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Univ. of South Carolina School of Law

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Wednesday, April 28, 2010

Can You Give Me A Summary?: Court Of Appeals Of Texas Finds Summary Of Defendant's Convictions Inadmissible At Sentencing

Article 37.07, section 3(a)(1) of the Texas Criminal Code provides that

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of:

(A) a felony; or

(B) a misdemeanor punishable by confinement in jail.

Based upon this language, I don't quite understand the recent opinion of the Court of Appeals of Texas, Waco, in Melvin v. State, 2010 WL 1611072 (Tex.App.-Waco 2010).  

In MelvinCharles William Melvin pleaded guilty to delivery of marihuana, and a jury sentenced him to two years in state jail. At the sentencing hearing, the prosecution introduced into evidence four exhibits regarding Melvin's prior convictions. Then, over Melvin's objection, the trial court allowed the prosecution to introduce a chart of the prior convictions and an enlargement of the chart into evidence.

Subsequently, Melvin appealed, claiming, inter alia

that the chart was inadmissible under Rule of Evidence 1006, which provides in pertinent part:

The contents of voluminous writings, recordings, or photographs, otherwise admissible, which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.

The court agreed, citing to the opinion in Wheatfall v. State, 882 S.W.2d 829 (Tex.Crim.App. 1994), in which the Court of Criminal Appeals of Texas found that the admission of a five-page summary of the defendant's criminal history was erroneous because

[w]hile rule 1006 clearly contemplates the admission of summaries in certain instances, the rule in no way indicates that a prosecutor can summarize her case on legal paper and submit those documents to the trial court as "evidence." The adversarial system permits such summaries by one side during closing arguments, but they are arguments and not admitted as evidence to the jury. Admission of these documents under this theory was clearly error.

Nonetheless, the court in Melvin noted that the court in Wheatfall found this error to be harmless and found the same with regard to the error before it. But why did the court even find an error based upon violation of Texas Rule of Evidence 1006? As Article 37.07, section 3(a)(1) of the Texas Criminal Code makes clear, the rules of evidence do not apply at sentencing, with the court being allowed to admit any evidence it deems relevant to sentencing? Was the chart not relevant to sentencing?

Although it did not cite to its reasoning in great detail, the court did cite to the opinion of the Court of Appeals of Texas, Houston, in Markey v. State, 996 S.W.2d 226 (Tex.App.-Houston [14 Dist.] (1999). And in that opinion, in which a similar summary had also been admitted, the court concluded that

For evidence to be admissible it must be relevant...."Relevant evidence" means evidence having 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....Thus, charts, graphs, maps, diagrams, or other exhibits prepared for courtroom use which clarify or illustrate some fact in issue may, in the trial court's discretion, be admitted into evidence....However, a mere summary of other evidence already before the jury constitutes no proof of any fact in issue. It has no inherent probative value and it can rarely provide any significant assistance to the trier-of-fact. The summary presented in this case was, in essence, an argument, and the trial court  erred in admitting it into evidence.

l'm not sure that I agree that the charts in Melvin an Markey were completely irrelevant to sentencing, but I do know that the court in Melvin should have decided the admissibility of the summary on this ground and not based upon Texas Rule of Evidence 1006.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/04/1006-harmlessmelvin-v-statenot-reported-in-sw3d-2010-wl-1611072texapp-waco2010.html

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