Rankin v. State

OPINION ON STATE’S MOTION FOR REHEARING

HOLLAND, Judge,

delivered the opinion of the Court, in which

BAIRD, OVERSTREET, MEYERS and PRICE, Judges, joined.

On motion for rehearing, the State contends that the court of appeals addressed the relevancy of the extraneous offense evidence demonstrating a common scheme or plan. The State also asks us to reconsider part IB of our original opinion because we addressed Rule 403 without requesting that the parties brief the issue. 1 We granted rehearing to reconsider our resolution of these issues. 2 This supplemental opinion supports part IA of our original opinion and withdraws part IB of that opinion.

I.

After issuing our opinion on original submission, this Court delivered Guzman v. State, 955 S.W.2d 85 (Tex.Crim.App.1997). Guzman affirmed the long-standing rule that “appellate courts should show almost total deference to a trial court’s findings of fact especially when those findings are based on an evaluation of credibility and demeanor.” Id. at 88 . This decision does not alter the abuse of discretion standard, though it does clarify that the abuse of discretion standard does not necessarily apply to application of law to fact questions if their resolution does not turn on an evaluation of credibility and demeanor. Id. at 89 . Because a trial court’s evidentiary ruling generally does not involve *718 an “application of law to fact question” or a “mixed question of law and fact,” cases addressing an appellate court’s review of a trial court’s evidentiary ruling remain unaffected by Guzman .

Montgomery sets the standard of review for evidentiary rulings. Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App.1990) (op. on reh’g). It defines relevant evidence, the admissibility of that evidence, and the trial judge’s role in determining admissibility. Under Montgomery , to determine whether evidence is admissible a trial judge begins by asking whether the evidence is relevant. Id. at 386 . As defined by Rule 401, “relevant” evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable then it could be without the evidence.” Tex.R.Crim. Evid. 401. If the evidence is relevant it is admissible so long as no constitutional provision, statute, or rule bars its admissibility. Tex.R.Crim. Evid. 402.

A. Rule 404(b)

Relevant evidence may not be admissible for every purpose. Rule 404(b) bars evidence of “other crimes, wrongs or acts” when that evidence is admitted for the purpose of proving “the character of a person in order to show that he acted in conformity therewith.” Tex.R.Crim.Evid. 404(b). This evidentiary rule incorporates the fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not his criminal propensities. Owens v. State, 827 S.W.2d 911, 914 (Tex.Crim.App.1992). Evidence of other crimes, wrongs, or acts may, however, be admissible if it has relevance apart from its tendency to prove character conformity. Tex.R.Crim. Evid. 404(b); Montgomery, 810 S.W.2d at 387 . Consequently, if a defendant objects on the grounds that the evidence is not relevant, violates Rule 404(b), or constitutes an extraneous offense, the proponent must show that the evidence has relevance apart from showing character. Id. at 387 .

If the trial court determines the evidence has no relevance apart from character conformity it is inadmissible. Id. If the proponent persuades the trial court that the evidence is admissible for some other permissible purpose, and that purpose “tends in logic and common experience to ... make the existence of a fact of consequence more or less probable than it would be without the evidence” the evidence is admissible. Id. at 391 . The evidence is considered relevant if it:

... tends to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory by showing, e.g. absence of mistake or accident ... [or] that it is relevant upon a logical inference not anticipated by the rulemakers.

Montgomery, 810 S.W.2d at 387-88 [emphasis added]. 3

A trial court’s admission of extraneous offense evidence is not reviewed de novo but under an abuse of discretion standard. See Guzman, 955 S.W.2d at 89 . As long as the trial court properly admitted the evidence in light of the factors enunciated in Montgomery and the trial court’s decision to admit the evidence lies “within the zone of reasonable disagreement” the decision will be upheld. Montgomery, 810 S.W.2d at 391 .

II.

In his petition, appellant challenged the court of appeals’ review of the admissibility of the extraneous offense evidence. Specifically, he contended that the court of appeals erred in holding that the evidence was automatically admissible as evidence of a common scheme or plan. This Court concluded that the appellate analysis was deficient because “[i]nstead of focusing on how the evidence was relevant to show a fact of consequence in this case, the court of appeals attempted to show how the evidence tended *719 to show a common scheme or plan.” We concluded the court of appeals had not conducted a complete relevancy analysis and remanded the ease. 4

The State now contends that the issue before us on original submission was not the propriety of the analysis, but the correctness of the conclusion that the trial court did not abuse its discretion. The State also contends that, contrary to our decision on original submission, the court of appeals did address the relevancy of the common scheme or plan evidence and did not automatically admit the evidence. The State contends the court set out the appropriate case law and effectively addressed the relevancy of the evidence when it concluded the evidence was admissible to show that appellant used the horseback rides “as a tool to satisfy [appellant’s] sexual desires” but as a means of “progressively exploit[ing] his authority and dominion over the girls[.]” Rankin, 872 S.W.2d at 283.

We believe the State is correct that the court of appeals properly examined the facts to determine whether the extraneous acts were admissible as evidence of a common scheme or plan, but this does not constitute an analysis of what “fact of consequence” this evidence was to go to prove. As emphasized in this Court’s original opinion, “the mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in Rule 404(b), does not, in itself, make that evidence admissible.” Because the evidentia-ry rules admit only “relevant” evidence, the purpose for which the proponent wants to admit the extraneous offense must satisfy the definition of relevant evidence set out in Rule 401. Montgomery, 810 S.W.2d at 391 . Extraneous offense evidence will generally always be relevant, but the permissible purpose for which the proponent is offering it may not be. For instance, where intent is a material issue and it is not inferable from the act itself, evidence of other acts probative of such intent is relevant and the trial court’s decision to admit such evidence is proper. 5 Where the state’s direct evidence, however, clearly shows the intent element of the crime and that evidence is uncontradicted by the defendant or not undermined by cross-examination of the state’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy. 6 Similarly, evidence tending to show that an alleged touching was not accidental or by mistake would not be relevant if the defendant has yet to make a claim of accident. Prior, 647 S.W.2d at 959.

It is for this reason that the proponent of 404(b) evidence must persuade the trial court that the extraneous offense evidence is being offered for a purpose other than character conformity, and that this other purpose “tend[s] 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 the evidence.” Tex. R.CRiM. Evid. 402. If the appellate court finds that the proffered evidence would not tend to make the existence of a material fact more or less probable, then the court must conclude that the trial court abused its discretion. 7 As stated in our original opinion, *720 because it is not for this Court to make findings as to relevancy in the first instance, we remand this case to the court of appeals.

III. Rule 403

The State also contends that we should not have resolved the Rule 403 issue because appellant did not raise the issue in his brief and it was not a ground on which this Court granted review. After re-examining part IB of this Court’s original opinion we are in agreement with the State. We find that a Rule 403 analysis was premature once this Court decided to remand the case for the court of appeals to address the relevancy of evidence establishing a common scheme or plan. The relevancy of the evidence admitted under 404(b) is crucial to determining whether the probative value of the evidence is outweighed by its prejudicial effect. Therefore, it was premature for us to perform a Rule 403 balancing test before the court of appeals had an opportunity to pass on whether it was reasonable for the trial court to find the evidence relevant. For instance, in the absence of a disputed issue the offer of other crimes evidence may be seen as merely prejudicial. Robinson v. State, 701 S.W.2d 895, 898 (Tex.Crim.App. 1985) (“where there is little or no controverting evidence offered by a defendant ... use of an extraneous offense is unnecessary and offers virtually no probative value”). 8

For the foregoing reasons, part IB of our opinion on original submission is withdrawn. This ease is remanded to the court of appeals for it to consider whether the extraneous offense testimony is relevant to a fact of consequence. If the court of appeals finds this evidence to be relevant, it should then perform a Rule 403 balancing test. If the court finds the evidence admissible under Rule 403, it should conduct a harm analysis of the court’s error in failing to give a timely limiting instruction.

The judgment of the court of appeals is vacated and the cause remanded for that court to address the above issues in a manner consistent with this Court’s opinion on original submission and this opinion on rehearing.

KELLER, J., filed a concurring opinion, in which McCORMICK, P.J., MANSFIELD, and WOMACK, JJ., joined.

. The Rale 403 issue resolved in part IB of our opinion on original submission was not briefed by the parties and was not an issue on which we granted review.

. Both the District Attorney and the State Prosecuting Attorney filed motions for rehearing. The District Attorney also asked this Court to reconsider the holding on original submission that upon request, the limiting instruction required by Rule 105 of the Texas Rules of Criminal Evidence must be given at the time the evidence is admitted. Because rehearing was not granted on that issue, this portion of our opinion on original submission remains unaffected by this supplemental opinion.

. The evidence will also be admissible if the proponent persuades the court that it is relevant upon a logical inference not anticipated by the rulemakers. This is the reason the list of "other purposes” designated in 404(b) is only an exemplary one and is "neither exclusive nor collectively exhaustive.” Montgomery, 810 S.W.2d at 388 .

. Additionally, remand offered the court of appeals an opportunity to fully explain its Rule 403 determination. Part IB of our opinion on original submission was not necessary in light of our decision to remand this case back on the 404(b) issue. See discussion infra.

. Morgan v. State, 692 S.W.2d 877, 880 (Tex. Crim.App.1985); Prior v. State, 647 S.W.2d 956, 959 (Tex.Crim.App.1983); see also Lane v. State, 933 S.W.2d 504 (Tex.Crim.App.1996) (extraneous offense may be admissible to show identity only when identity is issue in the case).

. See e.g., Pavlacka v. State, 892 S.W.2d 897 (Tex.Crim.App.1994)(though victim's testimony was impeached on cross-examination testimony of other molestations allegedly committed by the defendant were not admissible to rehabilitate complainant because the testimony did not render the victim any more credible); Montgomery, 810 S.W.2d at 397 (prerequisite for admission of extraneous evidence to shore up a child complainant's testimony is that the defendant must first deny the act or undermine or impeach the complainant is some way).

. Montgomery, 810 S.W.2d at 391 (admission of extraneous acts was abuse of discretion because State had no compelling need for the evidence either to prove specific intent or to shore up testimony of witnesses); Owens, 827 S.W.2d at 916 (concluding extraneous offense evidence should not have been admitted in prosecution for aggravated sexual assault of child where only ultimate fact to be resolved by jury was whether criminal offense occurred as alleged by complainant).

. In Montgomery , we set out the following useful analysis of this factor:

Therefore we hold that where relevant criteria, viewed as objectively as possible, lead to the conclusion that the danger of unfair prejudice substantially outweighed the probative value of the proffered evidence, the appellate court should declare that the trial court erred in failing to exclude it. Relevant criteria gleaned from the authorities include, inter alia, that the ultimate issue was not seriously contested by the opponent; that the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; that the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; that the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious.

Montgomery, 810 S.W.2d at 392-93 .