# Rankin v. State

> Court of Criminal Appeals of Texas · July 8, 1998 · 974 S.W.2d 707

URL: https://www.frixlaw.com/law-library/cases/9769473

## Case

- **Full name:** Randall Allen RANKIN, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** July 8, 1998
- **Citations:** 974 S.W.2d 707; 1998 Tex. Crim. App. LEXIS 89; 1996 WL 165014
- **Precedential status:** Published
- **Opinion:** Dissent by McCORMICK
- **Judges:** Holland, Mansfield, White, Keller, Baird, Overstreet, Meyers, Price, McCormick, Womack
- **Cited by:** 576 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/9769473

## How later opinions describe it (automated extraction)

- observing that, under Rules of Evidence 401, 402, and 404, evidence is admissible if it (1) is introduced for a purpose other than character conformity, (2) has relevance to a “fact of consequence” in the case, and (3) remains free of any other constitutional or statutory proh…
- holding that when State’s direct evidence clearly showed intent and was uncontra-dicted by defendant, offer of other crimes is unjustified due to lack of relevance
- holding that when State's direct evidence clearly showed intent and was uncontradicted by defendant, offer of other crimes is unjustified due to lack of relevance
- holding that, if requested by defendant opposing introduction of evidence, the trial court must give limiting instruction when evidence admitted
- rejecting contention that the timing of the limiting instruction is discretionary with the trial court and holding that trial court erred in waiting until jury charge to give instruction on extraneous offense evidence

## Opinion text

McCORMICK, Presiding Judge,
dissenting.
I dissent. If by its opinion the majority intends to change how appellate courts have traditionally reviewed trial courts’ evidentia-ry rulings, then they should honestly say so.
The law still is that the decision regarding admissibility of evidence is within the trial court’s sound discretion and should not be set aside absent a showing of an abuse of discretion. See Joiner v. State, 825 S.W.2d 701, 708 (Tex.Cr.App.1992), cert. denied, 509 U.S. 925 , 113 S.Ct. 3044 , 125 L.Ed.2d 729 (1993). What this usually means is that a trial court’s evidentiary ruling should be upheld if it is “within the zone of reasonable disagreement.” See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Cr.App.1990) (op. on reh’g). The mere fact that a correct ruling is given for the wrong reason should not result in a reversal; a trial court’s evi-dentiary ruling should not be disturbed on appeal if it is correct on any theory of law applicable to the case. See Jones v. State, 833 S.W.2d 118, 125 (Tex.Cr.App.1992), cert. denied, 507 U.S. 921 , 113 S.Ct. 1285 , 122 L.Ed.2d 678 (1993). The applicable standard of review is abuse of discretion, not a de novo standard of review. See Montgomery, 810 S.W.2d at 392 .
Rule U0U(b)
The majority holds a Tex.R.Crim.Evid. 404(b) objection “demands a [Tex.R.Crim. Evid. 402] relevancy analysis.” However, when a defendant, as the appellant did in this case, objects to the testimony as “inadmissible extraneous offense evidence” and the appellate court, as the Court of Appeals did in this case, holds the evidence admissible because “it was being introduced for the purpose of showing a scheme or plan,” then the appellate court has ruled on the extent of the defendant’s objection and the analysis should end. I would hold that a defendant has to object that “the extraneous offense testimony [is not] relevant to any fact of consequence in the case other than character conformity” to demand the type of relevancy inquiry the majority says the Court of Appeals did not do in this case. See Montgomery, 810 S.W.2d at 391 .
And, since appellant did not make a proper Rule 402 objection, I would further hold the Court of Appeals did not err to uphold the trial court’s ruling. And, in any event, the majority strongly intimates the objectionable evidence was relevant to appellant’s intent, which causes me to wonder why the majority decides to waste judicial resources by remanding this case to the Court of Appeals to conduct a “complete relevancy analysis.” Cf. Jones, 833 S.W.2d at 125 .
Procedurally, the majority addresses an issue that was not fairly raised as a ground for review in appellant’s petition for discretionary review. Appellant’s petition for discretionary review presents the following ground:
“Do extraneous offenses between appellant and third parties become automatically admissible on the basis of common scheme or plan?”
Substantively, appellant’s petition for discretionary review does not really complain about the Court of Appeals’ “relevancy analysis.” His main complaint is that the Court of Appeals’ got it wrong because it was unfair to allow the introduction of the extraneous offenses “when the act itself is such that only a culpable mental state can reasonably be inferred from the act.” Appellant further claimed “[T]he question before the jury should have been whether it believed [the victim’s] testimony from the act ...” 1 What appellant’s complaint essentially boils down to is he lost in the trial court, he lost in the Court of Appeals, and now he wants to win in this Court. This Court routinely refuses petitions for discretionary review with grounds like the one here.
*715
Rule 403
Appellant's petition for discretionary review contains no grounds complaining about the Court of Appeals’ Rule 403 analysis, and the parties have not briefed this issue. See Cornealius v. State, 900 S.W.2d 731, 735 (Tex.Cr.App.1995) (Baird, J., dissenting) (to reach an issue that has not been raised, briefed or argued by the parties is patently unfair). Therefore, I would not even be addressing the Rule 403 issue in this case.
But since the majority does, I have to disagree with their analysis. Again, if the majority intends to change the law, then they should say so. Iam not aware of any of this Court’s prior cases that require intermediate appellate courts to “fully account for all the evidence relevant to their 403 analysis.”
The majority apparently relies on Montgomery as support for this proposition. However, Montgomery only sets out some relevant factors for trial courts and appellate courts to consider when analyzing Rule 403 issues. See Montgomery, 810 S.W.2d at 389-90, 392-93 . Montgomery does not mandate that appellate courts “fully account for all the evidence relevant to their 403 analysis.”
What we also learn from the majority is that they continue to be enamored with how things are done on the civil side, because they rely on civil cases for their holding that the intermediate appellate courts should “fully account for all the evidence relevant to their 403 analysis.” See Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652-53 (Tex. 1988); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986); see also Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996) (harmonizing the criminal and the civil side with respect to appellate review of sufficiency issues) (mot. for extension of time to file mot. for reh’g granted). However, these civil cases require an intermediate appellate court to “fully account” only when it reverses a jury verdict in a civil case on “factual” insufficiency grounds. See Cropper, 754 S.W.2d at 652 . These cases have no application to how appellate courts analyze Rule 403 issues on the civil side and they cannot be read to support what the majority does here.
And, conspicuously absent from the majority opinion is any discussion about how the civil side analyzes Rule 403 issues. I am not aware of any civil cases that require appellate courts to “fully account for all the evidence relevant to their 403 analysis.” Here, the majority abandons any pretense of harmonizing the civil side and the criminal side, which was one of the main rationales a majority of this Court offered for its recent decision in Clewis .
When, as in this case, the intermediate appellate courts state they “have reviewed the evidence, and find that the trial court did not abuse its discretion in admitting the extraneous acts,” we should presume they have considered the appropriate factors set out in Montgomery . Under such circumstances, this Court should be prepared to demonstrate how the intermediate appellate courts have misapplied Montgomery instead of remanding cases to already overworked intermediate appellate courts to “fully account,” which in most cases will reach the same result they did before. This seems to be an incredible waste of time and judicial resources.
Rule 105(a)
This brings us to Tex.R.Crim.Evid. 105(a), which, in relevant part, states:
“When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly ...” (Emphasis Supplied).
The “plain” language of Rule 105(a) is silent on the timing of a Rule 105(a) limiting instruction, and I know of no rule of statutory construction permitting the judiciary to rewrite a rule when it is silent on a particular matter. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Cr.App.1991). The majority changes the “plain” meaning of Rule 105(a) by legislating a requirement into the rule that “plainly” is not there. I would hold, consistent with the “plain” language of Rule 105(a), that the timing of a Rule 105(a) limiting instruction is within the trial court’s discretion and should not be set aside absent a showing of an abuse of discretion. Such a *716 holding would provide trial courts with discretion to defer the giving of a Rule 105(a) limiting instruction in those situations where that would be the “better” approach. The majority’s “ivory tower” interpretation of Rule 105(a) fails to accomplish this. Trial courts, and not this Court, are in the best position to make the call on when to give a Rule 105(a) limiting instruction.
The majority opinion states, “[BJecause we have determined that Tex.R.Crim.Evid. 105 requires a limiting instruction, upon proper request, when evidence is admitted and because we see no reason not to adopt the ‘better ’ and most effective application of Rule 105(a), we hold that the court of appeals erred in affirming the trial court’s decision to defer the limiting instruction until the jury charge.” (Emphasis Supplied). The majority ignores the “plain” language of Rule 105(a) and merely adopts what “they believe” is a “better” rule. I have in the past criticized this kind of result-oriented, lawless decision-making. See, e.g., Bauder v. State, 921 S.W.2d 696 (Tex.Cr.App.1996) (McCormick, P.J., dissenting) (mot. for reh’g pending); Autran v. State, 887 S.W.2d 31, 43-49 (Tex.Cr.App.1994) (McCormick, P.J., dissenting).
The majority relies mostly on out-of-state cases and one federal ease for their holding. See U.S. v. Rivera, 837 F.2d 906, 913 (10th Cir.1988); State v. McGinnis, 193 W.Va. 147 , 455 S.E.2d 516, 528 (1994); Yukon Equipment, Inc. v. Gordon, 660 P.2d 428, 435-36 (Alaska 1983), overruled on other grounds, Williford v. L.J. Carr Investments, Inc., 783 P.2d 235 (Alaska 1989); Jupiter Inlet Corp. v. Brocard, 546 So.2d 1, 3 (Fla.App. 4 Dist.1988), rev. denied, 551 So.2d 461 (Fla.1989). However, the majority also cites one out-of-state ease and three federal cases that do not support its holding. See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, 630 F.2d 250, 266 (5th Cir.1980); U.S. v. Allen, 468 F.2d 612, 613 (5th Cir.1972), cert. denied, 410 U.S. 935 , 93 S.Ct. 1389 , 35 L.Ed.2d 599 (1973); U.S. v. Annoreno, 460 F.2d 1303, 1307-08 (7th Cir.), cert. denied, 409 U.S. 852 , 93 S.Ct. 64 , 34 L.Ed.2d 95 (1972); Commonwealth v. Covil, 474 Pa. 375 , 378 A.2d 841, 845 (1977) (ultimately leaving the timing of a limiting instruction within the discretion of the trial court). I would not characterize the majority’s holding as being supported by the overwhelming weight of authority from other jurisdictions. And, I do not really see what out-of-state and federal cases have to do with interpreting one of our own rules of criminal evidence.
The majority’s interpretation of Rule 105(a) also fails to take into account those situations where the “better” approach would be for the trial court to defer the giving of a limiting instruction. For example, Covil , which is cited in the majority opinion, illustrates the practical advantages of leaving the timing of the Rule 105(a) limiting instruction within the trial court’s discretion. See Covil, 378 A.2d at 845 (giving of the limiting instruction when the evidence was admitted may have been misleading because “to try to explain the exact purpose for which the evidence was admitted before the rest of the evidence was presented might have been unfair” to the State or to the defendant). Sometimes, the “better” approach is for the trial court to defer the giving of the limiting instruction. See id. Most of the other cases cited in the majority opinion echo this view as well.
Also, under the majority’s interpretation of Rule 105(a), if a defendant does not timely request a limiting instruction, “when the evidence is admitted,” then the trial court has no obligation to limit the evidence in the jury charge. The majority addresses this issue in footnote three of its opinion by advising us that Article 36.14, V.A.C.C.P., would require, upon the defendant’s request, the giving of the limiting instruction in the jury charge even if the defendant did not request a limiting instruction “when the evidence was admitted.” However, Article 36 .14 would not require the giving of a limiting instruction in the jury charge because, if the defendant does not properly request one “when the evidence is admitted,” then the evidence is admitted “without limitation.” See Rule 105(a) (where defendant does not timely request a limiting instruction when the evidence is admitted, the trial court’s action in admitting the evidence without limitation shall not be a ground for complaint on ap *717 peal). There would be nothing to limit in the jury charge.
In addition, making it discretionary with the trial court on the timing of a Rule 105(a) limiting instruction has traditionally been the practice in many courts across this State, so the majority’s opinion will have practical implications for some cases that already have been tried and for some cases presently on appeal. See Thompson v. State, 752 S.W.2d 12, 14 (Tex.App.—Dallas 1988), pet. dism’d, 795 S.W.2d 177 (Tex.Cr.App.1990). If the majority wants to amend the “plain” language of Rule 105(a) to require the “better” approach they mandate here, they should amend the Rules and not do so by judicial fiat. This would be an easy case if the majority was inclined to follow the law and give effect to the “plain” language of Rule 105(a).
Finally, the majority remands this case to the Court of Appeals so it may, among other things, “determine whether such error is subject to an harmless error analysis.” Tex. R.App.Proc. 81(b)(2). It is fair to point out that none of the out-of-state cases relied upon by the majority hold that such an error is not subject to a harmless error analysis. And, the cases I have reviewed would seem to support saying that a trial court’s failure to comply with Rule 105(a) is easily subject to a Rule 81(b)(2) harmless error analysis. See, e.g ., Huddleston v. U.S., 485 U.S. 681 , 108 S.Ct. 1496, 1502 , 99 L.Ed.2d 771 (1988); U.S. v. Brawner, 32 F.3d 602, 605-07 (D.C.Cir.1994) (Ginsburg, J.); overruled in part, U.S. v. Rhodes, 62 F.3d 1449 (D.C.Cir.1995); U.S. v. Bruner, 657 F.2d 1278 , 1285-86 (D.C.Cir.1981); Lubbock Feed Lots, Inc., 630 F.2d at 266 (holding the admission of evidence that was not properly limited was harmless); Covil, 378 A.2d at 845-46 . The latter two cases are cited in the majority opinion. When the Rule 81(b)(2) harmless error issue comes before this Court, it will be interesting to see whether the majority will be as willing to rely on these cases then as they have been willing to rely on them now.
I respectfully dissent.
WHITE and KELLER, JJ., join this dissent
. The reader may recall that appellant testified at trial and claimed he committed no offense.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769473. Public record. Not legal advice.