Académique Documents
Professionnel Documents
Culture Documents
_
State of Texas
v.
_ County, Texas
Defendants Trial Brief:
Objections to Character-propensity evidence
Judge _:
_ files this brief regarding introduction of character-propensity evidence.
The defendant categorically objects to introduction of any evidence that
would, but for the operation of Texas Code of Criminal Procedure article
38.37, section 2, be inadmissible at the guilt-innocence phase of trial. In
support, the defendant would show:
Article 38.37
Article 38.37, section 2 of the Texas Code of Criminal Procedure purports to
provide trial courts with broad authority to admit evidence of prior bad acts
for the purpose of showing action in conformity therewith, in certain cases.
The statute provides, in pertinent part:
Sec. 2. (a) Subsection (b) applies only to the trial of a defendant for:
(1) an offense under any of the following provisions of the Penal Code:
(A) Section 20A.02, if punishable as a felony of the first degree under Section
20A.02(b)(1) (Sex Trafficking of a Child);
(B) Section 21.02 (Continuous Sexual Abuse of Young Child or Children);
(C) Section 21.11 (Indecency With a Child);
(D) Section 22.011(a)(2) (Sexual Assault of a Child);
(E) Sections 22.021(a)(1)(B) and (2) (Aggravated Sexual Assault of a Child);
(F) Section 33.021 (Online Solicitation of a Minor);
The defendant has reason to believe that the State will seek to introduce
evidence at his trial that would otherwise be inadmissible but for the
purported authority granted by Article 38.37 2.
Admission of evidence for the purpose of demonstrating
general character propensity violates due process.
The defendant objects to the admission of any such evidence on the grounds
that, notwithstanding the terms of the statute, its admission violates the
defendants right to due course of law under the Texas Constitution and due
process under the United States Constitution. The defendant further objects
that admission of such evidence violates his right to trial by an impartial jury,
his right to be informed of the nature and cause of accusations against him,
his right to effective assistance of counsel, his right to be presumed innocent
until proven guilty, and other rights guaranteed to him under established
principles of law.
defendants were charged with murder following an attempt to rob, and the
prosecution introduced evidence that the defendants had committed other
robberies before the one involved in the crime charged. The Court, in an
opinion by the first Mr. Justice Harlan, held the evidence of other crimes
inadmissible: Those robberies may have been committed by the defendants
in March, and yet they may have been innocent of the murder of Dansby in
April. Proof of them only tended to prejudice the defendants with the jurors,
to draw their minds away from the real issue, and to produce the impression
that they were wretches whose lives were of no value to the community, and
who were not entitled to the full benefit of the rules prescribed by law for the
trial of human beings charged with crime involving the punishment of
death. 142 U.S., at 458, 12 S.Ct., at 295. The opinion reaffirmed the
principle that [h]owever depraved in character, and however full of crime
their past lives may have been, the defendants were entitled to be tried upon
competent evidence and only for the offense charged. Id.
In Brinegar v. United States, 338 U.S. 160, 174 (1949), the Supreme
Court ruled in a whiskey smuggling case that evidence of prior similar acts
was inadmissible. In so deciding, the Court noted that the standards it was
applying were historically grounded rights of our system, developed to
safeguard men from dubious and unjust convictions, with resulting
forfeitures of life, liberty, and property. The Court went further in Michelson
v. United States, 335 U.S. 469, 475 (1948), observing that courts that follow
the common law tradition almost unanimously have come to disallow resort
5
Spencer v. Texas, 385 U.S. 554, 573-575, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967)
(Warren, C.J., dissenting in part and concurring in part) (footnotes omitted).
Several United States courts have specifically held that admitting
character-propensity evidence in a criminal trial can violate the defendants
right to due process. After detailed analysis of the historical grounding of the
6
right at issue, the Ninth Circuit Court of Appeals ruled in McKinney v. Rees,
993 F.2d 1378, 1385 (9th Circ. 1993) that the introduction of characterpropensity evidence had rendered the defendants trial fundamentally unfair
in violation of his due process rights. The First and Fourth Circuits have also
characterized the rule prohibiting character propensity evidence as
constitutional in dimension. See United States v. Ferrer-Cruz, 899 F.2d 135,
143 (1st Cir. Puerto Rico 1990) (The prohibition against the introduction of
[e]vidence of other crimes ... to prove the character of a person in order to
show action in conformity therewith, [is] mandated by Fed. R. Evid. 404(b)
as well as due process ); Lovely v. United States, 169 F.2d 386, 389 (4th
Cir.1948) (The rule which thus forbids the introduction of evidence of
other offenses having no reasonable tendency to prove the crime charged,
except in so far as they may establish a criminal tendency on the part of the
accused, is not a mere technical rule of law. It arises out of the fundamental
demand for justice and fairness which lies at the basis of our
jurisprudence.). Dissenting in Estelle v. McGuire, 502 U.S. 62, 79 (1991),
Justice OConnor reasoned that if introduction of propensity evidence
served to relieve the prosecution of its proper burden to prove all elements of
the offense beyond a reasonable doubt, then the introduction of such
evidence must violate the due process clause of the Fourteenth Amendment.
Two circuits have held that due process is implicated by the admission
of other crimes evidence, for purposes other than to show conduct in
conformity therewith, in the absence of a limiting instruction. See
7
Panzavecchia v. Wainwright, 658 F.2d 337, 341 (5th Cir.1981) (holding that it
violated due process for the jury to hear repeated references to the
defendant's criminal past without any limiting instruction to relate this
evidence only to the firearm violation and to disregard it altogether in
considering the murder count); Murray v. Superintendent, Ky. State
Penitentiary, 651 F.2d 451, 453 (6th Cir.1981) (noting that the Sixth Circuit
has held that [t]he logical converse of [Spencer] is that it is unfair and
violative of due process if evidence of other crimes is admitted without a
limiting instruction). The clear import of these cases is that the influence of
character propensity evidence on the jury is so prejudicial as to violate the
constitution.
Cases Construing Statutes Permitting Character Propensity
Evidence
Judicial acceptance of legislative changes to the propensity evidence rule
such as Article 37.38 2, Texas Code of Criminal Proceduredoes not mean
that the principle of excluding propensity evidence has been abrogated, nor
does it mean that protection of this right is no longer guaranteed by due
process. At the very least, admission of such evidence is still governed by
general strictures such as the requirement to weigh the probative value of
evidence against its potential for prejudice. See United States v. Guardia, 135
F.3d 1326, 1331 (1998), affirming a trial courts decision in a sexual assault
trial to exclude testimony of four women who alleged that the defendant had
sexually assaulted them in a fashion similar to the accusation.
Two states have struck down similar states, notwithstanding the judicial
discretion to exclude unduly prejudicial evidence. The Supreme Court of
Missouri declared a Missouri statute allowing admission of evidence of prior
sexual crimes unconstitutional under the Missouri Constitution even though
the statute contained a balancing clause similar to Federal Rule of Evidence
403. State v. Ellison, 239 S.W.3d 603, 60708 (Mo. 2007). The court noted
the long line of Missouri cases prohibiting admission of prior criminal acts as
propensity evidence and held [e]vidence of prior criminal acts is never
admissible for the purpose of demonstrating the defendant's propensity to
commit the crime with which he is presently charged. There are no
exceptions to this rule. Id. at 606 (citation omitted).
Likewise, the Iowa Supreme Court invalidated the admission of
evidence of sexual abuse of other victims pursuant to Iowa Code section
701.11. State v. Cox, 781 N.W.2d 757 (Iowa 2010). The court concluded that
evidence of the defendant's sexual abuse of other victims under Iowa Code
section 701.11 based only on its value as general propensity evidence violates
the due process clause of the Iowa Constitution. Id. at 772. However, such
evidence could be admitted as proof for any legitimate issues for which
prior bad acts are relevant and necessary, including those listed in [ Iowa Rule
of Evidence] 5.404(b) and developed through Iowa case law. Id. at 768.
propensity
evidence.
But
Texas
cases
assessing
the
Worth 1997), the court rejected the appellants argument that article 38.36 of
the Code of Criminal Procedure expands the admissibility of extraneous acts
in violation of rule 404(b):
Article 38.36 merely codifies the age-old res gestae, or same transaction contextual evidence,
exception and adds the catch-all phrases relationship between the defendant and the
deceased and "state of mind of the defendant at the time of the offense." These two phrases
necessarily encompass intent, opportunity, motive, plan, scheme, identity, absence of mistake
or accident and knowledge, as well as all other logical inferences which may arise from the
previous dealings between the victim and the defendant. Therefore, we hold that article 38.36
does not expand rule 404(b) and, thus, does not offend notions of due process.
A trial court, when undertaking a Rule 403 analysis, must balance (1)
the inherent probative force of the proffered item of evidence along with (2)
the proponent's need for that evidence against (3) any tendency of the
evidence to suggest decision on an improper basis, (4) any tendency of the
evidence to confuse or distract the jury from the main issues, (5) any
tendency of the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted. Gigliobianco v.
State, 210 S.W.3d 637, 64142 (Tex. Crim. App. 2006).
The inherent probative force of the extraneous conduct evidence is
weak because it is both remote from and dissimilar to the charged offense.
The remoteness of an extraneous offense does affect its probative value. See,
e.g., Reyes v. State, 69 S.W.3d 725, 740 (Tex. App.-Corpus Christi 2002, pet.
ref'd). The extraneous conduct may not be too remote from the charged
offense without affecting whether the probative value is substantially
outweighed by the danger of unfair prejudice. Id.; Corley v. State, 987 S.W.2d
615, 620 (Tex. App.-Austin 1999, no pet.).
In Bachhofer v. State, 633 S.W.2d 869 (Tex. Crim. App. [Panel Op.]
1982), the defendant appealed from a conviction of indecency with a child.
The charged offense involved fondling the breast of an 11-year-old during a
slumber party. When the defendant testified that the complainant might be
trying to frame him, the State introduced evidence of a fondling offense
12
committed by the defendant four years and four months prior to trial. Id. at
872. The court held the extraneous offense was too remote to be admissible
where there was no evidence of other intervening similar offenses, and no
final conviction for the extraneous offense. Id.
Remoteness is of particular significance when, as in this case, the prior
conduct occurred during a defendants youth. In Templin v. State, 711 S.W.2d
30 (Tex.Crim.App.1986), the only evidence of the 27yearold defendant's
guilt in the alleged murder of his wife by electrocution was circumstantial,
and the defense was accidental electrocution. To show opportunity, plan,
intent, and knowledge, the State offered statements made by the defendant
when he was 10 or 12 years old that he had electrocuted dogs and cats. While
the Court recognized the clear relevance of the evidence, the statements
were deemed more prejudicial than probative. The court found the admission
to be clear error in light of the defendants age at the time of the conduct.
Id. at 33-34.
In the case at bar, the extraneous conduct is alleged to have occurred
twelve years prior to the charged conduct, when _ was seventeen years old.
There is no allegation of any intervening misconduct. Accordingly, the prior
misconduct has little probative value regarding _s character at the time of
the charged conduct.
Cases validating the admission of remote prior misconduct have relied
upon the unique similarity of the prior misconduct and the particular need
for the evidence. For example, in Corley v. State, 987 S.W.2d 615, 620 (Tex.
13
vagina. This alleged conduct occurred over several visits to the defendants
home and while the complainant was awake. The charged conduct, in
contrast, involves touching the breast of the 14-year-old daughter of
defendants girlfriend, while the daughter was asleep. There are very few
similarities between the prior and charged conduct.
In Gaytan v. State, 331 S.W.3d 218, 228 (Tex.App.Austin 2011, pet.
ref'd), the defendant was charged with multiple counts of aggravated sexual
assault arising out of his sexual abuse of his niece. The charged offense
involved Gaytan touching his nieces vagina and anus. In opening statement
the defense argued that the complainant was mad at Gaytan because he
would not play with her. Id. at 221-222. The trial court admitted evidence
that Gaytan had sexually abused other female relatives when they were
around the same age by touching their vaginas. Id. at 222. The court of
appeals noted that the allegations of prior abuse were 24 and 28 years old,
rendering the probative value significantly reduced because the passage of
time allows people to change. Id. at 226-27. The court found that, although it
was a close case, the probative value was not substantially outweighed by the
danger of unfair prejudice because (1) the offenses were remarkably similar;
(2) the State needed to rebut a theory of fabrication. Id. at 228.
In the instant case, there are no compelling similarities to overcome the
effect of the passage of time, and there is no fabrication defense to rebut.
Accordingly, the inherent probative value and the need for the evidence are
both weak, and these factors favor exclusion.
15
The remaining factors also favor exclusion. The court must consider
any tendency of the evidence to suggest decision on an improper basis.
This factor is particularly troubling because, in contrast with the cases
discussed above, in which the defendants obtained the benefit of a limiting
instruction, in this case the State will likely request an instruction permitting
consideration of character conformity pursuant to Rule 38.37. If such an
instruction is given, there is nothing to prevent the jury from convicting on
the improper basis of bad character in general. The prejudice inherent in this
process is substantial. Additionally, the admission of the extraneous conduct
evidence, particularly in the absence of a limiting instruction, will likely
confuse or distract the jury from the main issue of deciding the defendants
guilt of the charged offense. Because the alleged prior conduct involved
several incidents and multiple manner and means, the jury will likely give
undue weight to the evidence, and the presentation of the evidence will
likely consume an inordinate amount of time. Accordingly, each factor favors
exclusion pursuant to Rule 403.
Conclusion
In this case, the defendant is substantially at risk of being unduly prejudiced
by admission of character-propensity evidence. Such evidence is likely to
17
inflame the passions of jury and produce an unfair trial. Such evidence is also
inherently unreliable: a few specific instances of conduct do not provide a
sufficient foundation from which to predict the future conduct of an
individual, and the lapse of time since the alleged prior acts may render
suspect their current predictive value. See United States v. RubioEstrada, 857
F.2d 845, 851 (1st Cir.1988) (dissent) (noting that prior conduct is a
scientifically poor predictor of behavior, citing Weissenberger, Making Sense
of Extrinsic Act Evidence: Federal Rule of Evidence 404(b), 70 Iowa L.Rev.
579 (1985) at n. 78; J. Monahan, Predicting Violent BehaviorAn
Assessment of Clinical Techniques, 4649 (1981)).
The defendant in this case is entitled to exclusion at trial of all
character-propensity evidence, that is, evidence of prior acts to show action
in conformity therewith. The admission of character-propensity evidence is
repugnant to the defendants right to due process. If the Court should decide
to admit evidence of prior bad acts for purposes other than showing action in
conformity therewith, the defendant is entitled to jury instructions which
clearly explain the purposes for which the evidence is permissibly considered.
Spencer v. Texas, 385 U.S. 554, 561 (1967).
18
Respectfully Submitted,
________________________
Mark Bennett
SBN 00792970
Bennett & Bennett
917 Franklin Street, Fourth Floor
Houston, Texas 77002
713.224.1747
Attorney for Defendant
19