## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 02 - 13 - 00254 - CR

CLINTON RAY SANDERS APPELLANT
V. THE STATE OF TEXAS STATE

---------- FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

---------- 

### DISSENTING OPINION

---------- Appellant got drunk and punched his girlfriend in the eye. A jury found him guilty and assessed his punishment at the maximum of ten years in prison. The majority holds that the trial court did not abuse its discretion by allowing the State to impeach Appellant’s daughter with a recanted, fifteen

- year - old, unprosecuted accusation that Appellant had sexually abused her at age twelve. Because t his is ex actly the type of evidence that, coupling emotional impact with lack of2 probative value, creates an “indelible impr ession” on a jury and distracts it from sentencing a defendant for the crime he committed, I dissent. See Montgomery v. State , 810 S.W.2d 372, 3 89 (Tex. Crim. App. 1990) (op. on reh’g). I would hold that the trial court abu sed its discretion by admitting this evidence over Appe llant’s rule 403 objection. Even when the trial court determines that certain evidence is relevant to sentencing, it may still be inadmissible if the “danger of unfair prejudice” substantially outweighs its probative value. Tex

. R. Evid. 403

. The “un fair prejudice” referred to in r ule 403 is an “ ‘undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.’” Ex parte Lane , 303 S.W.3d 702, 715 (Tex. Crim. App. 2009) (quoting Cohn v. S tate , 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)). The majority barely mentions that evidence relating to a sexual offense with a child carries the potential for unfair prejudic e and , even then , discount s that potential simply because it is “relevant”
to show character. This is where I part company with the majority.
E vidence of sexually related misconduct involving children is not just potentially prejudicial; it is “ inherently inflammatory .” P awlak v. State , No. PD

1616

- 12, 2013 WL 522 0 872, at * 2 (Tex. Crim. App. Sept. 18, 2013 ) ; Wheeler v. State , 67 S.W.3d 879, 889 (Tex. Crim. App. 2002) (“ [ A ]n extraneous sexual offense will always carry emotional weight and the danger of impressing the jury in an irrational and indelible way.”); Bishop v. State , 869 S .W.2d 342, 346 (Tex. Crim. App. 1993) (citing Montgomery , 810 S.W.2d at 397 ( holding “s ex ually3 related misconduct and misconduct involving child ren are inherently inflammatory. ” ) ). I agree with t he majority ’s recitation of the principal factors fo r a r ule 403 balancing analysis as including : (1) how probat ive the evidence in question is; (2) the potential of the evidence to impress the jury in some prejudicial but indelible way; (3) the time needed to devel op the evidence before the jury; and (4) the propo nent’s need for the evidence. Montgomery , 810 S.W.2d at 3 89

– 90;

s ee also Sunbury v. State , 88 S.W.3d 229, 235 (Tex. Crim. App. 2002) (noting that trial judge did not exer cise his discretion under rule 4 03 and did not weigh probative value against any r ule 403 counterfactors ) ; Lamb v. State , 186 S.W.3d 136, 144 (Tex. App.

–– Houston [1st Dist.] 2005 , no pet. ) (noting Sunbury’ s suggestion that Montgomery factors apply to r ule 403 decisions on punishment evidence)

. But the majority’s application of those factor s in this case focuses only on the first, third, and fourth factors, discussing why the evidence had probative value rather than providing a meaningful analysis as to why the trial court did not abuse its discretion in its implicit ruling that the potentia l for the obviously inflammatory and inherent ly prejudic ial evidence to impress the jury in an irrational and indelible way did not substantially outweigh any such proba tive value

. A s to the first factor regarding the probative value , t he court of criminal appeals tells us that the measure of the probative value of evidence of an4 e xtraneous offense

–– that is , how compellingly that evidence serves to make more or less p robable a fact of consequence― is often a “function of the similarity of the extraneous transaction to the charged offense. ” Montgomery , 810 S.W.2d
at 3 89

– 90

. T he re i s no similarity between Appellant’s alleged inappropriate touching of a twelve

- year - old ch ild and pun ching his girlfriend in the eye

. This difference in the nature of the offenses, not to mention their separation by fifteen
years ’ time , renders any pr obative value of the evidence of the alleged extraneous offense virtually nil. The State’s onl y argument adopted by the majority regarding the dissimilarity of offenses is that the alleged extraneous offense was somehow probative as serving to establish a “ pattern of serious , continuing criminal conduct ” against family members, which would aid the jury in determining whether to place Appellant on community supervision. Not only the entirely different nature of the offenses but also the passage of fifteen years since the alleged extraneous misconduct belies the majority ’s conclusion that the alleged sexual offense fifteen years in the past w as somehow probative to es tablish any pattern of continuing conduct against family members. Th e commission of two entirely different types of conduct fifteen years apart simply is not a “pattern of

. . . continui ng criminal conduct ” that would aid the jury in sentencing Appellant for the current offense.
T he court of criminal appeals has also informed us that the measure of probative value is often a “function of the strength of the proponent’s evidence ” to5 show t hat the appellant committed the extraneous offense. See M ontgomery , 810 S.W.2d at 390

. The evidence consisted only of the daughter’s written
statement , which she vehemently repudiated both on and off the stand , which was uncorroborated by any other evide nce , and which involved an alleged offense for which Appellant was never prosecuted

. I believe t he majority incorrectly construes Appellant’s brief in this regard as attempting to raise a legal insufficiency of evidence issue that Appellant failed to pres erve for appeal. I disagree. Strength or w eakness of the evidence is , indeed, a proper factor in a rule 403 analysis and was properly preserved by Appellant’s trial objection that the prejudice outweighed any pr obative value under that rule. Moreover, th e State had no compelling need for the daughter’s statement to show a continuin g pattern of physical conduct again st family members by Appellant in order to aid the jury in determining an appropriate sentence. Appellant’s 2009 misdemeanor charge of hittin g his son with a two

- by

- four , to which he pled no contest, the undisputed evidence that Appellant punched his brother in the face immediately after hitting his gi rlfriend on the night in question, and his son’s and daughter’s testimony ( although they denie d any physi cal violence) that Appellant and his former wife had fought before their divorce, constituted relevant evidence that amply sufficed to establish Appellant's tendency to commit physically viole nt acts against family members. The a lleged sexual mi sconduct described in the daugh ter ’s statement was not only inherently prejudicial because of its sexual nature but also injected the6 element of incest, exacerbating the danger that it would impress the jury in an irrational and indelible way , distracting the jurors from making a reasoned decision on the properly admissible evidence , and inexorably s waying them to base t heir decision on the emotional impact of the incident described in the
statement rather than on the offense of which Appellant was convicte d. See Ex
p arte Rogers , 369 S.W.3d 858, 865 (Tex. Crim. App. 2012) ; Montgomery , 810 S.W.2d at 397 ; Bjorgaard v. State , 220 S.W.3d 555, 562 (Tex. App.

— Amarillo 2007, pet. granted ) ; see also T aylor v. State , 920 S.W.2d 319 , 323 (Tex. Crim. App. ) ( explaining that “unfair prejudice” factor of rule 403 asks ho w much potential exists for complained

- of extraneous

- offense evidence to sway the jury in an irrational or emotional way, distracting it from making a reasoned response based on relevant evidence ) , cert. d enied , 519 U.S. 951 (1996)

. 1 The time spent in developing the evidence of the extraneous alleged offense was not extensive, but hearing the statement being read by the prosecuting attorney while the daughter was on the stand was enough. T h at the State di d not belabor the issue in what was otherwise a short record does not lessen the shock value and inherently prejudicial effect on the jury in the context of this case

.

1 I agree that “u nfair prejudice ” does n ot mean simply an adverse or detrimental effe ct of the evidence in question since typically all evidence a party offers will prejudice the opponent’s case. Rather, it refers to an undue tendency to reach a decision on an improper basis, usually an emotion al one. Casey v. State , 2 15 S.W.3d 870, 879

– 880 (Tex. Crim. App. 2007).7 I would hold that a ny probative value of the complained

- of evidence was slight and was s ubstantially outweighed by the inherent danger of unfair prejudice to Appellant and that the trial court abused its discretion by admitting it

. Appellant’s episodes of physical violence , along with his misdemeanor convictions for DWI, driving with a suspe nded li cense, and failure to identify a re consistent with the testimony from both his son and daughter of a progressive drinking problem for which the evidence established that community supervision would provide ample opportunities for both in

- patient, as well as out

- patient
treatment , of which Appellant was already availing himself . Viewing the record in its entirety, the jury’s verdict for the maximum sen tence of ten years ’ imprisonment speaks for itself that admission of the extraneous offense evidence was harmful error that affected Appellant’s substantial rights

. See Tex. R. App. P. 44.2(b). Therefore, I respectfully dissent. 2

2 I share the concerns expressed by Chief Justice Hedges in Rolle v. State , 367 S.W.3d 746, 762 (Tex. App.

— Houston [14 th Dist.] 2012, pet. ref’d) ( Hedges , C. J., dissenting), that offer ing unnecessary and highly inflammatory evidence that has nothing to do with an offense charged against a defendant and that serves no purpose other than to push the jury to give the defendant the maximum sentence possible disserv es the policies underlying the penal c ode, frays “the very fabric of our criminal justice system,” and contributes to the loss of trust by the public in t he fairness of our courts.8 /s/ Anne Gardner ANNE GARDNER JUSTICE PUBLISH
DELIVERED: January 30 , 2014