Opinion
No. 4-05-00069-CR
Delivered and Filed: February 8, 2006. DO NOT PUBLISH.
Appeal from the 186th Judicial District Court, Bexar County, Texas, Trial Court No. 2003-CR-9257, Honorable Teresa Herr, Judge Presiding. Affirmed.
Sitting: Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Frank Bernal appeals his 15-year sentence after being convicted by a jury of intoxication manslaughter. In his sole issue on appeal, Bernal claims the trial court erred in the punishment phase by admitting evidence of his driving record showing two prior traffic accidents. We affirm the trial court's judgment.
Background
Bernal was involved in a traffic accident on March 25, 2002 which claimed the life of Rogelio Sosa. Bernal was convicted by a jury of intoxication manslaughter. Before trial, he filed a request for notice of the State's intent to introduce evidence of extraneous offenses. The State filed two notices, one on June 23, 2004 and one on January 14, 2005, four days before trial. Both notices contained the State's intent to introduce evidence in the punishment phase of Bernal's redacted driving record that showed his involvement in two non-injury traffic accidents in 1999 and 2001. The record did not show Bernal to be at fault, nor did he receive a citation, in either of the accidents reported. A hearing was held to determine the admissibility of the driving record. Over Bernal's objections to the relevance and prejudicial effect of the evidence, the trial court ruled the driving record was admissible. Bernal received a sentence of fifteen years imprisonment. He subsequently filed this appeal.Analysis
Texas Code of Criminal Procedure article 37.07, § 3(a), governs the admissibility of evidence at a trial's punishment phase and grants the trial court broad discretion to admit evidence that it deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2004-05). Article 37.07, § 3(a)(1) states in relevant part:[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, . . . evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.Id. We review rulings on the admissibility of evidence under article 37.07, § 3(a)(1), for an abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1990). Bernal contends that the evidence should have been excluded as irrelevant and unduly prejudicial under Texas Rule of Evidence 403, which allows relevant evidence to be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. If the trial court's ruling is within the "zone of reasonable disagreement," we will not intercede. Montgomery, 810 S.W.2d at 391. Relevancy Bernal argues that the driving record was not relevant to his punishment because it only shows his "involvement" in two non-injury motor vehicle accidents, without a finding of fault or citation. Under the plain language of the statute, during the punishment phase the State may offer evidence on any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07 § 3(a)(1) [emphasis added]. In ascertaining what is relevant to sentencing, the focus is on what is helpful to a jury in deciding an appropriate sentence for a defendant. Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004); Rodriguez v. State, 163 S.W.3d 115, 118 (Tex.App.-San Antonio 2005, pet. granted). The Court of Criminal Appeals has recognized that "relevance" in the punishment context is different than "relevance" as defined in Texas Rule of Evidence 401 because sentencing presents different issues than rendering a verdict on guilt or innocence. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App. 1999) (fact-finder in punishment chooses a sentence within a punishment range rather than deciding facts to determine whether a defendant is guilty). "[A]dmissibility of evidence at the punishment phase of a non-capital felony offense is a function of policy rather than relevancy . . . because by and large there are no discreet factual issues at the punishment stage . . . Rather, `[d]eciding what punishment to assess is a normative process, not intrinsically fact bound'"). Id. (quoting Miller-El v. State, 782 S.W.2d 892, 895-96 (Tex.Crim.App. 1990)). "Because the material issue at punishment is so indistinct, relevancy of proffered evidence cannot be determined by deductive processes." Sunbury v. State, 88 S.W.3d 229, 233 (Tex.Crim.App. 2002). Some of the policy reasons to be considered when determining whether to admit punishment evidence include giving complete information for the jury to tailor an appropriate sentence for the defendant; the policy of optional completeness; and admitting the truth in sentencing. Id. at 233-34 (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex.Crim.App. 2000)). Here, we cannot say that the trial court abused its discretion by finding evidence of Bernal's prior traffic accidents to be relevant to sentencing for the instant offense. Bernal's conviction for intoxication manslaughter stemmed from his involvement in a traffic accident. His driving record demonstrated Bernal's involvement in two prior traffic accidents within the previous two years. It was reasonable for the trial court to conclude that it would be helpful to the jury to have a complete picture of Bernal's recent driving record in assessing Bernal's punishment for the instant offense involving the improper use of a motor vehicle. See, e.g., Henderson v. State, 29 S.W.3d 616, 626 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd) (evidence that officer and motorist both smelled alcohol on defendant during two separate prior traffic incidents, neither of which yielded a citation or arrest, was relevant to defendant's sentencing for subsequent intoxication assault offense); Ramos v. State, 45 S.W.3d 305, 310 (Tex.App.-Fort Worth 2001, pet. ref'd) (evidence that defendant did not have a valid driver's license at the time of intoxication manslaughter offense was relevant to sentencing). Therefore, we conclude the court did not abuse its discretion in determining the evidence was relevant to sentencing under article 37.07, § 3(a)(1), Tex. Code Crim. Proc. Ann. Rule 403 Even where the trial court deems evidence relevant at the punishment stage, that evidence, upon objection, must still withstand a Rule 403 analysis to be admissible. Rodriguez, 163 S.W.3d at 119. Texas Rule of Evidence 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Tex. R. Evid. 403. The rule carries a presumption that relevant evidence will be more probative than prejudicial, therefore favoring admission. Jones v. State, 944 S.W.2d 642, 652 (Tex.Crim.App. 1996). Unfair prejudice can outweigh the probative value where the evidence has a tendency to influence a jury's decision on an improper basis. Rogers, 991 S.W.2d at 266. Rule 403 requires exclusion of evidence only when there is "clear disparity" between the probative value and the degree of prejudice of the offered evidence. Jones, 944 S.W.2d at 652. Unfair prejudice does not include evidence that simply injures the opponent's case. Rogers, 991 S.W.2d at 266 (noting that injuring the opponent's case is the central point of offering evidence). Bernal claims that introducing the driving record, which does not show he was at fault for the prior accidents, invited speculation by the jury, thereby creating a prejudicial effect. The trial court admitted this evidence to give the jury a complete picture of Bernal's driving history. While this evidence may have been prejudicial, it is only excludable under Rule 403 when there exists a clear disparity between the degree of prejudice of the offered evidence and its probative value. Jones, 944 S.W.2d at 652. In reviewing the record before us, we cannot say the probative value of the driving record was substantially outweighed by the danger of unfair prejudice. Therefore, the trial court did not abuse its discretion by admitting the evidence during the punishment phase. We overrule Bernal's sole issue, and affirm the trial court's judgment.
I concur in the judgment of the majority, however, I disagree that the admission of the two traffic accidents was relevant to sentencing. Code of Criminal Procedure Article 37.07, Section 3(a), entitled "Evidence of prior criminal record," governs the admissibility of evidence during the punishment phase of a noncapital trial. Under Art. 37.07, relevant evidence may be offered in the punishment phase, "including, but not limited to" the defendant's prior criminal record, his general reputation, evidence of character, circumstances of the offense for which he is being tried and finally, any other evidence of an extraneous crime or bad act provided certain requirements are met. Although relevant evidence is not limited to the foregoing, the laundry list of potentially relevant evidence does give some indication of the type of evidence that might be helpful to the jury. According to Erazo v. State, 144 S.W.3d 487, 491 (Tex.Crim.App. 2004), the relevance of evidence in the punishment phase is a function of policy rather than deductive reasoning. Those policies include providing complete information to the jury in order for the jury to tailor the appropriate sentence, the rule of optional completeness and whether the appellant admits the truth during the sentencing phase. Id. at 491 (citing Mendiola v. State, 21 S.W.2d 282, 285 (Tex.Crim.App. 2000)). As a result, "relevance in the punishment phase of a non-capital trial is determined by what is helpful to the jury." Id. (emphasis added). Thus, in light of Art. 37.07 and the articulated policies governing the admission of evidence in the punishment phase, the trial court could not conclude the admission of two traffic accidents, not attributable to Bernal, was helpful to the jury. Consequently, the trial court abused its discretion in such admission. The State's evidence in question consisted of Bernal's driving record, including two no-injury motor vehicle accidents, wherein no citation was issued. The absence of a finding of fault or citation for which he could be held criminally responsible is uncontested. The State argues that the driving record was admissible as evidence of bad acts because it demonstrates improper use of a motor vehicle and "the evidence in dispute tended to demonstrate similar prior acts on the part of the appellant." However, two accidents, with no attribution of fault, are not bad acts and improper use of a motor vehicle cannot be inferred. It would be mere speculation for the jury to assume the accidents were the fault of appellant. The driving record is simply void of any evidence of any bad act. Although the trial court is given broad discretion to determine what is relevant, this discretion is not without limits. The cases cited in the majority opinion all deal with bad acts or evidence that falls within the policies articulated above. Rodriguez involved the criminal acts committed by escapees after the defendant assisted his son in escaping from prison. Rodriguez v. State, 163 S.W.3d 115 (Tex.App.-San Antonio 2005, pet. granted). In Henderson, an intoxication assault case, the relevant evidence was alcohol detected by officers during an unrelated traffic stop. Henderson v. State, 29 S.W.3d 616 (Tex.App.-Houston [1st Dist.], 2000, pet. ref'd). In Ramos, an intoxication manslaughter case, the evidence raised the issue of whether defendant had been driving without a valid driver's license at the time of the offense. Ramos v. State, 45 S.W.3d 305, 309 (Tex.App.-Ft. Worth 2001, pet. ref'd). Bernal may have been guilty of bad karma when he was involved in two prior accidents, but without more evidence, there is nothing in the record to indicate that the two prior accidents were his fault. Likewise, under a Rule 403 analysis, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, considerations of undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403; Reese v. State, 33 S.W.3d 238, 240-41(Tex.Crim.App. 2000). Because the evidence was not relevant for the reasons stated above, the balance weighs in the direction of excluding the evidence. The jury may have been persuaded that the accidents were some evidence of fault which, based on the record, would be irrational. However, because the record does not show evidence of harm, I concur in the judgment.
Tex. Code Crim. Proc. § 37.07 Sec. 3 states:
Sec. 3. Evidence of prior criminal record in all criminal cases after a finding of guilty.
(a)(1) Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.