arguing that "[b]ecause we are a discretionary review court, and not, in this context, 'the appellate court,' [set out in former Tex. R. App. P. 81(b)(2)], we should not resolve the issue of harmfulness as a matter of first impression"
How later courts described this case
- arguing that "[b]ecause we are a discretionary review court, and not, in this context, 'the appellate court,' [set out in former Tex. R. App. P. 81(b)(2)], we should not resolve the issue of harmfulness as a matter of first impression"
- arguing that "remanding cases for a harm analysis is an illusory display of respect and a meaningless squandering of judicial resources that our over-burdened appellate court system can ill afford"
- holding State=s insinuation defendant was involved in prior criminal acts was unfairly prejudicial
Written by the judges who cited it.
The opinion
CLINTON, Judge,
concurring.
I
The majority adopts a view of the evidence shared by the dissenting opinion below, viz: that it does not indicate the source of the “quarter ounce of cocaine.” Nevertheless, upon what appears to be the State’s wishful thinking, and without any analysis, the majority concludes this evidence has some relevance to show an affirmative link between appellant and the contraband found in the apartment. Thus the majority concludes “that by reasonable perception of logic and common experience the trial court could have reasonably concluded that the challenged evidence served some purpose other than character conformity^]” Majority Op. at 27. With deference, I must disagree.
To have any tendency to connect appellant to the cocaine recovered in the apartment, evidence of the “quarter ounce of cocaine” would have to show not only that appellant sold it, but that it came from within the apartment. That appellant had the marked money in his possession is some evidence he received it at some time *29 within an hour of his arrest. We may infer he received it from the “subject” to whom the testifying officer had given it. But the evidence does not show for what, if anything, the money was given to appellant. That a quarter ounce of cocaine was recovered later from an undisclosed source does not establish, even tenuously, that appellant sold it to the “subject” to whom the testifying officer had given the marked money. Without knowing the source of the quarter ounce of cocaine, we cannot make any rational inference connecting it to appellant or the apartment. It has no “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without” it. Tex.R.Cr. Evid., Rule 401. Relevant to this prosecution, it proves nothing at all. It is not even character conformity evidence. Its probative value is not “low.” Majority Op. at 28. It is nil.
For this reason I conclude the evidence is not relevant under Rule 401, and hence, is subject to objection under Tex.R.Cr.Evid., Rule 402. The trial court erred to overrule appellant’s objection that it was an “extraneous matter.” Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1991) (Opinion on rehearing on Court’s own motion). Of course, because the evidence had no probative value at all, I agree with the majority that “its probative value is substantially outweighed by the danger of unfair prejudice,” etc. Tex.R.Cr.Evid., Rule 403. We need not go so far to resolve this cause, however.
II
I also agree with the majority that we should remand the cause for assessment of harmfulness, vel non, in the court of appeals. Tex.R.App.Proc., Rule 81(b)(2). Because we are a discretionary review court, and not, in this context, “the appellate court,” id., we should not resolve the issue of harmfulness as a matter of first impression. Consistent with my persistent insistences that the respective constitutional roles of our courts of appeals and of this Court be preserved in practice, * I would leave the question of harm to the court of appeals to resolve on remand, subject to our discretionary review. See also Gipson v. State, 844 S.W.2d 738 (Tex.Cr.App.1992) (Benavides, J., concurring, Part IIA).
BENAVIDES, J., joins.
CAMPBELL, J., joins part II.
After 1981 a common understanding of the proper constitutional review function of this Court vis-a-vis jurisdiction and authority on direct appeal of courts of appeals evolved as competing views on related matters were developed and ultimately resolved. Below is a chronological sampling of illustrative cases, e.g.:
Turner v. State, 662 S.W.2d 357, at 358, 362 (Tex.Cr.App.1984) (dissenting opinion);
Lambrecht v. State, 681 S.W.2d 614, at 616 (Tex.Cr.App.1984);
Dugard v. State, 688 S.W.2d 524, at 532-534 (Tex.Cr.App.1985) (Clinton, J., dissenting opinion) (adopted in Williams v. State, 780 S.W.2d 802 (Tex.Cr.App.1989));
Laday v. State, 685 S.W.2d 651, at 652-654 (Tex.Cr.App.1985) (concurring and dissenting opinions);
Chambers v. State, 711 S.W.2d 240, at 252-253 (Tex.Cr.App.1986) (concurring opinion);
Degrate v. State, 712 S.W.2d 755 (Tex.Cr.App.1986);
McElroy v. State, 720 S.W.2d 490, at 495-496 (Tex.Cr.App.1986) (concurring opinion);
Tallant v. State, 742 S.W.2d 292 (Tex.Cr.App.1987);
Meshell v. State, 739 S.W.2d 246, at 258-260 (Tex.Cr.App.1987) (dissenting opinion);
Schwerdtfeger v. State, 749 S.W.2d 781, at 782-784 (Tex.Cr.App.1988) (dissenting opinion);
Jefferson v. State, 751 S.W.2d 502, at 503-504 (Tex.Cr.App.1988) (dissenting opinions);
Juarez v. State, 758 S.W.2d 772, 784-785 (Tex.Cr.App.1988) (dissenting opinion);
Johnson v. State, 760 S.W.2d 277, at 278, n. 2 (Tex.Cr.App.1988);
Bynum v. State, 767 S.W.2d 769, at 776 (Tex.Cr.App.1989);
Leal v. State, 773 S.W.2d 296, at 297 (Tex.Cr.App.1989);
Lee v. State, 791 S.W.2d 141 (Tex.Cr.App.1990); Holland v. State, 802 S.W.2d 696, at 698-701 (Tex.Cr.App.1991).