Death Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-75,051

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DONNIE LEE ROBERTS, JR., Appellant

v.

THE STATE OF TEXAS

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ON DIRECT APPEAL

FROM POLK COUNTY

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Meyers, J., filed a dissenting opinion, in which Price and Johnson, JJ., joined.

O P I N I O N

In point of error seven, the majority says that Cantu v. State, 939 S.W.2d 627 (Tex. Crim. App. 1996), does not apply to appellant's situation. Because the evidence in question was presented by the victim of an extraneous offense and because the testimony related to the impact that offense had on her life, the majority concludes that it is not victim-impact evidence.

I agree that this evidence is distinguishable from the evidence presented in Cantu. The evidence relating to the extraneous offense in Cantu was presented by the victim's mother whereas in this case, the evidence was presented by the victim of the extraneous offense herself. And, in Cantu, the victim's mother testified about how the crime impacted their family and about what kind of person the victim was, while here, the victim of the extraneous offense testified about how the prior offense affected her own life. We stated in Cantu:

The danger of unfair prejudice to a defendant inherent in the introduction of "victim impact" evidence with respect to a victim not named in the indictment on which he is being tried is unacceptably high. The admission of such evidence would open the door to admission of victim impact evidence arising from any extraneous offense committed by a defendant. Extraneous victim impact evidence, if anything, is more prejudicial than the non-extraneous victim impact evidence found by this Court to be inadmissible in Smith [v. State, 919 S.W.2d 96 (Tex. Crim. App. 1996)]. We hold that such evidence is irrelevant under Tex. R. Crim. Evid. 401 and therefore irrelevant in the context of the special issues under Art. 37.071.

939 S.W.2d at 637.

In the case before us, the majority seems to imply that when the mother of a victim of an extraneous offense testifies about the impact a crime had on her family, then that testimony is inadmissible extraneous victim-impact evidence under Cantu. But, when the victim herself testifies about how an extraneous offense affected her own life, it is admissible. However, it should not matter who presented the evidence. Even if we choose not to call evidence presented by the victim of an extraneous offense "victim- impact evidence," the evidence is still equally prejudicial and should be inadmissible.

While the extraneous offense itself may have been admissible, the effect that the extraneous offense had on the victim of that crime or her family was irrelevant to the matter of future dangerousness. The majority should focus on the real issue in this case- that the evidence is irrelevant and inadmissable-not whether it was "victim-impact evidence" presented by the family of the victim.

Like the evidence in Cantu, this testimony regarding the impact of an extraneous offense was unfairly prejudicial and was not relevant to the special issues. Because it was not relevant to the sentence, the testimony was inadmissible under Rule of Evidence 402. And, unless we can determine beyond a reasonable doubt that the testimony did not contribute to the death sentence, we cannot say that the presentation of this inadmissable testimony was harmless. Therefore, I respectfully dissent.

Meyers, J.

Filed: April 18, 2007

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