noting that in prosecutions for sex offenses against children, “extraneous acts between the complainant and the defendant are usually more probative than prejudicial”
How later courts described this case
- noting that in prosecutions for sex offenses against children, “extraneous acts between the complainant and the defendant are usually more probative than prejudicial”
- noting extraneous sexual offenses between a defendant and a third party are not always inadmissible if they are relevant to a material issue in the case, and the relevancy value outweighs its prejudicial potential
- recognizing that such offenses may be admitted under the Williams analysis
- recognizing an exception for admission of extraneous sexual acts between a defendant and a minor complainant under res gestae
Written by the judges who cited it.
Later courts went against this
Overruled — as noted by a later court
Shortly after Mannie, the Court of Criminal Appeals held that the rule in Boutwell was no longer valid, noting that even in Boutwell, the rule had "received only a small plurality of the votes” and that it had already questioned the rule's validity in cases since Boutwell.
medium confidenceAbrogated on other grounds by Vernon v. State, 1992 Tex. Crim. App. LEXIS 204 (1992)
Mannie v. State, 738 S.W.2d 751, 758-59 (Tex. App.-Dallas 1987, pet. ref’d) (Thomas, J., concurring) (discussing Boutwell v. State, 719 S.W.2d 164, 173 (Tex. Crim. App. 1985) (op. on reh’g), abrogated by Vernon v. State, '841 S.W.2d 407, 410 (Tex. Crim.
The opinion
CLINTON, Judge,
concurring.
Whether Coleman v. State, 632 S.W.2d 616 (Tex.Cr.App.1982), was correct in concluding that a ground of error contained in a “supplemental brief” was not properly before the Court for review is a moot question. 1 By citing former Article 40.09, V.A.C.C.P., and Kalmback v. State, 481 S.W.2d 151 (Tex.Cr.App.1972), the Court indicates that its decision is derived from former appellate procedure prescribed in §§ 9, 10, 11, 12 and 13, before that “noble experiment” was terminated September 1, 1981, by Acts 1981, 67th Leg. Ch. 291, p. 804, § 108, S.B. 265. 2 Whatever the rule, with *182 demise of that procedure the reason for the rule, and thus the rule itself, no longer exists.
In granting trial courts a “role in the appellate process,” Reed v. State, 516 S.W.2d 680, 682 (Tex.Cr.App.1975), the ideas at work were that by allowing the trial judge “full opportunity to examine the completed record, hear arguments and study briefs and grant a new trial to the same extent as would the appellate court,” “in many cases he would recognize the fact that reversible error was in the case and ... would promptly grant a new trial ...,” thereby reducing the number of appeals to this Court and, not so coincidentally, “protecting his appellate record of which so many able trial judges are justifiably proud.” Interpretative Commentary and Special Commentary to Article 40.09. To be noted is that authority to extend time to file briefs reposed in the trial court. Williams v. State, 413 S.W.2d 707, 708 (Tex.Cr.App.1967)—until Acts 1977, 65th Leg. Ch. 236, p. 638, when this Court took on that chore.
Once the appellate authority of a trial court was invoked by timely notice of appeal and briefs were considered along with oral argument, if any, its granting a new trial was not subject to review by this Court. Reed v. State, supra. On the other hand, should the trial court refuse to grant a new trial, it became the “duty” of this Court to review “all grounds of error and arguments in support thereof urged in defendant’s brief in the trial court,” Article 40.04 § 13; Keel v. State, 434 S.W.2d 687, 690 (Tex.Cr.App.1968) (Motion for Rehearing). Obversely, there was no “duty” to review grounds of error raised for the first time in the Court; indeed, for the Court to do so would sanction bypassing original appellate jurisdiction in the trial court. 3
Thus, unless unassigned error reviewed in the interest of justice, our appellate power and authority was restricted to consideration of grounds of error raised and arguments made by appellant and reply by the State in their briefs filed in the trial court. Reed v. State, supra. While Article 44.33, V.A.C.C.P., allowed the parties to file in this Court “such supplemental briefs as they may desire before the case is heard on oral argument,” that contemplated little more than a discussion of more recent decisions and theories pertaining to grounds of error previously considered by the trial court.
Accordingly, efforts by appellants to compensate for failure to comply with Article 40.04, § 9, such as tendering to the Clerk of this Court a brief styled “amended” or “supplementary,” were also rebuffed. For example, relying on Johnson v. State, 478 S.W.2d 442 (Tex.Cr.App.1972), and others to the same effect, the Kalmbach court correctly held that grounds of error in a pro se supplemental brief filed directly in this Court, not raised in a brief presented in the trial court, were not properly before the Court for review. 4
*183 Though rarely articulated, the true reason fresh grounds of error not assigned in the trial court were not properly subject to review by this Court is that otherwise the trial court would be deprived of an opportunity to perform its duty and obligation “to consider and decide from the brief whether to ... grant [defendant] a new trial.” Criado v. State, 438 S.W.2d 557, 558 (Tex.Cr.App.1969). Unwritten in the cases is that practical objective .alluded to in the Interpretative Commentary by the late Judge W.A. Morrison, ante, p. 2, that is, providing an occasion for trial judges to perceive reversible error and take appropriate action to protect their own “appellate record.”
Neither any reason for nor objective of the rule remains viable in cases in which appeal was filed on or after September 1, 1981. See, § 149, Acts 1981, 67th Leg., Ch. 291, p. 820. It is contrary to former Tex.R. Civ.P. Rule 414(n), authorizing amendment and supplementation of briefs “when justice requires upon such terms of the court may prescribe,” and current Tex.R.App. Pro. Rule 74(o). Since exercise of that authority is discretionary, see cases annotated at 101 ff. following former Rule 414, the matter of amending and supplementing an appellate brief is best left to the courts of appeals.
In the instant cause the Austin Court of Appeals did grant appellant leave to file his supplemental brief and did address the contentions supporting his supplemental grounds of error. Boutwell v. State, 653 S.W.2d 100, 101 (Tex.App.—Austin 1983). The Austin Court acted within its express authority, and we denigrate its absolute right in the premises by now treating appellant’s grounds as “unassigned error.” Opinion at p. 173.
What this Court may have decided in causes coming to it on direct appeal concerning consideration of a ground of error that a trial court had been deprived of determining under a former scheme of things is now passe, and we should so hold.
With that reservation as to procedure and, on the merits while I would abjure expressions about “general rules” and “exceptions” in an extraneous offense context, Morgan v. State, 692 S.W.2d 877, 979 (Tex.Cr.App.1985); Opinion of the Court on original submission in this cause, at 13; see Tex.R.Cr.Evid.R 105 and R 403, otherwise I join the opinion of the Court.
. The supplemental transcript referred to by the Coleman panel in addressing his first ground of error was prepared after defendant filed his original brief in the trial court; upon motion of the State and over objections of defendant the trial judge ordered the record supplemented with material adverse to defendant’s contentions. Another ground of error attacked for vagueness the constitutionality of the misdemeanor deferred adjudication scheme; with leave of court first obtained defendant filed a thin "amended brief’ broadening his challenge to the statute; the State responded with a defense on the merits. Thereafter, the judge of the trial court entered an order of transmittal of the entire record and briefs, reciting therein that they had been considered and that a new trial should not be granted. The entire record was received by the Clerk of the Court August 18, 1981.
. In Coleman , defendant and the State filed their appellate briefs and amended briefs in the trial court, as then required by Article 40.09, § 9; without hearing oral argument, the judge of the trial court had the duty to decide from *182 - those briefs whether to grant a new trial. Id., § 12. Upon refusal of new trial, the clerk transmitted record and briefs to the Court for review of "all grounds of error and arguments in support thereof urged in defendant’s brief ..., as well as unassigned error ... in the interest of justice." For our treatment on rehearing of the ground of error contained in the amended brief, see Coleman v. State, 640 S.W.2d 889, 892-893 (Tex.Cr. App. 1982).
. Early on, the Court was content to indicate that compliance with the statute by assigning error in brief filed in the trial court was a prerequisite to its review. See, e.g., Hill v. State, 403 S.W.2d 797 (Tex.Cr.App.1966); Yarbrough v. State, 408 S.W.2d 230 (Tex.Cr.App.1966); Carter v. State, 408 S.W.2d 507, 508 (Tex.Cr.App.1966); Short v. State, 408 S.W.2d 928, 929 (Tex.Cr.App.1966); Snowden v. State, 410 S.W.2d 641, 642 (Tex.Cr.App.1967). Without compliance, it might add, "Nothing is presented for review.” See, e.g., Trevino v. State, 409 S.W.2d 853 (Tex.Cr.App.1966). Soon the Court began to ascertain whether a brief had been filed within the time prescribed by statute or an extension granted by the trial court. Bradley v. State, 414 S.W.2d 673, 674 (Tex.Cr.App.1967). There are, of course, many other variations on the same theme. See additional cases annotated at 610 following Article 40.09, supra, and in 13A Texas Digest, "Criminal Law,” key 1130(4).
. Johnson v. State, supra, involved a pro se "supplemental brief filed first in this Court seeking to raise grounds of error other than those in the brief timely filed in the trial court; *183 the former were found "not properly before this Court for review." Id., at 445. In Reeves v. State, 457 S.W.2d 924 (Tex.Cr.App.1970), because no appellate brief had been timely filed in the trial court, one thereafter untimely filed and included in appellate record before being forwarded to the Court did not present grounds to the Court for review; in companion cases of Jackson v. State, 449 S.W.2d 242 and 449 S.W.2d 245 (Tex.Cr.App.1969), one brief having been timely filed in the trial court, the Court regarded as untimely a second brief filed by new appellate counsel, noting that a second and unnecessary approval of the record did not amount to an authorization for extension of time to file an appellate brief, id., at 244 and 247. Accord: Swanson v. State, 447 S.W.2d 942 (Tex.Cr.App.1969).