Mitchell v. State

¶1OPINION DISSENTING TO DENIAL OF APPELLANT’S MOTION FOR LEAVE TO FILE A MOTION FOR REHEARING

¶2In May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981), according to the opinion of the Court, a majority rejected the assertion that “the provisions of Art. 38.14, [V.A.C. C.P.] are applicable to the extraneous offenses offered in evidence at the punishment stage” of a capital murder case, id., at 341. The Court concluded:

“We hold that evidence offered to prove the special issues of Art. 37.071, supra, is not included within the provisions of Art. 38.14, supra. Therefore, the ‘yes’ answers to the special issues of Art. 37.071, supra, are supportable on the relevant accomplice witnesses’ testimony concerning the appellant’s prior criminal conduct and the *813court did not err in failing to submit an ‘accomplice witness’ charge at the punishment stage of the trial.” Id., at 343. [Emphasis added]

¶3However, the conclusion reached by the Mayopinion- does not rule out a constitutional attack on the use of such testimony to show “a reasonable probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society,” Article 37.071(b)(2), V.A. C.C.P.

¶4“An accomplice witness is a discredited witness;”1 practically from the beginning the courts of this State have so regarded such a witness.2 So much so that “the settled law in this state [is that] when evidence of collateral crimes is introduced for one of the various purposes for which such evidence becomes admissible, the jury should be instructed that they cannot consider against the defendant such collateral crimes, unless it has been shown to their satisfaction that the accused is guilty thereof,” Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389 (1923), quoted approvingly in Wells v. State, 118 Tex.Cr.R. 355, 42 S.W.2d 607, 608-609 (1931).

¶5Now that we have the bifurcated trial procedure it would seem to follow that due course of law would also demand that testimony of an otherwise discredited witness purporting to report extraneous offenses on the part of the accused be similarly treated, examined and evaluated. In a capital case the question is at least important enough to look into.

¶6Accordingly, I would grant leave to file for that purpose. Because the majority do not, I respectfully dissent.

¶7TEAGUE and MILLER, JJ., join.