I join in the majority's disposition of Ground Two, but I respectfully dissent to the Court's holding on appellant's first ground for review. ⁽¹⁾ I conclude that a portion of the disputed evidence was properly admissible as an extraneous offense under Rule 404(b) to rebut defensive theories, but I disagree that evidence of the repeated commission of the same offense within the statute of limitations is automatically admissible despite Rule 404's general bar against character evidence.

Appellant was charged with delivery of cocaine to his daughter, K.R., on September 9, 1998. The fourteen-year-old K.R., who described herself as "rebellious," testified that she loved her father very much, in part because he let her do what she wanted. She testified that on September 9^th, she was visiting her best friend, Jennifer, at the beauty shop where Jennifer's mother worked, when appellant arrived and whispered in K.R.'s ear that "he had some, and I knew what that was." K.R. went with appellant to her paternal grandmother's house where her father lived. They went to appellant's room and he "broke up" "a 20" ⁽²⁾ of cocaine into lines with a razor blade. He then gave K.R. four dollar bills, one of which she used to "snort" the cocaine into her nose. She went back to the beauty salon about ten minutes later and then went home.

Unfortunately, K.R.'s mother wanted to borrow some money for gas, so K.R., without thinking, gave her the dollar bill that she had used to "snort" her father's cocaine. K.R.'s mother soon recognized the prior use to which the dollar bill had been put and confronted K.R., accusing K.R.'s friend, Jennifer, and Jennifer's mother of supplying the cocaine. K.R.'s mother wanted to press charges against Jennifer and her mother, and K.R. was driven down to the police station where she promptly told the police that her father, not Jennifer and her mother, was the source of the cocaine. The next day K.R.'s urine tested positive for cocaine residue.

On cross-examination, appellant's lawyer raised two different defensive theories. First, to undermine the State's claim that appellant had supplied K.R. with cocaine, defense counsel showed that K.R. had partaken of drugs with numerous other relatives. Second, to show that K.R. had a motive to falsely accuse her father, defense counsel suggested that K.R.'s mother resented appellant because he failed to pay child support.

The prosecutor then asked the trial court to allow him to offer K.R.'s testimony, that appellant had given her cocaine some "20 to 30" times before, and to present testimony from K.R.'s friend, Valerie, who had been present and seen appellant provide cocaine to K.R. on a previous occasion. The State originally offered what it called "extraneous offenses" as "rebuttal of the defense's theory." The trial court expressed some concern about admitting this evidence, but agreed to accept briefs from the State and defense before making a final ruling the following morning.

The next day, the trial judge announced that he would admit the State's proffered evidence because:

according to the case law that I have reviewed and have been provided to me- that those occasions are within the three-year statute of limitations; and therefore are offenses that are described in the indictment.

In the alternative, I do not believe I have to go to the balancing portion of 404(b) regarding extraneous offenses. However, if I do, I believe that it is a rebuttal of a defensive theory. It goes to identity, opportunity, possibly even motive. And therefore, if it were to be within the Court's discretion under 404(b), I would allow it there, also.

As to the testimony of Valerie [ ], I am- I will rule that because I have ruled that the testimony of [K.R.] is within the indictment and the charge in the - the charges against the defendant as described in the indictment, that I will allow her to testify as a witness to the crimes as described in the indictment. However, I am not going to allow any testimony as to what I think is clearly an extraneous offense of the alleged supplying of cocaine to her as a minor on an unindicted offense. ⁽³⁾

Appellant objected under Rules 403 and 404, and added "that this alleged additional incident is not part of the original indictment and should not be considered for this particular case."

Thereafter, K.R. testified that she began receiving cocaine from appellant in January 1998, and continued to do so some "20 to 30 times" through September 9, 1998. She described how these situations generally occurred, but she was unable to remember any of the dates or times. At one point the State, over objection, asked K.R. if her father "ever explain[ed] to you a different manner in which you might ingest it or take it in, other than snorting it?" The trial court overruled appellant's objection, and K.R. responded: "He- he shoots - he shoots up. And he told me it was a better rush doing it that way and that- it was better doing it that way, that you really - it was a better rush than doing it through your nose." And so forth.

Valerie then testified that one time she and K.R. had gone with appellant to a "shack" behind appellant's mother's house where appellant pulled out a plastic bag of cocaine, emptied it on a table, and made rails of cocaine, which K.R. then "snorted."

The State began its closing argument with the following:

If it pleases the Court, [defense counsel], and ladies and gentlemen. When we began this case we discussed pushing the envelope a little bit. And we discussed that it would be pushing the envelope a little bit in regards to the law, but also in regards to decency.

And what is decency in this case? Decency in this case is certainly not allowing your child, much less giving your child, on 20 to 30 occasions in a nine-month period of time, cocaine. ...

...

But in regard to the definitions on Page 1, the term "on or about," as we discussed a bit during voir dire - and everybody agreed in taking their oath that they would give us a true answer at that time. We understood y'all -- each and every one of you to not necessarily have a problem or a gut problem with the fact that a charge could include anything prior to the indictment, but within the statute of limitations.

And even though the State alleged one particular date, I think that there is sufficient evidence certainly to prove that that was, in fact, the date that Kelly ingested cocaine. Because the very next day, on the 10th, there was urine submitted that tested positive for cocaine. So we know she ingested it probably within 42 to 72 hours, from the evidence, prior to that time.

But on or about, in fact, means-it allows you to consider any and all of the testimony that you heard basically from January of '98 through September 9th of '98 to convict this defendant of delivery of cocaine not only to a minor, but a minor that is his own child.

Thus, the prosecutor explicitly asked the jury to consider the evidence of the other "20 to 30" times K.R. said appellant had given her cocaine to prove that he had given her cocaine on September 9^th. This looks a lot like forbidden propensity evidence, with the jury asked to find appellant guilty for giving K.R. cocaine on September 9^th because he was a "bad" father who had given her cocaine on 20 to 30 other occasions.

Based upon this evidence, the jury convicted appellant and, finding an enhancement paragraph true, sentenced him to sixty years imprisonment and a $10,000 fine.

On appeal, appellant asserted, inter alia, that the trial court erred in admitting K.R.'s testimony concerning the "20 to 30" times appellant had previously supplied her with cocaine, as well as Valerie's testimony concerning the previous occasion in which she had witnessed appellant give K.R. cocaine. He asserted that this testimony was evidence of extraneous offenses barred by Rule 404(b).

The court of appeals held that:

An extraneous offense is an act of misconduct that is not shown in the charging instrument. See Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App. 1996). The indictment in this cause alleged that appellant delivered cocaine to K.R. "on or about" September 9, 1998. When the indictment alleges that a crime occurred on or about a particular date, the State may present evidence of the offense being committed at any time prior to the filing of the indictment and within the limitations period. See Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997). The testimony of which Rodriguez complains was not evidence of extraneous offenses, but rather evidence of the repeated commission of the offense alleged in the indictment. Rodriguez was entitled to require the State to elect the occurrence on which it sought to rely for conviction, but in the absence of a request for an election there was no error in admitting the challenged testimony. See Worley v. State, 870 S.W.2d 620, 622-23 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd); see also Crawford v. State, 696 S.W.2d 903, 905-07 (Tex. Crim. App. 1985).

A majority of this Court concludes that "[t]he Court of Appeals applied well-settled law set out in our decisions in Rankin and Sledge and we are not inclined to revisit those decisions." ⁽⁴⁾ Both Rankin and Sledge were 5-4 opinions with multiple concurring or dissenting opinions in each; they are not exactly terra firma. Nonetheless, I too am not inclined to revisit those decisions. I do not think, however, that they stand for the proposition that the State may introduce any and all evidence of the defendant's repeated commission of the same offense within the statute of limitations to prove he committed the charged offense.

What do Rankin and Sledge stand for? In Rankin, the defendant was charged with possession of a rock of cocaine which a police officer found in his patrol car where the defendant had been sitting. ⁽⁵⁾ The defendant testified that he had indeed possessed a rock of crack cocaine earlier in the day, but that the rock found in the patrol car was not his. ⁽⁶⁾ This Court, quite understandably, held that the defendant's judicial admission that he had possessed a different rock of crack cocaine on the same day was not a defense to the charged offense, nor was it an extraneous offense. ⁽⁷⁾ The indictment alleged that the defendant possessed cocaine on a particular date and the defendant testified that he did indeed do so on that date. The pertinent legal issue is not whether the defendant possessed Rock A or Rock B; the gravamen of the offense is whether the defendant possessed any cocaine of the particular date. Possession of Rock B is not a defense to the possession of Rock A.

In Sledge, the defendant was charged with aggravated sexual assault and indecency with a child on a particular date. ⁽⁸⁾ At a pre-trial hearing, the State told the court that the defendant's conduct had been continuous over several years. The defendant asked the State to elect the specific instances on which it would proceed. ⁽⁹⁾ The State accommodated and graphically described the two specific instances upon which it would rely, even though these particular instances did not occur on the precise date set out in the indictment. ⁽¹⁰⁾ The trial judge, noting that the defendant had not had sufficient notice of those particular incidents, granted the defense a continuance "to prepare a defense based on the designated offenses." ⁽¹¹⁾ At trial, the prosecution presented evidence of only those two instances which, as it had acknowledged pre-trial, did not occur on the date set out in the indictment. They had, however, occurred within the statute of limitations, had been graphically specified for the defendant before trial, and they were events for which the defendant was given additional time to prepare. The defendant complained on appeal that the evidence was legally insufficient because the State failed to prove that the specific offenses occurred on the date alleged in the indictment. ⁽¹²⁾ These incidents were, according to the defendant, unindicted and extraneous offenses because they occurred a year or more before the charged date. ⁽¹³⁾ No, no, said this Court; the State alleged two specific acts in the indictment, and the State proved two specific acts which conformed to those described in the indictment, and there was "no reason to believe that the offenses presented to the grand jury were different from the offenses proven at trial." ⁽¹⁴⁾

I cannot understand how the result and reasoning in Rankin and Sledge inexorably lead to today's holding that any and all evidence of the repeated commission of the charged offense is admissible to prove the charged offense. Does Rankin really stand for the proposition that the State could have offered evidence of any rocks of cocaine that the defendant had ever possessed within the statute of limitations to prove that he had possessed the rock of cocaine left in the patrol car on March 8, 1992? Does Sledge really stand for the proposition that the State could have offered any and all evidence of the defendant's prior molestations of the child to prove that he molested her on the charged occasion? Certainly the State did not do so in those cases. Nor did this Court ever suggest in those opinions that its reasoning or result should lead to the admission of all offenses that occur within the statute of limitations, as long as they are the repeated commission of the charged offense.

Invoking the spirit of our predecessors, "Color me amazed." ⁽¹⁵⁾ Neither Rankin nor Sledge deal with the relevancy or admissibility of evidence. Those cases concerned the sufficiency of properly-admitted evidence to prove the specific allegations in the indictment.

I do not know whether the State or the defense will benefit the most from the Court's holding in this case, ⁽¹⁶⁾ but both the law and policy concerning the admissibility of extraneous offenses have suffered a grievous blow.

The principle that a man may not be convicted of this crime because he has committed the same or similar crimes in the past has been a bedrock principle of the Anglo-American system of justice for centuries. ⁽¹⁷⁾ Of course, it is equally well established that this same evidence of prior crimes or bad acts may be admissible if relevant for some purpose other than character conformity or propensity. ⁽¹⁸⁾ The key to admissibility is the proponent's explanation of precisely how the proffered evidence is probative of a fact of consequence. ⁽¹⁹⁾ In this case, the State and the trial judge articulated two bases for admitting the evidence of appellant's prior acts of supplying K.R. with cocaine: 1) appellant's acts occurred within the statute of limitations, and therefore they are ipso facto admissible because they are the repeated commission of the charged offense; and 2) these acts were admissible to rebut a defensive theory. I am unaware of any doctrine that makes evidence of the repeated commission of the charged offense admissible under Rule 404 simply because it occurred within the statute of limitations.

In this case, however, the defense did raise issues concerning both the identity of the person who supplied K.R. with cocaine and whether K.R.'s mother (and hence K.R.) had a motive to falsely accuse appellant of such conduct. These are both legitimate purposes to admit evidence of prior bad acts under Rule 404(b). ⁽²⁰⁾

Testimony by an independent witness, Valerie, concerning a single prior occasion, in which appellant supplied cocaine to his daughter in precisely the same way that he purportedly gave her cocaine on the charged occasion, is some proof of appellant's identity as the person who supplied her with cocaine on September 9^th, and that same evidence tends to rebut appellant's defensive theory that K.R.'s testimony was fabricated because her mother was angry at appellant. Therefore, I conclude that the trial court did not abuse its discretion in admitting evidence of this one extraneous offense to rebut the defensive theories. I can find no such legitimate purpose in admitting K.R.'s testimony concerning the other "20 to 30" times that appellant gave her cocaine.

Therefore, I respectfully dissent and would reverse and remand this case to the court of appeals to conduct a harm analysis for the improper admission of K.R.'s testimony concerning the "20 to 30" times appellant had previously given her cocaine.

Cochran, J.

Filed: March 26, 2003

Publish

1. Appellant's first ground for review reads:

Where the indictment on its face alleges only one (1) occurrence of delivery of a controlled substance, does Sledge v. State, 953 S.W.2d 253 (1997), allow the introduction of 20 to 30 prior controlled substance deliveries to the same person under the theory that the deliveries are actually part of the charged offense, and thereby evade the provisions of Rules 404(b) and 403, Texas Rules of Evidence?

2. K.R. testified that "a 20" is a packet of cocaine worth $20.

3. According to the State's proffer, Valerie would have testified that appellant supplied her, Valerie, with cocaine at the same time he supplied cocaine to K.R.

4. Ante, slip op. at 6.

5. 953 S.W.2d at 741.

6. Id.

7. Id. ("Appellant's confession that he possessed a rock of crack cocaine earlier that morning is an act that is clearly 'shown in the charging papers'").

8. 953 S.W.2d at 254.

9. Id.

10. Id. The State explained that it had chosen these two instances, which admittedly occurred much earlier than the date in the indictment, because those incidents were most clear in the child's mind. Id. The State further explained that it had alleged the particular date specified in the indictment simply because that was the last date on which the child had been in contact with the defendant. Id.

11. Id. at 255.

12. Id. at 255.

13. Id.

14. Id. at 256.

15. See Aldrighetti v. State, 507 S.W.2d 770, 775 (Tex. Crim. App. 1974) (Onion, P.J., dissenting) ("Color me amazed"); Antunez v. State, 647 S.W.2d 649, 651 (Tex. Crim. App. 1983) (Onion, P.J., dissenting) ("Color me amazed again, this time with a shade of deep concern"); King v. State, 687 S.W.2d 762, 767 (Tex. Crim. App. 1985) (Teague, J., dissenting) ("'Color me not only amazed, but do it in chartreuse'").

16. The bad news for defendants is that the State may now offer any and all evidence of the prior (or subsequent) repeated commission of the charged offense to show that the defendant committed the charged offense.

The bad news for the State is that the defendant will "take a bath" on all prior (or subsequent) offenses that are introduced at trial unless the defendant asks the State to elect which specific instance it wishes to proceed on. Henceforth, double jeopardy will attach to any and all offenses that are introduced at trial which meet the requirements of the indictment. See ante, slip op. at 6 ("[t]he benefit a defendant receives in cases like this is that, absent an election, he cannot later be prosecuted for the separate acts of misconduct upon which the jury could have convicted the defendant"). That, too, is a novel development. Perhaps Mr. Rankin had it right: if it looks like the State has solid proof of the charged offense, the defendant should take the witness stand, confess to every similar offense he has committed within the statute of limitations, and respectfully decline to request any election.

This is truly an extraordinary result. Suppose that a defendant is charged with robbing the same bank teller on Monday, Tuesday, Wednesday and Friday. If the State offers evidence of the Tuesday bank robbery to prove that the defendant was the robber on Monday, then double jeopardy will attach to the Tuesday robbery because it fits within the statute of limitations. And, if the Tuesday robbery comes in through the State, the defendant might as well offer evidence of the Wednesday and Friday bank robberies to prevent the State from prosecuting him on those separate offenses.

17. See generally, McCormick's Handbook of the Law of Evidence § 185, at 435-38 (Edward W. Cleary, ed., 2d ed. 1972); 1 John H. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, §§ 55-68a, at 449-91 (3d ed. 1940). As one appellate judge has noted: "Our law makes some allowance for the possibility of reform, and does not yet say, 'once a moonshiner, always a moonshiner.'" Baker v. State, 227 F.2d 376, 378-79 (5^th Cir. 1955) (Rives, J., concurring). The rationale for exclusion was best expressed by Justice Jackson:

The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defendant against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

Michelson v. United States, 335 U.S. 469, 475-76 (1948) (footnotes omitted); see also Crank v. State, 761 S.W.2d 328, 341 (Tex. Crim. App. 1988); Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App. 1972). In Crank, this Court stated:

The accused is entitled to be tried on the accusation made in the state's pleading and he should not be tried for some collateral crime nor for being a criminal generally. Evidence showing the commission of an extraneous offense is usually excluded not because it is without legal relevance, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. Before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown.

Id. For the first time ever, this Court holds that any act which is covered by the wording of the indictment is not a collateral crime and that therefore the State need not show any "relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged." Thus, courts need not now concern themselves with the relevance, inherent prejudice or confusion of issues that such evidence entails, or whether the defendant was notified that any other acts fitting the specifications of the indictment would be introduced against him. And, since these acts are no longer categorized as extraneous offenses under Rule 404(b), the State need not notify the defendant that it intends to offer them at trial.

18. See generally Tex. R. Evid. 404(b). In Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996), this Court stated: "if evidence 1) is introduced for a purpose other than character conformity, 2) has relevance to a 'fact of consequence' in the case and 3) remains free of any other constitutional or statutory prohibitions, it is admissible."

19. Rankin, 974 S.W.2d at 709.

20. Tex. R. Evid. 404(b) (evidence of other crimes, wrongs or acts may be admissible as proof of motive or identity); see, e.g., Castillo v. State, 739 S.W.2d 280, 290 (Tex. Crim. App. 1987) (evidence of a second aggravated robbery committed by the defendant was admissible to show defendant's identity as robber-murderer on charged occasion); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996) (identity may become a disputed issue by cross-examining State's witnesses); Wheeler v. State, 67 S.W.3d 879, 886-87 & n.18 (Tex. Crim. App. 2002) (noting that "[e]vidence of extraneous offenses committed by the accused has been held admissible . . . to refute a defensive theory raised by the accused") (quoting Albrecht v. State, 486 S.W.2d 97, 101 (Tex. Crim. App. 1972); see also Crank, 761 S.W.2d at 341 ("[p]robably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal of a defensive theory").