Opinion
NO. PD-0222-20
11-25-2020
KENNETH RAY BATTEN, SR., Appellant v. THE STATE OF TEXAS
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS GALVESTON COUNTY
YEARY, J., filed a dissenting opinion. DISSENTING OPINION
Appellant, Kenneth Batten, was convicted of burglary. The court of appeals reversed his conviction. The State has now filed a petition for discretionary review in this Court seeking reversal of the court of appeals' judgment. It argues that the court of appeals misapplied the abuse of discretion standard of review, which is applicable in appeals alleging that evidence was improperly admitted. The State contends that the court of appeals failed to afford appropriate deference to the trial court.
The contested issue in the court of appeals was framed as whether particular extraneous misconduct on Appellant's part was admissible under a theory that it constituted unavoidable "same-transaction contextual" evidence—whether a coherent account of the charged offense of burglary of a habitation could be presented without necessarily delving into the extraneous misconduct. The court of appeals decided that it was possible for the State to present a coherent narrative of the offense in the absence of evidence of the extraneous misconduct and that the admission of the evidence was harmful. It reversed. Batten v. State, No. 01-18-00456-CR, 2020 WL 625305, at *6-7 (Tex. App.—Houston [1st Dist.] Feb. 11, 2020) (mem. op., not designated for publication).
Of course, if the trial court's ruling admitting the extraneous misconduct evidence was correct under any theory of law applicable to the case, the court of appeals should have affirmed the conviction instead. Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011). In my view, the extraneous misconduct in this case was admissible under Rule 404(b)(2) of the Texas Rules of Evidence without resort to any theory of "same-transaction contextual" admissibility, and the trial court did not abuse its discretion to hold it was not substantially more prejudicial than probative under Rule 403. TEX. R. CRIM. EVID. 404(b)(2) & 403. I would grant the State's petition for discretionary review to examine this question.
I. THE FACTS
The indictment alleged that, on or about May 23, 2017, Appellant committed the offense of burglary of a habitation. The evidence at trial showed that, on or about that date, someone broke into the lockbox on the front door of an unoccupied residential rental property, took the key from the lockbox, used it to enter the house, and stole a quantity of wiring out of the walls. The contested issue in the case was simply this: who committed this burglary?
The evidence with respect to that question was as follows: T.F., a ten-year old girl, was walking to a friend's house in the Chase Park subdivision in Bacliff on May 22, 2017. A man in a car stopped and instructed her "to get in the car." Just then, another friend of T.F.'s happened by on her bicycle, and T.F. ran and jumped on the back of the bike to escape. She was unable later to identify the man, but she did manage to memorize his license plate number. This incident occurred five blocks from the location of the burgled rental house.
Police were notified of the incident and given the license plate number. The car was soon located driving through the subdivision and pulled over. Appellant was the driver. When it was ascertained that he lacked a valid driver's license, he was arrested for driving with a suspended license. Tools which could be used for burglary were found in the car, as well as wiring. The evidence does not show how far the arrest occurred from the burgled house. During the booking procedure, the key from the lockbox for the residential rental property was discovered in Appellant's pocket.
Anticipating that the State would offer evidence of his apparent attempt to abduct T.F., Appellant objected prior to jury selection, arguing that that evidence was unnecessary to the State's presentation of its case and was substantially more prejudicial than probative. The trial court instructed the State to avoid labeling the incident an "attempted kidnapping," but otherwise ruled that the State could develop the evidence. The court of appeals, however, held that it was error to admit the evidence, even as "same-transaction contextual" evidence. In order to draw the inference that Appellant was the burglar, the court of appeals reasoned, "[t]he jury only needed to know that [Appellant] was located, detained, and arrested in the same neighborhood as the burglarized house." Batten, 2020 WL 625305, at *6. It did not also need to be informed that Appellant had attempted to kidnap T.F. to fully appreciate that he was involved in the burglary. See id. ("The jury could understand the case without the emotionally freighted attempted kidnapping description.").
II. THE LAW
In my view, the court of appeals erred to assume that the only relevance that the attempted-abduction evidence could have in the case was as "same-transaction contextual" evidence. If the extraneous misconduct evidence had any other permissible use in contemplation of Rule 404(b)(2), then the trial court was entitled to admit it, at least so long as its probative value for that permissible purpose was not substantially outweighed by a danger of unfair prejudice under Rule 403. As for the Rule 403 determination, appellate courts must pay great deference to a trial court's determination in the balance of prejudice against probativeness.
A. Rule 404(b)
Under the express terms of Rule 404(b)(1), evidence of extraneous misconduct is absolutely inadmissible if it serves only one logical purpose: "to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." TEX. R. CRIM. EVID. 404(b)(1). In other words, extraneous misconduct evidence may not be admitted for the sole purpose of supplying an inference of character conformity. But even evidence that might provide an inference of character conformity may still be admissible if it also has some relevance to an elemental fact of consequence distinct from character conformity. Rule 404(b)(2) itself lists a number of issues that this kind of evidence might be relevant to, including "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." TEX. R. CRIM. EVID. 404(b)(2). And this is not an exhaustive or exclusive list.
"Same-transaction contextual" extraneous offense evidence is not on the Rule 404(b)(2) list. But this Court has said that it may still be admissible under the Rule when it is impractical for the State to prove the charged offense in a coherent way without also exposing evidence of the extraneous misconduct as well. Devoe, 354 S.W.3d at 469. At the same time, the Court has placed strict limits on the use of "same-transaction contextual" extraneous offense evidence. The Court has said that "same-transaction contextual evidence is admissible only when the offense would make little or no sense without also bringing in that evidence, and it is admissible only to the extent that is it necessary to the jury's understanding of the offense." Id. (quotation marks and internal citations omitted). But this limitation has been applied only when the only non-character-conformity use that the extraneous misconduct evidence can logically serve is as "same-transaction contextual" evidence.
The Court has not placed this same limitation on the use of extraneous offenses that have relevance apart from the mere context of the criminal transaction. So, if evidence also serves some other non-character-conformity purpose or is relevant to some other elemental fact of consequence, it may be admitted regardless of whether the charged offense would make complete sense without it. Indeed, the very circumstances of this case suggest that it would be useful to grant this petition to make that distinction clear in our jurisprudence.
T.F.'s testimony did not, by itself, establish that Appellant—the person—was close to the scene of the offense at or near the time it was committed. Indeed, she could not identify the driver. But she could identify his car, by description and license plate number, placing it within five blocks of the burgled residence. The reason she memorized the license plate number (and could still recite it from memory at the time of trial) is because of the fright she experienced from the apparent abduction attempt. The trial court acknowledged the significance of this circumstantial fact when it ruled that the evidence of the "scary" experience, at least limited to the driver's order to "get in the car," could come in. The license plate number led police to the car, which in turn established the circumstantial facts (e.g., possession of the tools, the wire, and the lockbox key) sufficient to tie Appellant to the burglary. From the fact that Appellant was driving the car when it was stopped, the jury could infer that the man T.F. had earlier seen a mere five blocks from the scene of the burglary was Appellant. In other words, T.F.'s testimony about the apparent attempted abduction was an important brick in the wall of evidence, all of which was relevant for the non-character-conformity purpose of establishing Appellant's identity as the perpetrator of the alleged burglary. It does not matter whether other evidence might have sufficed, so long as the extraneous misconduct served some non-character-conformity purpose besides that of mere "same-transaction contextual" evidence. Here, it explained why T.F. would have bothered to memorize Appellant's license plate number—a highly relevant evidentiary fact which contributed to a showing of opportunity, and, ultimately, to establishing the elemental fact of identity.
At one point during the pretrial hearing, the trial court alluded to the fact that "the circumstances make it more likely the kids would truly remember the situation given the scary nature for them[.]" Recognizing the potential for prejudice that evidence of the attempted abduction could have, the trial court instructed the State to coach its witnesses not to use the nomenclature of "kidnapping" in describing the extraneous misconduct. The State also seems to have agreed not to have T.F. testify to a threat Appellant made to "rape" and "kill" T.F. if she did not get into the car. The only time the word "kidnap" arose in the course of testimony was when T.F., a child, used it in a rambling narrative answer during her direct examination to describe her report of the event to her mother. Appellant made no objection at that time. --------
Whether extraneous misconduct evidence has relevance other than to impermissibly demonstrate character conformity is a determination institutionally left to the trial court to make, subject to appellate reversal only for an "outside-the-zone-of-reasonable-disagreement" abuse of discretion. Devoe, 354 S.W.3d at 469; see also Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g on Ct's own mot.) ("Whether objected-to evidence of 'other crimes, wrongs, or acts' has relevance apart from character conformity, as required by Rule 404(b), is also a question for the trial court. * * * An appellate court owes no less deference to the trial judge in making this judgment than it affords him in making any other relevancy call."). Here, the trial court could readily have found the evidence was admissible for a non-character conformity inference beyond mere "same-transaction contextual" purposes. I believe the court of appeals erred to find an abuse of discretion under Rule 404(b)(2).
B. Rule 403
The Court has said that "[w]e also measure the trial court's ruling whether to exclude evidence of 'other crimes, wrongs, or acts' under Rule 403 by an abuse of discretion standard." Montgomery, 810 S.W.2d at 391. Relevant considerations on appeal include whether "the ultimate issue was not seriously contested by the opponent; [whether] the State had other convincing evidence to establish the ultimate issue to which the extraneous misconduct was relevant; [whether] the probative value of the misconduct evidence was not, either alone or in combination with other evidence, particularly compelling; [and whether] the misconduct was of such a nature that a jury instruction to disregard it for any but its proffered purpose would not likely have been efficacious." Id. at 392-93. "Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Id. at 389. The trial judge "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 [she] sees fit." Id. at 390. Judged by these criteria, I do not believe it can be said that the trial court abused its discretion not to exclude T.F.'s testimony that the man who turned out to be Appellant instructed her "to get in the car."
This evidence presents a compelling reason why T.F. would have memorized the license plate number of the strange man's car—an odd accomplishment that a jury might otherwise have found substantial reason to doubt. That information led shortly to Appellant's detention, which in turn established that he was the man T.F. had encountered a mere five blocks from the crime scene. There was no other evidence to provide such a compelling reason for T.F. to memorize the license plate number. Appellant vigorously contested his identity as the burglar of the rental house. T.F.'s having seen him so close to the house, in combination with the items found in the car and on Appellant's person once he was arrested, was the strongest evidence the State had of opportunity and, ultimately, identity. The trial court acted proactively to minimize the prejudicial impact of the evidence while preserving its probative value, and the jury received a limiting instruction in the jury charge, limiting its authorization to use the evidence to purposes such as opportunity and identity. Under these circumstances, it cannot reasonably be said that the trial court abused its wide discretion not to exclude the evidence under Rule 403.
For these reasons, I would grant the State's petition for discretionary review in this case. Because the Court does not, I respectfully dissent. FILED: November 25, 2020
PUBLISH