Jose Luiz Garcia v. The State of Texas--Appeal from County Court at Law No. 1 of Comal County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-91-283-CR
JOSE LUIZ GARCIA,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW OF COMAL COUNTY
NO. 90CR-1157, HONORABLE FRED CLARK, JUDGE

After finding the appellant guilty of the offense of possession of a useable quantity of marihuana of less than two ounces, Tex. Health & Safety Code Ann. 481.121(b)(1) (Pamph. 1992), the jury assessed punishment at one hundred eighty days' confinement, probated, and a fine of one thousand dollars.

Shortly after midnight on May 4, 1990, New Braunfels Police Officer Tommy Gonzales received a dispatch that a person had been seen with a flashlight in an abandoned building. Officers Spence and Keating met Gonzales at the house in question where they found appellant and a female companion. Appellant advised the officers that the boarded up house belonged to his brother and that he had permission to be there. Officer Gonzales related that he saw no evidence of forced entry and was willing to give the appellant the benefit of the doubt, but because appellant appeared to be in an "intoxicated state" and became "belligerent and argumentative" as a result of questioning, "I decided for my safety and the safety of the other officers and for his own safety and the safety of the female, to make a pat-down search to make sure he wasn't armed in any way." After feeling a "bulky item . . . a hard object" in appellant's left front pocket, Gonzales removed a useable quantity of marihuana and drug paraphernalia from the pocket.

In his second point of error, appellant asserts that the court erred in overruling his objection to evidence of his previous arrests. In light of our disposition of appellant's second point of error, we find it unnecessary to review his other points. We will reverse the conviction and remand the cause.

A hearing on appellant's motion in limine to exclude evidence that he had committed any extraneous offenses was held out of the presence of the jury prior to the admission of the complained-of testimony. Gonzales related that he had arrested appellant on prior occasions for family-violence offenses. Appellant had resisted arrest, but Gonzales had never found a weapon on him. Following the court's ruling that it would permit the State to inquire about the officer's personal knowledge of appellant's violent nature, the following testimony was elicited from Gonzales in the presence of the jury:

 

MR. FRIESENHAHN [prosecutor]:

 

Now, I believe you already testified that you had had some prior contact with the Defendant; is that true?

 

A: That is correct.

 

Q: And based on this past conduct with the Defendant, did you come into any personal knowledge that this Defendant might have a tendency towards violence?

 

A: Yes.

 

MR. FINLEY [defense counsel]:

 

Your Honor, I am going to object for the record, the bringing up of the extraneous matters or any extraneous matters before the Court in connection with any offenses that we have not discussed here previously.

 

THE COURT: All right. The objection will be overruled.

 

Q: I am sorry. What was the answer, Officer?

 

A: Yes, sir, I am aware of incidents between myself and Mr. Garcia in a violent nature, yes.

 

Q: And when you have confronted Mr. Garcia, the Defendant at this house, even though you thought to give him the benefit of the doubt that he might have a right to be there, did that still enter into your decision to pat the Defendant down for your own safety?

 

A: Yes, sir, it did.

 

Texas R. Crim. Evid. Ann. 404 (Supp. 1992) provides in pertinent part:

 

(a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, . . .

 

(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

 

We find the following review of Rule 404, concerning the general rule against using character evidence in proving conforming conduct, instructive:

 

Criminal and Civil Rules 404 are the first of a series of rules found in Article IV that limit the general preference, expressed in Rule 401-403, for the admission of all relevant evidence. Civil and Criminal Rules 404 do so with respect to character evidence. "Character is a generalized description of a person's disposition, or of the disposition in respect to a general trait, such as honesty, temperance, or peacefulness." Character can only be inferred from that person's prior conduct or inaction. Thus, proof of character is always indirect: By opinion of those familiar with the person; by the person's reputation with respect to the relevant trait; or by proof of specific acts or the person from which the presence or absence of the trait may be inferred. This is the meaning of character in Federal Rules 404 and 405 from which Civil and Criminal Rules 404 and 405 derive. This usage represents no change from the common law or prior Texas law.

 

Evidence of character offered to prove conduct or state of mind conforming to that character is logically relevant. If the character of a defendant for caution is good then it would seem presumptively probative on the question of whether he was careful on a particular occasion and should his behavior on that occasion be an issue in litigation the character evidence would seem relevant and presumptively admissible. Nevertheless, Rule 404(a) accurately expresses the general rule that such evidence will normally be excluded when it is sought to be used to prove behavior on the occasion in issue, although a distinction may be drawn when the evidence is offered to prove the actor's understanding of the probable effect of his undisputed conduct. This hostility towards the circumstantial use of character evidence was the accepted view at common law and under prior Texas law.

 

The paradox is that a person's conduct on one occasion is probative on the issue of her disputed behavior on another. There are few persons who do not act on the basis of that belief in their private lives. Most persons would hesitate to leave their children with a babysitter believed to be cruel and physically aggressive towards children. Few would, without special assurances, entrust their church's funds to a person reputed to be dishonest. These are, of course, examples of using character to predict conduct rather than, as in court, to recreate past events. However, the probative quality of the character evidence is no less in the latter situation. Nevertheless, the principle of Rule 404(a) points towards exclusion because such evidence "usually is laden with the dangerous baggage of prejudice, time consumption, and surprise." The use of such evidence has been thought inconsistent with the principle that "each case should be tried on its merits alone and not on the merits of the parties." Moreover, as with evidence of similar events and transactions, the probative quality of the evidence often depends upon the degree of similarity between the circumstances surrounding the prior behavior and those present on the occasion in issue. This carries with it the danger of excessive time consumption and issue confusion. Hence, the general rule of exclusion.

 

33 Steven Goode, et al., Guide to the Texas Rules of Evidence: Civil and Criminal 404.2 (Texas Practice 1988) at 104-106 (citations omitted).

In Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990), the court reviewed the admissibility of evidence of extraneous "crimes, wrongs, or acts."

 

Illustrative of the permissible "purposes" to which evidence of "crimes, wrongs, or acts" may be put are "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident[.]" Rule 404(b), supra. Extraneous offense evidence that logically serves any of these purposes is "relevant beyond its tendency "to prove the character of a person to show that he acted in conformity therewith." It is therefore admissible, subject only to the trial court's discretion nevertheless to exclude it "if its probative value is substantially outweighed by the danger of unfair prejudice. . . ." Rule 403, supra. On the other hand, if extraneous offense evidence is not "relevant" apart from supporting an inference to "character conformity," it is absolutely inadmissible under Rule 404(b). For if evidence of "other crimes, wrongs, or acts" has only character conformity value, the balancing otherwise required by Rule 403 is obviated, the rulemakers having deemed that the probativeness of such evidence is so slight as to be "substantially outweighed" by the danger of unfair prejudice as a matter of law."

 

810 S.W.2d at 78 (emphasis added).

The State urges that the complained-of testimony was admissible in light of appellant's position that the officer had no reason to consider the appellant potentially dangerous so as to justify a pat-down search or frisk. We believe this argument overlooks the fact that the burden is on the State to prove that the officer possessed an articulable suspicion that an individual is armed and dangerous to justify a pat-down or frisk. See Terry v. Ohio, 392 U.S. 1, 24 (1968). Nor does the fact that defense counsel elicited testimony from Gonzales on cross-examination that he had no knowledge of appellant's possessing a weapon, and that appellant made no threat toward him, open the door for the admission of evidence of other "crimes, wrongs acts." See Elking v. State, 647 S.W.2d 663, 666 (Tex. Crim. App. 1983); Caldwell v. State, 477 S.W.2d 877, 879 (Tex. Crim. App. 1972).

We believe the only logical inference the jury could have drawn from Gonzales's testimony was that the appellant had demonstrated a propensity for violent conduct on other occasions when he had been investigated or arrested by the officer. The matter of whether the complained-of testimony was necessary in establishing justification of the pat-down or frisk of appellant is immaterial since such evidence is inadmissible because of its "danger of unfair prejudice as a matter of law."

The judgment is reversed and the cause remanded.

 

Tom G. Davis, Justice

[Before Justices Aboussie, B. A. Smith and Davis*]

Reversed and Remanded

Filed: June 17, 1992

[Do Not Publish]

 

* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. 74.003(b) (1988).