Malone v. State

BURGESS, Justice,

dissenting.

I respectfully dissent to the majority’s holding regarding the admissibility of the pistol and the resulting harm. The majority, although claiming to be guided by Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1991) (opinion on rehearing) presents no persuasive analysis under it. They simply resort to pre-Montgomery cases and terminology.

The majority initially errs in suggesting the inventory of appellant’s vehicle was also a search incident to arrest. The record shows that appellant and his companion had been placed under arrest for theft of the oil field equipment and placed into a police vehicle. The arresting officer testified the methamphetamine and the weapon were discovered during an inventory of the vehicle. The state, in its brief, states: “Prior to their departure from the scene of arrest the vehicle previously occupied by the Appellant was inventoried by the Officers.” Clearly the items were discovered as a result of an inventory of the impounded vehicle rather than the result of a search contemporaneous to an arrest. This, however, is a meaningless distinction if the proper analysis under the criminal rules of evidence and recent case law is utilized.

While it may be convenient for the majority to characterize the evidence as res ges-tae of the offense or as a “surrounding circumstance of the offense and the arrest”, these characterizations alone are insufficient. There have been several recent cases attempting to explain Tex.R.CRIM. Evid. 401 ¹, 404². In Mayes v. State, 816 S.W.2d 79 (Tex.Crim.App.1991) the issue was whether the evidence was relevant that Mayes was being held in the administrative segregation wing of a prison unit when he took two correctional officers hostage. The court discussed the definition of “relevant”. It stated: “In order to be included in the expansive definition of “relevant evidence’, proffered evidence must have influence over a consequential fact, i.e., ‘any fact that is of consequence to the determination of the action....’” 816 S.W.2d at 84. It went on to say: “... Rule 401 deems ‘relevant’ any evidence which influences consequential facts, i.e., facts which have something to do with the ultimate determination of guilt or innocence in a particular case.” Id. The court held, under a strict reading of Rule 401, the nature of administrative segregation was not shown to be a consequential fact and therefore not relevant. The court went on to discuss the “trying cases in a vacuum” and “leaving juries in the dark” rationale by utilizing the terms “background evidence” and “contextual evidence”. The court concluded such “background evidence was meant to be included within the definition of relevancy, not necessarily because it influences a consequential fact, but because it illuminates a circumstance otherwise dimly perceived by the factfinder”. Id. at 85. However, when the court considered the admissibility of the evidence under Rule 404, it held that “contextual background evidence” which possesses a “character component” is inadmissible.

Ramirez v. State, 815 S.W.2d 686 (Tex. Crim.App.1991) was a capital murder case where the trial court admitted a confession which contained evidence of an extraneous transaction. The court discussed whether “getting (stealing) a car” was so interwoven with the facts of the capital murder as to be evidence of the res gestae of the offense. The court held it was not and therefore inadmissible. In light of a remand on another point, the court did not conduct a harm analysis only noting that Tex.R.App.P. 81(b)(2) was applicable.

Lockhart v. State, 847 S.W.2d 568 (Tex.Crim.App.1992) addressed the issue of extraneous offenses during the guilt stage of a capital murder prosecution. The court acknowledged the “context of the offense” rationale and held that evidence of a bank robbery and burglary prior to the murder of the police officer was not “same transaction contextual evidence”, but more akin to “general background contextual evidence”. The court noted the evidence was never offered as exceptions under Rule 404(b), therefore it was error to admit it. The error was harmless in view of Lockhart’s admission that he shot and killed Officer Hulsey while contending it was done in self defense.

Christopher v. State, 833 S.W.2d 526 (Tex.Crim.App.1992) was a burglary of a habitation case. It is similar to Ramirez, in that it involved the admission of evidence that the car Christopher was driving when he was arrested had been stolen earlier in the day in an aggravated robbery. The court held the evidence was not admissible as relevant to the issue of probable cause to stop the vehicle since that issue was not contested before the jury. The court also took the opportunity to reiterate its holding in Couret v. State, 792 S.W.2d 106 (Tex.Crim.App.1990) which explained and limited the holding in Maddox v. State, 682 S.W.2d 563 (Tex.Crim.App.1985), a case relied upon by the majority. The court went on to find reversible error and remanded the case for a harm analysis.

While Couret is a pre-Montgomery case, it deals with the question of extraneous offenses which are “res gestae of the arrest” or “contemporaneous with the arrest”. Couret objected to the introduction of a hypodermic needle found in his pocket at the time of his arrest. The intermediate court of appeals relied upon Maddox. The court of criminal appeals held the hypodermic needle inadmissible, reversed the case and remanded it for a harm analysis. While there is language in Couret that where possession of a weapon is involved when an offense is committed, such fact is usually relevant as a circumstance of the offense because arguably the weapon is intended by the defendant to be used, exhibited, or simply possessed for protection or threat during the offense, this is merely dictum and the holding is that all extraneous matters must still meet the test that they be relevant to the offense.

Consequently, under the current case law, I would hold the evidence of possession of the pistol was not relevant and therefore it was an abuse of discretion and error to admit it.

During the prosecutor’s closing argument at the guilt stage, he stated: “During the course of his inventory, what’s [sic] he find? A pistol. A pistol, folks. You can’t carry pistols. Users of meth carry pistols.” During argument at the punishment stage, the prosecutor argued: “He’s asking you for sympathy, but analyze what he’s saying, folks. He’s got responsibilities at home but he wasn’t taking care of his responsibilities when they was [sic] out there in that oil field stealing oil field equipment and carrying pistols.” Obviously the prosecutor felt the possession of a pistol was a factor the jury should consider, both at guilt and at punishment. Thus, even if “contextual background evidence”, it possesses a “character component”. Mayes, 816 S.W.2d at 88. With the introduction of the pistol, the jury was confronted with a defendant who was committing not two, but three offenses that evening: theft, possession of methamphetamine and unlawfully carrying a weapon. I am unable to conclude, beyond a reasonable doubt, that the error made no contribution to the conviction or to the punishment. I would reverse and remand for a complete new trial. Since the majority feels otherwise, I dissent.

1 . RULE 401. DEFINITION OF “RELEVANT EVIDENCE”

'Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

2 . RULE 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES

(a)Character Evidence Generally. Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;

(2) Character of Victim. Subject to Rule 412, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;

(3)Character of Witness. Evidence of the character of a witness, as provided in Rules 607, 608 and 609.

(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State’s case in chief such evidence other than that arising in the same transaction.

(c) Character Relevant to Punishment. In the penalty phase, evidence may be offered by an accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his character may be offered by an accused or by the prosecution. Nothing herein shall limit provisions of Article 37.071, Code of Criminal Procedure.