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 prohibitions
How later courts described this case
- 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 prohibitions
- 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, 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
Written by the judges who cited it.
Distinguished
Distinguished by Hammock v. State, 2001 Tex. Crim. App. LEXIS 39 (2001)
Rankin is distinguishable from the facts of the instant case.
The opinion
KELLER, Judge,
concurring on motion for rehearing.
The majority remands this cause to the court of appeals in order for it to determine whether the evidence of extraneous acts was relevant. If the court finds that it was, it is to perform a Rule 403 balancing test and then, if necessary, decide whether the failure to give a limiting instruction at the time the evidence was admitted was harmless. I find myself in disagreement with the reasoning in Part II of the opinion.
In Part II, the majority espouses two propositions with which I disagree: (1) that the Court of Appeals must articulate how a common scheme or plan would be relevant to a fact of consequence in the case, and (2) that an extraneous offense is not relevant if the State does not need the evidence. The majority opinion suggests that a conclusion that certain evidence is relevant to show a common scheme or plan is insufficient to establish that evidence’s relevance to the criminal prosecution. But evidence of a common scheme or plan is relevant to show intent. While intent is not an element of every prosecution, it is an element of this one; hence, the Court of Appeals adequately addressed the relevance of the extraneous offenses *721 when it concluded that they tended to show a common scheme or plan.
As for the second proposition, I believe that the threshold determination of relevancy is not affected by the State’s relative need (or lack thereof) for the evidence. Even if in some cases it is true, as we said in Montgomery v. State, 810 S.W.2d 372, 891 (Tex.Crim.App.1990) (opinion on rehearing), that determining relevance is not exclusively a function of rule and logic, I think that in most cases it will be just that. It does not take much for evidence to be relevant — it need only have any tendency to make a fact of consequence more or less probable. Whether the State needs the evidence does not affect the logical relation between the extraneous act and the nonconformity purpose at issue, although it may well affect whether the probative value of such evidence is substantially outweighed by its prejudicial effect. Hence, whether the State needs the evidence is not a consideration under Rule 404 but under Rule 403.
At least some of the cases cited by the majority seem to support my position. In Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App.1985), a case involving admissibility of extraneous acts of sexual assault of children, the court disposed of the relevance issue thus, “[Wjhere intent or guilty knowledge is an essential element of the offense which the State must prove to obtain a conviction, its materiality goes without saying.” The disputed question involved the admissibility of the evidence, but not its relevance. Prior v. State, 647 S.W.2d 956 (Tex.Crim. App.1983), similarly, discussed the admissibility of extraneous acts when intent was established by testimony about the offense itself. There is not in that case, however, the slightest suggestion that the extraneous acts were irrelevant.
So when the majority says that “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,” I disagree. It is relevant because it has a tendency to make a fact of consequence (intent) more probable. Such evidence may be inadmissible under Rule 403, but it is not irrelevant.
As I believe the Court of Appeals adequately addressed the relevancy of the evidence under Rule 404(b), I would not remand for consideration on that issue. I dissent to Part II and otherwise join the opinion of the Court.
McCORMICK, P.J., and MANSFIELD and WOMACK, JJ., join.