









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. 1531-03


KIMBERLY HALEY, Appellant

v.


THE STATE OF TEXAS




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

TRAVIS  COUNTY



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


	Although I agree with the Court's disposition, I am not in complete accord with its reasoning. 
I discuss the points of departure below.
1. Extraneous Bad Acts Evidence
	I agree that we are permitted to reach the merits of the State's argument, but I do so for a
simpler reason: the party that prevailed at trial should never be required to advance an argument
before the Court of Appeals as a predicate for raising that argument on discretionary review.  This
conclusion is consistent with the view that I articulated in Alonzo v. State (1) with regard to
preservation of error.  I would further conclude that the reasoning in my Alonzo opinion should apply
also to all types of arguments that could be made by a party that prevailed at trial.
	We should keep in mind that the trial on the merits is the "main event rather than a tryout on
the road." (2)  We should not allow this "main event" to be disturbed merely because the prevailing
party neglected to articulate the correct basis for upholding the trial court's correct decision.  To do
so would be to impose preservation of error requirements upon the parties on appeal.  But
preservation requirements exist at trial because they promote the proper and efficient functioning of
the system:
Stated more broadly, objections promote the prevention and correction of errors.
When valid objections are timely made and sustained, the parties may have a lawful
trial. They, and the judicial system, are not burdened by appeal and retrial. When a
party is excused from the requirement of objecting, the results are the opposite. (3)

Imposing such a requirement on the appellee at the appellate level, however, does nothing to
promote the efficient functioning of the system at the trial level, where it matters the most.  In fact,
it would have just the opposite effect.  And as I observed in Alonzo, the party that prevailed at trial
has no duty to even file a brief on appeal. (4)  It makes little sense, then, to require the party that
prevailed at trial to articulate a particular argument on appeal before being permitted to raise the
issue on discretionary review.  So, with regard to whether we can address the State's "bad acts"
argument here, I would simply conclude: because the State prevailed at trial, it had no duty to discuss
the admissibility of the evidence as a bad act.  
2. Extraneous Victim Impact Evidence
	Although Cantu v. State, a capital case, suggested that victim impact evidence relating to the
victim of an extraneous offense was not "relevant" under Rule 401, (5) that pronouncement is
questionable in light of Rule 401 and of questionable application to this case in light of subsequent
caselaw regarding non-capital cases.  The threshold for relevance under Rule 401 is very low:
"having any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence." (6)  Moreover,
subsequent caselaw has indicated that the admissibility of evidence at the punishment phase of a
non-capital case is a function of policy rather than relevance. (7)  If we were to speak of relevance, this
evidence seems relevant to the harm inflicted by the defendant, (8) and thus to his punishment, but only
slightly so, due to the remoteness of its connection to the case.  In part because of this remoteness,
it is unfairly prejudicial.  While grounding its legal basis on relevance, the Cantu opinion  expressly
articulated its view that this evidence was unfairly prejudicial, (9) and thus, the more logical basis for
excluding the evidence would appear to be Rule 403. (10)  As a matter of policy, I would not find the
evidence to be completely unrelated to the question of the appropriate punishment, but I would find
the link to be attenuated and the danger of unfair prejudice to be high enough that the evidence
warrants exclusion.  Consequently, instead of finding the evidence "irrelevant," I would hold that
the minimal probativeness of this evidence was substantially outweighed by the danger of unfair
prejudice under Rule 403.
	With these comments, I concur in the Court's judgment.
							Keller, Presiding Judge
Date filed: October 5, 2005
Publish
1.   158 S.W.3d 515 (Tex. Crim. App. 2005)(Keller, P.J., dissenting to dismissal of
petition).
2.   Anderson v. Bessemer City, 470 U.S. 564, 575 (1985)(ellipsis and internal quotation
marks omitted).
3.   Saldano v. State, 70 S.W.3d 873, 887 (Tex. Crim. App. 2002).
4.   See 158 S.W.3d at 516.
5.   939 S.W.2d 627, 637 (Tex. Crim. App. 1996), cert. denied, 522 U.S. 994 (1997).
6.   Tex. R. Evid. 401.
7.   Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999). 
8.   See Mosley v. State, 983 S.W.2d 249, 262 (Tex. Crim. App. 1998), cert. denied, 526
U.S. 1070 (1999).
9.   939 S.W.2d at 637.
10.   Tex. R. Evid. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, or needless presentation
of cumulative evidence.  
