# Smith v. State > Court of Criminal Appeals of Texas · June 27, 2007 · 227 S.W.3d 753 URL: https://www.frixlaw.com/law-library/cases/9677846 ## Case - **Full name:** Calvin Joseph SMITH, Appellant v. the STATE of Texas - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 27, 2007 - **Citations:** 227 S.W.3d 753; 2007 Tex. Crim. App. LEXIS 872; 2007 WL 1829174 - **Precedential status:** Published - **Opinion:** Dissent by Keller - **Judges:** Price, Meyers, Womack, Keasler, Hervey, Holcomb, Cochran, Keller, Johnson - **Cited by:** 101 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/9677846 ## How later opinions describe it (automated extraction) - holding that a trial court, as the sentencing entity, may consider extraneous misconduct set forth in the PSIR over the defendant's objection that “the extraneous misconduct has not been shown to have been committed by the defendant beyond a reasonable doubt” as required by th… - holding that article 37.07, section 3(a)(1) does not prohibit a trial court, in assessing punishment, from considering extraneous offenses or bad acts contained in the PSI report, even there is no proof beyond a reasonable doubt that the defendant committed these extraneous of… - concluding that a trial court could consider extraneous acts not proven beyond a reasonable doubt, if the PSI provided some basis from which the trial court could rationally infer that the defendant was responsible - holding that due process is only limitation, requiring that there be evidence from some source from which it can be rationally inferred that defendant had criminal responsibility for extraneous misconduct - noting that article 37.07, section 3(d) authorizes the trial court to order a presentencing report and places no condition on the trial court in considering the contents of the presentencing report (citing TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(d)) ## Opinion text KELLER, P.J., filed a dissenting opinion. I agree that a trial court may consider extraneous offenses contained in a PSI even if the evidence does not establish beyond a reasonable doubt that the defendant committed the offenses. I also agree that the record must contain some basis for believing that the defendant committed the extraneous offenses. However, I disagree with the Court’s conclusion that the record in this case contains no basis for concluding that appellant inflicted the extraneous injuries upon his child. Appellant was one of the victim’s caregivers, and he admitted (by pleading *765 guilty) that he struck his five-month-old daughter at least once, with enough force to kill her. As detailed by the trial court, the baby’s injuries — some of which were already healing — included a hematoma on the brain, bruising front and back, three broken ribs, three tears in the anus, tears in the vagina, and two broken legs. The court concluded that it would be unreasonable to believe that appellant, as father of the child, would not have known of these injuries. The fact that appellant caused the fatal injury gives rise to at least a character conformity inference that he also caused the other injuries suffered by the child during her short life. Although the law generally seeks to prohibit character conformity inferences at the guilt stage of trial, that prohibition is not grounded upon the idea that the inference lacks probative force, but on the idea that this strongly probative inference must be prohibited for policy reasons: The state may not show defendant’s pri- or trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. 1 But those policy reasons do not apply to the punishment phase of trial, which focuses in large part upon the defendant’s character, 2 and they would seem even less applicable in the PSI context, which contains even fewer constraints on the admissibility of evidence. Consequently, I would reverse the judgment of the court of appeals and affirm the judgment of the trial court. Because the Court does not, I respectfully dissent. . Old Chief v. United States, 519 U.S. 172, 181 , 117 S.Ct. 644 , 136 L.Ed.2d 574 (1997)(quoting Michelson v. United States, 335 U.S. 469 , 69 S.Ct. 213 , 93 L.Ed. 168 (1948)). . See Tex.Code Crim. Proc., Art. 37.07, § 3(a)(1). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9677846. Public record. Not legal advice.