reasoning that where the State presents evidence pertinent to the suppression issue at trial without objection or with subsequent participation in the inquiry by the defense, the suppression evidence is re-opened and an appellate court may consider it in its review
How later courts described this case
- reasoning that where the State presents evidence pertinent to the suppression issue at trial without objection or with subsequent participation in the inquiry by the defense, the suppression evidence is re-opened and an appellate court may consider it in its review
- explaining that appellate court ordinarily determines whether trial court’s suppression ruling is supported by record based only on evidence adduced at hearing because trial court’s ruling was based on this evidence
- holding that it is unreasonable to ignore trial evidence in the review of the court's suppression decision only to be confronted by that trial evidence in the determination of whether the error was harmless
- stating that general rule—consider only evidence adduced at suppression hearing—is inapplicable where, as in this case, suppression issue has been relitigated by parties pending trial on merits
Written by the judges who cited it.
The opinion
MALONEY, Judge,
concurring.
I concur in the disposition of points of error one, six, and seven and otherwise join the opinion of the Court. The majority as to point of error one holds that evidence of a no-billed extraneous murder was admissible because it was relevant and its probative value outweighed any prejudicial effect. I disagree with that conclusion and write to emphasize the hazards involved in admitting such evidence during the punishment phase of a capital murder trial.
The evidence of the extraneous killing admitted in the instant ease was not relevant to appellant’s deathworthiness as a future danger to society. While appellant did not dispute his commission of the extraneous homicide, he instead asserted that the killing was justified because it was committed in self-defense. That appellant acted justifiably in self-defense is supported by the testimony of the State’s attorney who stated that a fair jury, upon hearing the evidence, would probably have found appellant acted in self-defense. A homicide in self-defense is legally justifiable under our Penal Code. Tex.Penal Code Ann. § 9.31. Evidence that an actor “defended himself against another’s use or attempted use of unlawful force” does not have a tendency to make it more probable that appellant would be a continuing threat to society any more than would evidence of any lawful military conduct in combat which results in death of the enemy, or lawful actions of a police officer causing death in the line of duty.
If, however, appellant’s justifiable homicide might be considered relevant to the issue of future dangerousness, the prejudicial effect of admitting such evidence would substantially outweigh any probative value. See Tex. R.Crim.Evid. 403. Action in protecting oneself against another’s use of unlawful force demonstrates nothing about propensity for violence and therefore has no probative value on the special issue. However, the possibility that a jury would disregard the legally justifiable nature of such action and focus only on the fact that a death resulted is great.
The danger in admitting this type of extraneous conduct evidence at punishment in a capital ease is compounded by the lack of a statutory requirement that it be proven beyond a reasonable doubt. See Tex.Code Crim.Proc.Ann. art. 37.071, § 2(a). However, before extraneous offense evidence may be introduced at the punishment hearing of a capital case, the State must “clearly prove” that an offense was committed and that the accused was the perpetrator. Burks v. State, 876 S.W.2d 877, 909 (Tex.Crim.App.1994); Kemp v. State, 846 S.W.2d 289, 307 (Tex.Crim.App.1992). This Court held in Harrell v. State, 884 S.W.2d 154, 161 (Tex.Crim.App.1994), and reaffirmed in George v. State, 890 S.W.2d 73, 76 (Tex.Crim.App.1994), that, in the context of guilVinnocence, the clear proof standard is the same as proof beyond a reasonable doubt. Accordingly, it is at least arguable that an extraneous offense offered *825 during the punishment phase of a capital murder trial be proven beyond a reasonable doubt. But see Powell v. State, 898 S.W.2d 821, 830 (Tex.Crim.App.1994).
These comments aside, I concur in the Court’s disposition of point of error one because in light of the other evidence in the record offered to show appellant’s future dangerousness, any error in admitting the extraneous homicide was harmless. I also concur only in the disposition of points of error six and seven, and otherwise join the opinion of the Court.