Thursday, November 6, 2008
Conditional Admission: Texas Case Reveals Distinctions Between Texas And Federal Rule Of Evidence 104(b)
The recent opinion of the Court of Criminal Appeals of Texas in Fischer v. State, 2008 WL 4724086 (Tex.Crim.App. 2008), maintained one distinction between Texas Rule of Evidence 104(b) and Federal Rule of Evidence 104(b) and eliminated another one.
"[t]he evidence in this case show[ed] that on May 26, 2003, the victim was killed in her home by a single gunshot wound to the back of her head at close range. Just before [Fischer]'s trial began, the State proffered evidence that it intended to present during its case-in-chief. The State's proffer essentially was that on June 5, 2003, employees of a Wal-Mart store where [Fischer] worked as an assistant manager discovered that the probable murder weapon (a single shot .22 caliber Cricket rifle manufactured mainly for children) went missing from the Wal-Mart store's inventory some time after May 20th or 21st of 2003, and that [Fischer] was one of as many as sixteen Wal-Mart employees with a key to the secured gun locker where this rifle was kept. [Fischer] objected to the admission of this evidence because, among other things, the State could not prove to the jury beyond a reasonable doubt that [he] 'took' the rifle. The trial court ruled that the State's proffer established that 'the extraneous [theft-of-the-rifle] offense [was] admissible beyond a reasonable doubt.'"
The Court of Appeals, however, reversed, finding that "the proffered evidence was legally insufficient to support a finding beyond a reasonable doubt that appellant committed the theft-of-the-rifle extraneous offense." This led to the state's appeal to the Texas Court of Criminal Appeals, which found that its decision was premised upon its prior opinion in Harrell v. State, 994 S.W.2d 154 (Tex.Cr.App. 1994).
The court noted that in its prior opinion in Harrell, it deviated from federal law in at least one key regard, which should be evident to those with a working knowledge of Federal Rule of Evidence 104(b). Both Federal Rule of Evidence 104(b) and Texas Rule of Evidence 104(b) deal with conditional relevance and indicate that "[w]hen the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." Now, according to the United States Supreme Court, when the relevance of evidence depends on the fulfillment of a conditional fact, such as Fischer's alleged theft of the rifle, that evidence shall be admitted if the judge finds that a reasonable jury could find that the conditional fact occurred by a preponderance of the evidence. See Huddleston v. United States, 495 U.S. 681 (1988). As is clear from the excerpted portions of Fischer, however, the Court of Criminal Appeals of Texas in Harrell applied a more rigorous test which only allows for admission of such evidence if the judge finds that a reasonable jury could find that the conditional fact occurred beyond a reasonable doubt.
The Court of Criminal Appeals of Texas affirmed this deviation from federal law in Fischer, so why did it nonetheless reverse the Court of Appeals' decision? Well, in Harrell, the court stated that "in deciding whether to admit extraneous offense evidence in the guilt/innocence phase of trial, the trial court must, under rule 104(b), make an initial determination at the proffer of the evidence, that a jury could reasonably find beyond a reasonable doubt that the defendant committed the extraneous offense." And relying upon this language, the Court of Appeals focused solely on the State's proffer, ignored any evidence presented later at trial concerning the theft of the rifle, and found that the State had not satisfied the requirements of Texas Rule of Evidence 104(b).
The Court of Criminal Appeals of Texas, however, repudiated this portion of Harrell, finding that "[t]he portion of the holding in Harrell as to the timing of when the trial court must make this determination, however, is inconsistent with the 'subject to' language of rule 104(b)." I agree with this ruling because both Federal Rule of Evidence 104(b) and Texas Rule of Evidence 104(b) clearly indicate that when there is evidence whose relevance depends upon a conditional fact, "the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." (emphasis added). The "subject to" language clearly indicates that, under the rule, litigants can make a conditional relevance proffer and the judge can except it subject to the litigant later presenting "connecting up" evidence. And because the prosecution later presented such "connecting up" evidence in Fischer, the Court of Criminal Appeals of Texas properly reversed the Court of Appeals' decision.