I respectfully dissent to the Court's denial of the State's motion for rehearing. The Court's opinion on original submission "harmonizes" Article 38.36 and Rule 404(b) by deciding that "relationship" evidence admissible under Article 38.36 is subject to and may still be excluded by Rule 404(b).

This construction, however, does not "harmonize" Article 38.36 and Rule 404(b). It renders Article 38.36 meaningless. Under the Court's opinion on original submission Rule 404(b) governs the admissibility of "relationship" evidence because there is no point for a party to rely on or to offer this evidence under Article 38.36. This would be a pointless exercise. Article 38.36 has no practical significance in determining the admissibility of "relationship" evidence.

The Court's opinion on original submission perceives an inconsistency where none exists. It mistakenly believes that an inconsistency exists between Article 38.36 and Rule 404(b). Having decided that this inconsistency exists, the Court's opinion on original submission, therefore, finds it necessary to remove this inconsistency by "reasonable construction" under Rule 101(c).

But there is no inconsistency between Article 38.36 and Rule 404(b). Article 38.36 categorically deems "relationship" evidence to have relevance apart from character conformity for Rule 404(b) purposes. This does not make Article 38.36 and Rule 404(b) inconsistent. At most Article 38.36 creates an "exception" to, not an inconsistency with, Rule 404(b). An exception is not synonymous with inconsistency. The only reasonable construction in this case would be to follow the "plain" language of Article 38.36.

I respectfully dissent.

McCormick, Presiding Judge

(Delivered December 15, 1999)

En Banc

Publish

Mansfield, Keller and Keasler, JJ., join this dissent