Like radioactive waste, the fallout from Smith v. State (1) continues to wreak havoc on the landscape of the law. The majority does not mention Smith, but if that misbegotten opinion had not been handed down, the trial court's ruling would be unquestionably correct, and there would be no issue for us to decide.
In Smith, a bare majority of this Court held that Art. 38.36, which mandates admission of "relationship evidence" in a murder prosecution, is limited by Evidence Rules 403 and 404(b). The Court came to this conclusion despite Rule 101(c), which specifies that statutes trump rules of evidence. The Court's conclusion is particularly stunning in light of the sweeping, mandatory language of Art. 38.36, which seemingly speaks for itself:
In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.
This language is forceful and unambiguous:
But Smith eviscerated Art. 38.36 and rendered the statute meaningless. Now, the "relationship evidence" which Art. 38.36 requires to be admitted at trial is no different from any other evidence offered by the parties - it is admissible only if it passes through the gateway of the rules of evidence. Of course, if that were what the Legislature had intended, there would have been no need for Art. 38.36 at all. Post-Smith, the statute remains in the Code, but it is a shell of its former self, present in body but not in spirit.
I believed at the time, and I still believe today, that the Smith majority erred. Nevertheless, given the fact that the Court has spoken on this point and Smith is law, I reluctantly join the majority's opinion.
DATE DELIVERED: October 23, 2002
PUBLISH
5 S.W.3d 673 (Tex. Crim. App. 1999).