Abdnor v. State , 808 S.W.2d 476 ( 1991 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

The jury rejected appellant’s insanity defense, convicted him of murder and sentenced him to confinement for life. The Court of Appeals affirmed appellant’s conviction. Abdnor v. State, 756 S.W.2d 815 (Tex.App.—Dallas 1988). We granted appellant’s petition for discretionary review on three grounds.¹ For the following reasons we will reverse the judgment of the Court of Appeals.

In his third ground for review, appellant argues that the trial court failed to provide a limiting instruction to the jury regarding extraneous offenses allegedly committed by appellant.² On direct examination during the guilt/innocence phase, State’s witness Bryan Parsons testified that appellant telephoned on July 25, 1980, two days before the alleged offense, and stated that complainant, appellant’s girlfriend, had an abortion, and that appellant and complainant had terminated their relationship. During that conversation appellant stated, “That bitch really screwed up this time ... if she walked through that door right now I’d blow her head off. I’d just blow her right up against the wall.” Parsons related that conversation to members of the Dallas County District Attorney’s Office eight months later in March, 1981.

On cross-examination, defense counsel impeached Parsons with his statement of September 13, 1981, the Sunday before trial began, wherein Parsons stated that he had lied about the March, 1981 conversation. On redirect examination, the State attempted to rehabilitate Parsons. Parsons testified that he recanted his March 1981 statement because he feared appellant. His fear stemmed from two extraneous offenses. First, appellant previously pulled a knife on Parsons. Second, appellant telephoned Parsons’ boss and threatened to kill Parsons. Both of these events allegedly occurred in June, 1980, approximately one month prior³ to the telephone conversation and the alleged offense.

Appellant objected to the admission of the extraneous offenses. Specifically, the record reflects the following:

[DEFENSE COUNSEL]: What we’re objecting to, Your Honor, is the testimony, in effect, brings in extraneous matters and extraneous offenses: to-wit, assault, from the witness, which would be inadmissible for general purposes in this case, in that it would show — it would have a tendency to show that the Defendant is a criminal generally, and it is not really admissible on any issue in the trial.

... [I]t affects the state of mind of the witness, and its prejudice far outweighs any relevance of materiality of the testimony.

Basically, it is an extraneous offense: it’s not relevant to the actual issues in this case. The State is only offering it for a limited purpose, and the prejudice outweighs its materiality.

THE COURT: Overruled.

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[Defense Counsel]: And I would also request that, as this testimony comes in, immediately after the witness makes the statements ... the Judge instruct the jury, specifically, that the testimony is admitted only for the purposes of how it affects the credibility of the witness, and it’s not to be considered for any purpose whatsoever as to whether or not the Defendant is guilty of the offense charged.

THE COURT: Okay. Denied at this time. I’ll take that up when we take up the Charge. (Emphasis added.)

Prior to its submission to the jury, appellant objected to the court’s charge for its failure to limit the jury’s consideration of the extraneous offenses. Appellant offered several proposed charges for the trial court’s consideration.⁴

It is well settled that a defendant is to be tried on accusations in the State’s pleading only, and not for being a criminal generally. Wilkerson v. State, 736 S.W.2d 656 (Tex.Cr.App.1987). Proof of an extraneous offense may be admissible at the guilt/innocenee phase of trial insofar as it illuminates a material issue in that case. E.g. Crank v. State, 761 S.W.2d 328, 340-45 (Tex.Cr.App.1988). It is never admissible merely to encourage the inference that an accused is probably guilty because he committed other crimes. Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983).

In the case at bar, the State was entitled to introduce evidence of appellant’s extraneous offenses for the limited purpose of explaining Parsons’ prior inconsistent statement. Williams v. State, 604 S.W.2d 146 (Tex.Cr.App.1980); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). Where evidence, is admissible for a limited purpose and the court admits it without limitation, the party opposing the evidence has the burden of requesting a limiting instruction. Plante v. State, 692 S.W.2d 487, 493 (Tex.Cr.App.1985). Appellant met that burden, but the trial court refused to limit the jury’s consideration of the extraneous offenses. Accordingly, the trial court erred. See Porter v. State, 709 S.W.2d 213 (Tex.Cr.App.1986).

Having determined that a limiting instruction should have been given, this case must be remanded to the Court of Appeals for an assessment of harm in light of our holding in Almanza v. State, 686 S.W.2d 157 (Tex.Cr.App.1985).

The judgment of the Court of Appeals is reversed and the cause is remanded to that court for action consistent with this opinion.

1 . We granted this petition for discretionary review to determine whether the Court of Appeals erred by: 1) holding that it was harmless error for the trial court to permit a defense witness to be cross-examined and a prosecution witness to base his opinion on appellant’s hospital records which were controlled by the therapist/patient privilege of former Tex.Rev.Civ.Stat. art. 5561h (repealed), 2) concluding that the trial court did not err in permitting an investigator to testify about oral statements made by appellant and to testify that appellant chose not to explain exactly how the killing had taken place, and 3) deciding a question of law in conflict with the applicable decisions of the Court of Criminal Appeals requiring the limitation of evidence to the purpose for which the testimony was admitted.

2 . This case was tried before the effective date of Tex.R.Crim.Evid. 105(a):

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly, but, in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

Therefore, we will not analyze this case pursuant to that rule.

3 . All emphasis herein supplied by author unless otherwise indicated.

4 . In his "Requested Jury Instructions I”, appellant requested the following:

You are instructed that certain testimony involving a conversation between the witness, Bryan Parsons, and Mike Duran concerning a threat made against Bryan Parsons was admitted into evidence. Said testimony was admitted only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor.

You are further instructed that certain testimony involving an altercation between Bryan Parsons and John Howard Abdnor was admitted into evidence. Said testimony was admitted only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor.

In his "Requested Jury Instructions-II”, appellant requested the following:

You are instructed that certain testimony involving an altercation between the defendant and Bryan Parsons was admitted into evidence only to aid the jury, if it does, in passing on the credibility of the witness, Bryan Parsons, (or in the alternative, without waiving the foregoing request, in passing on the state of mind of the witness Parson’s [sic] in refusing to talk with defense counsel, Randy Taylor) and is not to be considered for any purpose whatsoever against the defendant, John Howard Abdnor.