evidence of all relevant facts and circumstances that

would assist the trier of fact in determining whether the actor committed the

offense described…including testimony or evidence regarding the nature of the

relationship between the actor and the alleged victim…This article does not

permit the presentation of character evidence that would otherwise be

inadmissible under the Texas Rules of Evidence or other applicable law.”

TEX. CODE CRIM. PROC. art. 38.371.

Perkins – 6

dragged her by the hair before she was able to escape. She suffered a

brain bleed and rib fractures. The State also proffered testimony from

Investigator Charles Woods that Appellant claimed he awoke to Rogers

attacking him, so he pushed her off him causing her to hit a nightstand

resulting in her injuries. Following the hearing, Appellant again objected,

arguing that the circumstances of the prior assault were different from

the instant offense and thus did not establish a pattern or motive.

Appellant also argued the testimony would be more prejudicial than

probative and had the potential to confuse the jury.

Ultimately, the trial court ruled that the State was not required to

accept Appellant’s stipulation and concluded that the probative value of

the evidence outweighed the prejudicial nature of the evidence. The trial

court further held that the evidence was admissible under Rule 404(b)

to show intent, motive, and absence of mistake and to rebut Appellant’s

defensive theory. 5 The trial court gave a limiting instruction prior to

Rogers’s testimony. 6 The second day of Appellant’s two-day trial was

5

The trial court prohibited the proffered testimony from Investigator Woods during the State’s

case-in-chief.

6

Neither party objected to the trial court’s proposed limiting instruction. The trial court thus

instructed the jury as follows:

Perkins – 7

devoted in large part to extraneous offense testimony. The State’s entire

rebuttal case was related to the assault against Rogers and other

testimony offered by Rogers. In total, the State presented three

witnesses over approximately 40 transcript pages related to Rogers’s

testimony.

Direct Appeal

On appeal, Appellant argued that the trial court erred by admitting

Rogers’s testimony regarding the details of the extraneous offense over

his objection and offer to stipulate to the assault. The State responded

that the trial court’s ruling should be upheld because the extraneous

offense was admissible under Rule 404(b) and that the trial judge’s Rule

403 ruling was within the zone of reasonable disagreement. Further, the

State argued that even if the trial court erred, Appellant was not

harmed.

The court of appeals held that the State was not required to accept

Appellant’s offer to stipulate to the commission of the unadjudicated

You are instructed that the evidence from Sarah Rogers concerning an alleged

offense or offenses, other than the offense alleged in the indictment in this

case, may only be considered if, number one, you believe beyond a reasonable

doubt that the Defendant committed such other offense, if any; and, two, even

then, you may only consider such evidence in determining the intent, motive,

or -- of the Defendant, or absence of mistake or lack of accident, or to rebut a

defensive theory, if any, in connection with the offense alleged against him in

the indictment. You are not to consider this evidence for any other purpose.

Perkins – 8

offense. 7 The court of appeals distinguished Appellant’s case from

Robles v. State, which involved a jurisdictional DWI enhancement. 8 The

court of appeals then relied upon Rodriguez v. State for the proposition

that the State “may adduce its testimony as it sees fit, and it may or

may not agree to a stipulation.” 9

The court of appeals then considered the admissibility of the

extraneous offense evidence. It properly set out the legal standards

attendant to Rules 404(b) and 403 of the Texas Rules of Evidence. 10

The court held that the trial court’s Rule 404(b) ruling was not outside

the zone of reasonable disagreement, but it does not appear that the

court performed the requested review of the trial court’s Rule 403 ruling.

The entire analysis is as follows:

It is clear from the trial court’s statement that the trial court

found Rogers’s testimony to be admissible under Rule 404(b)

and also conducted the necessary two-prong test under Rule

403. See Patterson v. State, 496 S.W.3d 919, 929 (Tex.

App.---Houston [1st Dist.] 2016, pet. ref’d.) (when the trial

court weighs the relevance of the evidence against its

prejudicial impact, it need not formally announce on the

7

Pekins v. State, No.11-18-00037-CR, 2020 WL 976941 at * 3 (Tex. App.—Eastland 2020,

pet. granted).

8

Id. at *2 n.2 (citing Robles v. State, 85 S.W.3d 211 (Tex. Crim. App. 2002) (holding it is

error to admit evidence of prior convictions over offer to stipulate to jurisdictional priors

because of the danger of unfair prejudice).

9

Id. (citing Rodriguez v. State, 373 S.W.2d 258, 259 (Tex. Crim. App. 1963).

10

Id. at *3.

Perkins – 9

record that it has conducted this balancing test). The trial

court’s ruling under 404(b) was not outside the zone of

reasonable disagreement. See Grider v. State, 69 S.W.3d

681, 689 (Tex. App.---Texarkana 2002, no pet.) (upholding

the admission of testimony from defendant’s prior girlfriend

about a previous assault). Further, because “[w]e generally

presume a jury followed a trial court’s instruction regarding

consideration of evidence,” any potential harm was mitigated

by the trial court’s limiting instruction to the jury. [Hung

Phuoc Le v. State, 479 S.W.3d 462, 471 (Tex. App.---

Houston 14th Dist.] 2015, no pet.)] 11

The court of appeals did not discuss the probative strength of the

evidence, the risk of prejudice, the amount of time necessary to develop

the evidence, or the State’s need for the evidence. 12 Instead, the court

of appeals concluded that the trial court did not abuse its discretion in

admitting the extraneous offense.

Discretionary Review

Appellant raised two grounds for discretionary review.

I. The Court of Appeals erred in holding the evidence

legally sufficient to establish serious bodily injury.

II. 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 Perkins

was willing to stipulate to it.

11

Id.

12

See Montgomery v. State, 810 S.W.2d 372, 389-90 (Tex. Crim. App. 1999) (opinion on

rehearing) (setting out relevant criterial for balancing probative value of extraneous offense

evidence against the potential for unfair prejudice).

Perkins – 10

We granted review only on the second issue.

Appellant appears to only challenge two aspects of the court of

appeals opinion: 1) the refusal to require the State to accept an offer

of stipulation; and 2) the lack of a Rule 403 analysis. He argues that

the stipulation, if accepted, would have rendered the details of the

unadjudicated extraneous offense unfairly prejudicial. And he argues

that the court of appeals failed to conduct a proper review of the trial

court’s Rule 403 decision.

On Appellant’s first critique, we agree with the State that it was

not required to accept Appellant’s offer to stipulate. But on the second,

we agree with Appellant that the court of appeals did not conduct an

analysis of whether the probative value of Appellant’s unadjudicated

aggravated assault was substantially outweighed by the danger of unfair

prejudice. Therefore, we affirm the court of appeals holding that the

State was not required to accept Appellant’s offer to stipulate, but we

remand to the court of appeals to conduct an analysis of whether the

trial court abused its discretion in admitting the unadjudicated offense

evidence over Appellants Rule 403 objection.

Stipulations to Prior Offenses

Perkins – 11

As the court of appeals pointed out, generally the State may agree

or not to offers for the stipulation of evidence as it sees fit. 13 However,

in Tamez v. State, we recognized a limited exception to this general

rule. 14 There, the State charged the defendant with felony DWI and

alleged six different DWI convictions as jurisdictional elements in the

indictment. 15 The defendant agreed to stipulate to two of the six DWI

convictions if the State were foreclosed from mentioning his other

convictions in any way to the jury. 16 This Court held that the State was

required to accept the defendant’s stipulation to two jurisdictional

convictions because proof of any remaining DWI convictions would only

serve to improperly prove the defendant’s “bad character” and inflame

the jury’s prejudice. 17 Judge Cochran summed up the scope of the

holding in Tamez as follows:

1. In a felony D.W.I. case;

2. When the defendant offers to stipulate to the two

jurisdictionally required D.W.I. prior convictions;

13

Buitron v. State, 519 S.W.2d 467, 471 (Tex. Crim. App. 1975) (citing Rodriguez v. State,

373 S.W.2d 258 (Tex. Crim. App. 1963)).

14

Tamez v. State, 11 S.W.3d 198, 202-03 (Tex. Crim. App. 2000).

15

Id. at 199.

16

Id.

17

Id. at 202-03.

Perkins – 12

3. The defendant has made an offer the State cannot

refuse; and

4. That written stipulation substitutes for the admission of

other extrinsic evidence of the defendant’s prior D.W.I.

convictions. 18

The Court justified this exception as a balance between Article

36.01 of the Code of Criminal Procedure and the United States Supreme

Court’s interpretation of Federal Rule 403 in Old Chief v. United States. 19

As we noted in Tamez, Article 36.01 of the Code of Criminal Procedure

authorizes the State to read the indictment allegations of two

jurisdictional DWI convictions, which are required when prosecuting a

felony DWI. 20 However, in Old Chief, the United States Supreme Court

explained that when the fact of a conviction is an element of an offense,

the details of the conviction have very little probative value in the face

of an offer to stipulate. 21 In those circumstances, allowing the

government to prove the particular felony that led to the defendant’s

status as a felon could substantially prejudice the defendant by allowing

18

Robles v. State, 85 S.W.3d 211, 216 (Tex. Crim. App. 2002) (Cochran, J. dissenting).

19

Old Chief v. United States, 519 U.S. 172 (1997) (a trial court abuses its discretion when it

admits the full record of a prior conviction for assault, over an offer to stipulate to the prior

conviction element in a felon in possession of a firearm case).

20

Tamez, 11 S.W.3d at 201 (citing TEX. CODE CRIM. PROC. art. 36.01).

21

Old Chief, 519 U.S. at 190-92.

Perkins – 13

the jury to improperly focus on the previous crime rather than the

charged offense. 22 Consequently, the Supreme Court held that the

government was precluded from proving what felony the defendant had

previously been convicted of if he chose to stipulate that he was indeed

a felon. 23

In Tamez, we harmonized Article 36.01 with the reasoning of Old

Chief by requiring the State to accept the defendant’s offer to stipulate

to two DWI convictions, but still allowing the State to read only two

allegations of DWI convictions contained in the indictment.

In cases where the defendant agrees to stipulate to the two

previous DWI convictions, we find that the proper balance is

struck when the State reads the indictment at the beginning

of trial, mentioning only the two jurisdictional prior

convictions, but is foreclosed from presenting evidence of the

convictions during its case-in-chief. This allows the jury to

be informed of the precise terms of the charge against the

accused, thereby meeting the rationale for reading the

indictment, without subjecting the defendant to substantially

prejudicial and improper evidence during the guilt/innocence

phase of trial. Following this logic, any prior convictions

beyond the two jurisdictional elements should not be read or

proven during the State’s case-in-chief---as long as the

defendant stipulates to the two prior convictions---as they

are without probative value and can serve only to improperly

22

Id. at 191 (“the only reasonable conclusion was that the risk of unfair prejudice did

substantially outweigh the discounted probative value of the record of conviction, and it was

abuse of discretion to admit the record when an admission was available.”).

23

Id.

Perkins – 14

prove the defendant’s “bad character” and inflame the jury’s

prejudice. 24

As the State correctly points out, the exception recognized in

Tamez was born out of and applied to a case in which the existence of

prior convictions must be alleged in an indictment and proven in the

State’s case-in-chief. We have not extended this exception beyond that

context. In this case, Appellant’s aggravated assault conviction did not

need to be alleged in the indictment or proven as part of the State’s

case-in-chief. Accordingly, the rationale articulated in Old Chief and

Tamez for requiring the State to accept Appellant’s offer to stipulate to

otherwise extraneous convictions does not apply to Appellant’s case. 25

We affirm the court of appeals holding that the State was not required

to accept Appellant’s offer to stipulate to the unadjudicated offense.

Admissibility of Extraneous Offenses

Extraneous-offense evidence is generally admissible if the

evidence is relevant to a fact of consequence apart from its tendency to

24

Tamez, 11 S.W.3d at 202-03.

25

Appellant relies upon our decision in Robles v. State, 85 S.W.3d 211 (Tex. Crim. App.

2002). Though Robles dealt with a slightly different factual scenario than Tamez---the State

only alleged two jurisdictional convictions in Robles, but it alleged six in Tamez---it still

presented an application of our holding in Tamez. Nothing in Robles suggests that our holding

in Tamez applies to unalleged, non-jurisdictional offenses the State offers for non-character-

conformity purposes.

Perkins – 15

prove character conformity. 26 But even if a court determines that

evidence is relevant and admissible for a non-conformity purpose, Rule

403 may still preclude its admission if the trial court determines that the

probative value of the evidence is substantially outweighed by the risk

of unfair prejudice, confusing the issues, misleading the jury, undue

delay or needlessly presenting cumulative evidence. 27 Unfair prejudice

refers to the evidence’s “tendency to tempt the jury into finding guilt on

grounds apart from proof of the offense charged.” 28 In considering a

Rule 403 objection, the trial court must engage in a balancing test that

considers: (1) how compellingly the extraneous offense evidence serves

to make a fact of consequence more or less probable; (2) the potential

of the evidence to impress the jury in some irrational, but nevertheless

indelible way; (3) the time the proponent needs to develop the evidence,

during which the jury will be distracted from consideration of the

indicted offense; and (4) the proponent’s need for the evidence. 29 We

26

Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005).

27

Tex. R. Evid. 403.

28

State v. Melcher, 153 S.W.3d 435, 440 (Tex. Crim. App. 2005).

29

Colone v. State, 573 S.W.3d 249, 266 (Tex. Crim. App. 2019).

Perkins – 16

review a trial court’s decision to admit or exclude extraneous offense

evidence under Rules 404(b) and 403 for an abuse of discretion. 30

As mentioned above, Appellant argues that the court of appeals

erred in failing to conduct an appellate review of the trial court’s Rule

403 analysis. We agree with Appellant. As we explained in Mozon v.

State:

In reviewing the trial court’s balancing test determination, a

reviewing court is to reverse the trial court’s judgement

“rarely and only after a clear abuse of discretion.” The

reviewing court, however, cannot simply conclude “the trial

court did in fact conduct the requiring balancing test and did

not rule arbitrarily and capriciously.” The trial court’s ruling

must be measured against the relevant criteria by which a

Rule 403 decision is made. 31

In this case, the court of appeals merely held that the trial court

conducted the required balancing test. It did not measure the trial

court’s ruling against the relevant criteria by which a Rule 403 decision

is made. There was no consideration of (1) how compellingly the

extraneous evidence serves to make a fact of consequence more or less

probable; (2) the potential the other offense evidence has to impress

the jury “in some irrational but nevertheless indelible way”; (3) the time

30

Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

31

Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (internal citations omitted).

Perkins – 17

needed to develop the evidence; or (4) the force of the proponent’s need

for this evidence to prove a fact of consequence. 32

Conclusion

The court of appeals properly held that the State was not required

to accept Appellant’s offer to stipulate to the unadjudicated assault. We

affirm the court of appeals holding in this regard. However, the court

of appeals upheld the trial court’s admission of extraneous offense

evidence without conducting a proper review of the trial court’s Rule 403

ruling. We remand the case for consideration of this aspect of

Appellant’s argument.

Filed: September 7, 2022

Publish

32

Id. (setting out the relevant criteria a reviewing court is to consider when evaluating a

trial court’s Rule 403 decision).