








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



	Cochran, J., filed a concurring opinion in which Johnson, J., joined.


O P I N I O N


	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
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
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-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
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
condition."  This Court, in Harrell, ignored both the plain language of the rule and its
purpose. 
Filed: October 29, 2008
Publish
1.  884 S.W.2d 154 (Tex. Crim. App. 1994).
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.  Wright & 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.
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
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).
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.
