Haney v. State

¶1concurring.

¶2Although I concur in the result, I write separately because I believe that article 38.37 of the Texas Code of Criminal Procedure was properly applied in appellant’s ease. Tex. Code Crim. Proc. Ann. art. 38.37 (Vernon Supp.1998). The majority seizes on the enacting legislation of article 38.371 to conclude that “the term ‘criminal proceeding’ as used in article 38.37 means a criminal prosecution encompassing all the steps between official accusation and final judgment.” However, section 1 of article 38.37 clearly states:

Sec. 1. This article applies to a proceeding in the prosecution of a defendant *649for an offense under the following provisions of the Penal Code, if committed against a child under 17 years of age:

(1) Chapter 21 (Sexual Offenses);

(2) Chapter 22 (Assaultive Offenses);

(3) Section 25.02 (Prohibited Sexual Conduct);

(4) Section 43.25 (Sexual Performance by a Child); or

(5) an attempt or conspiracy to commit an offense listed in this section.

¶3Id. (emphasis added).

¶4The majority acknowledges that the statute itself states that it applies to a “proceeding in a prosecution.” However, under the guise of the law of statutoiy interpretation— “we must presume the legislature intended every word and phrase of a statute to have meaning and effect” — the majority implicitly holds that the term “criminal proceeding” used in the enacting legislation overrides, or supercedes, the plain language of the statute. The majority finds support for this proposition in Tigner v. State, 928 S.W.2d 540, 544 (Tex.Crim.App.1996), a case that was specifically limited to the interpretation of “proceeding” in the context of article 38.22 of the Texas Code of Criminal Procedure as opposed to article 38.37.2Id. at 546 (holding applies to term “proceeding” in section 3(a)(5) of article 38.22).

¶5In Tigner, the Texas Court of Criminal Appeals examined the phrase “proceeding” in connection with article 38.22 and likened a “criminal proceeding” to a criminal prosecution. Id. at 543-46. However, unlike article 38.22, article 38.37 expressly differentiates between a “proceeding” and a “prosecution.” Thus, in effect, the majority would read the statute as stating that “[tjhis article applies to a proceeding in a proceeding.” This could not have been the intended result of the legislature and, more importantly, the result ignores the majority’s own rale of statutory construction — that “we must presume the legislature intended every word and phrase of a statute to have meaning and effect.” See Morter v. State, 551 S.W.2d 715, 718 (Tex.Crim.App.1977). In contrast, my interpretation of the statute follows another longstanding tradition of statutory construction, namely that language be construed by the literal meaning of the words. See Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). In addition, to limit the term “proceeding” in the statute to only one continuous event ignores the enabling legislation itself, which directs us to apply the revised rule regardless of when the offense took place. See Act of May 29, 1995, 74th Leg., R.S., eh. 318, § 48(b), 1995 Tex. Gen. Laws 2734, 2749.

¶6The majority finds support for its interpretation from two sister appellate courts that have held that the date of the indictment controls the applicability of article 38.37. See Snellen v. State, 923 S.W.2d 238, 241 (Tex.App.—Texarkana 1996, pet. refd) (holding that, for purposes of article 38.37, a “criminal proceeding” begins “with the grand jury’s indictment”); Yzaguirre v. State, 938 S.W.2d 129, 131 (Tex.App.—Amarillo 1996) (stating that defendant’s “criminal proceeding,” for purposes of article 38.37, “commenced with the return of the indictments”), rev’d on other grounds, 957 S.W.2d 38 (Tex.Crim.App.1997). However, neither Snellennor Yza-guirre provide credible support for their conclusions. The court in Yzaguirreprovides no reason for its determination and the court in Snellensimply likened the word “proceeding” to the word “prosecution” in finding that only one proceeding occurs in a given case. See Snellen, 923 S.W.2d at 241. As stated above, the argument in Snellenflies in the face of section 1 of article 38.37, which clearly states, “[tjhis article applies to a proceeding in the prosecution of a defendant.” Tex. Code Crim. Proc. Ann. art. 38.37, § 1. Thus, at the risk of being redundant, the rule itself expressly distinguishes between a “proceed*650ing” and a “prosecution” in a way that implies there can be more than one proceeding in a given case. See id.

¶7The Houston [1st] court recently seized on the plain language of the statute to reach the same conclusion. See Howland v. State, 966 S.W.2d 98, 101-03 (Tex.App.—Houston [1st Dist.], no pet.). The Howlandcourt distinguished Tignerand pointed out the overt weaknesses in Snellenand Yzaguiire in finding that the enacting legislation was clear and ambiguous and that its interpretation did not create an absurd result. See Id. at 101-03. The Howlandcourt found additional support for its conclusions in Hinds v. State, 970 S.W.2d 33, 35 (Tex.App.—Dallas, no pet.), a case where the Dallas appellate court applied article 38.37 in a similar situation without discussion. For all these reasons, I believe article 38.37 was applicable to appellant’s case and the trial court did not abuse its discretion in allowing evidence of appellant’s extraneous offenses.