# Powell v. State

> Court of Criminal Appeals of Texas · April 12, 1995 · 898 S.W.2d 821

URL: https://www.frixlaw.com/law-library/cases/9772048

## Case

- **Full name:** James Rexford POWELL, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** April 12, 1995
- **Citations:** 898 S.W.2d 821; 1994 WL 665578
- **Precedential status:** Published
- **Opinion:** Dissent by Baird
- **Judges:** Campbell, Clinton, Baird, Overstreet, Meyers, Miller, Maloney
- **Cited by:** 168 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/9772048

## How later opinions describe it (automated extraction)

- stating that the court was not required to poll the jury members as to whether they had read a newspaper article when the court had frequently admonished the jury not to read any such articles and polling the members created a risk of calling to their attention an article of w…
- holding that objection to conditionally admitted evidence did not preserve error when appellant did not renew objection upon State’s failure to introduce sufficient “connecting” evidence
- stating claim that tangible item of evidence improperly admitted due to lack of proper authentication not preserved absent specific and timely objection
- holding complaint about testimony not preserved for appellate review because defendant failed to renew objection by moving to strike conditionally admitted evidence

## Opinion text

BAIRD, Judge,
dissenting.
Believing the collateral estoppel doctrine prohibits the admission of evidence of an offense for which one has been acquitted, I respectfiilly dissent to the resolution of the seventh, eighth and ninth points of error.
I.
As a general rule extraneous offenses are irrelevant and inadmissible. Castillo v. State, 739 S.W.2d 280, 289 (Tex.Cr.App.1987); and, McCann v. State, 606 S.W.2d 897, 899-900 (Tex.Cr.App.1980). However, Tex.Code Crim.ProeAnn. art. 37.071 provides for the introduction of any evidence the trial judge deems relevant at the punishment phase of a capital murder trial. Therefore, relevant extraneous offenses may be admissible at the punishment phase of a capital murder trial. Harris v. State, 827 S.W.2d 949 (Tex.Cr.App. 1992); Kemp v. State, 846 S.W.2d 289, 307 (Tex.Cr.App.1992); Allridge v. State, 762 S.W.2d 146, 161-162 (Tex.Cr.App.1988); and, Briddle v. State, 742 S.W.2d 379, 391 (Tex. Cr.App.1987). However, for an extraneous offense to be relevant, the State must prove that an offense was committed and that the accused was its perpetrator. Kemp, 846 S.W.2d at 307 . See also, Harris, 827 S.W.2d at 961 . This is so because under art. 37.071 the State is required to connect the defendant to the extraneous offense. Kemp, 846 S.W.2d at 307 .
II.
To determine whether the extraneous offense was barred by the collateral estoppel doctrine we first turn to Ashe v. Swenson, 397 U.S. 436 , 90 S.Ct. 1189 , 26 L.Ed.2d 469 (1970). In Ashe, six men were robbed at a poker game. Ashe and three others were arrested and charged with the robberies. A jury acquitted Ashe of one robbery and, over his objection, Ashe was tried and convicted of the robbery of a second complainant. 1 The Supreme Court held an issue is precluded by collateral estoppel only if, in light of the entire record, the previous jury necessarily decided the issue against the State. The Court stated:
Where a previous judgment of acquittal [is] based upon a general verdict ... a *836 court [is required] to examine the record ... and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the [appellant] seeks to foreclose from consideration.
Id., 397 U.S. at 444-447 , 90 S.Ct. at 1194-1196 . See also, Wright v. Whitley, 11 F.3d 542 (5th Cir.1994). The Supreme Court held the jury in Ashe’s first trial determined that Ashe did not participate in the robbery and that relitigation of the issue was barred by collateral estoppel. Ashe, 397 U.S. at 447 , 90 S.Ct. at 1196 .
In Stuart v. State, 561 S.W.2d 181 (Tex.Cr. App.1978), we addressed a similar issue. 2 Stuart was charged with aggravated rape and asserted the defense of consent. The trial judge admitted extraneous evidence of a previous rape for which Stuart had been acquitted. Id. Relying upon the Supreme Court’s opinion in Ashe, we reversed:
... The prosecutrix alleged rape and the appellant defended on consent. We feel that any application of an exception to the rule against admission of extraneous offenses ... must necessarily be to an occurrence which has not already been conclusively established by a verdict of acquittal to have not been an eottraneous offense in the first place. The prosecution should not be allowed an exception when they have failed to come within the ambit of the general rule.
Stuart, 561 S.W.2d at 182 (emphasis added). See also, Drew v. State, 719 S.W.2d 388, 390 (Tex.App. — Houston [1st Dist.] 1986).
Although the majority fails to consider, mention, discuss or distinguish Ashe or Stuart , these cases are clearly controlling. To be admissible in the punishment phase of a capital trial, all extraneous evidence must be “relevant to sentence.” Tex.Code Crim. Proe.Ann. art. 37.071(2)(a). However, extraneous evidence “cannot be relevant to sentence ... unless the State also presents evidence that, if believed, establishes that the defendant himself committed the extraneous misconduct.” Harris, 827 S.W.2d at 961 . Therefore, the extraneous evidence in the instant case was relevant only if the State established that appellant committed the offense. In other words, the instant jury was presented with the same issue as the jury in appellant’s earlier trial, i.e., his guilt of attempted murder. Consequently, relitigation of appellant’s guilt, having once been determined by a valid and final judgment of acquittal, was barred by Ashe, 397 U.S. at 443 , 90 S.Ct. at 1194 , and Stuart, 561 S.W.2d at 182 .
III.
Relying on Adanandus v. State, 866 S.W.2d 210 (Tex.Cr.App.1993); and, Spence v. State, 795 S.W.2d 743 (Tex.Cr.App.1990), the majority states:
... To encourage the proliferation of all evidence relevant to a capital defendant’s deathworthiness, the burden of proof on the State with regards to extraneous offenses is lower when they are offered at the punishment phase of a capital trial. When offering an extraneous offense at the punishment phase of a capital trial the State need not prove all of the elements of the extraneous offense. Nor need the State prove beyond a reasonable doubt that the defendant committed the extraneous offense.
Majority op., 898 S.W.2d at 830, (citations omitted). However, neither Adanandus or Spence are controlling because those holdings, as well as the authority cited therein, are specifically limited to the admission of “unadjudicated extraneous offense[s].” Adanandus, 866 S.W.2d at 233-234 (Emphasis added.); Spence, 795 S.W.2d at 759 ; and, Ramirez v. State, 815 S.W.2d 636, 653 (Tex. Cr.App.1991). In the instant case, the trial judge admitted evidence of an offense for which appellant had been acquitted, i.e., an adjudicated offense. Therefore, Adanandus and Spence, do not control the instant case.
*837 Furthermore, I disagree that the State’s purpose in admitting the extraneous offense was not to prove “appellant committed attempted murder,” but “merely to assist the jury in its determination of appellant’s death-worthiness, specifically to determine whether appellant posed a future danger to society.” Majority op., 898 S.W.2d at 830. This is a distinction without a difference. Clearly, whatever relevancy the extraneous offense had on appellant’s deathworthiness was dependent on appellant’s guilt of that offense. Without proof of appellant’s guilt of the extraneous offense, such evidence was not relevant and provided no assistance in the jury’s determination of appellant’s deathworthiness. Therefore, notwithstanding the majority’s attempt to distinguish the purposes for the admission of such evidence, it was incumbent upon the State to prove appellant’s guilt of the attempted murder, an offense for which he had been acquitted.
IV.
The issue of appellant’s guilt for the offense of attempted murder was determined by appellant’s acquittal of that offense. Consequently, relitigation of appellant’s guilt for the attempted murder in the instant case was barred by the collateral estoppel doctrine of the Double Jeopardy Clause of the Fifth Amendment. For these reasons, I respectfully dissent.
MILLER and MALONEY, JJ., join this opinion.
. At the first trial the State's evidence identifying Ashe was weak:
Two of the witnesses ... could not identify [Ashe] as one of [the robbers]. Another of the victims ... positively identified each of the other three men accused of the holdup, but could say only that [Ashe’s] voice "sounded very much like” that of one of the robbers. The fourth participant in the poker game did identify [Ashe], but only by his "size and height, and his actions”.
Ashe, 397 U.S. at 438 , 90 S.Ct. at 1191 . At the second trial the same witnesses gave substantially stronger identification testimony. Further, the State declined to call one of the witnesses "whose identification testimony at the first trial was conspicuously negative.” Id., 397 U.S. at 439-440 , 90 S.Ct. at 1192 .
. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution is applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9772048. Public record. Not legal advice.