# Montgomery v. State > Court of Criminal Appeals of Texas · June 19, 1991 · 810 S.W.2d 372 URL: https://www.frixlaw.com/law-library/cases/9863162 ## Case - **Full name:** Patrick Logan MONTGOMERY, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 19, 1991 - **Citations:** 810 S.W.2d 372; 1991 Tex. Crim. App. LEXIS 146; 1990 WL 70660 - **Precedential status:** Published - **Opinion:** Dissent by Clinton - **Judges:** Teague, Clinton, Berchelman, McCormick, White, Campbell - **Cited by:** 6,973 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Declined to follow by a later decision (1995). - Negative treatments: 1 - Distinguished by: 3 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863162 ## How later opinions describe it (automated extraction) - stating that appellate deference to Rule 403 determination “is a rule of judicial restraint, intended . . . to avoid the anomaly of having appellate courts usurp a function that the system assigns to the trial courts” and grants trial judges “considerable freedom in evaluating… - holding that trial court abused its discretion in concluding that the probative value outweighed prejudice and admitting evidence that “appellant frequently walked around naked, with an erection, in the presence of his children” in prosecution of the appellant for indecency wi… - concluding that appellant’s instructions to victims “not to reveal the event to anyone shows a consciousness of wrongdoing which in turn leads to an inference that when he touched the children as he did, appellant harbored a specific intent to arouse and gratify his own sexual… - stating that "[w]hen the proponent has other compelling or undisputed evidence to establish the proposition or fact that the extraneous misconduct goes to prove, the misconduct evidence will weigh far less than it otherwise might in the probative-versus-prejudicial balance" - holding evidence of extraneous acts — that father walked around nude with erection in front of children — was relevant to issue of intent in father’s prosecution for indecency with a child although probative value of such evidence was outweighed by its prejudicial effect ## Opinion text CLINTON, Judge, dissenting. Without subscribing to it word for word, I agree with much the majority has to say with regard to operation of the new Texas Rules of Criminal Evidence. I particularly embrace the majority’s observation that, rather than to adopt a general rule of exclusion of evidence of extraneous misconduct, Article IV contemplates that, if relevant to some issue of consequence to the case, extraneous misconduct is ordinarily admissible. Tex.R.Cr.Evid., Rules 401 & 402. The trial court may exclude such evidence “if its probative value is substantially outweighed by the danger of unfair prejudice_” Tex.R.Cr.Evid., Rule 403. An exception to the general rule of admissibility of such evidence is extraneous misconduct admitted to raise no more than an inference of character conformity — what prior to the advent of the new rules we referred to as “propensity evidence.” Boutwell v. State, 719 S.W.2d 164, at 177 (Tex.Cr.App.1986) (Opinion on State’s motion for rehearing). See Tex.R.Cr.Evid., Rule 404(b). Indeed, I had thought that recent decisions of this Court prior to applicability of the new rules had already begun to migrate away from a “general rule” of inadmissibility of extraneous misconduct evidence to one of admissibility of any such evidence that is relevant to a specific, material issue in the case, not proffered for its character conformity value, the probativeness of which outweighs any potential for prejudice. E.g., Morgan v. State, 692 S.W.2d 877, at 879 (Tex.Cr.App.1985); Boutwell v. State, supra, at 171-72 (Opinion on original submission); Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983). The only change in the new rules is that “Rule 403 shifts the focus somewhat ... to admit relevant evidence unless the probative value of that relevant evidence is substantially outweighed by the danger of unfair prejudice to a defendant.” Crank v. State, 761 S.W.2d 328, at 342, n. 5 (Tex.Cr.App.1988). 1 I cannot subscribe, however, to the majority view of the proper role of an appellate court in all this. Particularly, I cannot accept the notion that a trial court’s discretion to admit relevant evidence even over an objection that “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,” includes a “limited right to be wrong.” Maj. op. at 380. That is essentially to say, it seems to me, that appellate courts have no authority to review a trial court’s application of Rule 403, supra. Assuming appellate courts are rigorous in their review of the question whether proffered extraneous misconduct evidence has a logical “tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence[,]” Rule 401, supra, I agree appellate courts should pay great deference to a trial court’s decision, pursuant to Rule 403, supra, that the probative value of relevant evidence outweighs its potential for unfair prejudice or confusion of issues. In my view, however, the facts of this very case demonstrate such deference must have limits. The majority takes pains to set out the minutiae of appellant’s extraneous misconduct that, ironically, comprised the bulk of the State’s evidence in the 300-odd page transcript of the guilt phase of trial. Then, in its self-styled application of the law to the “facts,” the majority concludes the State needed these extraneous matters because it was “the only proof of appellant’s possible sexual motive if the touching did in fact occur.” Maj. op. at 381. The majority continues: “Without some evidence, of appellant’s motives, the possibility that any touching was done innocently exists as an outstanding reasonable hypotheses. * * * It should be remembered that appellant *384 was solely responsible for the welfare of his daughters at the time of the offense and the record demonstrates that he assumed responsibility for bathing the children. Absent the [extraneous misconduct evidence], it is possible that any touching was done innocently making the need for the evidence greater. Given these factors, we cannot say that the trial court judge abused her discretion in allowing the jury to hear the aggrieved testimony.” Id. I agree that a Rule 403 evaluation of the balance of probativeness against prejudice ought properly to take the form of an inquiry into how much the State needs the relevant extraneous misconduct, either to prove its ease in the first instance, or to rehabilitate it after damaging defensive evidence. See Morgan v. State, supra, at 879-80, nn. 2, 3 & 4, and at 882, n. 7; United States v. Beechum, 582 F.2d 898 (5th Cir.1978). What is patently incorrect is the majority’s assertion that in this case, other than the extraneous misconduct, the State could produce no evidence that appellant acted with the requisite intent to arouse and gratify his sexual desire. Here the State produced abundant evidence of that intent. Appellant was tried simultaneously for sexual contact on two separate occasions with two of his three daughters. The circumstances of the offenses themselves, as related by a Department of Human Services caseworker, and by the children themselves, are ample to show that if any touching occurred at all, manifestly it was with the intent to arouse and gratify appellant’s sexual desire. Denying he touched his daughters at all, at no time did appellant try to show that any contact had been inadvertent or without lascivious intent. The caseworker testified pursuant to Article 38.072, V.A.C.C.P. She related that appellant’s eldest daughter told her that appellant had touched her in her genital area. Appellant’s second oldest daughter was somewhat more graphic in her description to the caseworker: “Q. Did you ask her whether or not she had any secrets? A. Yes, I did. [[Image here]] Q. Did you ask her who those secrets were with? A. Yes. Q. Who did she say they were with? A. Daddy. [[Image here]] Q. What did you ask her next? A. I asked her if she could tell me about the secret. Q. What did she say? A. She said that her father — the secret was that her father was touching her and then she indicated her genital area by touching. Q. Did she say what he was touching her with? A. His hand. Q. Did you use anything to get further information from her regarding that? A. Yes, I did. Q. And what did you use? A. The anatomically correct dolls. Q. What did she do with those dolls? A. She took the male doll and laid it on top of the female doll. She took the penis from the male doll and stuck it between the thighs and then she moved the male doll’s hips back and forth. Q. She put the penis of the male doll— and I assume his pants were down? A. Yes. Q. Between the thighs of the female doll? A. Yes. Q. And were her pants off, too? A. Yes. Q. And then she moved the male doll’s hips back and forth? A. Yes.” Such testimony hardly supports a reasonable hypothesis that “any touching was done innocently.” Maj. op. at 381. At trial, appellant’s second oldest daughter described the same event as follows: “Q. ... Now will you tell [the jury] about the secret you and your daddy had? A. Yes. *385 Q. What happened? Look over here A_Tell me what happened. A. My dad told me not to tell anybody. Q. Well, it’s okay to tell now, so will you tell us now? A. Yes. Q. Okay. Tell me what happened. Did your daddy come in a room? [Objection to leading overruled] A. Yes. Q. What did he say when he came in the room? A. Not to tell anybody. [[Image here]] Q. ... What happened when your daddy walked into the room? A. He told me to pull down my panties. Q. Okay. And did you do that? A. Yes. Q. Because he’s your daddy, right, and you mind him? A. Yes. Q. Okay. Then what did you do? A. I did what he told me to do. Q. And what was that? A. To pull down my panties. Q. And then what? A. Then he pulled down his panties. Q. And then what did he do? A. He molested me. [[Image here]] Q. How did he do that? A. By touching me. Q. What did he touch you with? A. His hands. Q. He put his hands where? A. On my private.” With anatomically correct dolls, the child then demonstrated how appellant had touched her “private” with his hand. This time she denied “he put anything else between [her] legs beside his hand.” Appellant’s oldest daughter also testified that appellant had put his hand on her “pee place.” Appellant also told her “not to tell anybody.” It would be a gross understatement to say specific intent to arouse and gratify appellant’s sexual desire may be readily inferred from proof of the acts themselves. Coupled with the testimony that appellant instructed each child to keep the act secret, the State could not ask for better evidence of lascivious intent. 2 In short, unlike the case in Morgan v. State, supra, the State had no need whatever for the evidence of extraneous misconduct that was admitted in this cause. See Prior v. State, 647 S.W.2d 956 (Tex.Cr.App.1983). In suggesting otherwise, the majority simply ignores the record. The trial court admitted all of the extraneous misconduct evidence before the State even attempted to introduce the testimony of the children and the caseworker. At the time the trial court could have made no accurate assessment whether the State really needed it. As it turns out, the State needed it not at all. Nevertheless, almost the entirety of appellant’s defense was necessarily devoted to rebuttal of testimony about his language and behavior in front of his children. Under the circumstances the trial court could not but find that “the probative value” of the extraneous misconduct was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” Rule 403, supra. That the rule allows the trial court to exclude such evidence (“evidence may be excluded ... ”), rather than requiring it, cannot authorize unfair trials. At the least, it should not be read to authorize *386 admission of extraneous misconduct evidence before the trial court could possibly have been equipped to determine its relative probative value. We must ensure, if nothing else, that the trial court does its job. In my view the majority errs today to invoke abuse of discretion in order to justify for trial courts even a “limited right to be wrong.” That kind of appellate deference amounts to appellate abdication. I want no part of it. Accordingly, I dissent. 3 . Emphasis is in the original. All other emphasis supplied unless otherwise indicated. . The majority contends that "[a]ppellant challenged [the daughters’] competency to testify at trial and it would have been reasonable for the trial court to conclude that the young girls would not be able to relate that appellant’s touching their vaginal areas was done with the specific intent to cause his sexual arousal.” Maj. op. at 381. This argument is hardly persuasive. It is true that appellant asserted his right to have competency of the children tested by examination of the court. Tex.R.Cr.Evid., Rule 601(a)(2). At the conclusion of each hearing, however, the trial court declared each child a competent witness, sans objection from appellant. In no way did defense counsel assail their competency to testify during his final summation. At any rate, that the children themselves may not have understood the significance of appellant’s conduct does not change the fact that lascivious intent would be readily apparent to a jury of adults. The events speak for themselves. . The majority opinion in the court of appeals found the extraneous misconduct evidence here “served its proper function of revealing the familial relationship which provided the context of the charged offense." Montgomery v. State, 760 S.W.2d 323, at 325 . This language echoes the limited "res gestae" rationale for admitting extraneous sex offenses between a defendant and the complainant when the defendant stands in loco parentis to the complainant, as here. Boutwell v. State, supra (Opinion on State's motion for rehearing). There are two purported reasons for admission, viz: first, to respond to an accused’s denial of the offense, and second, to show a preexisting relationship in order to demonstrate credibility of a child complainant. Id., at 177. Either reason depends, it seems to me, upon a character propensity inference. Boutwell notwithstanding, however, present Rule 404(b), supra, admits of no such exception to its prohibition against character propensity/conformity evidence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863162. Public record. Not legal advice.