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JAUBERT v. STATE
65 S.W.3d 73 (2000)
Court of Appeals of Texas, Waco.
March 15, 2000.
McKee, 855 S.W.2d at 91-92. The Fort Worth Court, on facts similar to Jaubert's, has determined that once the
appellant opens the door, the State is not prohibited by Article 37.07 from introducing evidence of extraneous bad acts. The facts that the Court was dealing with and their holding are as follows: In his sole point of error, appellant contends that the trial court erred in admitting evidence of a prior extraneous offense. In reviewing a trial court's decision regarding the admissibility of evidence of an extraneous matter, an appellate court must measure the trial court's ruling under an abuse of discretion standard. Montgomery v. State,810 S.W.2d 372, 391 (Tex.Crim.App.1991) (op. on reh'g). During the punishment phase of trial, appellant offered the testimony of a Reverend R.L. Taylor, who had known appellant nearly all of his life. Based on his personal knowledge and contact with appellant, Reverend Taylor opined that appellant would be a good candidate for probation. Reverend Taylor was then confronted with "have you heard" questions about appellant's prior brushes with the law. In response, Reverend Taylor stated that he was not concerned about appellant's prior misconduct because he believed appellant had turned his life around and thus would be a good candidate for probation "in the future." In rebuttal, Birdie Lundsford testified for the State that on April 6, 1991, when she was thirteen-years-old, appellant exposed himself and masturbated in front of her and her two-year-old nephew in a public park. Appellant argues the trial court erred in admitting Lundsford's testimony on the grounds that it constitutes inadmissable extraneous offense evidence under Tex.Code Crim. Proc. Ann. art. 37.07 § 3(a). [footnote omitted] See Grunsfeld v. State,843 S.W.2d 521 (Tex.Crim.App.1992). We disagree. By offering Reverend Taylor's testimony that appellant was a "good candidate" for probation, appellant "opened the door" to rebuttal evidence about the specific bad act of indecent exposure. McMillian v. State,865 S.W.2d 459, 460 (Tex.Crim.App.1993); Grunsfeld, 843 S.W.2d at 526 n. 12; Ortiz v. State,834 S.W.2d 343, 344-46 (Tex.Crim.App. 1992); Griffin v. State,787 S.W.2d 63, 67 (Tex.Crim.App.1990); Murphy v. State,777 S.W.2d 44, 67-68 (Tex.Crim. App.1988). In other words, by tendering evidence of his "suitability" for probation, appellant in effect consented to the admission of specific acts of conduct to inform the jury's discretion in deciding what punishment to assess. Griffin, 787 S.W.2d at 67. See also Kuczaj v. State,848 S.W.2d 284, 291 (Tex.App.-Fort Worth 1993, no pet.). Anderson, 896 S.W.2d at 579-580.
1. For other cases and discussions of the problems created by the docket equalization transfer system see the following cases and the authorities cited therein:
1. Pena v. State,995 S.W.2d 259, 261 (Tex. App.-Corpus Christi 1999, no pet.) ("... where an issue concerns technical, procedural requirements such as the issue before us ... practitioners rightfully look to the opinions of the appellate court in their jurisdiction for guidance on accepted practice. We hold that when an appellate court has a case presenting this kind of issue transferred to it, the court accepting the transfer should apply the law of the transferring jurisdiction so as to uphold the rightful expectations of practitioners in the transferring jurisdiction."). 2. American National Insurance Company v. International Business Machines Corporation,933 S.W.2d 685 (Tex.App.-San Antonio 1996, writ denied) (Duncan, J., concurring and dissenting) ("Rather, I dissent because I believe the law governing this appeal is that enunciated by the First Court of Appeals, and that law clearly mandates affirmance of the summary judgment on ANICO's fraud claims.") Justice Duncan conducts a detailed analysis of the "myth of uniformity" and the application of a choice of law type analysis. The concept that the State of Texas has one uniform law was relied on by this court in McLendon v. Texas Department of Public Safety,985 S.W.2d 571, 576-77 n. 6 (Tex.App.-Waco 1998, pet. filed). 3. Kaufman v. State,901 S.W.2d 653 (Tex. App.-El Paso 1995, pet. ref'd.) (Larsen, J., concurring) ("I concur in the majority opinion, its reasoning and holding, but I write to point out the vagaries of the present `docket equalization' system by which various courts of appeals are required to accept transfer cases from other courts.... It seems appropriate that we at least consider the reasoning of this `home court' in reaching our own conclusions."). 1. Jaubert's petition for discretionary review is dismissed by operation of law. TEX.R.APP.P. 50. 1. Hernandez expressly overruled Ex parte Duffy,607 S.W.2d 507 (Tex.Crim.App. 1980), and Ex parte Cruz,739 S.W.2d 53 (Tex.Crim.App. 1987), and held that Strickland requires that all ineffective assistance of counsel claims must show prejudice that is a result of counsel's deficient performance. Hernandez v. State,988 S.W.2d 770, 772 (Tex.Crim.App. 1999) (citing Strickland v. Washington,466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984)). 2. In 1998, the Texas Rules of Evidence were jointly promulgated by the Texas Supreme Court and the Texas Court of Criminal Appeals. The combined rules became effective on March 1, 1998, however, section 3(g) does not reflect this change. Tex.Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp.2000). Former Rule 404(b) of the Texas Rules of Criminal Evidence is substantially identical to Rule 404(b) of the Texas Rules of Evidence. Compare TEX.R.CRIM. EVID. 404(b), 701-702 S.W.2d (Texas Cases) XXIX, XXXVII, with TEX.R. EVID. 404(b). Thus, we cite to the current rule for ease of reference. 1. This is a transfer case. It was transferred to us from Fort Worth. We have never written on the precise issue that is before us in this case. The Second Court of Appeals, Fort Worth, has. While the majority cites other Fort Worth cases as persuasive authority, they ignore the prior decisions of the Fort Worth Court on issues that should control the outcome of this case. There is little question that if we were obligated to follow Fort Worth precedent this case would affirm.
Whether we like it or not, there are differences that develop among the way the courts of appeals interpret and apply the law. In fact, conflict among the courts of appeals provides the jurisdictional basis for the Texas Supreme Court to consider some appeals. See TEX. GOV'T CODE ANN. § 22.001(a)(2)(Vernon 1988). In an earlier decision of this case, I expressed my concern and belief that the better rule is to apply the law of the jurisdiction from which a transfer case originated rather than our own. See, e.g., Jaubert v. State, No. 10-99-090-CR (Tex. App.-Waco March 15, 2000, n. pet. h.) (Gray, J., concurring). As long as we have transfer cases, the issue of the need to resolve conflicts is a reality, not some academic exercise for ivory tower consideration. The trial court judges in Tarrant County need to be assured that an appeal of their decisions will be reviewed under the opinions and holdings of the courts above them, namely the Fort Worth Court of Appeals, Court of Criminal Appeals, the Texas and United States Supreme Court, and not the conflicting decisions of some other jurisdiction to which one of their cases may randomly be transferred. This court has previously determined that we will apply "our law" to every case presented to us, even if it is a transfer case. McLendon v. Texas Dep't of Pub. Safety,985 S.W.2d 571, 576 n. 6 (Tex. App.-Waco 1998), rev'd,35 S.W.3d 632 (Tex. 2000). The theory expressed is that "choice of law" principles are not applicable because they are based upon conflicts between different sovereigns and Texas is but one sovereign. Thus, there should only be one law. Whether a true "choice of law" analysis is applicable or not, the reality is that we have conflicts, and it is fundamentally unfair for the trial judges conduct to be determined by standards subject to the whims of the transfer system. 2. Actually Jaubert argues that trial counsel was ineffective in failing to file a motion to compel the State to produce the information responsive to Article 37.07 § 3(a). Although the filing of a motion may have obtained the information, a motion does not trigger the State's obligation to produce the information. Mitchell v. State,982 S.W.2d 425 (Tex.Crim. App.1998). If a motion is filed, the defendant must obtain a ruling on the motion to trigger the State's duty. Id. The better practice, because it does not require judicial intervention, is to simply file a notice demanding that the State provide the information pursuant to Article 37.07 § 3(g).
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