
                              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.

