173 SW3D 510 - Haley v. State

KELLER, P.J.,

¶1filed a concurring opinion.

¶2Although I agree with the Court’s disposition, I am not in complete accord with its reasoning. I discuss the points of departure below.

¶31. Extraneous Bad Acts Evidence

¶4I agree that we are permitted to reach the merits of the State’s argument, but I do so for a simpler reason: the party that prevailed at trial should never be required to advance an argument before the Court of Appeals as a predicate for raising that argument on discretionary review. This conclusion is consistent with the view that I articulated in Alonzo v. State1 with regard to preservation of error. I would further conclude that the reasoning in my Alonzo opinion should apply also to all types of arguments that could be made by a party that prevailed at trial.

¶5We should keep in mind that the trial on the merits is the “main event rather than a tryout on the road.”2 We should not allow this “main event” to be disturbed merely because the prevailing party neglected to articulate the correct basis for upholding the trial court’s correct decision. To do so would be to impose preservation of error requirements upon the parties on appeal. But preservation requirements exist at trial because they promote the proper and efficient functioning of the system:

Stated more broadly, objections promote the prevention and correction of errors. When valid objections are timely made and sustained, the parties may have a lawful trial. They, and the judicial system, are not burdened by appeal and retrial. When a party is excused from *520the requirement of objecting, the results are the opposite.3

¶6Imposing such a requirement on the appel-lee at the appellate level, however, does nothing to promote the efficient functioning of the system at the trial level, where it matters the most. In fact, it would have just the opposite effect. And as I observed in Alonzo, the party that prevailed at trial has no duty to even file a brief on appeal.4 It makes little sense, then, to require the party that prevailed at trial to articulate a particular argument on appeal before being permitted to raise the issue on discretionary review. So, with regard to whether we can address the State’s “bad acts” argument here, I would simply conclude: because the State prevailed at trial, it had no duty to discuss the admissibility of the evidence as a bad act.

¶72. Extraneous Victim Impact Evidence

¶8Although Cantu v. State, a capital case, suggested that victim impact evidence relating to the victim of an extraneous offense was not “relevant” under Rule 401,5 that pronouncement is questionable in light of Rule 401 and of questionable application to this case in light of subsequent caselaw regarding non-capital cases. The threshold for relevance under Rule 401 is very low: “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.”6 Moreover, subsequent caselaw has indicated that the admissibility of evidence at the punishment phase of a non-capital case is a function of policy rather than relevance.7 If we were to speak of relevance, this evidence seems relevant to the harm inflicted by the defendant,8 and thus to his punishment, but only slightly so, due to the remoteness of its connection to the case. In part because of this remoteness, it is unfairly prejudicial. While grounding its legal basis on relevance, the Cantu opinion expressly articulated its view that this evidence was unfairly prejudicial,9 and thus, the more logical basis for excluding the evidence would appear to be Rule 403.10 As a matter of policy, I would not find the evidence to be completely unrelated to the question of the appropriate punishment, but I would find the link to be attenuated and the danger of unfair prejudice to be high enough that the evidence warrants exclusion. Consequently, instead of finding the evidence “irrelevant,” I would hold that the minimal probativeness of this evidence was substantially outweighed by the danger of unfair prejudice under Rule 403.

¶9 *521With these comments, I concur in the Court’s judgment.

¶10. 158 S.W.3d 515 (Tex.Crim.App.2005)(Keller, P.J., dissenting to dismissal of petition).

¶11. Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)(ellipsis and internal quotation marks omitted).

¶12. Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002).

¶13. See 158 S.W.3d at 516.

¶14. 939 S.W.2d 627, 637 (Tex.Crim.App.1996), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).

¶15. Tex.R. Evid. 401.

¶16. Rogers v. State, 991 S.W.2d 263, 265 (Tex.Crim.App.1999).

¶17. See Mosley v. State, 983 S.W.2d 249, 262 (Tex.Crim.App.1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999).

¶18. 939 S.W.2d at 637.

¶19. Tex.R. Evid. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.