             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                        NO. PD-1575-07



                       TANEESHA MONIQUE SIMS, Appellant

                                              v.

                                 THE STATE OF TEXAS

           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                   FROM THE FIRST COURT OF APPEALS
                            HARRIS COUNTY

              P RICE, J., delivered the opinion for a unanimous Court.

                                        OPINION

       The appellant was convicted by a jury for the offense of aggravated assault with a

deadly weapon, a knife.1      The jury assessed the appellant’s sentence at four years’

confinement. We granted the appellant’s petition for discretionary review to determine

whether the State, during the punishment phase of trial, may introduce character evidence in

the form of opinion testimony when that opinion is based on no more than a single encounter


       1

       TEX . PEN . CODE §22.02(a)(2).
                                                                                     Sims — 2

with law enforcement that constitutes an extraneous offense. For the reasons that follow, we

hold that the evidence presented at the punishment phase of trial was proper and that the trial

court committed no error in allowing its admission.

                    THE FACTS AND PROCEDURAL POSTURE

       The appellant and the victim had an ongoing dispute that lasted for several days. It

culminated on February 10, 2002, with a confrontation in which the appellant stabbed the

victim with a knife. Prior to the punishment phase of trial, the appellant filed an application

for community supervision. The State filed a notice of intent, prior to the punishment phase,

to offer evidence of other crimes, wrongs, or acts committed by the appellant.

       During the punishment phase, in accordance with its notice of intent, the State sought

to introduce evidence through different police officers concerning extraneous offenses that

the appellant had committed while out on bond for the offense charged in this case. Outside

the jury’s presence, the trial court conducted a preliminary hearing to decide on the

admissibility of the proffered evidence. One of the witnesses the State sought to call was

Officer Russell Terry. The State informed the trial judge that, through Terry’s testimony, it

wished to introduce evidence of an extraneous offense as well as Terry’s opinion of the

appellant’s character for truthfulness. After some discussion, the trial court allowed the

testimony to be adduced.

       Terry testified that he was dispatched to a scene on April 23, 2003, where he met the

appellant. The appellant told Terry that she had been assaulted inside of a vehicle by a man
                                                                                     Sims — 3

named Melvin Chris. She initially claimed that Chris slapped her in the face and prevented

her from calling 9-1-1. However, Terry testified that the appellant later claimed that she was

not assaulted and that Chris had not prevented her from dialing 9-1-1. Still later, the

appellant changed her story again and claimed that she was prevented from dialing 9-1-1,

even though she eventually was able to dial 9-1-1. Terry observed no visible marks or

injuries on the appellant, and he found her demeanor “strange.” Specifically, the appellant

was laughing and talking on her cell phone during the interview, and she never cried or

seemed upset by the situation. Based on his observations, Terry refused to take any action

against Chris. Instead, he simply had another police officer give the appellant a courtesy ride

home. After Terry’s testimony relaying this incident, the State asked him if he had an

opinion as to the appellant’s character for truthfulness. Terry responded, over the appellant’s

objection, that he thought the appellant was untruthful.

       The appellant appealed, claiming that the trial court erred in admitting Terry’s opinion

of her character for truthfulness based upon a single encounter, especially when that opinion

was predicated upon an alleged false report to a peace officer, which constitutes a separate

and extraneous offense.2 The court of appeals ruled that the testimony was permissible, and,

for the reasons that follow, we agree.




       2

       TEX . PEN . CODE §37.08(a). (“A person commits an offense if, with intent to deceive, he
knowingly makes a false statement that is material to a criminal investigation and makes the
statement to . . . a peace officer conducting the investigation[.]”)
                                                                                       Sims — 4

                                            THE LAW

        Prior to 1965, criminal trials in Texas were unitary in nature. Determinations as to

guilt and punishment were made in a single proceeding. However, with the enactment of the

new Code of Criminal Procedure, the Texas Legislature created a bifurcated process, i.e.,

separate guilt and punishment phases.3 “Such [bifurcated] procedure was obviously designed

to take the blindfolds off the judge or jury when it came to assessing punishment. It

authorized the introduction of evidence on punishment not heretofore held to be generally

admissible.” 4 In other words, what is admissible as relevant to the punishment determination

is no longer constrained by considerations of what is patently inadmissible at the guilt phase

of trial.

                                          Rules 404 & 405

        During the guilt phase of trial, the Rules of Evidence generally forbid the introduction

of character evidence.5 It is not that character evidence offered to prove “conduct or a state

of mind conforming to that character” would be an irrelevant consideration at the guilt phase

of trial.6 It is manifestly relevant. But Rule 404(a) nevertheless prohibits such use of


        3

            Murphy v. State, 777 S.W.2d 44, 61 (Tex. Crim. App. 1989).
        4

            Brumfield v. State, 445 S.W.2d 732, 738 (Tex. Crim. App. 1969).
        5

        TEX . R. EVID . 404. The only exception concerning the character of an accused is that the
prosecution may rebut good character evidence only if the accused introduces such evidence.
        6

            Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 TEXAS PRACTICE : GUIDE TO
                                                                                       Sims — 5

character evidence on the ground that it is generally “laden with the dangerous baggage of

prejudice, distraction, time consumption and surprise.” 7 Character evidence is generally

inadmissible, notwithstanding its relevance, because “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.” 8

        Of course, Rule 404(a) does provide for some exceptions to the general rule. When

these exceptions apply, Rule 405 limits the forms in which the character evidence may take.

For example, to be qualified to give character evidence in the form of opinion testimony at

the guilt phase of trial, a witness must be “familiar... with the underlying facts or information

upon which the opinion is based.” 9 But the witness may not testify on direct examination

about any specific instance or instances of conduct that led him to formulate his opinion.

Inquiry into specific instances of conduct is permissible only 1) to cross-examine a character

witness,10 or 2) when a person’s character is an essential element of a charge, claim, or




THE   TEXAS RULES OF EVIDENCE § 404.2, at 181 (3rd ed. 2002).
        7

         Id. at 182.
        8

       Pollard v. State, __ S.W.3d __, 2008 Tex. App. LEXIS 609, at *4 (Tex. App. — San
Antonio 2008) (citing Michelson v. U.S., 335 U.S. 469, 475-76 (1948)).
        9

         TEX . R. EVID . 405(a).
        10

         Id.
                                                                                           Sims — 6

defense.11

          Evidence of extraneous offenses is generally inadmissible at the guilt phase of trial

to prove action in conformity therewith.12 Extraneous-offense evidence is “inherently

prejudicial, tends to confuse the issues, and forces the accused to defend himself against

charges not part of the present case against him.” 13 Essentially, the current rules thus follow

the common law reasoning that “an accused person is entitled to be tried on the accusation

made in the State’s pleading and not on some collateral crime, or for being a criminal

generally.” 14 But Rule 404(b) does allow for the admission of extraneous-offense evidence

at the guilt phase of trial for specific, non-character-conformity purposes, such as to prove

motive, opportunity, intent, preparation, plan, etc.15

                                            Article 37.07

          Prior to 1998, Rule 404(c) of the Texas Rules of Evidence discussed the use of

character evidence during the punishment phase.16 However, the Legislature deleted Rule

          11

          TEX . R. EVID . 405(b).
          12

          TEX . R. EVID . 404(b).
          13

          Pollard v. State, supra at *4 (citing Albrecht v. State, 486 S.W.2d 97, 100 (Tex. Crim. App.
1972)).
          14

          Young v. State, 159 Tex. Crim. 164, 165, 261 S.W.2d 836, 837 (Tex. Crim. App. 1953).
          15

          TEX . R. EVID . 404(b).
          16

           See former TEX . R. EVID . 404(c) (“In the penalty phase, evidence may be offered by an
                                                                                          Sims — 7

404(c) in 1998, leaving Article 37.07 of the Code of Criminal Procedure to govern the

admission of evidence in a non-capital felony trial.

       Article 37.07 § 3(a)(1) allows for admission of any evidence the trial court “deems

relevant to sentencing.” 17 The Legislature has expressly provided that “relevant” punishment

evidence includes, but is not limited to, both character evidence in the form of opinion

testimony as well as extraneous-offense evidence.18 Because there are no discrete fact issues

at the punishment phase of a non-capital trial, we have ruled that the definition of “relevant,”

as stated in Rule 401 of the Texas Rules of Evidence, does not readily apply to Article

37.07.19 What is “relevant” to the punishment determination is simply that which will assist

the fact finder in deciding the appropriate sentence in a particular case.20 When the jury

assesses punishment, it must be able to tailor the sentence to the particular defendant, and


accused or by the prosecution as to the prior criminal record of the accused. Other evidence of his
character may be offered by an accused or by the prosecution. Nothing herein shall limit provisions
of Article 37.071, Code of Criminal Procedure.”).
       17

        TEX . CODE CRIM . PROC. art. 37.07 § 3(a)(1) (emphasis added).
       18

        Id. (“Regardless of the plea and whether the punishment be assessed by the judge or the jury,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to
sentencing, including but not limited to . . . an opinion regarding his character . . . and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous
crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible, regardless of whether he has
previously been charged with or finally convicted of the crime or act.”).
       19

        Murphy v. State, supra, at 62-63.
       20

        Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000).
                                                                                      Sims — 8

relevance is simply “a question of what is helpful to the jury in determining the appropriate

sentence for a particular defendant in a particular case.” 21 Importantly, we have held that

when a defendant applies for community supervision (as the appellant did), the trial court

may reasonably deem any character trait that pertains to the defendant’s suitability for

community supervision to be a relevant matter for the sentencer to consider.22

                                           ANALYSIS

       The appellant acknowledges that, under Article 37.07, both character evidence in the

form of opinion testimony and extraneous-offense evidence are admissible at the punishment

phase of trial. But these are “different evidentiary categories,” she contends, and Article

37.07 “does not permit the merger of the two.” Thus, the question before us today is whether

character evidence in the form of opinion testimony, when that opinion was formulated from

a specific extraneous offense that the jury was entitled to hear about, is inadmissible under

Article 37.07.

       First, the appellant claims that a one-time encounter (even if it constitutes an

extraneous offense) cannot create a sufficient basis for an opinion as to character. We

disagree. At least at the punishment phase of trial, a witness’s opinion of the defendant’s

character must be based on “enough personal association with the defendant so that it is



       21

       Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006) (citing Rogers v. State, 991
S.W.2d 263, 265 (Tex. Crim. App. 1999)).
       22

        See Ellison v. State, supra, at 714.
                                                                                       Sims — 9

rational to infer that his or her opinion as to the defendant’s character is based on the witness’

personal experience with the defendant.”23 As long as Terry was minimally able to formulate

an opinion based on his encounter with the appellant, the trial court could have properly

determined that his opinion should be conveyed to the sentencer, subject to whatever weight

the sentencer should choose to afford it.

       The appellant complains that basing character evidence on a single, specific act

negates any communal reliability in the testimony, citing Wagner v. State.24 However,

communal reliability is only a factor in assessing the admissibility of character evidence in

the form of reputation testimony, not opinion testimony.           When one gives testimony

regarding reputation, that testimony is based on the community’s perception of the person

in question. Opinion testimony, on the other hand, is based solely on the specific testifier’s

perception of the person in question.25

       The appellant further contends that to allow a character witness to testify as to his

opinion of a defendant’s character based upon a single encounter essentially violates the

general prohibition against proving character through specific conduct. But there is no such

general prohibition at the punishment phase of trial.        Specific misconduct evidence is


       23

      George E. Dix & Robert O. Dawson, 43 TEXAS PRACTICE : CRIMINAL PRACTICE                AND
PROCEDURE § 38.33, at 671 (2d ed. 2001).
       24

        687 S.W.2d 303, 312-14 (Tex. Crim. App. 1985) (opinion on reh’g).
       25

        See Hedicke v. State, 779 S.W.2d 837, 839-41; Dix & Dawson, supra, at 670-71.
                                                                                    Sims — 10

expressly made admissible at the punishment phase of trial “notwithstanding rules 404 and

405, Texas Rules of Evidence[.]” 26       Moreover, given that the appellant applied for

community supervision, any information about her character that was relevant to her

suitability for community supervision was admissible.27 In determining whether the appellant

can adequately complete the demands of community supervision, a sentencer might rationally

want to take into account testimony that the appellant lied to a peace officer. Therefore, that

evidence would be admissible in its own right. That it also formed the basis for Officer

Terry’s opinion of a relevant character trait of the appellant did not somehow serve to render

that opinion inadmissible.

                                      CONCLUSION

       We hold that both character evidence in the form of opinion testimony and

extraneous-offense testimony may be admissible during trial, even if the opinion testimony

is based on facts brought forth from the extraneous-offense testimony. Here, Officer Terry’s

testimony concerning the appellant’s allegedly false statement, as well as Terry’s opinion as

to the appellant’s character for truthfulness based upon his belief that that statement was

false, were properly admitted during the punishment phase of the appellant’s trial. Both

types of evidence are admissible during the punishment phase of trial, and we see no reason

that they cannot be combined during punishment proceedings. Because the trial judge

       26

       TEXAS CODE CRIM . PROC. art. 37.07, § 3(a)(1).
       27

       Ellison v. State, supra.
                                                                                   Sims — 11

determined that the evidence was admissible, any complaint about Terry’s opinion being

based on a single encounter goes to the weight rather than the admissibility of such evidence.

Thus, the trial court did not err in admitting Terry’s testimony. The judgment of the court

of appeals is affirmed.




Delivered:    July 2, 2008
Publish
