Opinion
PD-1089-20
08-24-2022
CHARLES LYNCH, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
ON STATE'S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS GALVESTON COUNTY
McClure, J., delivered the opinion of the Court in which Keller, P.J., and Hervey, Richardson, Newell, Keel, and Walker, JJ., joined. Yeary, J., filed a concurring opinion. Slaughter, J., did not participate.
OPINION
McClure, J.
When La Marque police found crack cocaine in Appellant Charles Lynch's bedroom, they arrested Appellant even though his girlfriend claimed the drugs belonged to her. The State attempted to rebut the girlfriend's testimony by introducing pen packets showing Appellant's prior convictions for possession of cocaine with intent to deliver. Lynch objected to the introduction of his prior convictions, arguing that this evidence served no purpose other than impugning his character and prejudicing the jury against him. The State argued that the girlfriend's testimony had rebutted all their evidence of knowledge and intent because she claimed that the cocaine, the knife, and the baggies all belonged to her. The trial court allowed the State to introduce pen packs for the two convictions. The trial court then instructed the jury that it could use the evidence as rebuttal evidence to Appellant's defensive theory and could consider it to show his intent, motive, opportunity, preparation, plan, absence of mistake or accident, or knowledge, if any. The court of appeals reversed, holding it was error to admit evidence of Appellant's prior convictions because the pen packs did not include any details showing that those offenses were similar to the charged offense, thereby allowing the jury to convict based on bad character. In this opinion, we must decide whether the trial judge's evidentiary ruling was within the "zone of reasonable disagreement." We conclude that the trial court did not abuse its discretion in admitting evidence of Appellant's prior convictions for drug possession.
BACKGROUND
After conducting a narcotics investigation of Appellant for several months, the La Marque Police Department obtained a search-and-arrest warrant for Appellant's home. On September 23, 2015, police officers knocked and announced their presence, but no one answered the door. The officers forced entry and found four people inside-Appellant, Phillip Darden, Tina Moreno, and Norma Myers, Moreno's mother. The occupants disagreed about how many of them lived there, but all agreed that Appellant and one of the women, Tina Moreno, lived there.
Police searched the home and found the following items on the bedroom dresser: an off-white, rock-like material, suspected to be a controlled substance, wrapped in plastic and resting on a cell phone; a pocketknife with off-white residue on it; and a pouch containing money and more of the rock-like substance. In the bedroom trash can, police found plastic baggies with the corners torn off. The closet contained clothing, mostly men's with some women's clothing as well. The police also found pharmaceutical bottles labeled with the names of Appellant and Tina Moreno.
Police interviewed Moreno at the scene. In her interview, she told Detective Sergeant Forest Gandy that she was selling the drugs. Gandy then questioned Moreno about drug terminology. She knew some of the terms and prices but did not know that the base unit of measurement was a gram instead of an ounce. Detective Gandy informed Moreno of the ramifications for possessing a large quantity of cocaine, and then she changed her story. She said that the drugs belonged to Appellant and that she had seen him sell drugs out of the house before. She acknowledged that the cell phone on the dresser where the drugs were found belonged to Appellant. Detective Gandy did not arrest Moreno because he did not believe that she possessed the drugs. Instead, police arrested Appellant.
During cross-examination of the detective, Appellant played a video of Moreno's interview for the jury.
The next day, Tina Moreno submitted a sworn, handwritten affidavit stating: "I Tina Moreno is [sic] making this statement to let you [sic] that Charles Lynch had no knowledge of the controlled substance that was found in Mr. Lynch's house. All the controled [sic] substance that was found in Mr. Lynch's house belonged to me Tina Moreno."
A Galveston County grand jury indicted Appellant on the charge of knowingly possessing, with intent to deliver, cocaine measuring between 4 and 200 grams pursuant to Texas Health and Safety Code sections 481.102 and 481.112. Appellant pleaded not guilty, and his trial began on July 17, 2017.
The indictment alleged that on or about September 23, 2015, in Galveston County, Charles Lynch "did then and there knowingly possess, with intent to deliver, a controlled substance, namely, cocaine, in an amount of four grams or more but less than 200 grams."
About one month before trial, on June 19, 2017, Moreno submitted a second affidavit, which was typewritten and much more detailed. In the affidavit, Moreno confessed:
I . . . have been using crack cocaine for a number of years now. On this particular day of Sept. 23rd 2015. I purchased some cocaine and brought it to the house unbeknownst to Charles Lynch. Charles Lynch is aware that I have had issues previously with the use of crack cocaine but I lead [sic] him to believe that I had left that in the past . . . . [W]hile he was in the living room I had come to the room to change my clothes and while doing so I placed the my [sic] belonging from my pockets onto the dresser and this included the crack cocaine. I honestly meant to pick it back up and put it back in my pockets but it must of slipped my mind. . . . Charles would have no way of knowing I left that crack cocaine in the room because I did not tell him I purchased it, as well he never went back into the bedroom. . . . The pouch and all the belongings inside of that pouch belonged to me and Charles Lynch was totally unaware that I had them. . . . [The officers] intimidated me and scared me into changing my story into blaming Charles Lynch . . . . [T]ruly I am a user and not a seller so I am unaware of a lot of the terminology used in the drug trade I just know what to ask for and they give me a certain amount. I knew and currently know that it wasn't right for me to let Charles Lynch take the blame for something he had no knowledge of . . . .
A chemist from the Department of Public Safety Crime Lab testified at trial. He had tested 4.7 grams of the rock-like substance collected in Appellant's home and found that it contained cocaine. Detective Gandy testified that the total amount of the rock-like substance found in the home was 7.8 grams with a street value of about $250. He also described how other items found in the search could be used in drug distribution. He said a dealer often uses a pocketknife to break a larger piece of crack cocaine into smaller portions for resale. The dealer then places smaller portions into plastic baggies and tears off the corners to make smaller packages. Detective Gandy opined that Moreno did not have enough knowledge about drug quantities and sales procedures to be a dealer. He believed that her description of how to conduct a drug sale was not indicative of a successful dealer.
The chemist did not test the remainder of the rock-like substance because the minimum quantity for a first-degree felony offense of possession with intent to deliver, 4 grams, had been established. Specifically, the substance on the phone was not tested.
Moreno testified for the defense. Echoing her affidavit, she claimed that the drugs were hers. She affirmed that Appellant had no knowledge that she was using or selling drugs at that house and that he would not approve of it. She had led Appellant to believe that her crack addiction was in the past. When she told the police that she had seen Appellant sell drugs at the house before, she was lying because the police had scared her. She said that sometimes when she bought drugs, she re-sold $20 portions of it to others in torn-off plastic baggies. When asked why no crack pipes were found at the house, she said that she planned to buy one at a store later that day. She didn't keep pipes around because she didn't want Appellant to find them. She also stated that she lived at Appellant's home about thirty percent of the time and at her mother's home the rest of the time. Her mother was also an addict.
While cross-examining Moreno, the State introduced evidence of text messages found on her phone that had been sent during the month prior to Appellant's arrest. She sent four messages to Appellant asking him to bring her something to smoke. In response to one of the texts, Appellant wrote, "U don't need it plus if I do that I would be A very stupid [sic]." Moreno then wrote back, "So you can do it for everyone else but you can't do it for me." Moreno testified that she was asking for cigarettes, not drugs. She was addicted to both crack cocaine and cigarettes, and Appellant didn't want her smoking either one. She stole to support her drug habit and admitted being convicted of theft more than once. Sometimes she did not even have enough money to buy cigarettes. In a later message, Moreno wrote, "unfortunately I'm in my addiction and I can't find the way out . . . just know this Charles I LOVE YOU." Appellant responded, "I love you too and
Police were unable to extract information from Appellant's phone because it was locked with a passcode.
I want to be with u but that is going to stop us." Appellant did not testify during the guilt/innocence phase.
After the defense rested, the State argued that the testimony of Moreno- that Appellant did not have the intent to possess or deliver the crack cocaine and Appellant did not know about the possession of cocaine in his own home- opened the door to the admissibility of Appellant's four prior narcotics convictions: (1) a 1990 conviction for possession of methamphetamine, for which Appellant was sentenced to two years in prison; (2) a 2006 conviction for possession of cocaine with the intent to deliver, for which Appellant was sentenced to ten years in prison; (3) a 2006 conviction for possession of a controlled substance, for which Appellant was sentenced to ten years in prison; and (4) a 2006 conviction for possession of a controlled substance with the intent to deliver, for which Appellant was sentenced to ten years in prison.
Following defense counsel's objections to the admissibility of the four prior convictions, the State noted that Appellant had been released from the most recent narcotics convictions shortly before the charged offense was committed. The State also offered the four prior convictions through self-authenticating exhibits and informed the trial court that it would take little time for these convictions to be introduced and admitted. The trial judge stated that she would allow into evidence Appellant's two prior convictions for possession of cocaine with the intent to deliver.
The trial prosecutor stated, "The evidence that we are offering is proof of the conviction, and we're actually trying to limit the evidence beyond that because we don't want to get into those details because that would be inflammatory when you start talking all about these other offenses."
The exhibits contained an indictment and judgment reflecting that, on July 19, 2006, in cause number 05-CR-0573, in the 56th District Court of Galveston County, Appellant was convicted of the offense of possession of cocaine, weighing 4 to 200 grams, with the intent to deliver, with the offense occurring on December 9, 2004, and for which Appellant was sentenced to ten years in prison; and an indictment and judgment reflecting that, on July 19, 2006, in cause number 06-CR-0387, in the 56th District Court of Galveston County, the appellant was convicted of the offense of possession of cocaine, weighing 4 to 200 grams, with the intent to deliver, with the date of the offense occurring on February 9, 2006, and for which Appellant was sentenced to ten years in prison. However, the trial judge ordered the State to redact from one of the indictments the reference to an enhancement paragraph and redact from the penitentiary packet references to disciplinary reports.
After the two prior convictions were admitted, the trial judge gave the following limiting instruction to the jurors:
[T]hat evidence was offered by the State as rebuttal evidence to the Defendant's defensive theory of this case. This evidence may only be considered to show, if it does, the Defendant's intent, motive, opportunity, preparation, plan, absence of mistake or accident, or knowledge, if any. You may not consider this evidence unless you find and believe beyond a reasonable doubt that the Defendant committed these other acts, if any were committed. This evidence may not be considered as character evidence of the Defendant; and it may not be used as evidence that on this particular occasion, the Defendant acted in accordance with that alleged character trait, if any.
The trial judge also provided the following additional instruction to the jurors in the court's final charge to the jury:
The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, for the purpose of showing the defendant's motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or accident, if any. You cannot consider the testimony unless you find and believe beyond a reasonable doubt that the Defendant committed these acts, if any, were committed.
After deliberating for a little more than two hours, the jury found Appellant guilty. Appellant elected to be punished by the court, so the court dismissed the jury. During the punishment phase, the State re-introduced the pen packets for the 2006 convictions, and Appellant pleaded true to one enhancement. Appellant testified on his own behalf to reiterate his innocence for the charged offense and ask for leniency in sentencing. The court rendered judgment on July 20, 2017 and assessed punishment at 45 years' confinement.
DIRECT APPEAL
On appeal, Appellant argued, among other things, that the admission of the two prior convictions was erroneous.
Appellant also complained of the erroneous admission of hearsay testimony by Norma Myers and Phillip Darden, who also lived in the home. Because the court of appeals concluded that the prior convictions were admitted in error and that error affected Appellant's substantial rights, the court remanded to the trial court without addressing the hearsay grounds.
In May 2018, appellate counsel filed an Anders brief concluding that there were no arguable grounds for review. In October 2018, the court of appeals found that there were nonfrivolous grounds for review. The court of appeals then granted appellate counsel's motion to withdraw, struck his brief, and ordered the trial court to appoint new appellate counsel. In March 2019, new appellate counsel filed a brief with the court of appeals.
The First Court of Appeals reversed the judgment. Lynch v. State, 612 S.W.3d 602, 606 (Tex. App.-Houston [1st Dist.] 2020). The court held that the extraneous offenses were substantially more prejudicial than probative and therefore that the trial court abused its discretion by admitting the pen packets. Id. at 614. The court opined that while the State's purpose was to correct a false impression that Appellant would not have approved of Moreno using cocaine, introducing evidence of Appellant's extraneous acts after Moreno's testimony was an improper way to do so. Id. at 610. Instead, the court of appeals said the State should have attempted to impeach her by introducing evidence during her cross-examination. Id.
The court of appeals held that the probative value of the extraneous-offense evidence was low because the convictions were remote in time and there was no evidence of similar means and circumstances. Id. at 611. If the evidence proved intent, the court of appeals held, it did so only by suggesting that Appellant intended to possess and deliver the drugs because he was a drug dealer generally. Id. at 612. Furthermore, the evidence was highly prejudicial because it allowed the jury to focus on Appellant's criminal history rather than his culpability for the instant offense. Id. at 613. The trial court's instruction allowed the jury to use the evidence for more purposes than those for which the State sought to admit it, so the court of appeals found that the instruction did not limit the potential for a prohibited character-conformity inference or lessen unfair prejudice. Id.
STATE'S PETITION AND APPELLANT'S RESPONSE
The State petitioned for review of the court of appeals' judgment. The State alleges the court of appeals erred when it held that:
1) The trial court abused its discretion in admitting evidence of prior convictions;
2) The State must provide facts or details of prior narcotics cases showing their similarity to the charged offense before admitting them into evidence; and
3) Appellant's substantial rights were adversely affected by the introduction of the extraneous convictions.
The State argues that the extraneous offenses were relevant to rebut Moreno's testimony for the defense that Appellant did not possess the cocaine or know that it was there. Because Moreno created a false impression relevant to the charged offense, the State contends it could rebut her testimony with extrinsic evidence or in cross-examination. The State asserts it was not required to introduce details of the prior convictions to show similarity and that details would have been even more prejudicial. Furthermore, the State argues that the court of appeals did not conduct a proper harm analysis. The State says that it had no other way to rebut Moreno's testimony and did not dwell on the evidence and that the jury instruction eliminated any risk of unfair prejudice. The State asks this Court to reverse the court of appeals' judgment and remand to the court of appeals for consideration of Appellant's remaining issues.
In response, Appellant asks this Court to sustain the court of appeals' judgment and remand for further consistent proceedings. In his view, the State invited the jury to convict him of being a drug dealer generally. He argues that the convictions were not probative of guilt for the charged offense because they were too remote in time, and there was no evidence of similarity. Given that, he says the prior convictions do not logically show his knowledge or intent on the date in question. Thus, according to Appellant, the only possible value in the introduction of the prior convictions was to encourage a prohibited character-conformity inference.
Even if the evidence were relevant, Appellant urges that the Rule 403 balancing test should have been applied. The State's need for the evidence was not high because it had already impeached Moreno's testimony and could use other evidence to rebut the defensive theory. Furthermore, the evidence was highly prejudicial because it was the same offense and encouraged the jury to infer guilt for the current offense from evidence of guilt for the prior offense. Appellant argues that under the State's application of the law, almost any defense to a drug charge would "open the door" to all prior drug-related offenses. In that way, the exception would swallow the rule.
LAW
Prior Extraneous Offenses
Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character. Tex. R. Evid. 404(b)(1). Yet such evidence "may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Tex. R. Evid. 404(b)(2); Montgomery v. State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1991) (op. on reh'g).
The defense may open the door to extraneous-offense evidence by presenting a defensive theory that "places a material element of the charged offense at issue." Robinson v. State, 701 S.W.2d 895, 897 (Tex. Crim. App. 1985); see also Bass v. State, 270 S.W.3d 557, 563 (Tex. Crim. App. 2008). In response, the State may offer evidence of other similar misconduct to rebut that defensive theory. Johnston v. State, 145 S.W.3d 215, 220-21 (Tex. Crim. App. 2004). However, once an objection to the evidence is made, the proponent of the evidence has the burden to show the "other crime, wrong, or act" has relevance apart from tending to prove the character of the person and conforming action. Montgomery, 810 S.W.2d at 387. If the trial court determines that the evidence has no relevance apart from character conformity, then the evidence is inadmissible, and the trial court has no discretion to admit it. Id.
Threshold Question of Relevance
Under the Rules of Evidence, "[r]elevant evidence is admissible unless" provided otherwise by "the United States or Texas Constitution," "a statute," the Rules of Evidence, or "other rules prescribed under statutory authority," and "[i]rrelevant evidence is not admissible." Tex. R. Evid. 402. Moreover, "[e]vidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence" and if "the fact is of consequence in determining the action." Id. R. 401. However, relevant evidence may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Id. R. 403.
Regarding the admissibility of evidence, courts performing a Rule 403 analysis should balance the following factors:
the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006) (footnote omitted).
Standard of Review
An appellate court reviews the trial court's decision to admit or exclude evidence, as well as its decision as to whether the probative value of evidence was substantially outweighed by the danger of unfair prejudice, under an abuse of discretion standard. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement. Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). An appellate court may not substitute its own decision for that of the trial court. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).
A trial court is given wide latitude to admit or exclude evidence of extraneous offenses. Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999); Hudson v. State, 112 S.W.3d 794, 801 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Whether extraneous-offense evidence has relevance apart from character-conformity, as required by Rule 404(b), is a question for the trial judge. An appellate court owes no less deference to the trial judge in making this decision than it affords him in making any other relevancy determination. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)(citing Montgomery, 810 S.W.2d at 391). If the trial court's ruling is within the "zone of reasonable disagreement," there is no abuse of discretion, and the trial court's ruling should be upheld.
A trial court's ruling is generally within this zone if the evidence shows that 1) an extraneous transaction is relevant to a material, non-propensity issue, and 2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury. Furthermore, if the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right ruling. De la Paz v. State, 279 S.W.3d 336, 343-44 (Tex. Crim. App. 2009).
In the context of Rule 404(b), if extraneous offense evidence contributes even incrementally to a permissible character-free inference, Rule 404(b) does not bar its admission. See Montgomery, 810 S.W.2d at 387. This is true even if the evidence might also lead to a character-conformity inference. See id. In that case, the opponent's remedy under Rule 404(b) is a limiting instruction, not exclusion. See Tex. R. Evid. 105(a). The only instance in which Rule 404(b) makes evidence flatly inadmissible is when the evidence, stripped of any character-conformity rationale, fails to satisfy even the threshold standard of relevancy. See Montgomery, 810 S.W.2d at 387.
Like Rule 404(b), Rule 403 favors the admission of relevant evidence, so an appellate court should "rarely" overturn a trial judge's Rule 403 ruling except when it has found "a clear abuse of discretion" on the trial judge's part. Montgomery, 810 S.W.2d at 392 (quoting United States v. Maggitt, 784 F.2d 590, 597 (5th Cir. 1986)). If the trial judge's ruling was within the "zone of reasonable disagreement," it should be upheld. See id. at 391.
ANALYSIS
i. Was the probative value of Appellant's prior convictions substantially outweighed by the danger of unfair prejudice?
We must first determine if the trial court abused its discretion in admitting the prior judgments as relevant for a purpose other than to show character conformity by applying the Rule 403 balancing test factors. Before excluding evidence, a court must assess the balance of factors in Rule 403 including how compellingly evidence of the extraneous misconduct serves to make more or less probable a fact of consequence, the potential the 'other crimes, wrongs, or acts' have to impress the jury in some irrational but nevertheless indelible way, how much trial time the proponent needs to develop evidence of the extraneous misconduct, such that the attention of the factfinder will be diverted from the indicted offense, and how great the proponent's 'need' [is] for the extraneous transaction. Montgomery, 810 S.W.2d at 389-90.
Applying and balancing the factors of Rule 403 to the facts of this case:
• Probative value-Appellant's two prior convictions for possession of cocaine with the intent to deliver rebutted the defensive theory that Appellant had no knowledge or awareness of cocaine in his own residence, that he did not know of the use and sale of cocaine in his own residence, and that he did not approve of the use and sale of cocaine at his own residence. The first factor, therefore, weighs heavily in favor of finding the evidence was substantially more probative than prejudicial. Le, 479 S.W.3d at 471 (citing Prince, 192 S.W.2d at 50 (holding that probative value exceeded any unfair prejudicial effect where evidence rebutted defendant's defensive theory concerning lack of intent)).
• Unfair prejudice-In this case, the State offered Appellant's two prior convictions only as rebuttal evidence and for a limited purpose. In fact, the trial prosecutor stated that he did not want to get into the details of the extraneous offenses and only wanted to offer the documentary evidence to limit the effect that it might have on the jury. The trial prosecutor also requested the trial judge to provide a limiting instruction similar to that which the trial judge ultimately gave, and which defense counsel agreed with. The trial judge's limiting instructions clearly show that she admitted the evidence for its non-character-conformity purpose which minimized any risk the jury would consider the convictions for any improper purpose or give them undue weight. The trial judge's instructions properly limited the jury's reliance on the extraneous offense evidence to issues that the defense raised, specifically his intent and his knowledge. The second factor weighs in favor of admission.
• Amount of trial time consumed-The evidence did not consume a lot of trial time. The State introduced the two convictions and described them to the jury but did not question any witnesses about them. The court then gave its limiting instruction. Shortly thereafter, the State rested. The State relied on the evidence in its closing argument. In the trial transcript, the prosecutor's discussion of Appellant's prior convictions consumed about one-and-a-half pages out of the seven-and-a-half-page closing argument. However, most of the argument focused on the physical evidence found in the home and Moreno's lack of credibility. This factor weighs in favor of admission.
• State's need-The State was required to prove that Appellant exercised care, control, and management over the cocaine, that he did so with the intent to deliver the cocaine, and that he knew that the substances in his residence were in fact cocaine. The prosecutor stated that Moreno had negated every element of the offense that the State was required to prove. Therefore, the State's need for rebuttal evidence was great. The trial prosecutor stated that the State had no way to rebut Moreno's testimony, except to present evidence of Appellant's prior cocaine convictions, which would show that it was much less likely that the appellant did not have the requisite intent and knowledge. This factor weighs in favor of admission.
On balance, the court of appeals erred by finding that the trial court abused its discretion in admitting the extraneous offenses because they were more prejudicial than probative.
ii. Does the extraneous offense evidence have relevance apart from character-conformity?
Appellant was charged with possession with intent to deliver between 4 and 200 grams of cocaine. See Tex. Health & Safety Code §§ 481.102(3)(D), 481.112(a), (d). To support a conviction for this offense, the State is required to prove that the defendant knowingly or intentionally possessed cocaine. The defensive theory, presented through Moreno, was that Appellant had no knowledge of the cocaine that was in plain view in his residence and that he was not involved in the use and sale of cocaine that was occurring at his residence. Specifically, the jury heard that the cocaine in the residence belonged to Moreno, she was a drug dealer, Appellant had no knowledge of the cocaine that was recovered from his residence, all of the cocaine in Appellant's residence belonged to Moreno, Moreno led Appellant to believe that she was no longer involved with cocaine, Moreno placed the cocaine on the dresser while Appellant was in the living room, Appellant was totally unaware of the cocaine that was on top of his dresser, the officers intimidated and scared Moreno into blaming Appellant for her cocaine, Appellant did not approve of Moreno using and selling cocaine, and she was forced to hide it from Appellant.
Moreno's testimony negated any and all intent and knowledge on the part of Appellant, and the jury would have been right to have found Appellant not guilty based upon this evidence. However, evidence that Appellant had been twice previously convicted of possession with intent to deliver cocaine makes Moreno's testimony less credible. It strains credulity to believe a twice-convicted drug felon would not be aware of cocaine in plain view in his own home, would not be aware that cocaine was being sold from his home, and would not be aware that his girlfriend was using and distributing drugs from his home. As noted by the trial prosecutor, "What are the chances that someone who has no criminal history whatsoever for drugs is doing this underneath the Defendant's nose with him ever noticing, when he's been guilty of doing that exact same thing on four prior occasions? What are the chances that he wouldn't notice her doing these things?"
In making this argument, the State invoked the doctrine of chances to argue that it was highly unlikely that a person with "no criminal history whatsoever" (i.e., Moreno) would be able to possess and deal drugs in Appellant's house without his knowledge, given his history of drug possession and distribution. According to the doctrine of chances, "highly unusual events are unlikely to repeat themselves inadvertently or by happenstance." De La Paz, 279 S.W.3d at 347 (citing 2 John Wigmore, Evidence § 302, at 241 (Chadbourn rev. 1979)). In other words, the suggestion that if the accused committed other crimes, chances are he committed the charged crime as well. See Cantrell v. State, 731 S.W.2d 84, 90 (Tex. Crim. App. 1987); Plante v. State, 692 S.W.2d 487, 491-92 (Tex. Crim. App. 1985); Wigmore, supra note 3, 302. Hence, proof of criminal propensity makes guilt at least slightly more probable than without the evidence. See Gilbert v. State, 808 S.W.2d 467, 471 n.4 (Tex. Crim. App. 1991); see also Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016) (explaining that a defense can become "less believable" when defendant has made same unlikely claim multiple times). Evidence that the defendant had on other occasions committed similar offenses to the one he is charged with serves to reduce the possibility that the act in question was done with innocent intent. Plante, 692 S.W.2d at 492.
In response to this argument, the trial judge further recalled that Moreno testified that Appellant would never allow possession of cocaine to occur in his home, that he did not like cocaine, and that she was forced to hide her possession of cocaine. The trial judge asserted that the defense had painted a picture that Appellant was an "upstanding citizen who would never ever allow drugs in his home." This being the case, evidence that Appellant had at other times possessed cocaine with the intent to distribute was circumstantial evidence that he intentionally or knowingly possessed it on the date of the charged offense. Appellant's two prior convictions for possession of cocaine with the intent to deliver were offered to rebut Appellant's defensive claims that directly negated the elements of the charged offense. The State was therefore permitted to introduce Appellant's prior convictions for possession of cocaine with the intent to deliver in order to (1) show that Appellant had knowledge of cocaine and (2) rebut the defensive theory that Appellant was not involved in, and was in fact opposed to, the possession of cocaine with the intent deliver that was occurring in his own home.
Because the prior convictions were admissible under Rule 404(b) as evidence pertaining to Appellant's knowledge or intent, we disagree with the reasoning of the court of appeals and hold the district court did not abuse its discretion by admitting the prior convictions. The prior convictions had relevance beyond the question of character conformity and were admissible to rebut the defensive theory that the defendant did not have the requisite knowledge or intent. The trial court's ruling was not outside the zone of reasonable disagreement.
CONCLUSION
The trial court's decision to admit the extraneous-offense evidence over Appellant's Rule 404(b) objection was within the zone of reasonable disagreement. Likewise, given our standard of review, the presumption in favor of admissibility, and the resolution of the balancing factors discussed above, we conclude the trial court did not abuse its discretion in overruling Appellant's Rule 403 objection. We conclude that the district court did not abuse its discretion by admitting the prior convictions. We reverse the judgment of the court of appeals and remand the case to that court to address Appellant's remaining point of error.
Yeary, J., filed a concurring opinion.
The court of appeals reversed Appellant's conviction for possession with intent to deliver between 4 and 200 grams of cocaine, holding that the trial court erred to admit extraneous offense evidence under Rule 403 of the Texas Rules of Evidence. Lynch v. State, 612 S.W.3d 602, 611, 614, 616 (Tex. App.-Houston [1st. Dist.] 2020); Tex. R. Evid. 403. Today the Court rightly reverses the court of appeals' judgment, but it does so while addressing an issue the court of appeals did not purport to address. Specifically, the Court today holds that the extraneous offense evidence was admissible under Rule 404(b) of the Rules of Evidence. Tex. R. Evid. 404(b). See Majority Opinion at 15-17. But the court of appeals assumed, without deciding, that Rule 404(b) was satisfied, so-strictly speaking-that precise issue is not in the case as it comes before this Court.
I. BACKGROUND
A. At Trial
Appellant was charged with the first-degree felony offense of possession of cocaine with intent to deliver. Tex. Health & Safety Code § 481.112(d). The evidence at trial showed that the police, in executing a search warrant, discovered a deliverable quantity of crack cocaine on the dresser in the only bedroom of Appellant's small, converted garage apartment, and some of it was on top of his cell phone on the dresser. Thus, the evidence was plainly sufficient to affirmatively link him to the contraband.
But during the presentation of defensive evidence after the State had rested its case, Appellant's part-time live-in companion, Tina Moreno, testified that it was she who had brought the cocaine into the apartment, unbeknownst to Appellant. She claimed that she had placed the cocaine on the dresser while Appellant was out, that Appellant had not arrived home until shortly before the police executed their search warrant, and that he had not been back in the bedroom before the search revealed the presence of the cocaine. In this way, Appellant presented evidence that he did not knowingly possess the cocaine-that, indeed, he did not really "possess" the cocaine at all, having been unaware that it was even there. See Tex. Penal Code § 1.07(39) ("'Possession' means actual care, custody, control, or management.").
In rebuttal of this defensive evidence, the State offered two penitentiary packets that showed Appellant had been twice convicted in the past for possession of cocaine with intent to deliver. Both convictions occurred in 2006, for one offense that was committed in 2004, and then another committed in 2006. The State's theory of relevance was simple: As between Appellant and his companion, Moreno, Appellant's prior history of trafficking in cocaine made it more likely than it would otherwise be that the deliverable amount of cocaine found in his bedroom on the charged occasion was his rather than hers. Stripped down, this is plainly an inference that does not rely on character conformity for its probative value.
Moreno was called to testify by the defense. On direct examination by defense counsel, in addition to testifying that the cocaine found in Appellant's house belonged to her and not to Appellant, she agreed that she was a crack addict and that, behind Appellant's back, she was "using and possibly selling drugs[.]" This claim presented a powerful reason for the jury to reject the State's position that the cocaine-which was found in Appellant's own bedroom-belonged to him and to conclude instead that, as between the two of them, the drugs likely belonged to, and were brought into the house by, Moreno. The State's need to rebut this suggestion was strong. During the State's cross-examination of Moreno, she admitted to having a number of prior convictions, which themselves had a tendency to reflect poorly on her character for truthfulness. See Tex. R. Evid. 609(a)(1) (prior convictions for felony offenses or crimes of moral turpitude are admissible to impeach a witness's character for truthfulness). But those convictions were for a number of thefts and a robbery. While she admitted to also having been arrested once for possession of marijuana, that charge was dropped, and she had no drug-related convictions. She also later claimed that she sometimes purchased cocaine in quantities greater than she needed for her own personal use so that she could "make some of my money back. That's what I do." In this light, Appellant's prior convictions for possession of cocaine was strong rebuttal evidence. It tended powerfully to rebut the implication left by Moreno's testimony that, as between Appellant and Moreno, the cocaine found in Appellant's home likely belonged to her. In the absence of that rebuttal evidence, there was a high risk that the jury would choose to find Moreno culpable and to remain unpersuaded of Appellant's guilt. But with the knowledge that, while Moreno had many convictions suggesting moral turpitude, none of them were for drug related offenses, and that, in contrast, Appellant had his own-actually cocaine-related-drug convictions, the jury was much better equipped to evaluate the veracity of Moreno's claims.
B. On Appeal
Nevertheless, the court of appeals held that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice-as a matter of law-under Rule 403. Lynch, 612 S.W.3d at 614. It reasoned that, because the penitentiary packets gave no details of the prior possession-with-intent-to-deliver cases, there was no showing of similarity between the charged offense and the prior offenses. Id. at 611-12. Moreover, according to that court, the prior offenses were committed in 2004 and 2006, whereas the charged offense occurred in 2015; so, in the court of appeals' view, the prior offenses were too remote in time to have been of much probative value. Id. at 611.
The court of appeals perceived that, under these circumstances, there was too great a danger that the jury would consider the evidence of Appellant's prior offenses for the impermissible character-driven inference that he committed the instant offense only because it is squarely within his character to commit such offenses. Id. at 612-13. It concluded that to admit evidence of the prior convictions under these circumstances was "a clear abuse of discretion." And it reached that conclusion even while purporting to apply the highly deferential standard for reviewing trial court determinations of admissibility under Rule 403, which prohibits appellate courts from overturning trial court rulings that are "within the zone of reasonable disagreement." Id. at 610, 614.
Here is what the court of appeals did not say in its opinion: The court of appeals offered no opinion about whether the extraneous prior offense evidence was admissible under Rule 404(b); it instead assumed-for the sake of argument-that the evidence was relevant for some non-character-conformity purpose in order to address the admissibility of the evidence under Rule 403. Id. at 611; Tex. R. Evid. 403. It did not, as the Court does today, undertake any analysis of whether Rule 404(b) was satisfied.
That Rules 404(b) and 403 present distinct appellate issues was underscored in Montgomery v. State, 810 S.W.3d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g on Court's own motion). There the Court observed that, once a Rule 404(b) objection has been leveled and overruled, it is incumbent upon the opponent of the evidence, "in view of the presumption of admissibility of relevant evidence, to ask the trial court to exclude the evidence by its authority under Rule 403, on the ground that the probative value of the evidence, assuming it is relevant apart from character conformity, is nevertheless substantially outweighed by, e.g., the danger of unfair prejudice." Id.
The court of appeals did not render a decision with respect to the Rule 404(b) issue. In petitions for discretionary review, this Court should ordinarily limit its review to the "decisions" of the courts of appeals. E.g., Gilley v. State, 418 S.W.3d 114, 119 (Tex. Crim. App. 2014) ("As a general proposition, this Court will review only the 'decisions' of the courts of appeals."). I will only briefly address that issue in this concurring opinion because the Court does.
II. ANALYSIS
A. Rules 401 and 404(b)
The State's theory of logical, non-character-conformity relevance for the extraneous offenses in this case was to rebut the testimony of Moreno that the deliverable amount of cocaine found on the dresser in the bedroom of the small apartment belonged exclusively to her, and that Appellant was unaware it was even there. Evidence of Appellant's history of convictions for possession of deliverable quantities of cocaine in the past makes this defensive testimony less "probable" than it would be absent that evidence. It is therefore relevant under Rule 401. See Tex. R. Evid. 401(a) ("Evidence is relevant if . . . it has any tendency to make a fact more or less probable than it would be without the evidence[.]").
Moreover, the logic of this inference derives independently from any inference of action in conformity with character. And while it may incidentally also support a character-conformity inference, its tendency to do so is a matter for consideration in the Rule 403 analysis, not the Rule 404(b) analysis. It is no surprise, then, that the court of appeals in this case was more disposed to assume that the evidence was relevant under Rule 401, and that it was relevant for a purpose beyond its character-conformity value, under Rule 404(b), and then to proceed, based on that assumption, to determine its admissibility under Rule 403. Lynch, 612 S.W.3d at 611. That should define and circumscribe the scope of our discretionary review here.
B. Rule 403: Similarity
The court of appeals was mistaken to conclude that a high level of similarity must be shown for the State's non-character-conformity- based theory of relevance in this case to be established. As Professor Imwinkelried has explained, at least as a general proposition when assessing the admissibility of extraneous offenses under Rule 404(b), "[t]he test should be logical relevance rather than similarity. The better view is that the judge should demand proof of similarity only if the proponent's theory of logical relevance assumes similarity." 1 Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:13, at 2-100-2-101 (2015).
The inference that the cocaine in this case was more likely to have been Appellant's than Moreno's does not depend upon such a high level of similarity for its logical relevance. The question is simply this: As between Appellant and Moreno, which one is the more likely to have put the deliverable quantity of cocaine on his dresser? A high degree of similarity between the extraneous incidents of possession with intent to deliver and the present offense would not have enhanced their probative value to serve the State's purpose. All that was necessary in this case to make the inference work-that Appellant more likely possessed the cocaine than Moreno-was to show that Appellant was found to have possessed deliverable quantities of cocaine on past occasions.
Indeed, penitentiary packets were an optimal way to establish those prior convictions, devoid though they may have been of any details of the prior possession offenses. Details are not necessary to the inference, and unnecessary details might have raised the risk that the evidence would be substantially more prejudicial than probative for purposes of a Rule 403 admissibility determination. See Old Chief v. United States, 519 U.S. 172, 186, 191 (1997) (where evidentiary detail is not strictly necessary to establish the relevance of extraneous misconduct evidence, for the Government to admit it anyway could render it substantially more prejudicial than probative for purposes of Federal Rule of Evidence 403) (citing Fed.R.Evid. 403).
C. Rule 403: Remoteness
The court of appeals was also mistaken to think that the remoteness of Appellant's prior convictions necessarily supports a conclusion that they were substantially more prejudicial than probative under Rule 403. Even if the convictions were for offenses committed approximately ten years before the charged offense, they still stand as some evidence that would tend to lead a rational jury to prefer the theory that Appellant possessed the drugs on the charged occasion to the theory that Moreno exclusively possessed them, utterly unbeknownst to him. I agree with the State that the fact that Appellant was in prison for most of the time between the prior offenses and the charged offense ameliorates any adverse impact on the logic of the inference due to "remoteness." The fact that the pause in Appellant's demonstrated history for possessing deliverable amounts of cocaine can be attributed to his sojourn in the penitentiary serves to explain the temporal gap in a way that shores up the logic of the non-character-conformity inference. Under these circumstances, I cannot conclude that the trial court exceeded the "zone of reasonable disagreement" when it decided, in the exercise of its sound discretion, that the evidence at issue here should be admitted over Appellant's Rule 403 objection.
D. Rule 403: More Prejudicial Than Probative?
Because it believed Appellant's prior offenses were not shown to be sufficiently similar to the charged offense, and because of their remoteness, the court of appeals concluded that the prior offenses had too great a potential to lead the jury to the impermissible character-conformity inference instead of understanding the evidence to support its legitimate purpose: to rebut Appellant's defensive theory. Lynch, 612 S.W.3d at 612-13. It quoted part of the prosecutor's final argument to show that the State invited the jury to draw the impermissible inference. Id. at 612. But what the prosecutor urged the jury to draw from the evidence of Appellant's prior possession convictions was the precise non-character-conformity inference that it logically, and legitimately, supported: that Appellant's history of possessing deliverable amounts of cocaine makes it unlikely Moreno alone possessed the cocaine in this case. This was not an invitation to draw an inference of guilt solely from Appellant's apparent character as a criminal in general. Rather, it refuted an affirmative defensive claim with precisely germane information about Appellant's criminal past.
When, during the State's rebuttal, the trial court permitted the introduction of the penitentiary packets, it instructed the jury: "This evidence may not be considered as character evidence of the Defendant; and it may not be used as evidence that on this particular occasion, the Defendant acted in accordance with that alleged character trait, if any." During his summation, the prosecutor explained to the jury:
. . . I'm sure you're asking yourself, "Well, if the Judge gave me those instructions on how I can't use it, why -- the previous convictions on [Appellant] -- why did the State bring me that?
Well, the reason why I entered that was because Ms. Moreno gets on the stand and pretty much says, "Hey, I ran this whole operation under his nose. He had no knowledge, no intent. He wouldn't go for that. Pretty much, he's a saint. He doesn't want any of that in his house.
So to rebut that, I brought you: Well, he's not above having cocaine in his possession; and, in fact, cocaine, with possession and the intent to deliver. The same exact reason why we're here today.The court of appeals was mistaken to describe this as an invitation to infer guilt purely as a function of consistency with Appellant's character. Rather, it was a description of the very inference for which the evidence was legitimately offered, apart from its tendency to support a character-conformity inference: that, from Appellant's past history of possession of cocaine in deliverable amounts, the jury could reject Moreno's account that Appellant had no awareness of a deliverable quantity of cocaine on the day of the charged offense.
E. Rule 403: Deference Owed to the Trial Court
The trial court was present to hear all of the evidence and was in a far better position than any appellate court to gauge the relative strength of the various facets of the State's case. And, from that perspective, the trial court apparently believed that the State's need to rebut the defensive theory with more than just cross-examination of the witness was compelling enough to justify its admission, whether the jury might have convicted without that evidence or not. The court of appeals lacked the trial court's unique perspective on the issue.
Moreno's testimony-taking sole responsibility for possessing the cocaine-constituted a classic statement against penal interest. Such statements, when they arise out of court, carry sufficient indicia of reliability that the Rules of Evidence regard them as potentially admissible even over a hearsay objection. Tex. R. Evid. 803(24). The State needed the evidence of Appellant's prior convictions, the trial court could have reasoned, among other things, to counteract whatever tendency there may have been for the jury to credit Moreno's self-damning claims.
That is precisely why appellate courts should not be in the business of triple-guessing a trial court's evaluation of a prosecutor's assessment of how much evidence will be necessary to satisfy a particular jury to a level of confidence beyond a reasonable doubt. The court of appeals' reasons for declaring the evidence to be substantially more prejudicial than probative might have supported a decision on the trial court's part to exclude the evidence-had that been its decision. But the trial court decided otherwise, as was its prerogative.
Rule 403 "favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial." Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g on court's own motion). Moreover, "trial courts should favor admission in close cases," in keeping with this presumption. Id. As arbiter of such questions at the trial level, "the trial court must be given wide latitude to exclude, or, particularly in view of the presumption of admissibility of relevant evidence, not to exclude misconduct evidence as [it] sees fit." Id. at 390. Because of that wide latitude, appellate courts are only permitted to reverse a trial court's ruling-especially a ruling that admits such evidence-when it constitutes "a clear abuse of discretion." Id. at 391, 392. A trial court's ruling only constitutes a clear abuse of discretion, Montgomery insists, when it falls wholly outside the "zone of reasonable disagreement." Id.
Given the presumption in favor of admitting extraneous misconduct evidence that has relevance apart from impermissible character-conformity inferences, it seems to me that, when a trial court admits extraneous misconduct evidence after conducting a Rule 403 analysis, an appellate court's review should be circumscribed. It should conclude that evidence was improperly admitted only when the factors that disfavor admissibility collectively and compellingly do so-such that a clear abuse of discretion has been shown-before declaring a trial court's Rule 403 ruling to be beyond the "zone of reasonable disagreement." See id. at 392 (appellate courts should not conduct de novo review of Rule 403 rulings, and they should reverse that ruling "rarely and only after a clear abuse of discretion") (citation omitted).
None of the Montgomery factors that go into determining whether the trial court's ruling was a clear abuse of discretion disfavor admission of the evidence in this case, much less collectively and compellingly so. See Majority Opinion at 14-15. This trial court did not even arguably abuse its discretion, much less clearly do so. The court of appeals was mistaken to conclude otherwise.
III. CONCLUSION
For all of these reasons, I respectfully concur in the Court's disposition to reverse the judgment of the court of appeals and remand the case for resolution of Appellant's remaining appellate points.