Robinson v. State

The culpable mental state element prescribed by statute for the offense of theft is "intent to deprive the owner of property." V.T.C.A. Penal Code, § 31.03 .

On original submission a majority of a Court panel analyzed the factual situation and concluded:

"In some cases in which intent cannot be inferred from the act itself, extraneous offenses can have high relevancy value. [Citations omitted.] In this case, however, intent was not a contested issue; both the State's and the appellant's evidence was that appellant appropriated the rights with intent to deprive the owner of property. The contested issue was whether the appropriation was lawful, that is, whether it was with the owner's consent. [parenthetical reference omitted.] Since intent was not a contested issue, the value of the evidence of the extraneous offense to prove intent was very low, and the value would not have outweighed its prejudicial effect. [Citation omitted.]"

Judge McCormick dissented without opinion.

In his motion for rehearing the local district attorney asserts the extraneous offense was properly admitted "to show his intent to deprive the owner of the benefits of the property." In a supplemental petition the State Prosecuting Attorney contends the evidence was similarly admissible and also on the issue of "whether he intentionally acted in the knowledge that he did not have the owner's effective consent," or put another way, "Did the appellant honestly think he had the client's effective consent to appropriate the rings?" Neither representative of the State claims a theory about deception.

Now the majority opinion says that consent is not effective if induced by deception, and no one can dispute that proposition. The majority says abstractly that "deception clearly is a material issue to a prosecution for theft under this statute." However, it would not be an issue in a particular case unless raised by evidence. The majority also coins the term " deceptive intent. " Finally it says the extraneous offense was offered as evidence of "appellant's intent to deprive Jones of her property through deception. " Draft opinion, p. 4. But we are never informed what the relevant "deception" is — and there are five kinds delineated in V.T.C.A. Penal Code, s131.01(2) — or how and when " deceptive intent became a material issue in the case." 1

Despite efforts to purify them, e.g., Morgan v. State, 692 S.W.2d 877 (Tex.Cr.App. 1985), we find waters of the law of extraneous transactions are still murky. See, e.g., Moore v. State, 700 S.W.2d 193 (Tex.Cr.App. 1985): a lead opinion by Judge Teague joined by two Judges; three Judges concur in result; one Judge renders an opinion joining in the Judgment of the Court, joined by another; the ninth Judge did not participate. See also Boutwell v. State, (Tex.Cr.App., No. 711-83, delivered April 24, 1985): one Judge concurs in result; two Judges dissent; motions for leave to file motions for rehearing granted July 3, 1985. The opinion today may be added to the list.

In other particulars, the opinion is less than clear. Concerning measuring probative value by "availability of alternative sources of proof," Slip opinion, p. 6, take the following comment:

"However, the presence of some controverting evidence will enhance the probative value, including those cases where

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the controverting evidence is presented in the form of a defensive theory. See Albrecht,

supra, at 101, n. 6."

Aside from the inherent ambiguity in the statement, the phrase " some controverting evidence" seems to put admission of a extraneous offense at risk when an accused in any slight way raises a modicum of doubt about a small aspect of proof offered by the State.

When it comes to "prejudicial effect," Slip opinion, p. 7, the majority indirectly resorts to an observation initially made in Crawley v. State, 513 S.W.2d 62 (Tex.Cr.App. 1974). 2 Then the majority finds that jargonizing the Ross affair into "transaction" lessened the conceded prejudicial effect attending admitting it into evidence. With smoke and mirrors the majority would have it that stealing more than fifty thousand dollars from Ross did not prejudice appellant in the eyes and minds and hearts of jurors.

After pages expounding bad law regarding extraneous offenses, misconduct and transactions, the majority ultimately upholds reversal of the judgment of conviction on account of prosecutorial argument having nothing to do with those matters. That most injudicious manner of deciding a cause in this Court today is but a thinly disguised methodolgy to create "precedent" for allowing the camel to come on inside the tent tomorrow.

I join only the judgment of the Court reversing the conviction.

MILLER, J., joins.

1 All emphasis is mine throughout unless otherwise indicated.

2 "In fact, acts not amounting to crimes would appear to be less prejudicial to the accused than those constituting criminal offenses." Id., at 65 . The notion was updated in Plante v. State, 692 S.W.2d 487 (Tex.Cr.App. 1985), and applied to "extraneous debts," at 490, n. 3 and 494.