Garcia v. State

ROBERTS, Judge,

concurring.

While I concur in the affirmance of the judgment, I would approach differently the question of proving unadjudicated, extraneous offenses in the “sentencing proceeding” of a capital case.

The majority is correct in concluding that Article 37.071(a) of the Texas Code of Criminal Procedure would admit such offenses. This conclusion should rest on more than two emphasized phrases from Jurek v. State, 522 S.W.2d 934 (Tex.Cr.App.1975) and Jurek v. Texas, 428 U.S. 262 , 96 S.Ct. 2950 , 49 L.Ed.2d 929 (1976).

*180 Article 37.071(a) of the Texas Code of Criminal Procedure was added by a Senate amendment to H.B. 200 in the 63rd Texas Legislature. See “Comment, House Bill 200,” 11 Houston Law Review 410 (1974). The amendment seems to have been based on Section 921.141 of Florida Statutes Annotated (Supp.1979), which was passed hastily by a special session of the Florida Legislature, called in response to Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972). See Erhardt & Levinson, “Florida’s Legislative Response to Fur-man,” 64 Journal of Criminal Law & Criminology 10 (1973). The Florida statute, in turn, largely is copied from Section 210.6 of the Model Penal Code. The comments to this source provision appear in Tentative Draft No. 9 (1959), and shed light on the question.

The drafters of the Model Penal Code chose a bifurcated trial procedure for capital cases to avoid “an inescapable dilemma if the jury is called upon to pass on sentence at the same time that it reaches a verdict as to guilt or innocence. Either the determination of the punishment must be based on less than all the evidence that has a bearing on that issue, such for example as a previous criminal record of the accused, or evidence must be admitted on the ground that it is relevant to sentence, though it would be excluded as irrelevant or prejudicial with respect to guilt or innocence alone. . The obvious solution . . . is to bifurcate the proceeding, abiding strictly by the rules of evidence until and unless there is a conviction, but once guilt has been determined opening the record to the further information that is relevant to sentence.” American Law Institute, Model Penal Code 74-75 (Tentative Draft No. 9 1959).

The cited sections of the Model Penal Code and the Florida statutes accomplish this opening of the record by providing, “Any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is afforded a fair opportunity to rebut any hearsay statements.” The Texas Legislature chose to omit this sentence from Article 37.071(a), and this must evince its intention that the general rules of evidence continue to apply in these proceedings.

But the very choice of this bifurcated procedure also evinces an intention that evidence that would be inadmissible at the guilt stage should be admitted in these proceedings. This is so because the dangers of confusion of, and prejudice to, the issue of guilt have passed, and because of the constitutional compulsion to give the capital jury as much relevant information as is possible. I can agree that this intention would justify the admission of extraneous offenses, even unadjudicated ones. (If the Legislature wanted to limit the evidence to convictions, it could do as it has done in Article 37.07, Section 3(a), of the Texas Code of Criminal Procedure.)

But this cannot be the end of the issue. For, in addition to the dangers of confusion and prejudice, there is a third reason why evidence law has excluded proof of extraneous offenses: unfair surprise. J. Wigmore, Evidence, Section 55 (3rd ed. 1940). And, in addition to the constitutional compulsion to give the capital jury as much relevant information as possible, there is a constitutional compulsion to give the capital defendant due process (and due course) of law. Article 37.071 should not be construed as authorizing proof of unadjudicated, extraneous offenses if this comes as an unfair surprise to the defendant. Notice, a fundamental element of due process, must be provided. Allowing proof of unadjudicated, extraneous offenses comes close to allowing one or more “prosecutions” of the defendant in the sentencing proceeding. Simple fairness requires that the defendant be given notice that the State intends to offer proof of unadjudicated, 1 extraneous offenses, so that the defendant and his coun *181 sel can investígate and prepare a response. 2 Trial judges should be mindful of this notice problem when they exercise the “wide discretion in admitting evidence” mentioned by the majority; this discretion may not transgress on state and federal constitutional rights.

In this case, the record shows that the appellant and his counsel had actual notice of the State’s intention to offer proof of the extraneous offense. Counsel made a motion in limine, and he did not seem to be surprised. For these reasons I can concur in this affirmance.

PHILLIPS, J., joins in this opinion.

. Proof of prior convictions should present no problem of notice, for the defendant should be aware of such convictions, and records of convictions are easily discoverable by counsel. The same cannot be said of unadjudicated, extraneous offenses.

. At least one jurisdiction requires such notice by statute. See Section 27-2053 of Georgia Code Annotated.