              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                       NO. PD-1613-07



                        ROBERT WALKER FISCHER, Appellant

                                              v.

                                  THE STATE OF TEXAS

              ON STATE’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FOURTH COURT OF APPEALS
                              BEXAR COUNTY

       C OCHRAN, J., filed a concurring opinion in which JOHNSON, J., joined.

                                        OPINION

       I join the majority opinion. I write separately only to suggest that the disagreement

between the majority and the concurring and dissenting opinion exemplifies why Harrell v.

State 1 was wrongly decided in 1994 and why it should be overruled today. As the concurring

and dissenting opinion notes, we generally follow the United States Supreme Court on

matters dealing with the Texas and Federal Rules of Evidence when those rules read the



       1
           884 S.W.2d 154 (Tex. Crim. App. 1994).
                                                         Fischer    Concurring Opinion     Page 2

same.2 The United States Supreme Court has stated that Rule 104(b) requires the admission

of conditionally relevant evidence once the proponent of the evidence (here the State) has

produced sufficient admissible evidence to “support a finding” of the fulfillment of the

condition.3

       Under both Federal and Texas Rule 104(b), the threshold burden of relevancy is very

low: “The preliminary fact can be decided by the judge against the proponent only where the

jury could not reasonably find the preliminary fact to exist.” 4 Unlike determinations made

under Rule 104(a), a rule that employs a “preponderance of the evidence” standard, the

proponent need produce only “some evidence”, or a “prima facie” showing, before the trial

judge is required to admit the conditionally relevant evidence under Rule 104(b).5

       However, in Harrell v. State,6 this Court declined to follow federal precedent and both

       2
          Concurring and Dissenting Op. at 2 n.3 (“Although Huddleston construes the Federal
Rules of Evidence, our Rule 104(a) and (b) are in all material respects identical to Federal Rules
of Evidence 104(a) and (b). ‘Cases and commentaries interpreting the Federal Rules of Evidence
are instructive in our consideration of similarly worded provisions in our own rules.’ Coffin v.
State, 885 S.W.2d 104, 147 n.4 (Tex. Crim. App. 1994).”).
       3
         See Huddleston v. United States, 485 U.S. 681, 688-91 (1988) (if there is some
evidence, such that a jury could reasonably conclude that the defendant committed an extraneous
offense, evidence of that offense is conditionally relevant, and, if otherwise admissible, trial
judge may not exclude it); see generally, 21 CHARLES A. WRIGHT & KENNETH W. GRAHAM , JR.,
FEDERAL PRACTICE AND PROCEDURE : EVIDENCE (1977).
       4
        W    RIGHT   & GRAHAM , supra § 5054, at 269.
       5
         See Olin G. Wellborn III, Article I of the Texas Rules of Evidence and Articles I and XI
of the Texas Rules of Criminal Evidence: Applicability of the Rules, Procedural Matters, and
Preserving Error, 18 ST . MARY ’S L.J. 1165, 1189 (1987) (Criminal Rule 104(b) requires only a
“prima facie” showing of the preliminary fact).
       6
           884 S.W.2d at 159-60.
                                                          Fischer    Concurring Opinion        Page 3

federal and Texas commentators. It held that Texas Rule 104(b) requires the trial judge to

determine that there is sufficient evidence to support a jury finding that the defendant

committed the act beyond a reasonable doubt before the court may admit evidence of an

extraneous offense.7

       The rationale that we expressed for this unusual interpretation of Rule 104(b) in

Harrell was that Texas law has long required judges to instruct jurors not to consider

evidence of an extraneous offense unless the jurors believe, beyond a reasonable doubt, that

the defendant committed that offense.8 But, as Judge Clinton noted in his concurrence in

Harrell, it was far from evident that jurors had historically been instructed not to consider

extraneous offense evidence unless the jury believed “beyond a reasonable doubt” that the

defendant committed that act.9        Also, even if jurors had been so instructed in pre-


       7
         Id. at 160 (recognizing but rejecting standard of proof set out in Huddleston for
conditionally relevant evidence under Criminal Rule 104(b)).
       8
           Id. at 158-60.
       9
         Id. at 162-63 (Clinton, J., concurring). Judge Clinton stated, inter alia,
       the majority simply concludes, relying on long-time precedent, all of which pre-
       dates the Rules of Criminal Evidence, that jurors still must be instructed to find an
       accused perpetrated extraneous misconduct beyond a reasonable doubt before they
       can consider them in their deliberations. From this uncritically accepted premise
       the majority reasons that it necessarily follows that the standard for admissibility
       of such evidence is also proof beyond a reasonable doubt, and that the trial court
       therefore should determine, as a predicate to admissibility of such evidence in the
       first place, whether a rational jury could conclude, to a level of confidence beyond
       a reasonable doubt, that the accused committed the extraneous misconduct. Along
       the way the majority hypothecates that whenever this Court has said in the past
       that it must be “shown” that the accused committed the extraneous misconduct,
       and that the proof must be “clear” to be admissible, what we meant all along was
       that the trial court must be able to say that a rational jury could find beyond a
                                                        Fischer   Concurring Opinion    Page 4

Rules cases, there is nothing in either the rules or logic that requires a “mirror” connection

between the standard of proof for the admissibility of evidence and the standard by which

jurors should evaluate that evidence. It is one thing to say that the State must prove the

defendant’s guilt beyond a reasonable doubt and an entirely different thing to say that the

State must establish the relevancy of its evidence beyond a reasonable doubt before the trial

judge may admit that evidence for the jury’s consideration. Surely one would not think that

the State must prove, beyond a reasonable doubt, the accuracy of an eyewitness’s

identification before the eyewitness can testify that she saw the defendant shoot the victim.

       As noted by Professors Mueller and Kirkpatrick, jurors are best suited for deciding

whether the individual pieces of evidence, when viewed as a whole, actually support guilt

or innocence.10 The judge is just a minimal gatekeeper when it comes to conditionally

relevant evidence because juries, not judges, decide the importance or probative value of all

evidence:

               FRE 104(b) says that the jury decides whether a condition of fact has
       been fulfilled if the relevancy of evidence depends on it. Juries do the work
       of sorting out various pieces of fragmented evidence and deciding whether the
       resulting picture supports conviction or acquittal or recovery or rejection of
       claims. FRE 104(b) is useful in codifying the point that separate items of
       evidence may be interdependent, so accepting or rejecting one item can make
       others rise in importance or fall away altogether. And FRE 104(b) confirms


       reasonable doubt that the accused was the perpetrator. This whole process of
       reasoning seems to me to be result-oriented, and not a little disingenuous.
Id.
       10
        1 CHRISTOPHER B. MUELLER AND LAIRD C. KIRKPATRICK, FEDERAL EVIDENCE § 34, at
184-85 (2d ed. 1994).
                                                        Fischer     Concurring Opinion   Page 5

       that juries play a vital role in assessing such matters.11

It is especially ironic that here in Texas, the most jury-happy state in the United States, this

Court has implied that we trust juries so very little that a trial judge may not admit evidence

of an extraneous act (or any other type of conditionally relevant evidence) 12 unless the judge

first decides that a jury could find that the defendant committed that act beyond a reasonable

doubt. Such a holding is wildly distrustful of the legitimate fact-finding role of jurors and

illogically conflates the standard of proof of guilt with the very low threshold for admission

of conditionally relevant evidence.

       If Harrell were consigned to the dustbin, and we followed Huddleston and other

federal precedent on Rule 104(b) as the concurring and dissenting opinion suggests that we

should, we would not be engaged in semantical strife. The plain words of the Texas rule

should be followed: If the relevancy of any evidence (such as appellant’s access to the

Cricket Rifle) depends upon the fulfillment of a condition of fact (such as the likely use of

that rifle as the murder weapon) the trial court shall (and must) admit it upon, or subject to,

the introduction of evidence “sufficient to support a finding of the fulfillment of the


       11
            Id.
       12
          I agree with Judge Womack in his concurring opinion that the relevancy of the evidence
concerning the missing Cricket rifle depends upon appellant’s access to that rifle, not the
commission of a theft or any other act of misconduct. But that access evidence is only
conditionally relevant and depends upon the offer of “some” evidence that the Cricket rifle was
likely used to murder appellant’s aunt. Once “some” evidence–evidence sufficient to support a
finding–of both appellant’s “access” and “murder weapon” has been offered, the jury is then
capable of deciding (1) whether to make a connection between the two evidentiary items; and (2)
the probative force of that evidence.
                                                  Fischer   Concurring Opinion   Page 6

condition.” This Court, in Harrell, ignored both the plain language of the rule and its

purpose.

Filed: October 29, 2008

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