Opinion
PD-0574-19
03-30-2022
ADRIAN VALADEZ, Appellant v. THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE TENTH COURT OF APPEALS McLENNAN COUNTY
Keel, J., delivered the opinion of the Court in which Hervey, Richardson, Newell, Walker, and McClure, JJ., joined. Yeary, J., filed a dissenting opinion in which Slaughter, J., joined. Keller, P.J., concurred.
OPINION
KEEL, J.
During the guilt phase of Appellant's jury trial for third-degree possession of marihuana the trial court admitted over various defense objections evidence of extraneous drug incidents. The jury found Appellant guilty as charged and sentenced him to five years in prison and a fine of $8,500. The court of appeals affirmed, holding that the trial court did not err in admitting the evidence of the extraneous incidents. Valadez v. State, No. 10-17-00161-CR, 2019 Tex.App. LEXIS 3934, at *1 (Tex. App.-Waco May 15, 2019) (mem. op., not designated for publication).
We granted review to consider whether the extraneous drug evidence was admissible under the doctrine of chances or under Texas Rules of Evidence 404(b) and 403. We hold that the evidence was inadmissible under the doctrine of chances because the extraneous incidents and the charged offense were not highly unusual or exactly the same. And even if Rule 404(b) might have justified the admission of extraneous drug incidents, Rule 403 required their exclusion because they were unsupported by competent evidence; and even if they had been otherwise admissible, some were misleading and/or prejudicial in other ways. Consequently, any probative value was substantially outweighed by the danger of unfair prejudice and misleading the jury under the peculiar facts of this case. We reverse the judgment of the court of appeals and remand to that court for a harm analysis.
I. The Trial
Appellant was the only backseat passenger of a car that was occupied by two other men and traveling northbound on I-35 outside of Waco when it was stopped for a window-tint violation.
Trooper Juan Rodriguez, a member of the Department of Public Safety's drug interdiction team, testified that upon approaching the car, he noticed the smell of marihuana. He tried to put the car's occupants at ease by telling the driver, Jose Aguillon, that he was going to give him a warning for the window-tint violation, but the effort to put them at ease failed. When they were out of the car, Aguillon was fidgeting, and the front seat passenger, Johnny Penaloza, explained that the flakes of marihuana on his shorts were actually "linen," but he meant to say "lint." Meanwhile, Appellant pretended to sleep in the back seat, and when he got out of the car he faked a yawn, avoided eye contact with Rodriguez, and took a "felony stretch." Aguillon and Penaloza also stretched which Rodriguez opined is a way to expel nervousness.
After backup arrived Rodriguez searched the car and discovered that the odor of marihuana was even stronger in the backseat, which he rated a seven or eight on a scale of ten. He found marihuana flakes on the front seat and blunts in the ashtray. A continuously ringing cell phone was in the console. When he opened the utility door to the trunk from the backseat the smell increased to a ten out of ten. Over 18 pounds of marihuana were in the trunk. Most of the marihuana was in two duffle bags, and the remainder was in the spare tire wheel well. The duffle bags also contained dirty clothes and an open pack of t-shirts that matched the t-shirt worn by Aguillon.
The occupants of the car gave inconsistent answers about how long they planned to be in Waco. Aguillon said they would be there for only a few hours whereas Appellant said a couple of days. All three occupants claimed they were going to visit girls in Waco but none named any girls they knew there. Rodriguez testified that drug runners commonly rehearse a story about the destination and purpose of their travels but stumble on the details when pressed for more information.
The car's occupants did not seem surprised that they were being arrested. At first, all three denied any knowledge of the marihuana, but Aguillon and Penaloza ultimately pled guilty to possessing the marihuana. Appellant claimed he was an innocent passenger but seemed to relax after the marihuana was found. Rodriguez testified that drug mules do not take innocent passengers along for the ride; everyone in the car is truly involved. Drug runners tend to use two or more drivers on a run because time is money. "If the car ain't moving, they are not making money. It's a hurry up and go, get to the point, drop off, go back, load back up, and go."
Agent Christopher Dale, an investigator in DPS's Criminal Investigations Division, testified over hearsay objections that Appellant and his two fellow passengers refused to cooperate with his post-arrest effort to interview them to discover the marihuana's destination. The amount of marihuana found was a distribution amount, and people who run drugs do not bring innocent passengers with them. He expressed the opinion that the case against the car's three occupants was "pretty solid" because they "were in care, custody, and control of the bundles of marijuana that were in the car." All three knew or should have known there was criminal activity in the car because of the odor in it.
After a hearing outside the jury's presence the trial court admitted over various defense objections evidence of extraneous drug incidents as sponsored by McLennan County Sheriff's Department Captain Steve January and Austin Police Department Detective Christopher Thomas. Appellant asked for and received various running objections, including under Rules 404(b) and 403, before the witnesses testified about the extraneous drug incidents.
January testified before the jury that Appellant had a 2009 conviction from Travis County for possession of marihuana weighing between two and four ounces. He sponsored the admission of State's Exhibit 8, the purported judgment of conviction, and identified the fingerprint on it as Appellant's.
Thomas testified before the jury that APD records-the nature of which he was not asked to describe-showed six instances where Appellant was "connected with" marihuana:
Prosecutor: Okay. And have you had an occasion-well, let me ask you this. Have you looked into the Austin PD records on Adrian Valadez?
Thomas: Yes, I have.
Prosecutor: And you did that at our request. Correct?
Thomas: Correct.
Prosecutor: And can you tell this jury when Adrian Valadez has been
connected to marijuana?
Thomas: Yes. There are one, two, three, four, five, six cases with APD that he was connected with marijuana.
Prosecutor: Okay. And is that the only narcotic that this defendant has been associated with?
Thomas: No.
Thomas then testified about Appellant's possession of "cocaine" and marihuana in 2014.
In that instance Thomas and his patrol partner, Officer Edward Boudreau, pulled Appellant over for running a stop sign. Thomas testified that Boudreau approached the car, smelled marihuana, and observed that Appellant "had a piece of paper that he was rolling up the marijuana with." In the dash-cam video, however, Boudreau narrated that he had found marihuana flakes in the car and marihuana in a folded, paper Notice to Appear in another marihuana case; he did not say that Appellant had been rolling marihuana in a piece of paper.
Upon his own search of the car, Thomas found a plastic bag containing what he said was 27.6 grams of "cocaine." Thomas testified that the "cocaine" was packaged in one big, plastic bag and that this amount signified to him that Appellant was "a dealer." He agreed with the prosecutor's characterizations that it was a "giant lump" of "cocaine" that "hadn't been cut up to even be handed out to end users yet[.]" On re-direct the State played around thirteen minutes of the dash-cam video for the jury and stopped it minutes after the marihuana was found and immediately after the "cocaine" was found.
The State offered no competent evidence to prove that the substance was indeed cocaine.
The defense called Aguillon as its only witness. Aguillon testified that he had pled guilty and accepted responsibility for the marihuana. He stated that Appellant did not know about the marihuana, and Appellant was not there when he and Penaloza put the marihuana in the car. He admitted on cross-examination that this was the only time he had brought along an innocent bystander on a drug run.
Appellant requested and the trial judge denied a limiting instruction in the jury charge relative to the extraneous drug incidents.
II. Character Evidence and Evidence of Extraneous Misconduct
Character evidence is generally inadmissible because it may "weigh too much with the jury" and encourage it "to prejudge one with a bad general record and deny him the fair opportunity to defend against a particular charge." Michelson v. United States, 335 U.S. 469, 476 (1948). It is inadmissible "to prove that on a particular occasion the person acted in accordance with the character or trait." Tex. R. Evid. 404(a). Specifically, "evidence of a crime, wrong, or other act is not admissible 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. Evid. 404(b)(1). This rule prohibits admission of evidence to prove a person's character "from which the trier of fact is then to infer that the person acted in conformity with that character trait on the occasion in question." Johnston v. State, 145 S.W.3d 215, 219 (Tex. Crim. App. 2004) (footnote omitted).
"[T]he propensity to commit crimes is not a material fact in a criminal case[.]" Segundo v. State, 270 S.W.3d 79, 87-88 (Tex. Crim. App. 2008). But extraneous misconduct evidence may "be admissible if [it] is logically relevant to prove some other fact" than character propensity. Johnston, 145 S.W.3d at 219 (footnote omitted). Evidence of extraneous misconduct must tend to enhance or diminish the probable existence of a fact of consequence in the case. Id. at 219 n. 9. Even "a small nudge toward proving a fact of consequence" satisfies relevancy. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018) (footnote omitted).
A fact of consequence may be "either an elemental fact or an evidentiary fact from which an elemental fact may be inferred." Henley v. State, 493 S.W.3d 77, 84 (Tex. Crim. App. 2016). Extraneous misconduct evidence may be admissible to rebut a defensive theory that negates an element of the charged offense. Johnston, 145 S.W.3d at 219; Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (footnote omitted).
Similarity is crucial to the doctrine of chances. The admissibility of evidence under the doctrine of chances depends on a showing of "highly unusual events [that] are unlikely to repeat themselves inadvertently or by happenstance." De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009). In De La Paz extraneous drug deals were admissible under the doctrine of chances where the accused police officer defended himself against charges of perjury and tampering with evidence on grounds that he saw things seen by no one else present at the scene. Id. at 347-48. The extraneous drug deals and the one underlying the charged offenses shared distinctive details: De La Paz's confidential informant planted fake drugs near innocent people, but De La Paz recorded in his offense reports that he saw the contact or delivery between the CI and the victim, whereas others present did not see the contact or delivery. Id. at 341-42. The repetitions of these "highly unlikely events" were an "extraordinary coincidence" rendering De La Paz's claims about what he saw objectively unlikely. Id. at 348.
Extraneous misconduct evidence must be proven beyond a reasonable doubt and by competent evidence. Fischer v. State, 268 S.W.3d 552, 558 (Tex. Crim. App. 2008) (requiring proof beyond a reasonable doubt); see King v. State, 765 S.W.2d 870, 872 (Tex. App.-Houston [1st Dist.] 1989, no pet.) (noting that Rule 404(b) does not render hearsay admissible over objection). On request, the jury should be instructed that it can only consider extraneous misconduct evidence if (1) it believes beyond a reasonable doubt that the defendant committed such misconduct and (2) then only for the limited purpose for which it was admitted. Ex parte Varelas, 45 S.W.3d 627, 631 (Tex. Crim. App. 2001). The failure to request a limiting instruction when the evidence is admitted will relieve the trial court of its duty to give the instruction in the written charge. Delgado v. State, 235 S.W.3d 244, 254 (Tex. Crim. App. 2007). But the beyond-a-reasonable-doubt instruction relative to extraneous offenses must be included in the written charge if it is requested at that point. Varelas, 45 S.W.3d at 631.
Evidence of extraneous misconduct that is admissible under Rule 404(b) may be inadmissible under Rule 403 "if its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. The particular phrases implicated here are "probative value," "unfair prejudice," and "misleading the jury."
"'[P]robative value' means more than simply relevance." Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex. Crim. App. 2006). It instead "refers to the inherent probative force of an item of evidence-that is, how strongly it serves to make more or less probable the existence of a fact of consequence to the litigation-coupled with the proponent's need for that item of evidence." Id. If the proponent "has other compelling or undisputed evidence" to prove the fact, then the item's probative value "will weigh far less than it otherwise might in the probative-versus-prejudicial balance." Id. (quoting Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1990) (op. on reh'g)).
"Unfair prejudice" means "a tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Id. Evidence may be unfairly prejudicial if it prompts "the jury's hostility or sympathy for one side without regard to the logical probative force of the evidence." Id.
"Misleading the jury" means a risk that the evidence would be given undue weight for reasons other than emotional ones; an example is scientific evidence that a jury is not equipped to judge. Id.
In sum, as pertinent here, a court must balance the probative force of the proffered evidence and the proponent's need for it against any tendency of the evidence to suggest decision on an improper basis and any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate its probative force. See id. at 641-42. Rule 403 requires the exclusion of relevant evidence only when there is a clear disparity between its probative value, on the one hand, and its prejudicial or misleading effect, on the other. See Jones v. State, 944 S.W.2d 642, 653 (Tex. Crim. App. 1996) (requiring a clear disparity between probative value and degree of prejudice).
III. Standard of Review
A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). There is no abuse of discretion if the trial court's ruling is within the zone of reasonable disagreement. De La Paz, 279 S.W.3d at 343-44. A decision to admit extraneous misconduct evidence is within that zone if the evidence is relevant to a material, non-propensity issue, and its probative value is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. Id. at 344.
IV. Court of Appeals
In determining that the extraneous incidents in this case were admissible under Rule 404(b), the court of appeals stated that they were sufficiently similar to the charged offense because they all involved drug possession. Valadez, 2019 Tex.App. LEXIS 3934, at *19. The trial court's ruling was not outside the zone of reasonable disagreement because Appellant opened the door to the extraneous misconduct evidence during voir dire, opening statement, and cross-examination of the State's witnesses by advancing his innocent passenger defense. Id. at *19-20. The court of appeals held that there was not a clear disparity between the danger of unfair prejudice and the evidence's probative value, and so it affirmed the trial court's decision admitting the evidence. Id. at *23 (applying Gigliobianco, 210 S.W.3d at 641-42).
V. Analysis
The doctrine of chances did not justifiy the admission of the extraneous incidents because they were not highly unusual or exactly the same as the charged offense. The incidents were inadmissible for a variety of reasons other than their extraneous character, and any weight given to inadmissible evidence is undue weight, so the incidents were misleading under Rule 403. See Gigliobianco, 210 S.W.3d at 641 (noting that
"misleading the jury" means a risk that evidence would be given undue weight for reasons other than emotional ones). Even setting aside their wholesale inadmissibility, the six connections to marihuana were also misleading because they invited the jury to speculate about their meaning, and the "cocaine" aspect of the 2014 arrest was prejudicial because it was a harder drug. Compared to the permissible purposes for which the incidents were offered, their probative value was slight; the State had other compelling evidence to support its case; and the jury's consideration of the extraneous incidents was unguided by any instruction. Under these circumstances any probative value was substantially outweighed by the danger of misleading or prejudicing the jury.
A. Doctrine of Chances
The State does not cite the doctrine of chances in defense of the admission of the extraneous incidents. It argues that the court of appeals did not rely on it, either. But the court of appeals cited a doctrine-of-chances case in support of the admission of the evidence, Valadez, 2019 Tex.App. LEXIS 3934, at *20 (citing De La Paz, 279 S.W.3d at 347-48), so we address it in case it would uphold the trial court's ruling. See Spielbauer v. State, 622 S.W.3d 314, 319 (Tex. Crim. App. 2021) (citation omitted) (holding that a trial court's ruling must be upheld on any applicable theory). It does not. The evidence was not admissible under the doctrine of chances because the extraneous incidents were not highly unusual or exactly the same as the charged offense.
The marihuana-only incidents were offered with no details; they were generic rather than distinctive or "highly unusual." Cf. De La Paz, 279 S.W.3d at 347 (noting that admissibility of evidence under doctrine of chances depends on showing of "highly unusual events"). The "cocaine"/marihuana arrest was different from the charged offense. In the extraneous incident Appellant was driving alone in a neighborhood in central Austin with a little bit of marihuana and a lot of cocaine in the passenger compartment of his car. In the charged offense Appellant was a backseat passenger in a car occupied by two others on the highway near Waco with no cocaine at all and a lot of marihuana in the car's trunk.
Nothing about the charged offense and the extraneous incidents marked them as distinctly similar or unusual, much less exactly the same, so the doctrine of chances did not support the admission of the extraneous drug evidence. Cf. Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (referencing the doctrine of chances in rejecting a challenge to extraneous offense evidence that was "exact same situation" as charged offense).
B. Otherwise Inadmissible
The extraneous incidents were all inadmissible for reasons other than their extraneous character, and some of these reasons were brought to the trial court's attention via defense objection, as noted below.
The "judgment" showing a misdemeanor conviction for possession of marihuana was not sponsored by a witness who could authenticate it, nor was it self-authenticating. See Tex. R. Evid. 901(a) (requiring "evidence sufficient to support a finding that the item is what the proponent claims it is."); id. at 902(1), (2) (designating as self-authenticating those domestic documents that are sealed and signed or signed and certified).
The connections to marihuana were testified to by Thomas who had no personal knowledge of those connections but who recited them-"one, two, three, four, five, six"-from an unidentified document that was not admitted into evidence and was rank hearsay as far as the record shows. See id. at 602 (conditioning witness testimony on showing of personal knowledge); id. at 801 (defining hearsay); id. at 802 (stating general rule against admission of hearsay). The defense objected to Thomas's testimony about the connections on confrontation grounds and on grounds that he had no personal knowledge about them.
The "cocaine"/marihuana arrest was inadmissible for several reasons, all but one of which were brought to the trial court's attention. First, it was irrelevant because it post-dated the charged offense; Appellant's exposure to the odor and appearance of marihuana in 2014 would have no logical force in showing his familiarity with it in 2012. Second, the marihuana odor attending the 2014 arrest was unsupported by a wtiness with personal knowledge of it; Thomas testified that Boudreau smelled it, but Boudreau did not testify; Appellant did not object on this basis. Third, Appellant's possession of "cocaine"-even if better timed-would not tend to show that he recognized or possessed marihuana on another occasion. Fourth, the "cocaine" aspect was unproven by a lab report or expert testimony, so the conclusion that the substance was indeed cocaine was inadmissible. See Fischer, 268 S.W.3d at 558 (requiring extraneous offense to be proven beyond a reasonable doubt); cf. Zone v. State, 118 S.W.3d 776, 777 (Tex. Crim. App. 2003) (holding evidence legally sufficient to show possession of cocaine where chemist testified to having confirmed presence of cocaine in a scientific sampling of rocks).
The extraneous incidents were all inadmissible for reasons independent of their extraneous nature. Since they were inadmissibile, they were due no weight, and any weight given them was undue. That means they were misleading for purposes of Rule 403. See Gigliobianco, 210 S.W.3d at 641.
C. Otherwise Misleading
The connections with marihuana were also misleading because they were too vague to support any inference. Thomas testified that Appellant was "connected with" marihuana in APD records, but the phrase was undefined. It might have meant that Appellant possessed marihuana or was reported to possess it or something even more attenuated than that. From the jury's point of view, there was no showing, much less a clear one, of what, if anything, Appellant did in any of his connections with marihuana. See Plante v. State, 692 S.W.2d 487, 494 (Tex. Crim. App. 1985) (holding in a case predating the Rules of Evidence that evidence of an extraneous transaction was inadmissible for lack of "clear showing" that Plante participated in it). Such vagueness invited the jury to guess about the meaning of the evidence. See Hooper v. State, 214 S.W.3d 9, 16 (Tex. Crim. App. 2007) (noting that speculation will not support a finding beyond a reasonable doubt). Speculation is misleading.
D. Probative Value vs. Risks of Misleading and Prejudicing the Jury
The probative value of the extraneous incidents relative to the permissible purposes for which they were offered was slight; the State had other compelling evidence to prove its case; and the jury was given no instruction about its consideration of the disputed evidence.
1. Permissible Purposes
The State asserted three permissible purposes for admitting the extraneous misconduct evidence: to demonstrate Appellant's familiarity with the odor of marihuana, rebut Appellant's innocent-passenger defense, and show a lack of mistake. But it relied on the sheer volume of the marihuana incidents and the amount of "cocaine" to demonstrate probative value, arguing at trial, for example, that it wanted "to show that on many occasions, multiple occasions, before and since, this defendant is connected to marijuana[, ]" and that "he has dealt with dealer quantities or distribution quantities of a narcotic."
Even on appeal the State merely asserts that the extraneous incidents were "clearly relevant" and "circumstantial evidence" of intent and knowledge and "not mere propensity evidence[.]" State's Brief, p. 31. It resorts to the volume of incidents as demonstrating probative value when it argues that the extraneous offense evidence "cast considerable doubt" on the defensive theory "as it showed multiple prior incidents where he possessed marijuana, as well as having secreted illegal drugs in a vehicle." Id. at p. 32.
But the State has failed to articulate how the evidence was probative apart from showing propensity, and the evidence itself reveals little probative value, if any, apart from that. For example, no evidence showed that any odor attended any of the six connections with marihuana; they were admitted without any such detail. As for the 2014 "cocaine"/marihuana arrest, Appellant's possession of cocaine would not prove his familiarity with marihuana, and as already discussed, the timing of the arrest robbed it of logical relevance.
2. Other Compelling Evidence
The State had other compelling evidence to prove its case against Appellant. He "was practically sitting on top of a distribution amount of marihuana that reeked to high heaven." Id. at p. 30. The State also proved that marihuana flakes and blunts were in plain view in the passenger compartment of the car, drug dealers do not typically invite "innocent passengers" to ride along on drug deliveries, Appellant was especially nervous during the traffic stop but seemed to relax after the marihuana was found, and his story about visiting Waco for a couple of days was belied by his lack of clothing and toiletries corresponding with such a stay and by Aguillon's contradictory characterization of their plans. Since the State had other compelling evidence of guilt, the probative value of the extraneous drug evidence was less weighty than it otherwise might have been. See Gigliobianco, 210 S.W.3d at 641.
3. No Instruction
Finally, the jury was equipped with no instruction conditioning its consideration of the extraneous drug evidence on its belief beyond a reasonable doubt about Appellant's commission of those extraneous incidents or limiting its consideration of the evidence to a permissible purpose. Regardless of whether the trial court had to give any such instruction, the lack of instruction is relevant to the prejudice assessment. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim. App. 1994) (citation omitted) ("A manner of lessening the prejudice from the extraneous offense is to give a limiting instruction.").
E. Rule 403 Conclusion
Under these circumstances-the admission of incompetent, vague, logically irrelevant, voluminous, extraneous-incident evidence untethered by a limiting or burden-of-proof instruction-any probative value from the extraneous incidents was substantially outweighed by the danger of misleading or prejudicing the jury, and the trial court abused its discretion to admit it.
VI. Reply to the Dissenting Opinion
We reply with three points.
First, the dissenting opinion resorts to the "sheer number" of extraneous incidents as a source of probative value. But volume alone cannot conjure probative value; no matter how great it might be, any number multiplied by zero still equals zero. The six connections with marihuana were so meaningless that they could not support any inference, and it was logically impossible for events in 2014 to have retroactively enhanced Appellant's "sophistication" about anything in 2012, notwithstanding the dissent's bare assertions to the contrary. Merely repeating the phrase "logically relevant" does not make it so.
Second, the dissenting opinion overlooks the meaning of "misleading the jury" as used in Rule 403: it means a risk that the disputed evidence would be given undue weight for reasons other than emotional ones. Gigliobianco, 210 S.W.3d at 641. The disputed evidence here was inadmissible-a point the dissenting opinion does not address-and inadmissible evidence is due no weight, so its probative value was substantially outweighed by the certainty and not merely the risk that it would mislead the jury.
Third, the dissenting opinion mistakenly asserts that we are "importing" previously "unpresented" and "irrelevant" admissibility issues into our Rule 403 analysis. In fact, however, Appellant raised meritorious objections to the otherwise-inadmissible nature of all the extraneous incidents except the purported misdemeanor conviction. Specifically, he objected to Thomas's lack of personal knowledge about the connections with marihuana, "the false impression" of at least the first connection because it was "a case that nobody knows anything about," the irrelevance of the 2014 arrest because of its timing, the conclusory testimony about the "cocaine," and the irrelevance of "cocaine" in a marihuana case. The trial court overruled these objections in the course of overruling Appellant's Rule 403 and 404(b) objections, and Appellant challenged those rulings on appeal. The dissent cites no authority or rationale for its claim that Appellant also had to raise freestanding points of error about the otherwise-inadmissible nature of the extraneous incidents in order for this Court to address his Rule 403 claim. Given the airing of the admissibility issues in the trial court, we conclude that nothing more was required.
VII. Harm
Appellant argues in the spirit of judicial economy against a remand for a harm analysis and in favor of this Court confronting the question in the first instance. The State counters that the court of appeals is the proper venue for first consideration of harm. In cases where the proper resolution of the remaining issue is clear, we will occasionally dispose of the case in the name of judicial economy. Davison v. State, 405 S.W.3d 682, 691-92 (Tex. Crim. App. 2013) (citing Johnston, 145 S.W.3d at 224). But it's not clear here. Nor, however, is it clear that the court of appeals did not already address harm because of the cases it cited in addressing Rule 403 and its mistaken reference to the admission of other extraneous drug evidence without objection.
The court of appeals expressed skepticism that the extraneous drug evidence in this case posed a risk of confusing or distracting the jury or prompting the jury to give undue weight to the disputed evidence. Valadez, 2019 Tex.App. LEXIS 3934, at *22- 23. It dismissed those concerns because of other evidence linking Appellant to the marihuana "and because Captain January and Detective Thomas also testified [without objection] about other extraneous drug offenses that Valadez was involved in[.]" Id. The court followed its claim about the admission of unobjected-to extraneous drug evidence with citations to two cases suggesting that the point of its claim was to address harm. Id. at *23.
The first case it cited was Leday v. State with a parenthetical quote, "[O]verruling an objection to evidence will not result in reversal when other such evidence is received without objection, either before or after the complained-of ruling." Id. (citing 983 S.W.2d 713, 718 (Tex. Crim. App. 1998). Leday pointed out that the rationale for no reversal under such circumstances was either waiver or harmlessness, and expressed doubt about the waiver rationale. Leday, 983 S.W.2d at 718 ("It seems doubtful that a waiver of an objection was intended in all cases in which a defendant objects to some but not all of the State's evidence of a fact-at least in the sense that 'waiver' is often used in criminal litigation."). The remaining rationale was harm. Id.
The court of appeals' reliance on Leday, then, suggests that its purpose in referring to other, unobjected-to, extraneous drug evidence was to address any possible harm from the admission of the disputed evidence. Its second cite supports that reading. Introduced with a "see also" signal, Washington v. State was cited with the parenthetical explanation that "error in admission of evidence may be rendered harmless when substantially similar evidence is admitted elsewhere without objection[.]" Valadez, 2019 Tex.App. LEXIS 3934, at *23 (citing 485 S.W.3d 633, 638-39 (Tex. App.-Houston [1st Dist.] 2016, no pet.)).
Given its citations to Leday and Washington, it is arguable that the court of appeals did indeed hold the extraneous drug evidence to be harmless. But half of its stated rationale for doing so-the unobjected-to admission of testimony by January and Thomas about "other extraneous drug offenses"-was unfounded because no such evidence was admitted without objection. A hearing was held outside the jury's presence to address the admissibility of the extraneous drug evidence, and Appellant was granted running objections to January's and Thomas's extraneous drug testimony based on, among other things, Rules 403 and 404(b). Since all the extraneous drug evidence was admitted over objection, any harm from its admission must be assessed without reference to the other-similar-evidence-admitted-without-objection rationale. See Haley v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005) (noting that subsequent objections to the admission of evidence are not required when the trial court entertains objections and rules outside the jury's presence or when counsel gets a running objection).
On the other hand, the court of appeals mentioned the unobjected-to extraneous drug testimony in the context of the admissibility of the disputed evidence, and Appellant disclaims any harm analysis having been entertained by the court of appeals. So it is unclear whether the court of appeals addressed harm. Since it is also unclear whether the admission of the extraneous drug evidence was harmful, we remand this case to to the court of appeals for a harm analysis. 1 VIII. Conclusion
The court of appeals erred in affirming the trial court's admission of the extraneous drug evidence. The purported conviction for possession of marihuana, the six connections to marihuana, and the "cocaine"/marihuana arrest had little if any probative value, and that was substantially outweighed by the danger of unfair prejudice and misleading the jury. We reverse the judgment of the court of appeals and remand the case to that court for a harm analysis.
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 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 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 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." The State offered evidence 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.
During voir dire, Appellant's counsel proposed to the venire the following hypothetical:
He then followed up a venireman's answer to his hypothetical with this statement: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?
RR. Vol. IV, p. 164. In opening statements, then, Appellant's counsel explained: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. 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: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. 162. The trial judge similarly explained his view as follows: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. 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.[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 at all and is totally innocent because of that lack of knowledge and awareness.
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 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 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. 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.
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).
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 prior incidents also connected him to marijuana in the APD cases. 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.
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.
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 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 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 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.
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 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.
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." To incorporate these considerations into the Rule 403 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.
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 issues on appeal (other than the Sixth Amendment issue), they have not been briefed by the parties.
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.