NO. 1199-99







KELLER, J., delivered a dissenting opinion in which McCORMICK, P.J. and KEASLER, J. joined.


The punishment phase of a noncapital trial involves the consideration of two different types of facts. The first type involves those that impact the factfinder's normative response to the defendant. For example, in considering punishment, the factfinder might consider extraneous offenses, the defendant's ability to follow prison rules, and the defendant's family background. For want of a better term, I will call these "normative facts." The second type involves those that do not by themselves impact a factfinder's normative response to the defendant but are relevant to proving or disproving a normative fact. For example, numerous facts may be used to prove or disprove the existence of an extraneous offense. Examples of such facts are: an alibi, factors tending to show that an eyewitness identification is accurate or inaccurate, and evidence relating to a witness' credibility. I shall call these "subsidiary facts." Whether a normative fact is admissible turns upon policy, but the admissibility of a subsidiary fact is a question purely of logical relevancy. For the latter question, Texas Rule of Evidence 401 is the appropriate guide: a subsidiary fact is relevant only if it has any tendency to make more or less probable the existence of a normative fact at issue in the case. The normative fact is "the fact of consequence" to which rule 401 refers. (1)

The Court contends that my analysis would unnecessarily complicate relevancy rulings. But relevancy rulings always involve consideration of two different types of facts: (1) a fact of consequence, and (2) evidence that proves a fact of consequence. When a witness testifies, "I saw the defendant leaving the scene of the murder," he is testifying to a subsidiary fact to prove a fact of consequence (the defendant killed the victim). Regardless of whether the testimony is offered at guilt/innocence to prove the primary offense or at punishment to prove an extraneous bad act, in order to be admissible the subsidiary fact must be logically relevant to the question of whether the defendant killed the victim.

The distinction between normative and subsidiary facts is simply a recognition that relevant facts often occur in chains -- one fact proves another fact, which proves a third fact, etc. The last fact in the chain must be relevant as a matter of "policy" to a factfinder's punishment determination. The earlier or "subsidiary" facts are relevant, not as a matter of policy, but to the extent they prove the existence of that final fact.

The issuance of an indictment for a particular offense, and the later dismissal of such an indictment are subsidiary facts. An indictment, or its dismissal, does not itself show that a defendant is more or less worthy of punishment. (2) Those items impact a factfinder's normative response to a defendant only insofar as they tend to prove or disprove the commission of an extraneous offense.

The Court of Appeals' opinion correctly recognized that extraneous offenses are facts relevant to a punishment determination and correctly recognized that the dismissal of an indictment was a fact further up the chain of proof. The real question, then, is whether evidence of the indictment's dismissal has any tendency to make the commission of the extraneous offense more or less probable than without the evidence.

The Court of Appeals properly determined that evidence of the indictment's dismissal did not make commission of the extraneous offense more or less probable than without the evidence. It is axiomatic that an indictment or other instigation of criminal charges is no evidence of guilt. Texas Code of Criminal Procedure, Article 38.03; (3) Bell v. State, 724 S.W.2d 780, 781 (Tex. Crim. App. 1986). Although we have not had occasion to consider whether such a rule applies to extraneous offenses as well as the primary offense, application of the rule to this situation seems logical: being accused is no evidence of guilt. It follows that a dismissal of charges is no evidence of innocence. Because dismissal of the indictment has no tendency to make appellant's commission of the extraneous offense more or less probable, the evidence was not relevant. I would affirm the judgment of the Court of Appeals.

I respectfully dissent.


DATE DELIVERED: June 21, 2000


1. Rule 401 provides that evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."

2. For this reason, Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999), relied upon by the Court, is distinguishable because the fact at issue in that case - the amount of a defendant's sentence on a prior conviction - is a normative fact.

3. Article 38.03 provides: "All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial."