# Smith v. State

> Court of Criminal Appeals of Texas · December 15, 1999 · 5 S.W.3d 673

URL: https://www.frixlaw.com/law-library/cases/9734610

## Case

- **Full name:** Jerry T. SMITH, Appellant, v. the STATE of Texas
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** December 15, 1999
- **Citations:** 5 S.W.3d 673; 1999 Tex. Crim. App. LEXIS 143; 1999 WL 415336
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Holland, Meyers, Price, Womack, Johnson, Mansfield, McCormick, Keasler, Keller
- **Cited by:** 123 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/9734610

## How later opinions describe it (automated extraction)

- stating, concerning a prior version of Article 38.36, “[T]he rules against hearsay, and other rules relating to the proper form in which evidence must be admitted, are not affected by Article 38.36. The statute was intended only to address the admissibility of evidence by its …
- holding article 38.36 does not abrogate trial court's duty to comply with rule excluding relevant evidence if its probative value is outweighed by its prejudicial effect
- holding that Rule 404(b) of the Texas Rules of Evidence applies even when evidence is admitted under Art. 38.36.
- holding evidence admissible under Article 38.36(a) may still be excluded under Rule 403 or Rule 404(b)

## Opinion text

McCORMICK, P.J.,
delivered a dissenting opinion to denial of state’s motion for rehearing,
in which MANSFIELD, KELLER and KEASLER, JJ., joined.
I respectfully dissent to the Court’s denial of the State’s motion for rehearing. The Court’s opinion on original submission “harmonizes” Article 38.36 and Rule 404(b) by deciding that “relationship” evidence admissible under Article 38.36 is subject to and may still be excluded by Rule 404(b).
This construction, however, does not “harmonize” Article 38.36 and Rule 404(b). It renders Article 38.36 meaningless. Under the Court’s opinion on original submission Rule 404(b) governs the admissibility of “relationship” evidence because there is no point for a party to rely on or to offer this evidence under Article 38.36. This would be a pointless exercise. Article 38.36 has no practical significance in determining the admissibility of “relationship” evidence.
The Court’s opinion on original submission perceives an inconsistency where none *693 exists. It mistakenly believes that an inconsistency exists between Article 38.36 and Rule 404(b). Having decided that this inconsistency exists, the Court’s opinion on original submission, therefore, finds it necessary to remove this inconsistency by “reasonable construction” under Rule 101(c).
But there is no inconsistency between Article 38.36 and Rule 404(b). Article 38.36 categorically deems “relationship” evidence to have relevance apart from character conformity for Rule 404(b) purposes. This does not make Article 38.36 and Rule 404(b) inconsistent. At most Article 38.36 creates an “exception” to, not an inconsistency with, Rule 404(b). An exception is not synonymous with inconsistency. The only reasonable construction in this case would be to follow the “plain” language of Article 38.36.
I respectfully dissent.
MANSFIELD, KELLER and KEASLER, JJ., join this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9734610. Public record. Not legal advice.