# Murphy v. State

> Court of Criminal Appeals of Texas · June 21, 1989 · 777 S.W.2d 44

URL: https://www.frixlaw.com/law-library/cases/9677165

## Case

- **Full name:** Gary Lynn MURPHY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** June 21, 1989
- **Citations:** 777 S.W.2d 44; 1989 Tex. Crim. App. LEXIS 142; 1988 WL 28678
- **Precedential status:** Published
- **Opinion:** Concurrence by Teague
- **Judges:** Clinton, White, McCormick, Teague, Duncan, Onion, Miller, Berchelmann
- **Cited by:** 153 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9677165

## How later opinions describe it (automated extraction)

- stating that possession of the fullest information possible concerning the defendant=s life and characteristics is highly relevant, if not essential, to selection of an appropriate sentence

## Opinion text

TEAGUE, Judge,
concurring.
Gary Lynn Murphy, henceforth appellant, was convicted by a jury of committing the offense of murder, by intentionally killing his wife. The jury assessed punishment at life imprisonment and a $10,000 fine. The facts at the punishment stage of the trial, which is governed by Art. 37.07, V.A.C.C.P., reflect that appellant took the stand and proved up his application for probation. In doing so, appellant merely testified that he had not previously been convicted of a felony in Texas, any other State of the Union, or in any federal jurisdiction. No other witnesses testified on behalf of appellant. The State, over objection, was permitted to present five witnesses who testified that appellant had committed both felony and misdemeanor criminal offenses for which appellant’s guilt had not been adjudicated. The trial judge admitted these extraneous unadjudicated criminal offenses on the basis that they were relevant to appellant’s application for probation.
The Dallas Court of Appeals held that the trial court committed reversible error by admitting into evidence the testimony about the unadjudicated extraneous criminal offenses. In so holding, the court of appeals rejected the State’s argument that under this Court’s decision of Allaben v. State, 418 S.W.2d 517 (Tex.Cr.App.1967), and Allaben’s progeny *, the unadjudicated *69 extraneous criminal offenses were admissible. Murphy v. State, 700 S.W.2d 747 (Tex.App.—5th, 1985).
In reviewing the trial court’s decision to allow the jury to hear the extraneous offense testimony, the court of appeals easily distinguished Atiaben by pointing out that the facts in Atiaben did not concern the admissibility of an unadjudicated extraneous criminal offense, but, instead, concerned the exclusion of defensive testimony that related to psychiatric treatment that the defendant had received for his sexual problems. See and compare Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed.2d 37 (1987). The court of appeals then pointed out that an unadjudicated extraneous criminal offense may become admissible if the defendant “opens the door” by creating a false impression before the jury. The court of appeals found in this instance that appellant had not made any attempts to mislead the jury nor, because he had not left any false impression with the jury, was the introduction of the extraneous offenses necessary to dispel any false impression. The court of appeals went on to hold that the express provisions of Art. 37.07 controlled, and that “The unadjudicated extraneous offense testimony admitted by the trial court was admitted in violation of article 37.07(3).”
The State thereafter petitioned this Court, seeking a ruling that the extraneous offense testimony was admissible as it went to appellant’s application for probation, i.e., the State argued that the extraneous offense testimony was relevant to appellant’s suitability for probation. This Court granted the State’s petition.
On original submission, this Court’s plurality opinion agreed with the court of appeals’ holding that the admission of the extraneous criminal offenses violated the provisions of Art. 37.07, as that statute existed when appellant’s trial occurred. However, the plurality opinion then invoked the “traditional treatment [this Court had used in the past concerning] the admissibility of extraneous offenses,” found that the offenses were relevant, but also found that the probative value of such testimony was outweighed by its prejudicial effect. The plurality opinion then held that the error was not harmless beyond a reasonable doubt under Rule 81(b)(2), Tex. Rules of Appellate Procedure, and affirmed the judgment of the court of appeals, which had reversed the trial court’s judgment of conviction.
Thereafter, this Court granted the State’s motion for rehearing.
Today, another plurality opinion holds that “Article 37.07, § 3(a), supra, precludes admission of specific conduct to show character or anything else under the rubric of circumstances of the offender at the punishment phase of trial, either in mitigation or aggravation of punishment ... In short, we reiterate that Article 37.07, § 3(a), supra, ... precludes evidence of specific acts of conduct for that purpose.” (Page 64) The plurality opinion further holds that “whether past criminal conduct by an applicant for probation may reveal a trait or propensity to violate the law is not relevant to a material issue tendered by an application for probation in punishment proceeding before a jury. For that matter, neither is a selfserving declaration by applicant that he will not violate the law if placed on probation.” (Page 67) The plurality opinion further finds that appellant did not through his testimony in proving up his application for probation “open the door.”
I agree with the result that today’s plurality opinion reaches in affirming the judgment of the court of appeals, which is the same result that the original plurality opinion reached. Therefore, I concur in the result. As previously pointed out, the court of appeals reversed the trial court’s judgment of conviction. Now that the trial is over, and because appellant’s punishment was assessed at life imprisonment, the real issue in this cause actually does not concern appellant’s application for probation, his suitability for probation, or anything that might be related to probation. The real issue is whether, pursuant to Art. *70 37.07, the State is entitled, without any limitation, to introduce unadjudicated criminal offenses at the punishment stage of appellant’s trial.
I write because to me all roads either lead to or from Allaben . My views regarding why I believe that the dicta that is found in Allaben , namely, “Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible,” which has enabled both prosecuting attorneys and defense attorneys to get before the jury evidence that is not expressly admissible pursuant to the express provisions of Art. 37.07, as then worded, have been set out in numerous opinions that I have filed in the following cases of this Court: Wilford v. State, 739 S.W.2d 854 (Tex.Cr.App.1987); Rose v. State, 752 S.W.2d 529 (Tex.Cr.App.1987); Moncrief v. State, 707 S.W.2d 630 (Tex.Cr.App.1986); Davis v. State, 670 S.W.2d 255 (Tex.Cr.App.1984); and Thomas v. State, 638 S.W.2d 481 (Tex.Cr.App.1982). The simple solution to disposing of what the State argues in this cause is to overrule the above dicta in Allaben , and expressly hold that Art. 37.-07, as it was worded when appellant’s trial occurred, is to be literally read, and further hold that the statute means what it states, and also hold that, if the Legislature had wanted the provisions of the statute to include something else, it would have so stated. In fact, by amending Art. 37.07, to provide for a definition for the legal term “prior criminal record,” it is obvious to me that the Legislature did not want the statute, as then worded, to mean more than what is contained therein.
Given the express wording of Art. 37.07, Section 3(a), as it was worded when the hearing on what punishment the jury should assess appellant occurred, the trial judge clearly erred in this cause when, over appellant’s objection, he admitted into evidence the unadjudicated extraneous criminal offenses that appellant had previously committed.
Art. 37.07, Section 3(a), which governs the issue before us, expressly provided at the time when the punishment hearing was held in this cause that a prior criminal offense committed by the defendant is inadmissible evidence against the defendant at the punishment stage of his trial unless it has resulted “in a final conviction in a court of record, or a probated or suspended sentence that has occurred prior to trial, or any final conviction material to the offense charged.” There has never been a provision in Section 3(a) of Art. 37.07 that provided for the following: “Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible.” Thus, admissible evidence at the punishment hearing has always been governed by the provisions of Section 3(a). The sentence, “Evidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible,” comes to us, not through the provisions of either Art. 37.07, supra, in general, or Section 3(a), supra, specifically, but, instead, through this Court’s decision of Allaben , when, for reasons not explained in the opinion, it was put in that opinion. Allaben also did not cite any authority to support the inclusion of that sentence in the opinion. 2
In this instance, when admitted into evidence, the unadjudicated criminal offenses were not final convictions, nor had they resulted in final probated or suspended sentences. There is also no evidence in the *71 record that appellant “opened the door” which would have permitted the trial judge to admit them into evidence. Thus, when the trial judge admitted into evidence the prior unadjudicated criminal offenses he violated the provisions of Art. 37.07, Section 3(a), and his act of overruling appellant’s objection was clearly erroneous. Given the fact that there is not a reasonable possibility that such error did not contribute to the punishment that was assessed by the jury, life imprisonment and a $10,000 fine, the judgment of the court of appeals, which reversed the trial court’s judgment of conviction, must be affirmed.
In this instance, given the provisions of Art. 37.07, Section 3(a), the trial judge clearly erred by admitting the unadjudicat-ed extraneous criminal offenses into evidence. Given our facts, the error is clearly not harmless beyond a reasonable doubt. See Rule 81(b)(2). 3 Appellant’s punishment must be set aside.
For all of the above reasons I respectfully concur in the result that the plurality opinion reaches, that the judgment of the court of appeals, which reversed the trial court’s judgment of conviction, is affirmed.
MILLER, J., joins.
. Justice James K. Allen, who wrote the opinion for the Court of Appeals in this cause, correctly observed the following: "A close examination of the Allaben case reveals that it in fact does not deal with the admission of an unadjudicated extraneous offense. Rather, Allaben held that the trial court should have allowed the defendant, a sex offender, to show that he had sought psychiatric treatment for his sexual problems in a case where an application for probation was before the jury, but that the court’s refusal to allow the testimony was not reversible error. Allaben, 418 S.W.2d at 519 . In that context, the court’s statement that ‘[ejvidence legally admissible to mitigate punishment or evidence that is relevant to the application for probation, if any, is also admissible' can hardly be considered a holding that evidence of an unadjudicated extraneous offense is admissible at the punishment phase whenever the defendant applies for probation.” 700 S.W.2d at 749 .
. Because the jury assessed appellant’s punishment at more than ten years, the issue of probation is really not now involved in this case because the penalty assessed, life imprisonment, would have prevented the consideration of probation by the jury. See, e.g., Brown v. State, 475 S.W.2d 938, 957 (Tex.Cr.App.1972). However, because the unadjudicated extraneous criminal offenses were not admissible at the punishment stage of appellant’s trial, and because it is impossible to state that the jury did not consider them in assessing appellant’s punishment at life imprisonment, the error is not harmless beyond a reasonable doubt. See Rule 81(b)(2).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677165. Public record. Not legal advice.