Valadez, Adrian ( 2022 )

In the Court of Criminal
Appeals of Texas
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No. PD-0574-19
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ADRIAN VALADEZ,
Appellant,
v.
THE STATE OF TEXAS
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On Appellant’s Petition for Discretionary Review
From the Tenth Court of Appeals
McLennan County
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YEARY, J., filed a dissenting opinion in which SLAUGHTER, J.,
joined.
The Court’s opinion purports to apply the highly deferential
abuse-of-discretion appellate standard for determining the admissibility
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of extraneous misconduct evidence under 403 of the Texas Rules of
Evidence. TEX. R. EVID. 403. But it does not actually defer to the trial
court. The trial court’s ruling, admitting the extraneous misconduct
evidence in this case, fell within the “zone of reasonable disagreement.”
See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)
(op. on reh’g on court’s own motion) (appellate courts should not
“intercede” in trial court’s ruling with respect to Rule 403, so long as it
“was at least within the zone of reasonable disagreement”). But this
Court’s opinion seems to simply substitute its own subjective view. In
my view, this outcome is the result of three key mistakes.
First, the Court’s opinion fails to acknowledge that it was “at
least” within the zone of reasonable disagreement for the trial court to
find that evidence of Appellant’s prior connection to Austin Police
Department (APD) marijuana cases had probative value to rebut
Appellant’s defensive theory that he was merely an innocent backseat
passenger who was “just along for the ride.” Those prior marijuana
connections provided a reasonable inference that he would have
recognized the pungent scent of the more than 18 pounds of that
substance that was found in the car. The only degree of “similarity”
necessary to support that ready inference is that the prior cases (in
which he was determined to be “connected” to marijuana by APD) and
his own prior conviction for possession of marijuana, demonstrate a level
of sophistication with regard to that substance beyond that which the
average non-marijuana-possessing public would have, and his having
been previously associated with enough quantity of marijuana, by virtue
of those multiple cases, that he would naturally have been exposed to its
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distinctive odor.
Second, the Court’s opinion mistakenly concludes that the later
offense, involving possession of both marijuana and a deliverable
amount of cocaine, was also inadmissible. Although Appellant was not
charged in this case with possession with intent to deliver, his defense
was that he was an innocent bystander, and not a drug mule like the
other two occupants of the car. The trial court could reasonably have
concluded that this evidence demonstrated a heightened level of
sophistication with regard to the possession of illegal drugs, and that
this level of sophistication with illegal drugs also went beyond that
which would have been possessed by the average non-illegal-drug-
possessing public. All of this could have led the trial court reasonably to
conclude that the evidence was not substantially more prejudicial than
probative, in that it tended fairly to rebut the claim that Appellant was
just an innocent “along for the ride” passenger. It showed that Appellant
was not simply an unwitting victim of the drug-running lifestyle, but
instead a regular participant in it, who therefore more than likely
knowingly possessed the marijuana in this case.
Third, and finally, the Court’s opinion mistakenly focuses on the
form of the State’s extraneous misconduct evidence. That inquiry is not
a part and parcel of any analysis of the admissibility of relevant
extraneous misconduct evidence under Rule 403. Issues of personal
knowledge, hearsay, and the “competence” of the evidence to establish
the nature of the extraneous contraband, though they may have been
raised at trial, were not brought forward in Appellant’s direct appeal,
nor were they resolved by the court of appeals. We did not grant
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discretionary review to address those—at-best—ancillary issues.
Neither have the parties briefed them here—and for good reason, since
they play no role in determining admissibility as a function of Article IV
of the Rules of Evidence: “Relevance and its Limits.” The Court is
mistaken to assume they are pertinent to the task at hand.
I. SOMETHING SMELLS HERE
The arresting officer in this case, Trooper Juan Rodriguez,
testified that he could smell the odor of marijuana as soon as he
approached the car, that the odor got stronger at the passenger side
front door, and that it was particularly strong in the back seat, where
Appellant was found. He testified that the odor of marijuana was about
at seven or eight on a ten-point scale. The defensive theory at trial was
that Appellant was unaware that the marijuana was in the trunk of the
car—that he was “just along for the ride.” 1 The State offered evidence
1During voir dire, Appellant’s counsel proposed to the venire the following
hypothetical:
And so if you get pulled over and you say, “Well, now, I smell
marijuana in the car,” and you say, “Yeah, I smelled something
funny too. I don't know anything about any marijuana, though,”
if they find it, do you think you’re knowingly or intentionally
possessing marijuana at that time?
He then followed up a venireman’s answer to his hypothetical with this
statement:
That wouldn't be fair, would it? In my mind or what I’m saying,
I don't think it would be fair to say, “Well, somebody smelled
marijuana, so they have some duty to, you know, do a full canine
search and make sure every crevice of the car didn’t have
anything in it if it’s not -- under the circumstances.
RR. Vol. IV, p. 164. In opening statements, then, Appellant’s counsel explained:
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Here’s the heart of the matter and the question that’s really
before you, did Mr. Valadez know that this was in the trunk and
did he have care, custody, control, and management of it. That’s
the question that’s really before you. And you’re going to hear
evidence from here and through exhibits that he didn’t know and
that he didn’t have care, custody, control, and management over
it.
RR. Vol. V, p. 23.
In its case in chief, then, the State called Trooper Juan Rodriguez, who
initiated the traffic stop. Trooper Rodriguez testified on direct examination
that Appellant told him, “I’m along for the ride. I’m just going to see some girls.
I don't know what any of that is.” RR. Vol. V, p. 20. He also testified that
Appellant said: “I’m just along for the ride.” RR. Vol. V, p. 48. On cross
examination by the defense, Rodriguez was asked whether Appellant ever
changed his story about where he was going or what he was doing. Rodriguez
responded that Appellant said that “he was just along for the ride.” RR. Vol. V,
pp. 92–93.
In a hearing outside the presence of the jury to determine the
admissibility of the extraneous conduct evidence at issue here, the prosecutor
explained:
Judge, we feel that based on voir dire, opening statement, cross-
examination of the witnesses by the defense that their theory is
that this defendant had no knowledge of the marijuana that was
in the car, had no intent to possess the marijuana that was in
the car, and we’re offering these things to show that he is not
simply an innocent actor, essentially that a false impression is
being left with the jury at this point that he is in the wrong place
at the wrong time, and these cases can go to show that that is
not the case. It would also go to show a lack of mistake.
RR. Vol. V, p. 162. The trial judge similarly explained his view as follows:
[Defense Counsel], you-all have clearly placed before the jury,
even during voir dire and opening statements and cross-
examination of witnesses, that your client was simply along for
the ride and had no knowledge of any contraband in the vehicle
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that Appellant had been found to be “connected” to marijuana in APD
cases on a half dozen prior occasions, and that he had been convicted at
least once for misdemeanor marijuana possession. The prosecutor
argued that this evidence was admissible to show that Appellant must
be aware of its “distinctive” odor.
The trial court expressly allowed the evidence to be admitted on
the theory that it was relevant to establish that Appellant must have
been aware, from the strong and prevalent odor, that marijuana was in
the car, contrary to his defensive theory. To be sure, the State’s evidence
of Appellant’s prior “connection” to marijuana could give rise to
inferences of character conformity, and it would therefore be arguably
inadmissible, under Rule 404(b) (and, perforce, Rule 403), if that were
the only purpose for which the State offered it. TEX. R. EVID. 404(b), 403.
But it was not.
The Court ultimately says the State’s evidence is inadmissible
under Rule 403 at least in part because it does not establish that there
was an odor of marijuana prevalent on any of the prior occasions, and it
at all and is totally innocent because of that lack of knowledge
and awareness.
RR. Vol. V, p. 164. The defense certainly operated on a theory that Appellant
should be found not guilty on the basis that he was an innocent passenger who
was “just along for the ride,” and that he should not be held responsible because
he did not know about the marijuana or have any intent to possess it. There is
certainly more from the record that could be culled to support this conclusion,
but for brevity’s sake, this footnote does not exhaustively detail all of the
instances in which the defensive theory was emphasized and made apparent.
And all of this clearly demonstrates that Appellant did not merely plead guilty
and put the State to its proof, as his counsel argued at the trial court hearing
about the admissibility of the evidence at issue in this case. See RR. Vol. V, pp.
163–64.
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therefore cannot serve to show he had a familiarity with that odor on
the occasion of the instant offense. Majority Opinion at 17. In other
words, the Court suggests, the probative value of the evidence was so
blatantly outweighed by its danger of character-conformity prejudice
that it was inadmissible under Rule 403—as a matter of law—and the
trial court lacked all discretion to conclude otherwise. It was not even
within Montgomery’s zone of reasonable disagreement, the Court seems
to say, for the trial court to have ruled any other way. See Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g on
court’s own motion) (applying the “zone of reasonable disagreement”
rubric to an appellate court’s review of a trial court’s Rule 403 ruling).
Although this Court, by majority vote, may declare that the trial
court abused its discretion by admitting the evidence at issue here, I
disagree. This is not a case in which Appellant merely pled not guilty
and put the State to its proof. Although his counsel argued that putting
the state to its proof was all that they did, Appellant’s obvious strategy
went well beyond simply disputing the credibility or sufficiency of the
State’s evidence. Appellant embarked on, and followed through with, a
whole-trial-strategy to leave an impression with his jury that he was an
innocent victim of his drug trafficking friends. And the State merely
responded with the evidence at its disposal rebutting that impression.
The evidence of Appellant’s prior connections to marijuana in the
APD cases was essentially generic, as the Court observes, and did not
provide detail, including factual specifics about whether its odor was
prevalent on those prior occasions. But that argument by the Court
seems to me to go to the weight of the evidence, and thus it would not
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absolutely bar the trial court from admitting it. A jury could readily infer
from the sheer number of times Appellant had been found connected to
marijuana in the APD cases, along with the evidence of his own prior
conviction for possession of marijuana, that he must have some
familiarity with its distinctive smell. 2 It was within the trial court’s
discretion to rely on that rationally available inference to conclude both
that the evidence was relevant for a non-character-conformity purpose,
and (more to the point in light of the Court’s ultimate holding today)
that it was not substantially more prejudicial than probative. The trial
court did not abuse what is its (prior to this case anyway) considerable
discretion in this area.
This evidence was not inadmissible under Rule 403 because, in
the absence of sufficient “similarity,” its probative value was
insignificant. The degree of similarity required is purely a function of
the inference that the proffering party seeks to establish. As Professor
Imwinkelried has said, “[t]he test should be logical relevance rather
than similarity. The better view is that the judge should demand proof
of similarity only if the proponent’s theory of logical relevance assumes
similarity.” 1 Edward J. Imwinkelried, UNCHARGED MISCONDUCT
EVIDENCE § 2:13, at 2-100–2-101 (2015). The only similarity required to
support the logical inference that Appellant recognized the strong odor
of marijuana as he sat in the back seat of the car was that numerous
2 Cf. Chess v. State, 172 Tex. Crim. 412, 413, 357 S.W.2d 386, 387–88
(1962) (holding that a police witnesses was competent to testify—as non-expert
witnesses—that he was “familiar” with the odor of marijuana and recognized
it on a particular occasion).
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prior incidents also connected him to marijuana in the APD cases. 3 That
the State’s evidence was no more elaborate than that actually
contributes to the reasonableness of the trial court’s conclusion that it
was not substantially more prejudicial than probative under Rule 403.
Any greater detail for the sake of gratuitous “similarity” might actually
have undermined its probative value as measured against its prejudicial
potential. See Old Chief v. United States, 519 U.S. 172, 186, 191 (1997)
(where evidentiary detail is not strictly necessary to establish the
relevance of extraneous misconduct evidence, for the Government to
admit it anyway could render it substantially more prejudicial than
probative for purposes of Federal Rule of Evidence 403) (citing FED. R.
EVID. 403). The Court today errs to reason otherwise.
II. BAD TIMING
Professor Imwinkelried is of the view, as am I, “that subsequent
acts are admissible so long as they are logically relevant.” 1 Edward J.
Imwinkelried, UNCHARGED MISCONDUCT EVIDENCE § 2:12, at 2-93
(2015). That is the view that has long been taken by this Court, even
before Montgomery. See Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim.
App. 1987) (“[E]vidence of subsequent crimes may be admitted for the
purpose of showing intent.”).
The instant offense occurred on March 8, 2012. The trial was held
3 The Court devotes several pages of discussion to the “doctrine of
chances.” Majority Opinion at 8, 12–13. It concedes that the State does not
assert that theory of admissibility, and neither did the court of appeals rely
upon it. Id. at 12. Nevertheless, because the court of appeals cited De La Paz
v. State, 279 S.W.3d 336 (Tex. Crim. App. 2000), in passing, the Court
addresses that question. Id. Suffice it to say that that the logic of the inference
in this case does not vitally depend on a similarity of the details of the charged
offense to the extraneous misconduct, or on their peculiarity.
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in April of 2017. The State presented evidence that, in between those
two events, in 2014, Appellant was arrested for possession of a useable
quantity of marijuana and a deliverable quantity of cocaine. The Court
holds that an extraneous offense that post-dates the charged offense
would not logically establish that Appellant recognized the odor of
marijuana in March of 2012. Majority Opinion at 14. I do not disagree
with that conclusion. But that should not be the end of the analysis with
respect to the 2014 offense.
Although Appellant was not indicted in this case for possession of
marijuana with intent to deliver it, the weight involved was more than
18 pounds—a deliverable amount. It was clearly the Appellant’s hope to
convince the jury in this case that he was just unlucky enough to have
been discovered in the car with drug-runners even though he himself
had no knowledge that there was any quantity of marijuana in the car.
Though it occurred at least a year and a half after the indicted offense,
his possession of a deliverable amount of cocaine and a nominal amount
of marijuana in 2014 was still highly probative to refute the impression
that Appellant hoped to give the jury of his innocent-bystander status.
III. TALK ABOUT EXTRANEOUS MATTERS
The Court enumerates several evidentiary bases upon which the
extraneous misconduct evidence in this case was “inadmissible for
reasons other than their extraneous character[.]” Majority Opinion at
13–15. It claims that these “other” bases for complaint, essentially about
the form of the State’s evidence, somehow contribute to its conclusion
that the trial court abused its discretion under Rule 403. Id. at 19. But
these “other” bases do not speak to how the trial court exercised its
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discretion in determining the only issues presently before the Court:
whether the evidence had relevance in any respect beyond bare
inferences of character-conformity, and if so, whether its probative value
was “substantially outweighed” by the danger of “unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” TEX. R. EVID. 404(b) & 403. These
issues have nothing to do with the form that the evidence might take.
Whatever form the evidence might take presents “other,” independent
reasons for the opponent of the evidence to object to its admissibility.
But these issues are completely apart from those that inform an analysis
of whether a trial court has abused its discretion in applying the
principles involved in Rules 404(b) and 403. They certainly have no
bearing on the probativeness-versus-prejudicial-potential analyses.
None of those independent bases to object to the extraneous
misconduct evidence that the Court alludes to today were raised in their
own right on direct appeal in this case. Although Appellant made several
complaints at trial to the form of the State’s extraneous misconduct
evidence, he did not reiterate those complaints on appeal—with one
exception. He somewhat belatedly claimed at trial that the lack of
personal knowledge of the State’s main witness with respect to his prior
APD cases in which he was connected to marijuana, and the hearsay
nature of that testimony, combined to violate his Sixth Amendment
right to confrontation. U.S. CONST. amend. 6. And he made that Sixth
Amendment objection a basis for complaint on appeal. The court of
appeals rejected these confrontation-based points of error, completely
independently of its rejection of his points of error predicated on Rules
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404(b) and 403. See Valadez v. State, No. 10-17-00161-CR, 2019 WL
2147625, at *9–11 (Tex. App.—Waco, May 15, 2019) (mem. op., not
designated for publication). The Sixth Amendment issue is not currently
before us.
Appellant did not independently argue on appeal that the rules of
evidence—requiring personal knowledge and prohibiting the admission
of objected-to hearsay—were violated. TEX. R. EVID. 602, 802. Nor did he
independently argue that the State failed to present “competent”
evidence that the substances Appellant was connected to on other
occasions was truly contraband—or, in other words, as I understand it,
that the State failed to establish their authenticity as “contraband”
under Rule 901(a). TEX. R. EVID. 901(a). The court of appeals addressed
none of these potential arguments challenging the form of the State’s
extraneous misconduct evidence, since Appellant did not raise them on
appeal. Understandably, then, Appellant has not attempted to raise
them now, for the first time, on discretionary review. The Court grants
Appellant an improper windfall by importing these unpresented—and,
in any event, irrelevant—issues into the case under its Rule 403
analysis. 4
4 The Court also counts as an indicator of prejudice that the trial court
did not include a limiting instruction regarding the extraneous misconduct in
the court’s charge to the jury. See Majority Opinion at 18 (“Regardless of
whether the trial court had to give any such instruction, the lack of instruction
is relevant to the prejudice assessment.”). Once again, the case the Court cites
does not support that proposition. In Abdnor v. State, 871 S.W.2d 726, 730
(Tex. Crim. App 1994), the appellant both asked for a limiting instruction when
the evidence was admitted, and then asked for a limiting instruction in the
jury charge. Here, by contrast, Appellant was not entitled to a limiting
instruction in the jury charge because he failed to ask for such an instruction
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The Court complains that I do not cite any authority for the
proposition that these other, independent legal bases for objecting to the
form of the evidence are not an appropriate facet of a Rule 403 analysis.
Majority Opinion at 19–20. But the Court cites no case for the
proposition that it is appropriate. The Court does cite Gigliobianco v.
State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2011). Majority Opinion at
15, 19. But nothing in the Court’s unanimous opinion in that case
remotely sanctions what the Court does today. Evidence is not
“misleading” for purposes of a Rule 403 analysis, as the Court suggests,
simply because the form it takes may be objectionable for reasons having
nothing to do with Article IV of the Rules of Evidence: “Relevance and
Its Limits.” 5 To incorporate these considerations into the Rule 403
when the evidence was admitted. A trial court does not err to fail to give a
limiting instruction in the jury charge under those circumstances. Delgado v.
State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). Once again, by taking the
absence of a limiting instruction into account in the Rule 403 analysis, the
Court grants Appellant a windfall. Moreover, in the absence of an appropriate
limiting instruction, evidence is regarded on appeal as admissible for any
purpose. Id. That being the case, it seems anomalous to hold the evidence to
be more prejudicial than probative because of its character-conformity
potential, when the jury was entitled to consider it here even for that purpose.
Rules 404(b) and 403 render evidence objectionable, not incompetent or
absolutely inadmissible even in the absence of an objection. And if part of the
error-preservation protocol includes requesting a limiting instruction when the
evidence is admitted, the Court should not subvert that ordinary appellate
requirement—a “systemic” requirement, no less, Darcy v. State, 488 S.W.3d
325, 327–28 (Tex. Crim. App. 2016)—by incorporating the absence of such an
instruction into the Rule 403 more-prejudicial-than-probative analysis.
5 Indeed, we cannot even know, without first independently litigating
the question, whether the form of the State’s evidence was objectionable on
these other, non-Article IV bases, much less whether any objection would be
sufficient to somehow establish that the evidence is “misleading” for Rule 403
purposes! Because Appellant has not independently brought any of these
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analysis is so peculiar, so anomalous, that it makes me think the onus
ought to be on the Court to cite some authority—if it can—to support it.
IV. CONCLUSION
Neither trial nor appellate courts should lose sight (and the
Court’s opinion in this case—I am afraid—encourages such a loss of
sight), that “Rule 403 favors admissibility of relevant evidence, and the
presumption is that relevant evidence will be more probative than
prejudicial.” Montgomery, 810 S.W.2d at 389. Once a prosecutor has
established that extraneous misconduct evidence has relevance that
goes beyond inferences of mere character-conformity, he should be able
to rely on that presumption in fashioning his case for the factfinder.
Only in the most extreme situations should an appellate court intervene
in prosecutorial strategy (where a trial court has not) by excluding
relevant evidence on the belief that the evidence was not very compelling
compared with its potential to mislead or confuse, or that the State did
not really need that evidence in order to convince a jury to the level of
confidence beyond a reasonable doubt. See id. at 390 (“[A]pplying the
factors we have identified to the facts of the particular case, the trial
court must be given wide latitude to exclude, or, particularly in view of
the presumption of admissibility of relevant evidence, not to exclude
misconduct evidence as he sees fit.”) (first emphasis added). In holding
that the trial court abused its discretion under Rule 403 in this case, I
believe the Court is wrong.
I respectfully dissent.
issues on appeal (other than the Sixth Amendment issue), they have not been
briefed by the parties.
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FILED: March 30, 2022
PUBLISH