COCHRAN, J., delivered the opinion of the Court, in which MEYERS, PRICE, WOMACK, JOHNSON, KEASLER, HERVEY, and HOLCOMB, JJ., joined.
Appellant, a former Dallas Police Department Narcotics detective, was convicted of (1) tampering with physical evidence for knowingly making false statements in a police report, and (2) aggravated perjury for making the same false statements under oath. The court of appeals reversed the convictions, holding that the trial court's admission of extraneous-offense evidence violated Rule of Evidence 404(b) and was harmful.
A. The State's Case: The Arrest of Jose Vega
The events that led to appellant's conviction arose out of the wrongful arrest of Jose Vega. Roberto Gonzalez, who had already been convicted for his part in Vega's wrongful arrest, testified that he and appellant's confidential informant, Daniel Alonso, manufactured fake drugs
According to Gonzalez, Alonso got out of the car alone and walked into the garage bay where Vega was working under a van. Shortly thereafter, Alonso walked out of the bay, over to the garage restroom, and then back to the car. A surveillance videotape,
Back at the 7-11, Alonso delivered two of the fake kilos to appellant. Appellant paid Alonso for his work, and Alonso in turn paid Gonzalez $300. Appellant called in a report that Alonso had just purchased two kilos of cocaine from Vega and that there was more in the Cadillac parked outside the garage. This report was called in to "a direct entry clerk" to obtain a warrant. Uniformed officers appeared and arrested Vega, and then, in a search pursuant to the warrant, police found the rest of the "cocaine" in the Cadillac.
In both a supplemental police report
B. Appellant's Defense
Appellant's defense was that his statements were true because he saw the contact between Alonso and Vega. Therefore, he had no intent to deceive, as is required for aggravated perjury, and he made no false police report, as is required for tampering with physical evidence.
Appellant put on evidence of an out-of-court experiment: photographs taken from the street into the garage bay to show that it was possible for him to have seen Vega and Alonso making contact. These photographs were taken by a defense investigator,
Appellant said that he wrote the statement about Alonso and Vega coming into contact in his report for his "recollection when I go to testify in court." He said that his purpose was to tell the truth, and that he "was not trying to influence anything." He also denied telling Herrera to "stick with" his story.
On cross-examination appellant said that, although it turned out that Alonso had set Vega up with fake "cocaine," he did not make a false statement in the police report or testify falsely because he did see Alonso come into contact with Vega in the garage bay. Appellant said that the photos his investigator took of his father standing in the bay "show that you could see someone inside there." Appellant accused Vega and Herrera of lying.
C. The State's Proffer of Extraneous Offenses and the Trial Court's Ruling and Limiting Instruction.
After the defense rested, the State proffered evidence of two of appellant's other "buy-bust" deals. In each, appellant's police report stated that he witnessed either the exchange of drugs or the contact between the confidential informant and the suspect. The State contended that these police reports were false and that, in each instance, appellant did not see what he said he saw. The State argued that the extraneous offenses, which occurred very close in time to the charged offense, were admissible to rebut "the defensive theory that our witnesses lied in the Vega case." Appellant objected that the extraneous offenses were not admissible to rebut appellant's general denial of the offense, or to rebut any defensive theory that the State's witnesses were lying, because it was the State that elicited appellant's testimony that Vega and Herrera were liars. Thus, evidence of the two other "buy-bust" deals was inadmissible under Rules 404(b) and 403.
The State responded that "the prosecutor didn't elicit the evidence. The Defense put on their theory that Mr. Delapaz is telling the truth and everybody else is lying. He raised that on his direct examination. All Mr. Shook did was further explore that." The trial court found "that
D. Evidence of the Extraneous "Buy-Bust" Deals.
Evidence of the extraneous offenses was then offered by six witnesses. First, a police officer testified about appellant's statements in two different police reports: In the first case, "AO Delapaz observed AP Amador place the cooler into the informant's vehicle"; and in the second, "Arresting Officers Delapaz and Herrera were conducting surveillance at the location and observed Arrestee Hernandez come in contact with the confidential informant." After that testimony, the court orally instructed the jury:
1. Roberto Amador
Roberto Amador testified that he was wrongfully arrested on June 6, 2001, when he went to talk to someone who had called him about buying his wrecker, which was in a transmission shop bay getting fixed. The caller who was appellant's confidential informant (C.I.) Jose Ruiz-arrived, walked around the wrecker, and then went outside and made a phone call. As he was talking on the phone, police arrived and made everyone in the shop stand up against the wall. They arrested Amador and let everyone else go. Amador testified that he never made a drug deal with Ruiz; he never walked near Ruiz' Explorer; and he never took an ice cooler out of his truck and put it into Ruiz's Explorer.
Jose Ruiz, the C.I., testified that his plan was to pretend that he was going to purchase Amador's wrecker, but, in fact, to set him up with fake drugs. He and others, including Alonso, made the fake drugs on the morning of the arrest. They pressed pool chalk into squares and wrapped the squares into plastic. He put the fake drugs in a cooler in his Explorer and then drove the Explorer to the shop to meet Amador. He talked to him for about five minutes, and then he called the police to come and arrest Amador. He said that Amador never touched the cooler, which was always in Ruiz's Explorer. He said that appellant did not check his Explorer before the "buy-bust" deal.
2. Jorge Hernandez
Jorge Hernandez testified that, on September 24, 2001, his truck would not start. He walked to a nearby garage, looking for a mechanic. The mechanic wasn't there, but his helper was, and the helper lent Hernandez his car. When Hernandez returned the borrowed car to the garage, he noticed that the police were there, and they "had all the mechanics out on the street with their hands on the wall searching them." At the same time, a couple of men walked up to the garage carrying food and cokes, but the police prevented them from going in. Hernandez nevertheless walked over to return the car keys. A police officer came running towards him: "He took the keys. He took my wallet. He took my cigarettes. He checked them, and he put them back and then he handcuffed me." Hernandez said he was taken to jail, and he later learned he was being charged with selling drugs. Hernandez said that he never negotiated a drug deal at the garage.
The jury convicted appellant and sentenced him to five years' imprisonment.
E. The Appeal and Motion for Rehearing
Appellant appealed and challenged, inter alia, the trial court's admission of the extraneous offenses. The court of appeals correctly framed the issue as "whether evidence of appellant's extraneous misconduct was relevant to a `fact of consequence' other than its tendency to prove character conformity."
The State filed a motion for rehearing arguing that: 1) the State did not elicit appellant's claim that Herrera was lying by "prompting or maneuvering"; instead, defense counsel asked appellant on direct examination if he had asked Herrera to lieas Herrera had testified he had-and appellant said that he had not; 2) the evidence was admissible to prove intent; and 3) the evidence was admissible under the Doctrine of Chances. The court of appeals denied rehearing, and the State petitioned for discretionary review, presenting these same arguments.
A. Admissibility of Other Crimes, Wrongs or Acts.
Under the Texas Rules of Evidence, evidence of other crimes, wrongs, or acts is not admissible "to prove the character of a person in order to show action in conformity therewith." But it may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
One well-established rationale for admitting evidence of uncharged misconduct is to rebut a defensive issue that negates one of the elements of the offense.
B. The Standard of Review
"Whether extraneous offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court."
A. Perjury and Tampering with Evidence
A person commits perjury if, with intent to deceive and with knowledge of the statement's meaning, he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath.
A person commits tampering with physical evidence if, knowing that an investigation or official proceeding is pending or in progress, he makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.
B. Admission to Rebut Appellant's Defensive Theory that the State's Star Witness Fabricated His Version of the "Buy-Bust" Drug Deal.
As we recently noted in Bass v.
We held that it was "at least subject to reasonable disagreement whether the extraneous-offense evidence was admissible for the noncharacter-conformity purpose of rebutting appellant's defensive theory that the complainant fabricated her allegations against him and of rebutting the defensive theory clearly suggesting that appellant, as a `real deal' and `genuine' pastor, would not engage in the type of conduct alleged in the indictment."
In this case, appellant likewise attacked one of the State's star witnesses in opening argument:
Appellant did not have to wait his turn to show that Mr. Herrera had a motive to cooperate with the State: Herrera testified on direct examination for the State that he had been granted immunity, and that he was cooperating with the State, in part, because he was expecting some sort of offer-ranging from probation to dismissal-for his own pending criminal charges. On cross-examination, defense counsel asked Herrera about his prior lies to the grand jury and suggested that Herrera was cooperating now only because he wanted to "get rid of" his pending felony cases and get his police job back. Appellant also implied, during his cross-examination of Vega, that Vega also had a strong motive to lie: He was paid $480,000 by the City of Dallas in a civil suit stemming from his wrongful arrest and imprisonment. Appellant also expressed incredulousness that Vega never noticed Alonso walk into the garage. The defense's basic attack was that both Herrera and Vega were lying or fabricating their present testimony concerning the drug deal for ulterior motives.
But it was not until the State cross-examined appellant that he expressly accused these witnesses of being liars. First he attacked Vega.
The parties argued, at trial and on appeal, about whether the defensive theory that Herrera (and Vega) were lying was raised by appellant or was elicited by "prompting or maneuvering" by the State. The court of appeals decided it was the latter,
There is an element of truth in both characterizations. Appellant's defense was that he could see contact between Alonso and Vega because he had a better angle. And his attack on Herrera-in opening, on cross-examination, and in his own testimony on direct-was not as strong, direct, or sustained as Bass's was on his teenage complainant. But appellant did, in his opening statement, suggest that Herrera would say whatever the State wanted to hear, and he did, in his own direct testimony, inferentially accuse Herrera of lying because he denied telling Herrera to "stick with" his story.
Thus, appellant's position was that the contact did occur, and he saw it. Herrera and Vega's position was that the contact did not occur, therefore no one could have seen it. One of these two versions cannot be true. All three of these witnesses were positive about their diametrically different versions; therefore someone committed perjury-knowingly made a false statement under oath with the intent to deceive. But no one suggested that any of these three witnesses is generally a liar, generally untruthful, or generally not worthy of belief.
In these circumstances, it is at least subject to reasonable disagreement whether the extraneous-offense evidence was admissible for the noncharacter-conformity
But appellant's primary defense was that he saw "the contact" between Alonso and Vega even though no one else who was there saw it. Therefore, what he wrote in his offense report was true, and what he testified to in the former trial was true. He had no intent to deceive and he did not deceive. Period. And that raised a clear basis, rejected by the court of appeals in its denial of the State's motion for rehearing, to admit the extraneous offense evidence under the "doctrine of chances."
C. The Extraneous Evidence Was Admissible under Wigmore's "Doctrine of Chances."
The "doctrine of chances" tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.
Similarly, the chance that a man innocently collects on his murdered business partner's insurance policy decreases significantly when it is learned that he collected on his murdered wife's insurance policy just three years earlier.
Here, the "I saw what no one else saw" defense becomes considerably less probable when one hears that appellant saw two other fake drug deals that no one else saw and others denied that they occurred. The unusual or abnormal element-that appellant saw something no one else present
In each case, appellant's confidential informant planted fake drugs to frame an innocent person. In each case, appellant stated in his police report that he witnessed the contact or delivery. The extraordinary coincidence that appellant saw drug deals that no one else did three different times flies in the face of common sense. Under the "doctrine of chances," evidence of such a highly unlikely event being repeated three different times would allow jurors to conclude that it is objectively unlikely that appellant was correct in his Vega offense report or that he was truthful in his testimony that he saw contact between Alonso and Vega.
Finally, we also agree with the trial court's ruling on appellant's Rule 403 objection.
D. The extraneous evidence did not run afoul of Rule 403
A Rule 403 balancing test includes the following factors:
Appellant does not dispute that the extraneous offenses were probative in assessing Herrera's truthfulness about this event; rather, he asserts that this evidence was not admissible for that or any other reason. But, as we have noted, the extraneous offense evidence made facts of consequence — the falsity of appellant's statements and his knowledge that those statements were false — more likely. Furthermore, the evidence that appellant committed the extraneous acts was strong; in each instance, both the confidential informant and the set-up "dealer" testified that there was no contact or delivery. And the extraneous offenses occurred close in time to this offense: one just before, and one just after.
On the other hand, we recognize that evidence that appellant orchestrated a series of fake "buy-bust" deals could potentially affect the jury in an emotional way. And, as recognized by appellant and the court of appeals, a significant amount of time was devoted to presentation of the extraneous offenses during rebuttal. Appellant argues that there was no need for the extraneous evidence — to prove intent or knowledge — because the State had its witnesses' testimony and the videotape of the alleged deal. But this is not like the case where the "State's direct evidence clearly establishes the intent element and that evidence is not contradicted by appellant nor undermined by appellant's cross-examination of the State's witnesses."
In light of these facts, we hold that the trial court's ruling that the danger of unfair prejudice did not substantially outweigh the probative value of the extraneous offenses was not an abuse of discretion.
KELLER, P.J., not participating.
The fact that York's defense included innocent explanations for having insurance on [his business partner's] life and for some of his activities after [her] death underscores the relevance of [his first wife's] murder evidence to York's intent during the [instant] episode. When the defendant affirmatively denies having the requisite intent by proffering an innocent explanation for his actions, the government is entitled to rebut that argument. "Evidence of another crime which tends to undermine defendant's innocent explanations for his act will be admitted."
Id. at 740 (cites omitted).