In this capital murder case the prosecution did not seek the death penalty against appellant, who was convicted and sentenced to life for killing the seventeen-month-old daughter of his live-in girlfriend. The issue in this case is whether during the guilt/innocence phase of appellant's trial, the trial court abused its discretion to admit evidence of previous injuries the victim suffered while she was in appellant's care. We will refer to this evidence as "relationship evidence."

The prosecution presented evidence that the victim received the injuries that caused her death while she was alone with, and in the care of, the appellant in their home. Appellant and the victim lived with appellant's mother and the victim's mother. The victim's mother left the victim alone with appellant at home. When the victim's mother returned, appellant told her that the victim was taking a nap; appellant left soon thereafter. About an hour later, when the victim's mother attempted to wake the victim up from her nap, she noticed that the victim was cold and not breathing. The prosecution presented medical evidence that the victim was dead at this time.

Appellant suggested through vigorous cross-examination of prosecution witnesses that the victim's death was not the result of an intentional act by appellant. Through his cross-examination of one prosecution witness, appellant presented the defensive theory that the victim could have died from Sudden Infant Death Syndrome (SIDS) and not from an intentional act by appellant. Through his cross-examination of his parole officer who saw appellant and the victim on the day of the victim's death, appellant presented the defensive theory that he was treating the victim "kindly" with the obvious inference being that appellant would not have intentionally harmed the victim. And through his cross-examination of another prosecution witness, appellant presented the defensive theory that bruises on the victim's body could have been caused by incorrectly performed CPR efforts to save her life rather than from an intentional act by appellant. For example,

Q. Now, I'll give you another situation. An E.M.T. comes up to the location where the adults are trying to do CPR and they are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, "If she's not already dead, you're going to kill her; stop that," and proceeded to show them the proper way.

Would you say that some of that could have led to injuries to the child, adults putting their full weight down and trying to revive that child?

A. You should see it more anteriorly than posteriorly.

Q. Pardon?

A. You should see it more the front to the back, the injuries.

Q. If you've got your palms on the front and you've got little rocks and sticks on the back, you'll see it on the back, you'll see it on the back, won't you?

A. Yes. You'd see bruises on the back.

Q. But you wouldn't necessarily see them on the front if they're pushing with their palms, would you?

A. No.

Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that sort of damage without any noticeable trauma from looking at the skin, couldn't they?

A. If they're pushing down lower, yes.

Q. Pass the witness.

The victim's mother and other witnesses later testified over appellant's objection about the relationship evidence. They testified that on three separate occasions the victim received injuries while she was in appellant's care. For example, the victim's mother testified that on one occasion while in appellant's care, the victim received a black eye. On another occasion while in appellant's care, the victim's "leg was so badly injured she couldn't stand up." And, on another occasion while in appellant's care, the victim "appeared with bruises in her ear and on the side of her face."

Appellant testified that he loved the victim and would not have harmed her. Appellant presented seemingly innocent explanations for how the victim suffered the injuries described in the relationship evidence. Appellant also presented medical expert testimony that the victim's cause of death was "undeterminable" and that the victim's death-causing injuries could have occurred at a time when appellant did not have access to her.

During closing jury arguments, appellant argued that if "anything, he is guilty of the offense of loving a child." He also pointed to the testimony of the two medical examiners who came to "two diametrically-opposed conclusions" about the victim's death: one that "this is a death of undeterminant cause" and the other that it is "a homicide." Appellant put forth the SIDS scenario, and he also emphasized that the bruises on the victim's body could have been caused by incorrectly performed CPR efforts to save the victim's life. Finally, appellant argued:

[Appellant] loved the [victim]. The [victim's] own mother said she never saw him yell at the [victim], discipline the [victim]. And everybody else, save for [two witnesses], said they had a loving relationship, got along well; and told how much he loved [the victim] and spent time caring for her. And I don't think there is any doubt about the relationship they had up to [the day of the victim's death]; and there is nothing, nothing that would explain [appellant] doing this terrible thing.

Our reading of the record indicates that the trial court admitted the relationship evidence under Article 38.36(a), V.A.C.C.P., and also overruled appellant's objections that this evidence was inadmissible under Rules 404(b) and 403 of the Texas Rules of Evidence. ⁽¹⁾ The Court of Appeals decided that this evidence was "probative of intent and lack of accident" under Rule 404(b) and that it was not "unfairly prejudicial" under Rule 403 because "the prejudicial effect lies in its probative value rather than an unrelated matter." Robbins v. State, 27 S.W.3d 245, 250-51 (Tex.App.-Beaumont 2000, pet. granted). We exercised our discretionary authority to review the Rule 404(b) and Rule 403 decisions of the Court of Appeals.

RULE 404(b)

Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he acted in conformity therewith. See Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex.Cr.App. 1990) (op. on reh'g); accord Rankin v. State, 974 S.W.2d 707, 709-10 (Tex.Cr.App. 1996) (orig. op.), and at 717-20 (op. on reh'g). This evidence, however, may be admissible when it is relevant to a noncharacter conformity issue of consequence in the case such as establishing intent or rebutting a defensive theory. See id.; Montgomery, 810 S.W.2d at 387-88.

Because trial courts are in the best position to decide these admissibility questions, an appellate court must review a trial court's admissibility decision under an abuse of discretion standard. See Montgomery, 810 S.W.2d at 391 (trial court "has the best vantage from which to decide" admissibility questions). This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. See id. An appellate court would misapply the appellate abuse of discretion standard of review to reverse a trial court's admissibility decision solely because the appellate court disagreed with it. See id.

Appellant claims the Court of Appeals' holding that the relationship evidence "was admissible to show intent and absence of accident is clearly wrong as neither intent nor accident was a material issue given Appellant's denial that he committed this offense." Appellant argues that, because he merely "denied committing the offense," his "intent" or "absence of accident" was "wholly irrelevant." The State urges this Court to decide that appellant's simple plea of not guilty made appellant's intent a material issue in the case and that the relationship evidence was probative of that intent as well as other relevant issues of consequence in the case such as absence of accident.

The State relies primarily on the United States Supreme Court's decision in Estelle v. McGuire which held that relationship evidence was "clearly probative" of the defendant's intent in the defendant's murder prosecution for killing his infant daughter, even though at trial the defendant simply pled not guilty and made no claim that the child died accidentally. See Estelle v. McGuire, 112 S.Ct. 475, 480-81 (1991). The Supreme Court rejected a claim like the one appellant makes here on the rationale that "a simple plea of not guilty" still "puts the prosecution to its proof as to all elements of the crime charged" and that this burden is not relieved by a defendant's tactical decision not to contest an essential element of the offense. See Estelle, 112 S.Ct. at 481.

The State candidly admits that adopting its position would probably require this Court to overrule or disavow prior case law and we agree. A fair reading of this case law indicates that in Texas a simple plea of not guilty usually does not make issues such as intent a relevant issue of consequence for purposes of determining the admissibility of relationship evidence under Rule 404(b). See, e.g., Vernon v. State, 841 S.W.2d 407, 411 (Tex.Cr.App. 1992) (in defendant's prosecution for aggravated sexual assault of his minor stepdaughter, relationship evidence of prior sexual assaults by the defendant against the same victim not relevant to a noncharacter conformity material issue under Rule 404(b) primarily because the not-guilty pleading defendant did not present any witnesses of his own or do anything to impeach the complainant); Fielder v. State, 756 S.W.2d 309, 318 (Tex.Cr.App. 1988) (theory of the prosecution and the defensive theory or theories determine the material issues in a homicide case); Turner v. State, 754 S.W.2d 668, 673-74 (Tex.Cr.App. 1988) (considering it relevant that not-guilty pleading defendant did not testify and personally deny committing the offense in deciding that it was error to admit extraneous transaction between defendant and a third party); Clark v. State, 726 S.W.2d 120, 122-23 (Tex.Cr.App. 1986) (extraneous offense evidence involving defendant and third party erroneously admitted on issue of defendant's intent in part because the not-guilty pleading defendant did not vigorously enough undermine the prosecution's "case on the issue of intent").

Current law, therefore, creates a "catch 22." It says that a simple plea of not guilty does not make issues such as intent relevant issues of consequence for relationship evidence Rule 404(b) purposes while at the same time it also says that these are material issues that the prosecution must prove beyond a reasonable doubt. Some might agree that this current case law is "wrong."

But this standing alone is not sufficient for us to disregard principles of stare decisis. See generally Awadelkariem v. State, 974 S.W.2d 721, 725-26 (Tex.Cr.App. 1998). One consideration here is that this Court's 8-0 (with one judge concurring in the result) decision in Vernon disavowed a prior "small plurality" decision in Boutwell v. State which would have supported the State's position in this case. See Vernon, 841 S.W.2d at 410-11, disavowing Boutwell v. State, 719 S.W.2d 164, 173-79 (Tex.Cr.App. 1985) (op. on reh'g) (plurality op.) (discussion of why relationship evidence of prior unlawful sexual acts between defendant and the victim were admissible in prosecution of defendant for committing unlawful sex acts against the same victim).

Other than demonstrating that our current case law might be "wrong," the State advances no reasons for disregarding principles of stare decisis. With these considerations in mind, this case presents a scenario where it is probably "better to be consistent than right." See Awadelkariem, 974 S.W.2d at 725. Any changes in current law should come via amendment to the Texas Rules of Evidence or by legislative enactment.

Under current law, therefore, the issue is whether appellant went beyond a simple plea of not guilty and put his intent at issue through vigorous cross-examination or other means (such as the presentation of various defensive theories), thereby making it subject to reasonable debate whether the relationship evidence was relevant to this noncharacter conformity purpose of establishing appellant's intent. Appellant argues that he did not put his intent at issue. While Vernon suggests that a defendant's simple plea of not guilty does not put intent at issue for Rule 404(b) purposes, it does not address the situation where a defendant puts intent at issue through vigorous cross-examination and the presentation of defensive theories.

Of crucial import here is the fact that this is not a case where appellant simply pled not guilty. He went beyond simply pleading not guilty through vigorous cross-examination of the prosecution witnesses suggesting that the victim's death was caused by some means other than an intentional act by appellant. As a matter of logic and common sense it is at least debatable whether this is sufficient to put appellant's intent at issue. See Montgomery, 810 S.W.2d at 387, 394. Keeping in mind that the deferential appellate standard of review does not permit the appellate court to conduct a de novo review with a view to making a wholly independent judgment of the trial court's admissibility decision, we cannot say that the trial court would have been outside the zone of reasonable disagreement to have decided that the relationship evidence was relevant to appellant's intent. Cf. Montgomery, 810 S.W.2d at 392.

Our decision in Montgomery also does not support appellant's position. Montgomery decided that in an indecency with a child prosecution it was "at least subject to reasonable debate whether the testimony that [the defendant] frequently walked around in front of his daughters naked and with an erection, in combination with other evidence of inappropriate behavior toward them, did have a tendency to show a generalized 'intent to arouse and gratify' his own sexual desire vis-a-vis his children. Montgomery, 810 S.W.2d at 394 (emphasis supplied). Similarly, it is subject to reasonable debate in this case whether the relationship evidence tended to show appellant's intent to hurt the victim.

Notwithstanding the foregoing, the trial court would not have abused its discretion to have decided that the relationship evidence was relevant for the noncharacter conformity purpose of rebutting appellant's various defensive theories including the defensive theory that the victim's death resulted from an accident due to improperly performed CPR efforts to save her life. See Montgomery, 810 S.W.2d at 387-88 (extraneous offense evidence relevant to noncharacter conformity fact of consequence in the case when it is offered to rebut a defensive theory); see also Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App. 1990) (appellate court should uphold trial court's decision if it is correct on any theory of law applicable to the case and this principle holds true "even when the trial [court] gives the wrong reason for his decision" and "is especially true with regard to admission of evidence"). It too is subject to reasonable debate whether the relationship evidence made these defensive theories less probable. See Montgomery, 810 S.W.2d at 387 (extraneous offense evidence has noncharacter conformity relevance where it logically serves to make less probable defensive evidence that undermines an elemental fact).

RULE 403

An appellate court also reviews a trial court's Rule 403 decision under the above-mentioned abuse of discretion standard. See Montgomery, 810 S.W.2d at 391-93. The Rule 403 appellate issue is usually whether the trial court abused its discretion to decide that the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice." See Montgomery, 810 S.W.2d at 391-93.

In making this determination, it is important to remember that each word in Rule 403 is significant. For example, it appears that appellant misquoted Rule 403 in the Court of Appeals by arguing "the probative value of the [relationship] evidence was outweighed by its prejudicial effect." See Robbins, 27 S.W.3d at 250. This is a misstatement of Rule 403 which, in relevant part, actually reads "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." (Emphasis Supplied).

The Rule 403 analysis advances the "overriding policy" of excluding what most agree is relevant and probative character evidence when it is offered solely for the purpose of showing that a defendant acted in conformity therewith. See generally Michelson v. United States, 69 S.Ct. 213, 218-19 (1948).

Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. (Footnote Omitted). Not that the law invests the defendant with a presumption of good character, (citation omitted), but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. 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. (Footnote Omitted). The inquiry is not rejected because character is irrelevant; (footnote omitted) 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 defend 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. (Footnote Omitted).

Id.

This "overriding policy" of preventing "undue prejudice" is meant primarily to prevent a jury, with a reasonable doubt of a defendant's guilt of the charged offense, from nevertheless convicting the defendant of the charged offense based solely on the defendant's "wicked or criminal disposition" or solely because the defendant is a bad person generally. See Crank v. State, 761 S.W.2d 328, 341 (Tex.Cr.App. 1988); Michelson, 69 S.Ct. at 219, and at 225 (Rutledge, J., dissenting) (rule designed to "prevent conviction for one offense because perhaps others, or misconduct not amounting to crime at all, have been perpetrated or are reputed generally to lie at the defendant's door"); 1 Wigmore, Evidence (3d ed., 1940), Section 57 ("tendency of human nature to punish, not because our [defendant] is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury"); 2 Ray and Young, Texas Law of Evidence (2d ed., 1956), Section 1492 (purpose of rule is to protect defendant from the "undue prejudice" that "when evidence is received that accused is of a wicked or criminal disposition, juries are likely to find him guilty of the offense charged regardless of whether it is proved by the evidence"). It also has been stated that this "overriding policy" is to prevent digression "from evidence as to the offense to hear a contest as to the standing of the accused" and to prevent "converting an individual litigation into a community contest and a trial into a spectacle." See Michelson, 69 S.Ct. at 220.

With these considerations in mind, we cannot say that the Court of Appeals wrongly decided that the trial court was within its discretion to decide that the probative value of the relationship evidence was not substantially outweighed by the danger of unfair prejudice especially in light of the defensive theories that appellant presented. Though "prejudicial," the evidence was not "unfairly prejudicial." And, any "unfair prejudice" did not "substantially" outweigh the probative value of the evidence even if it could be said that it "outweighed" its probative value. On this record, there was no reason to believe that the jury had a reasonable doubt for appellant's guilt of the charged offense but convicted appellant based on the relationship evidence.

The judgment of the Court of Appeals is affirmed.

Hervey, J.

Delivered: October 23, 2002

Publish

1. The prosecution apparently claimed that the Texas Rules of Evidence could not apply to exclude this evidence because its admissibility was governed exclusively by Article 38.36(a). This claim was rejected in Smith v. State, 5 S.W.3d 673, 679 (Tex.Cr.App. 1999) (evidence that is admissible under Article 38.36(a) may still be excluded under the Texas Rules of Evidence).