OPINION ON APPELLANT'S MOTION FOR REHEARING ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was charged in a single indictment with having committed two separate burglaries of a habitation, TEX. PENAL CODE ANN. § 30.01, and with possession of a controlled substance, methamphetamine, weighing less than 28 grams, TEX. HEALTH & SAFETY CODE § 481.115(b). Appellant was convicted of all three offenses in a single trial. The jury assessed punishment at twenty years and a fine of ten thousand dollars for the possession offense and at thirty years for each of the burglary offenses, to run concurrently. The Court of Appeals for the Fourteenth Judicial District affirmed the judgment of the trial court in an unpublished opinion. Rogers v. State, Nos. C14-89-00429-CR, C14-89-00579-CR, slip op., 1990 WL 4645 (Tex.App.-Houston [14th Dist.] Jan. 25, 1990). Appellant filed a petition for discretionary review which we refused. Appellant subsequently filed a Motion for Rehearing. We granted two of appellant's four grounds for rehearing.
On the night of January 14, 1989, several Houston Police Department officers went to appellant's residence with an arrest warrant for appellant in connection with a burglary of a habitation. Upon entering the house, the officers observed appellant sitting on a couch in the living room, pushing a package down between the cushions of the couch. The officers recovered the package from the couch and later determined it contained methamphetamine. Appellant was placed under arrest pursuant to the burglary arrest warrant. In the meantime, a search of the house was conducted and marijuana was recovered from between a mattress and box springs in a rear bedroom. Appellant informed the officers that the marijuana belonged to him.
At trial, the State offered appellant's written confession in which he admitted using and selling marijuana and methamphetamine. Appellant objected to the following portion of the confession as constituting irrelevant extraneous offense evidence:
State's Exhibit No. 2A. The State argued that evidence pertaining to the marijuana was res gestae of the offense and that appellant's statements regarding the methamphetamine were admissible to show motive to commit the burglaries. The trial court overruled appellant's objections and the confession was admitted. Also admitted was testimony describing the recovery of the marijuana and appellant's oral statement that the marijuana belonged to him.
I. Extraneous Offense Evidence
Appellant argues in his motion for rehearing that the evidence was irrelevant extraneous offense evidence and inadmissible under the Rules of Criminal Evidence.
Applying the Mayes test to the instant case, our first step is to determine whether the evidence pertaining to the marijuana
The relevancy of the marijuana to either of the instant offenses is a close question. Evidence that appellant uses and sells one type of a controlled substance (marijuana) could arguably make it more probable that appellant would also be inclined to be in possession of another type of illegal substance (methamphetamine). While this Court is not necessarily convinced of the relevancy of the marijuana evidence under that argument, we will not "superimpose [our] own judgment as to relevance over that of the trial court". Montgomery v. State, 810 S.W.2d 372, 390 (Tex.Crim.App. 1991) (op. on reh'g). As we have recognized, "[r]easonable men may disagree whether in common experience a particular inference is available" and we will not disturb a trial court's ruling as long as it is within the zone of reasonable disagreement. Id. at 391. We hold that it was within the zone of reasonable disagreement
The next step under Mayes is to determine whether the background evidence at issue is admissible as an exception under Rule of Criminal Evidence 404(b). Although Rule 404(b) enumerates specific purposes for which "other crimes, acts or wrongs" are admissible, the Rule's list of "other purposes" is "neither exclusive nor collectively exhaustive." Montgomery, 810 S.W.2d at 388. The question, then, is for what purpose might background evidence be admitted under Rule 404(b). In addressing that question, Mayes distinguished between two types of background evidence: (1) evidence of other offenses connected with the primary offense, referred to as "same transaction contextual evidence" and (2) general background evidence, referred to as "background contextual evidence".
The evidence pertaining to appellant's possession, use and sale of marijuana constitutes "same transaction contextual evidence" rather than "background contextual evidence", as such evidence is of "acts, words and conduct" of appellant at the time of his arrest.
Id. at 86-87 n. 4. Necessity, then, is an "other purpose" for which same transaction contextual evidence is admissible under Rule 404(b). Only if the facts and circumstances of the instant offense would make little or no sense without also bringing in the same transaction contextual evidence, should the same transaction contextual evidence be admitted.
The court of appeals held that appellant waived any error
The State's witness, Sergeant Larry Michael, testified on direct examination that he "found a lot of marijuana" at appellant's residence the night of appellant's arrest. Michael further testified on direct that they recovered "a lot" of bags of marijuana and that some of the marijuana was "all rolled and prepackaged." On cross examination, appellant asked Michael to specify exactly how much marijuana was recovered, whereas Michael testified as to its estimated weight. Appellant's questions did not waive error because they sought to explain Michael's vague testimony about "a lot of marijuana", which left to the imagination of the jury how much was found. Neither did appellant waive error by his efforts to elicit testimony that the amount of methamphetamine recovered was relatively small and only for personal use, as such testimony was an attempt to rebut the State's evidence that the methamphetamine seized was packaged for sale and that appellant was a dealer.
Having found that the extraneous offense evidence was erroneously admitted, we vacate the judgment of the court of appeals, and remand this cause to the court of appeals to conduct a harm analysis with respect to the admissibility of the extraneous offense evidence. TEX.R.APP.P. 81(b)(2).
McCORMICK, P.J., and WHITE, J., concur in the result.
CLINTON, Judge, concurring.
I join the majority opinion in this cause, but only with the following supplement. The majority observes that:
Majority opinion at 32. Thus the majority finds that the trial court could have been justified in finding appellant's sale and use of marijuana relevant to show he possessed methamphetamine, presumably under Tex. R.Cr.Evid., Rules 401 and 402. The majority then proceeds to inquire whether it is admissible under any of the "exceptions" enumerated in Tex.R.Cr.Evid., Rule 404(b). It is important to note in this process that the relevance the majority discerns under Rules 401 and 402 is purely of the "character conformity" variety. Rule 404(b) prohibits the use of such evidence, albeit relevant in that respect, unless the evidence may also tend to establish a fact of consequence quite apart from its "character conformity" value, by way of showing, e.g., motive, intent, etc. Otherwise, the rulemakers have already determined as a matter of law that the evidence is substantially more prejudicial than probative. See Montgomery v. State, 810 S.W.2d 372, at 387 (Tex.Cr.App.1991) (Opinion on rehearing on Court's own motion).
Rule 404(b) does not contain an exhaustive list of ways that evidence of "other crimes, wrongs, or acts" may establish a fact of consequence other than by character conformity. However, the majority makes the same mistake it did in Lockhart v. State, 847 S.W.2d 568 (Tex.Cr.App.1992, rehearing denied February 24, 1993), to interpret Mayes v. State, 816 S.W.2d 79
First, it should be understood that by "necessity" is meant that it is impossible to present a coherent picture of the charged offense without inadvertently proving the "other crime, wrong, or act." In this sense, of course, it is not so much that the proponent of the evidence can put it to some "purpose" other than character conformity, under Rule 404(b), as much as that he simply cannot present his case without also incidentally proving the extraneous offense. Second, because the evidence is only admitted out of "necessity," and does not genuinely serve a "purpose" other than character conformity, a limiting instruction should always be given upon request of the opponent of such evidence. Third, and again because "necessity" is not truly a "purpose" other than character conformity to which "other crimes, wrongs, or acts" can be put, neither this Court nor trial courts should allow the word to degenerate into a talisman for admissibility, as over the years "res gestae" did. To avoid that potentiality, trial courts should require the proponent of the evidence, upon objection, convincingly to explain that coherent proof of the charged offense unavoidably establishes the "other crime, wrong, or act" as well, just as the proponent must satisfy the trial court that one of the actual "purposes" to which such evidence may be admitted under Rule 404(b) genuinely applies. Montgomery v. State, supra, at 387.
With these qualifications, I join the judgment and opinion of the majority.
We also originally granted ground two of appellant's motion for rehearing. However, we have determined that ground two was improvidently granted and it is therefore dismissed.
Id. at 88.
Powell, 478 S.W.2d at 98 (quoting United States v. Mullings, 364 F.2d 173, 175 (2nd Cir.1966)) (emphasis in original).
Rogers, Nos. C14-89-00429-CR, C14-89-00579-CR, slip op. at 4-5, 1990 WL 4645.