I do not think that counsel's failure to request a charge to the jury on the burden of proof for an "extraneous offense" was "in light of all the circumstances, … outside the wide range of professionally competent assistance" ⁽¹⁾ or, if it were outside that range, "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ⁽²⁾ My conclusion is based on the very facts that the Court presents to support the contrary conclusion:

In applicant's trial, evidence of the extraneous offenses was central to the State's case-in-chief. The State argued from its opening statement to its closing argument that applicant was responsible for the injuries found on L.W., and therefore, was responsible for her death. …

On the other hand, applicant's attorneys attempted to create a reasonable doubt by arguing their defensive theory that L.W.'s mother was responsible for the injuries and death of L.W. ⁽³⁾

Since this was what the trial was all about, the jury necessarily decided the applicant's guilt by deciding whether they believed beyond a reasonable doubt that he, rather than the mother, inflicted the extraneous injuries. The jury were properly charged on the beyond-a-reasonable-doubt standard for this decision. It is not reasonable to suppose that they neglected that standard in making the crucial decision in the case, or that their use of that standard would have been probable only if the charge contained another instruction on the standard for believing evidentiary facts.

The applicant's trial counsel swears that his failure to request a separate charge "was simply an oversight." ⁽⁴⁾ It was an understandable one, since his defensive theory was comprehended perfectly well by the reasonable-doubt charge that was given. He overlooked the charge on evidence, I conclude, because it was of no importance to his case.

I do not think that the applicant has met either test for proving that he suffered from ineffective assistance of counsel. I would deny relief.

I would like to make another point about this charge on the burden to prove an evidentiary fact. The authority for giving such a charge is George v. State, 890 S.W.2d 73 (Tex. Cr. App. 1994). ⁽⁵⁾ In that case the Court held, "Because the standard of proof necessary to admit extraneous offenses is beyond a reasonable doubt, the previous rationale for requiring the jury to find beyond a reasonable doubt that the defendant committed the extraneous offenses continues to exist." ⁽⁶⁾

The George Court reached its holding in reliance on Harrell v. State, 884 S.W.2d 154 (Tex. Cr. App. 1994), by a procedure unsatisfactory to some who thought it was right as well as those who thought it was wrong. ⁽⁷⁾ The procedure was flawed in more ways than one. This is not the occasion for an extended discussion, so I will mention only one of the worst points.

The standard of proof for the admission of such evidence in the United States has been getting lower in the past century. Texas and a few other jurisdictions used the proof-beyond-a-reasonable-doubt standard before 1957, but modern decisions have not. ⁽⁸⁾ The most common standard has been some version of a "clear proof" standard. ⁽⁹⁾ After adopting rules like the Federal Rules of Evidence, under which the standard is a preponderance of evidence, ⁽¹⁰⁾ a sizeable minority of jurisdictions have adopted that standard for admissibility of evidence. ⁽¹¹⁾ When it comes to the burden of proof that the fact-finder uses in deciding whether the defendant committed uncharged misconduct, there is a consensus that even in criminal cases the prosecutor need not satisfy the burden of proving that fact beyond a reasonable doubt. ⁽¹²⁾

In Harrell, after recording how Texas law also has moved from the proof-beyond-a-reasonable doubt standard to the clear-proof standard, ⁽¹³⁾ which was followed by the adoption of the Federal Rules of Evidence in Texas, this Court held that the standard for admissibility would move back to proof-beyond-reasonable-doubt. ⁽¹⁴⁾ It did so by holding that "clear" means "beyond a reasonable doubt" because "there is some authority for interpreting 'clear' proof to mean proof beyond a reasonable doubt. BLACK'S LAW DICTIONARY 250 (6th ed. 1990); see Haley v. State, 84 Tex. Crim. 629, 209 S.W. 675, 677 (1919)." ⁽¹⁵⁾

The Harrell Court did not quote what the law dictionary and the Haley case said about "clear" proof. The following appears in Black's Law Dictionary (6th ed.) at 250:

Clear. Obvious; beyond reasonable doubt; perspicuous; plain. Free from all limitation, qualification, question or shortcoming. Free from incumbrance, obstruction, burden, limitation, etc. Plain, evident, free from doubt or conjecture, unequivocal, also unencumbered. Free from deductions or drawbacks.

In banking, collection of funds on which check is drawn and payment of such funds to holder of check.

The following is taken from Haley, 84 Tex. Cr. at 633-35, 209 S.W. at 677-78:

If it be assumed that the facts of this case bring it within one of the exceptions [to the rule excluding evidence of specific bad acts] to which we will hereafter refer, it is clear that the due administration of justice demands that evidence tending to show appellant's guilt of another crime should not be admitted, unless the proof of the other offense is clear. In this case, if it is proper for the state to use the alleged fact that appellant poisoned his wife as a circumstance connecting him with the assassination of Williams, it should be shown beyond a reasonable doubt that his wife died from poison knowingly administered by him with intent to destroy her. Applying this principle to the case in hand, we find no satisfactory evidence that the appellant's wife died from poisoning. …

If this evidence is received upon another trial, it should be limited in the charge of the court, and it should be made clear to the jury that it is not to be considered at all against the appellant, unless the state had shown beyond a reasonable doubt that appellant's wife died from poison knowingly administered by the appellant with intent to kill her.

I do not think that many objective readers would decide that this is sufficient authority to hold that "clear proof" means "proof beyond a reasonable doubt."

The holding of George is based on reasoning so clearly wrong, and so outside the main current of American law, that I would overrule it.

But even if the applicant was entitled to such a charge, I would not hold that his counsel's failure to ask for one was incompetent or that it undermines my confidence in the verdict. I respectfully dissent.

En banc.

Delivered January 31, 2001.

Publish.

1. Strickland v. Washington, 466 U.S. 668, 690 (1984).

2. Id. at 694.

3. Ante at 9.

4. Ante at 7.

5. The Court supports this proposition by quoting part of a sentence from Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Cr. App. 1996). See ante at 5. The full quotation shows that the underlying authority is George: "Furthermore, as noted previously, in George, supra, we found that if a defendant, during the guilt/innocence phase, asks for an instruction to the jury on the standard of proof required for admitting extraneous offenses, the defendant is entitled to that instruction. George v. State, 890 S.W.2d at 76." Mitchell, 931 S.W.2d at 954. The Mitchell statement is not only dictum from a dissimilar case (the question in Mitchell was the meaning of a statute that applied to the punishment stage of a non-capital trial), it is dictum from an opinion that was joined by only two Judges.

6. George, 890 S.W.2d at 76 (footnote omitted).

7. "Today I am nothing less than astounded at how the … majority … now resolves the State's claim in this cause. … By this nifty bit of legerdemain, the majority has managed to dodge the State's central contention in … this cause. Such blatant avoidance is especially inappropriate in a discretionary review court, the job of which is to confront the difficult issues head-on." George, 890 S.W.2d at 77 (Clinton, J., concurring).

"As Judge Clinton pointed out in his concurring opinion in George v. State, … the State has been blind-sided by this court on 'the question of the appropriate jury instruction in tandem with the question of the proper standard for admissibility.' … Had something like this happened to a criminal defendant, some people would be screaming 'violation of due process.' But, quite incredibly this court has decided law-abiding citizens, through their district attorneys, are not entitled to insist upon 'fair' procedures." Mitchell, 931 S.W.2d at 957 (McCormick, P.J., dissenting).

8. See Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2.09 (1998).

9. See ibid.

10. See Huddleston v. United States, 485 U.S. 681, 690 (1988).

11. See Imwinkelried, supra note 8, § 2.09.

12. See id. at §9.54.

13. Harrell, 884 S.W.2d at 157-58.

14. Id. at 159.

15. Id. at 158.