

NO. 07-10-0193-CR
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL A
 
JUNE 14, 2011
 
______________________________
 
 
MALCOLM DEAN SCOTT, APPELLANT
 
V.
 
THE STATE OF TEXAS, APPELLEE
 
 
_________________________________
 
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
 
NO. B18075-0906; HONORABLE EDWARD LEE SELF, JUDGE
 
_______________________________
 
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
CONCURRING OPINION
            I
agree with the majority in its conclusion that the trial court did not err in
refusing to admit evidence of Appellant's previous acquittal in the trial of an
extraneous offense, however, I write separately to address the issue from the
perspective of the admissibility of that acquittal.[1]
            As
the majority notes, Appellant relies exclusively on Kerbyson v. State, 711 S.W.2d 289 (Tex.App.--Dallas 1986, pet.
ref'd), to support his position that a trial court errs in excluding evidence
of an acquittal on an extraneous offense when the State offers evidence of that
offense.  But there is a problem with Appellant's
contention -- that's not what Kerbyson held.  In Kerbyson,
over the appellant's objection, the trial court admitted evidence of an
extraneous offense for which the appellant had been acquitted.  Id. at 290.  The court
then refused to admit evidence of that acquittal.  Id.  By two separate issues, the appellant
contended the trial court erred in admitting evidence of the extraneous offense
and in excluding evidence showing his acquittal on that offense.  Id.  Without clearly specifying its ground for
reversal, the Dallas Court of Appeals concluded the trial court erred in
admitting evidence of the extraneous offense and then concluded that the
prejudicial effect of that error was exacerbated by excluding evidence of the
acquittal.  Id.  To the extent that Kerbyson can be read as saying the
exclusion of evidence of an acquittal is reversible, I would respectfully
disagree.  Furthermore, because this case
is factually distinguishable (here Appellant did not object to the admission of
the extraneous offense), Kerbyson is
inapposite. 
            Relevant
evidence means evidence 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. 
See Tex. R. Evid. 401.  An acquittal is nothing more than one jury's
collective opinion as to whether or not the prosecution proved that particular
offense to their satisfaction beyond a reasonable doubt.  Whether the prosecution did or did not meet
its burden in a previous trial does not make the existence of any fact that is
of consequence in this case more or less probable.  Because evidence of Appellant's acquittal was
inadmissible under Rule 402 of the Texas Rules of Evidence, the trial court did
not err in excluding that evidence.           .
                                                                                      Patrick A. Pirtle                                                                                                                                        Justice
 
Do not publish.




[1]In
an apparent attempt to justify its dubious decision to offer evidence of a
previously acquitted extraneous offense in the first place, the State
misdirects the issue presented by arguing that the evidence it offered was
"same transaction contextual evidence" rather than an extraneous
offense.  Because Appellant did not
object to the admission of the evidence offered by the State, a decision
counsel may very well have made for strategic purposes,
the issue was never about the admissibility of that evidence.  What is really at issue here is the
admissibility of the acquittal.  


