Fort Worth Court of Appeals Cheapens the Meaning of “Modus Operandi”

The general rule is that the defendant is to be tried only for the offense charged, not for any other crimes or for being a criminal generally. However, evidence of extraneous acts of misconduct may be admissible if (1) the uncharged act is relevant to a material issue in the case, and (2) the probative value of that evidence is not significantly outweighed by its prejudicial effect. Because the propensity to commit crimes is not a material fact in a criminal case, Texas Rule of Evidence 404(b) explicitly prohibits the admission of uncharged acts to prove conduct in conformity with a bad character.

Last week the 2nd District Court of Appeals (Fort Worth) considered the issue of modus operandi (i.e. criminal signature) in the case of Price v. State. In Price, the appellant had been convicted at trial of aggravated robbery after he was identified by a convenience store clerk as the African American man who entered the store armed with a crowbar and wearing a towel on his head demanding money from the cash register. The State offered evidence of other uncharged convenience store robberies as evidence of “identity” or modus operandi under Texas Rule of Evidence 404(b). Over appellant’s objection, the trial court allowed the evidence of the extraneous offenses to come in.

If you were to read only the majority opinion, you might agree that because the defense attempted to impeach the convenience store clerk on the issue of identity, the defendant opened the door to (i.e. made relevant) the evidence that there were three similar robberies done by a man in the local area. However, from Justice Dauphinot’s dissent, we learn that there was more to it than that.

Justice Dauphinot demands the majority to answer how it was that the defense opened the door to the issue of identity of when all the defense counsel did during his cross of the State’s witness was to repeat the questions that the prosecutor already asked. You see, the prosecutor in this case, in an effort to take the sting out the some of the weak points, raised the issue of identity during direct examination. How then, asks the dissenting Justice, can the prosecutor then rely on the issue of “identity” to survive a 404(b) objection to the admissibility of the extraneous offenses?

Justice Dauphinot also points out that mere “identity” is typically not enough to survive a 404(b) objection in cases like this. What the court should really be concerned with is modus operandi.

One of the main rationales for admitting extraneous-offense evidence is to prove the identity of the offender. Here, the theory of relevancy is usually that of modus operandi in which the pattern and characteristics of the charged crime and the uncharged misconduct are so distinctively similar that they constitute a ―signature. Usually, it is the accretion of small, sometimes individually insignificant, details that marks each crime as the handiwork or modus operandi of a single individual.

In this case, the majority noted that the offense at trial and the extraneous offenses were all committed by a black man. After all, how many black men can there possibly be in North Texas? The court further noted, without discussion, that the men in the extraneous offenses also wore a towel on his head. Lastly, the majority mentions that the man or men in the extraneous offenses carried a weapon. Not always a crowbar. In one offense the perpetrator carried a knife and in another he carried a steel pipe. To Justice Dauphinot, these facts are not markedly similar enough to indicate a modus operandi. In her opinion, the State did not meet its burden to show that that “the extraneous act has relevance apart from its tendency to prove character conformity.”

Going Beyond Relevance

Capital Murder Conviction Reversed for Improper “Bad Acts” Evidence Offered by the State.

The State had a solid Capital Murder case against Desmond Dewayne Jackson. Here’s some of the evidence the State introduced to show that Jackson robbed the victim, shot him, and then fled:

• Jackson admitted to a friend that he committed the murder.
• Jackson admitted that before he attempted the robbery (which resulted in the murder) he studied the victim’s routine of going into the bank and returning with money for his store.
• Jackson stated that he killed the man with “a .45.”
• The victim died of gunshot wounds from a .45 caliber pistol.
• Jackson stated that he stole approximately $8,000 and fled through the woods.
• The victim had just received $8,884 from the bank.
• Nearby witnesses saw a man fitting Jackson's description flee into the woods near the time of the murder.
• Expended shells seized during a search of Jackson’s house had similar bunting markings as the shells found at the scene of the murder.
• Jackson flew from Dallas to Atlanta the day after the crime.
• Jackson’s wife had some poorly explained absences from work on the day of the crime.
• Jackson lied to the police on several occasions concerning his whereabouts on the day of the crime.

Despite what the 6th District Court of Appeals characterized in its opinion as “substantial evidence of guilt,” the State apparently did not feel that it had enough. Perhaps that was why, at the conclusion of the defense case-in-chief, the State spent another 2 and ½ days introducing “rebuttal” evidence that Jackson also committed an armed robbery of a Kroger grocery store using a .45 caliber pistol. The State did not contend (at trial or on appeal) that the crimes were related nor did it allege that the two crimes demonstrated a modus operandi (common scheme) by the perpetrator. Rather, the State offered the extraneous offense evidence “to prove identity, to prove intent, and/or to rebut a defensive theory.”

The general rule is that extraneous offense (other bad acts) evidence is not admissible to prove the character of a person in order to show that he acted in conformity with that character on the day in question. It may be admissible, however, to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In this case, the State chose “identity” and “intent” as the exceptions de jure in its attempt to offer this unrelated offense to the jury.

Identity
Regarding the identity exception, the Texas Court of Criminal Appeals has explained that

When the extraneous offense is introduced to prove identity, the extraneous offense must be so similar to the charged offense that the offenses illustrate the defendant’s distinctive and idiosyncratic manner of committing criminal acts.

Martin v. State, 173 S.W.3d 463 (Tex. Crim. App. 2005). As an illustration of this principle, think about the movie Home Alone, in which the burglars always left the water on in the home they burglarized in an attempts to be known as “The Wet Bandits.” In this case, however, as the court points out,

the only similarities between the pawn shop murder and the Kroger robbery are that both offenses were armed robberies committed with a .45 caliber pistol. We see no similarities that indicate a distinctive and idiosyncratic manner of committing criminal acts.

Intent
The State argued that the Kroger robbery, in which no one resisted or was injured, shows that Jackson intended to kill the victim in the pawn shop robbery because he resisted. Jackson argued, however, that he did not contest the issue of intent. Citing the CCA case of Rankin v. State, 974 S.W.2d 707 (Tex. Crim. App. 1996)(op. on reh’g), the Court explained:

When the State’s evidence on intent is uncontradicted by the defendant or not undermined by cross-examination of the State’s witnesses, the offer of other crimes is unjustified due to the lack of relevancy. Because Jackson never contested intent, the extraneous-offense evidence was inadmissible under Rule 404.

Harm
In holding that the trial court abused its discretion by allowing the State to introduce the Kroger robbery, the Court next had to consider whether the error resulted in harm. While noting the “substantial evidence of guilt” in the case, the Court stressed that there are other factors it must consider when determining harm, including “the character of the alleged error and how it might be considered in connection with other evidence in the case.” The Court further stated:

Extraneous-offense evidence is inherently prejudicial, tends to confuse the issues, and forces the accused to defend himseld against charge not part of the present case against him. By its very nature, an improperly admitted extraneous offense tends to be harmful.

Holding that the evidence of the Kroger robbery may have had a profound effect on the jury’s decision, the Court concluded that it was reversible error.

Capital murder conviction and LWOP sentence reversed and remanded.  Read the opinion HERE.

No Warning Required

As most of us are aware, whenever the State plans to offer evidence of extraneous offenses (a.k.a. Bad Acts Evidence) under Rue 404b during the guilt-innocence phase*, it must give pretrial notice to the defense.  Similarly, when the State plans to offer extraneous offense evidence during the punishment phase of the trial, it must provide the defense with notice under Article 37.07, Section 3(g) of the Texas Code of Criminal Procedure.

As the Court of Criminal Appeals recently explained:

The two notice rules serve the same purpose.  They guard against 'surprise and promote early resolution on the issue of admissibility' of uncharged misconduct, conduct that the defendant would not otherwise know might be offered at trial, either during the guilt of punishment phase.

But what about same-transaction contextual evidence?  You know, evidence that is somewhat inflammatory and not completely germane to the real issues, but is inextricably intertwined with the case.  If you don't know what I mean by "same-transaction contextual evidence" read the recent CCA opinion in Worthy v. State.  Does Same-transaction contextual evidence require notice of the State's intent to introduce such during the punishment phase of the trial?

In Worthy the CCA answered this question in the negative.

Building upon our prior opinion in Jaubert v. State, 74 S.W.3d 1 (Tex. Crim. App. 2002), we hold that Article 37.07, § 3(g), which explicitly states that the notice requirement applies 'in the same manner required by Rule 404(b),' refers to the scope of the evidence offered as well as to the timing of the evidence offered.  Therefore, because pretrial notice of 'same-transaction contextual evidence' is not required under Rule 404(b), it is also not required under Article 37.07, § 3(g).

Explaining its reasoning, the Court went on:

Furthermore, “same-transaction contextual evidence” is intrinsic to the offense; it is not “an extraneous crime or bad act” to which Article 37.07, § 3(g), explicitly refers. Under the common law, this contextual evidence was treated as a distinct class–“res gestae” evidence–under the reasoning that the criminal act does not occur in a vacuum, and the jury has a right to hear the contextual evidence.

However, this doesn't exactly signal a free-for-fall for the State, the Court admonished:

That said, prudent prosecutors provide pretrial notice of all evidence that could possibly be considered extraneous to the charged offense so that judges need not 'engage in a hair-splitting debate' about whether some specific item is evidence of an extraneous offense or is same-transaction contextual evidence.

We'll see how the State plays it, but as the title says "No Warning Required."

*The asterisk in the first paragraph it to express my disdain for the term "guilt-innocence phase."  Since when is anyone proven "innocent" at trial?  In fact, as litigators, we should all try to abolish the term innocent (in all forms) for it places an unfair (and unconstitutional) burden on a defendant.  If a jury was faced with the two options of guilty or innocent, 9.99 times out of 10 they're going to find your client guilty of something.  But, when the choices are guilty or not guilty, it makes life a lot simpler.  As we all know, most defendants aren't exactly innocent, but you can always make the argument that they're "not guilty."