Our Court receives a number of motions for rehearing on the cases that we decide every year. Some of these motions have merit, many do not. In this particular case, the appellant's attorney has presented us with a well composed request that not only reveals the inaccuracies that are apparent in the majority opinion, (1) but also points out how future criminal defendants may now have to confront unindicted allegations. I do not know how criminal defense attorneys will prepare for trial without knowing the actual number of crimes that they may possibly face. (Remember, 404(b) is not in play anymore.)
An enterprising prosecutor can now simply place into evidence testimony of similar instances of misconduct by the defendant without seeking an indictment, following the rules of evidence, or worrying about the necessity of proof, to say nothing of meeting the prohibitions of Rule 404(b). The propensity for abuse is rife, particularly in the context of rebuttal evidence (2) and closing arguments.
The problems wrought by the majority opinion are articulated in the following passages from appellant's motion for rehearing:
Could Petitioner now seek to bar any and all charges between the date stated in the indictment and the running of the statute of limitations on the basis that they could have been included in the charged offense? If no, why not? If the 20 or 30 other deliveries in the 9 months proceeding [sic] the indictment were sufficiently plead under art. 21.03 and art. 21.04 Texas Code of Criminal Procedure, why could it not be argued that another 50 deliveries in the year preceding the 20-30 already included deliveries were likewise sufficiently plead under art. 21.03, art. 21.04, and are thus jeopardy barred? Further, is the Court saying any trial absolves a defendant of all prior instances of the commission of that particular offense?
. . . .
This is the most difficult part of the opinion to understand. How can a question of relevancy or admissibility of evidence be ignored in favor of forcing the State to elect which of twenty or thirty offenses are included in the charge? If the State makes such an election, do the 20 or 30 offenses now become extraneous offenses? If so, what does the defendant do about that very big skunk in the jury box? Ask for a belated and ineffective jury instruction? Ask for a mistrial because no instruction could possibly be of any effect? If the State does not elect, is the defense entitled to 30 separate guilt/innocence questions?
. . . .
Is the majority saying that if an accused takes the stand and denies
the charged offense but admits to a similar offense many months, or even years, prior, that the conviction will stand even if the prosecutor and the grand jury had no clue of the commission of that crime? If so, does not this ruling have a chilling effect on a defendant's substantial rights and all but preclude many defendants from testifying? Perhaps it is only the undersigned counsel's clientele, but few defendants charged with felony drug possession could honestly deny drug possession in their past, even though they could deny it for the incident in question and maybe be [sic] in the past days, weeks, months or year. Moreover, can a defense lawyer ever allow a client to testify in court as to his innocence of the charged offense if he will only have to admit complicity in another incident far removed from the charged offense? (footnote omitted)
Further, if the State is allowed to hide 20 to 30 controlled substance
deliveries behind an indictment that, on its face, only gives notice of one incident of delivery of a controlled substance, many other issues arise. First, this ruling all but encourages, if not sanctions, trial by ambush. Secondly, it will be fairly difficult to prepare a defense to charges the indictment fails to provide notice about. One can only picture the difficulty in finding alibi witnesses in between the time the State lets the hidden charges out of the bag and the time the trial court expects the defendant to put on a defense. Thirdly, it encourages the State in weak cases to make them stronger by only indicting the last incident and overwhelming the defense with specious prior alleged acts for the sake of pure propensity, and then hope that the weight of the heretofor inadmissable evidence wins the day.
. . . .
What else is jeopardy barred? What about a delivery ten months prior to the date stated in the indictment? Is that part of the charged offense? Was that plead with the certainty required to bar a subsequent prosecution? Petitioner asserts that it should not because the indictment in the case on review does not include more than one incident. However, if the "20 or 30 prior deliveries" within the 9 months of the indictment are included in the indictment sufficient to satisfy art. 21.03 and 21.04, Texas Code Criminal Procedure, why would another 50 from a year before the 20 or 30 not likewise be sufficiently plead?
Assume a person is charged in Comal County with felony DWI in two separate incidents. Would it be a shrewd move by the defense to try the second incident first so that the first incident becomes jeopardy barred under the reasoning of the majority opinion? Worse yet, assume a pedophile has sexually abused a severely handicapped child (who cannot testify due to his or her handicap) over the course of several years but only the last incident has a known witness. Does the trial of the last incident bar prosecution for all the prior incidents under the theory that they were all part of the charged offense? Petitioner hopes not, but under the majority opinion, if new evidence comes to light to prove a prior incident, the defendant could plead a jeopardy bar as it [is] as much of the charged offense as the 20 to 30 prior deliveries were a part of the charged offense in the case on review.
I couldn't have said it better myself. With this, I respectfully dissent to our failure to grant his motion for rehearing.
Filed: May 21, 2003
1. Judge Cochran's dissenting opinion ably reveals how the majority's reliance on 2.
1. Judge Cochran's dissenting opinion ably reveals how the majority's reliance onSledge and Rankin is incorrect.
2.This is what happened to the defendant here. The State was content to go to trial on one instance of delivery until it decided it was necessary to pull out 20-30 more allegations after defense cross-examination of the child. Remember, these allegations came in without dates, times, or scientific evidence. The only temperance was a reference to the statute of limitations, but remember that statute of limitations is a defense now and the defendant must show that the alleged crime is barred. See Proctor v. State, 967 S.W.2d 840 (Tex. Crim. App. 1998); Lemell v. State, 915 S.W.2d 486 (Tex. Crim. App. 1995).