









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-1486-06


CALVIN JOSEPH SMITH, Appellant

v.


THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS

WALKER  COUNTY



 Keller, P.J., filed a dissenting opinion.



	I agree that a trial court may consider extraneous offenses contained in a PSI even if the evidence
does not establish beyond a reasonable doubt that the defendant committed the offenses.  I also agree that
the record must contain some basis for believing that the defendant committed the extraneous offenses. 
However, I disagree with the Court's conclusion that the record in this case contains no basis for
concluding that appellant inflicted the extraneous injuries upon his child.
	Appellant was one of the victim's caregivers, and he admitted (by pleading guilty) that he struck
his five-month-old daughter at least once, with enough force to kill her.  As detailed by the trial court, the
baby's injuries - some of which were already healing - included a hematoma on the brain, bruising front
and back, three broken ribs, three tears in the anus, tears in the vagina, and two broken legs.  The court
concluded that it would be unreasonable to believe that appellant, as father of the child, would not have
known of these injuries.  
	The fact that appellant caused the fatal injury gives rise to at least a character conformity inference
that he also caused the other injuries suffered by the child during her short life.  Although the law generally
seeks to prohibit character conformity inferences at the guilt stage of trial, that prohibition is not grounded
upon the idea that the inference lacks probative force, but on the idea that this strongly probative inference
must be prohibited for policy reasons: 
The state may not show defendant's prior trouble with the law, specific criminal acts, or
ill name among his neighbors, even though such facts might logically be persuasive that he
is by propensity a probable perpetrator of the crime. The inquiry is not rejected because
character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so
overpersuade them as to prejudge one with a bad general record and deny him a fair
opportunity to defend against a particular charge. The overriding policy of excluding such
evidence, despite its admitted probative value, is the practical experience that its
disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (1)


But those policy reasons do not apply to the punishment phase of trial, which focuses in large part upon the
defendant's character, (2) and they would seem even less applicable in the PSI context, which contains even
fewer constraints on the admissibility of evidence. 
	Consequently, I would reverse the judgment of the court of appeals and affirm the judgment of the
trial court.  Because the Court does not, I respectfully dissent.
Filed:  June 27, 2007
Publish

 





1.   Old Chief v. United States, 519 U.S. 172, 181 (1997)(quoting Michelson v. United
States, 335 U.S. 469 (1948)).
2.   See Tex. Code Crim. Proc., Art. 37.07, §3(a)(1).

