*1 Nothing persuades in this us that record
both of these lawsuits cannot be allowed to
proceed simultaneously, they ordinarily
should. Payne, Gannon v. 706 S.W.2d at Accordingly,
306. hold we that the trial
court temporarily abused its discretion in
enjoining peti- Christensen and the other going
tioners from forward with the Cali-
fornia lawsuit. We therefore reverse the appeals’ judgment and dissolve the
temporary injunction. BOUTWELL, Appellant,
Lester Texas, Appellee.
The STATE of
Nos. 711-83 to 713-83. Texas, Appeals
Court of Criminal
En Banc.
April 1985.
Rehearing Sept. Denied
OPINION ON APPELLANT’S PETI- FOR TIONS DISCRETIONARY REVIEW CLINTON, Judge.
juryA convicted in our Cause *3 No. 711-83 of the offense [hereafter “711”] a sexual abuse of child and assessed his punishment at years confinement. This conviction was affirmed the court of appeals in Boutwell v. 1983). (Tex.Ct.App. Appellant — Austin pursuant plea
was also convicted a bar gain of indecency with a child and assessed year a seven sentence in our Cause No. 712-83 This conviction [hereafter “712”]. was affirmed in Boutwell v. (Tex.Ct.App. Austin, 1983). — Finally, in our Cause No. 713-83 [hereafter “713”], appellant was convicted of sexual pursuant bargain abuse of a child to plea year was assessed a 20 sentence. This conviction was also affirmed. Boutwell v. (Tex.Ct.App . —Aus tin, 1983). granted appellant’s Court petitions discretionary for review each cause.1 The evidence January established that on 4, 1979, junior high 15 year old student and herein, complainant M.B., away ran from friend, year school around noon with raining boys old T.M.2 It was and the go apartment decided to of P.J. Herry, Lewis for shelter. Louis who was Lewis, living boys with P.J. washed the for Lewis clothes them while went out to Everton, Temple, Smith, Dane Malcom C. appellant lunch with who had arrived in the Austin, appellant. interim. Eads, Arthur Atty., C. Dist. T. James returned, When Lewis he came back into Russell, Belton, Atty., Asst. Dist. Robert boys appellant the house and told the want- Huttash, Walker, Atty., State’s Alfred agreed ed They go to talk to them. to with Ass’t, Austin, First for the State. appellant Herry appellant’s house. appellant
All referred to as “Les- witnesses trial, throughout ter” and each identi- once; appellant grounds improvident- 1. In has advanced ten review of several others 712, appellant ly granted accordingly post. review. raises seven noted and will grounds for review. And in five for review are made. The Court did not limit complaining in both 712 T.M. was the witness grant particular grounds. of review to and 713. overlap only Grounds which will be treated of- turned to Lewis’ house and “the same photograph appellant’s house fied thing again.” happened fered the State. “promiscuity” Though the defense was appel- house, everyone appellant’s At but appellant under the statute not available point At some lant had alcoholic drinks. complainant and the were of because he everyone asked if wanted sex, ante.], n. it was the same [see pic- Appellant took pictures.”3 “take some appellant’s contention both in the trial standing Herry boys tures of and the two before the court living cloth nude front of black in the nonavailability of the defense unconsti- Eventually everyone ap- into
room. went against him on the tutionally discriminated more pellant’s photographs bedroom and Federal basis of “sex” violation appellant, M.B. Herry, were taken of Equal and the State Protection Clause one an- having T.M. oral intercourse with The court of Equal Rights Amendment.7 *4 At other in various some combinations.4 appeals unnecessary held it was to resolve apparently point appellant took T.M. alone question for the the constitutional raised gave his him several vali- into bedroom appel- by the reason that evidence offered session, appellant photo ums.5 After this upon lant the defensive issue did not estab- Herry boys took and the back to P.J. Lew- "promiscuity.”8 lish p.m. apartment at 8:00 approximately is’ review, petition discretionary In his presence appellant jury, Out of the appellant for re- contends two permitted testimony was to adduce of P.J. appeals of erred in view that the court complainant, regarding Lewis the M.B.’s to upholding the trial court’s refusal sub- “prior promiscuity.”6 P.J. testified Lewis jury mit as a promiscuity issue 3, 1979, January day that on before the question argues fact. He first the court of offense, he, Herry M.B. and Louis had oral “prom- appeals premise of erred in the law, and anal intercourse with one another at iscuity,” as a matter of connotes some- house; later, appellant’s thing engaging in acts these three re- more than several testimony regarding chronological 8.Specifically, 3. The the court of stated: se- quence point of events from this on conflicts. "Promiscuity variety connotes a consensual of variety partners, a of sexual conduct with Herry presently 4. Louis testified he was incar- excludes, single prior example, clearly a penitentiary State cerated in the for this transac- Searcy and Patter- act of sexual intercourse. son, tion. Commentary, Tex.Pen.Code Ann. Practice Moreover, 5. See n. ante. (1974). we think an § 21.09 extending continuing over element of conduct appellant prose- 6. The under statute which was period implicit in of time is reasonable part: provided cuted and convicted in relevant promiscuity. person concept A is not of if, “(a) person A an commits offense with engaged promiscuous simply has because he gratify the intent to arouse or sexual desire of within acts of sexual conduct one several any person, engages he sexual inter- deviate today holding twenty-four span. Our hour child, spouse, course with the not whether standard of in line with the somewhat stricter sex; opposite child is the same or admissibility previous sexual evidence years. younger the child is than 17 Appeals that the Court Criminal conduct (b) prosecution is a under this It defense to the adopted §Ann. 21.13 has under Tex.Pen.Code sex, opposite section that child was Vaught, Rape Admissibility (Supp.1982). See alleged years was at time of the offense 14 — What is the Prior Sexual Conduct: older, Victim's had, alleged offense, prior (1979). Baylor Texas? 31 L.Rev. 317 Law in engaged promiscuously in sexual intercourse Therefore, not since conduct did rise [M.B.’s] or deviate sexual intercourse. ‘promiscuity,’ court the trial did to the level Code, (1974). charge refusing V.T.C.A.Penal 21.10 § err in (All emphasis supplied throughout prjor promiscuity. See Parent defense opinion indi- 1981) writer of this unless otherwise (Tex.Cr.App. ]. State [621 cated.) original.]” [Emphasis 103. Amendment to the United States Fourteenth Constitution; I, Tex. Const. Art. § 3a. multiple partners terms,
of sexual By conduct with case. its own 21.13 applies to § over four twenty period, hour n. offenses nonconsensual which are [see accom- plished and the through concomitant that such a degree force, some ante~\ showing legally require insufficient to threats or fraud. Under such circumstanc- es, extenuation, submission of the jury. evidence without the victim’s extra- utterly neous sexual conduct is irrelevant. Appellant argues ap also the court of prohibits 21.13 admission of such § peals’ Code, reference to V.T.C.A. Penal presumptively evidence, irrelevant while (sometimes “rape 21.13 called the shield § providing procedure whereby the trial law” incorporated and now into V.T.C.A. nevertheless admit upon Code, 22.065) Penal improper for the § showing accused’s probative that it is of a reasons that the trial court did not have the material issue unique under the facts of testimony discretion to exclude under provided inflammatory section, by 21.13 because that its own prejudicial nature does not outweigh its terms, does not apply to evidence of the probative value. complainant’s “promiscuity” offered one accused of sexual abuse of a child.9 contrast, In under 21.09 and 21.- §§ 10, by providing “promiscuity” defense, respects, agree these two we Legislature pronounced has the com appellant. plaining prior witnesses’ extraneous sexual Assuming arguendo that conduct to be relevant a material defen *5 was entitled employ promiscuity to de sive issue statute. the defendant prosecution, gain fense in his it cannot be entitled to have evidence which is said that his did evidence not raise a fair “promiscuity” relevant to the issue of sub issue of M.B.'s “promiscuity.” Thus as to jury provided mitted he has other suming promiscuity M.B.’s could be shown wise shown himself entitled to take advan to be a material issue in appellant tage of defense under the statute. The present would be entitled to his evidence on meaning “promiscuity” purposes of un that issue the jury. ap to The court of der wholly 21.09 and 21.10 is discrete §§ peals upon was not called to determine prior from reasons for admission of sexual by appellant whether the evidence offered conduct under 21.13 and little or no aid § was to prior promiscui sufficient establish gleaned may analyz be from the latter ty Moreover, part on the of M.B. we find ing the former. implied no express, independent justifi or Accordingly, appeals’ cation of appeals’ for the court of conclusion “promiscuity” holding regarding of evi- requires, that a definition and as matter of law, dentiary quantum necessary twenty more than a hour to establish span four of 21.10, “promiscuity,” under 21.09 and several acts of sexual with conduct a varie §§ here, ty partners. purposes of was in effect for our disapproved and overruled. Furthermore, agree appel we lant that appeals Appellant’s the court of argument erred final under adverting to grounds 21.13 in the context of this his first and second for review is § pertinent prosecu- outweigh probative At the time to the instant does its dicial nature not tion, 21.13, supra, provided pertinent part: § value. "(a) specific Evidence of instances of the conduct, opinion victim’s sexual evidence of (d) right This section does not limit conduct, reputation the victim’s sexual credibility impeach the state or by accused to evidence of the victim’s sexual conduct felony showing prior nor the convictions through be admitted under 21.- Sections 21.02 right produce the accused to evidence (rape, aggravated rape, 05 of this code sexual promiscuous a sexual conduct child abuse, if, abuse) aggravated only sexual years rape old a to of a or older as defense that, only judge to extent finds child, child, indecency abuse a or sexual that evidence is material issue at fact awith child.” inflammatory preju- in the case its 21.10(b) “promiscuity” defense to the promiscuity defense mit the § appellant. permit objection him take over the should be construed it, notwithstanding the fact advantage of ten, through four for review M.B., complainant, he and the the court of appellant contends requires. sex as the opposite of the statute trial admis- upholding erred court’s Otherwise, contends, appellant the statute over sion of extraneous offense evidence arbitrarily is unconstitutional because objection. against capriciously discriminates him chief, After the State rested case of “sex” and therefore denies on basis witnesses, presented each of appellant two equal protection him laws. He having seen and talked to whom testified to he claims that had been a female and alleged him on the offense afternoon he very committed the same acts of which Helga she Reap in Killeen.10 testified saw accused, he was would have been entitled two appellant, she had known whom “promiscuity” raise submit the de- years, three at J.B. Novelties where she prosecution. fense the instant p.m. 3:00 on Janu- approximately worked clearly, But a female defendant situated ary 1979. She remembered the date is, similarly appellant female —that looking at a appellant because bird engaged had in deviate sexual inter- who joking with him: bath and she remembered years a child 14 or older who course with July “If this 4th of rather than the was the was of the same sex—would likewise be a lot January, prices 4th of would “promiscuity” denied the defense under higher.” Thus, appellant’s reasoning pro- 21.10. Ortega ap- testified he had known Steve upon fallacy amphiboly: his ceeds com- pellant eight January years. to ten On plaint is not that he is discriminated shooting pool he was at J.B. Novel- against the basis of “sex” in the sense p.m. 6:00 He saw ties at about rather, "gender;” but “sex” that his act in and talked for while. Orte- come equal protection given is entitled to to that *6 ga appellant he last time saw testified the under heterosexual conduct the law as stat- day p.m. 21.10(b). that was at about 8:00 ined § rested, authority We know of no which holds appellant After the State an- is “quite that homosexual conduct a constitution- it had a bit rebuttal” but nounced ally protected activity Equal under the Pro- subject of a the evidence was Equal or Rights tection Clause the State in limine. The court excused the motion appellant Amendment and has cited none. prosecutor announced in- jury and the Texas, in in And the form V.T.C.A. Pe- “extraneous offenses to tention offer 21.06, Code, Legislature nal de- our has theory § of alibi.” the defense rebutt [sic] clared such conduct to constitute class C if what the State was Asked he understood misdemeanor, ages irrespective of the or replied: doing, counsel defense promiscuity participants. of the “Yes, Sir, coming he’s in with extraneous any isn’t sum, show that alibi whatever constitutional infirmi- offenses—to that —it’s our proscriptions good, infect our but I don’t think statutory ties you bring only against position homosexual conduct in the form of can it 21.06, identity question all these— unavailability either is a and § These kids identity question. such con- is not “promiscuity” defense for well, 21.10(b), know him appellant has not effec- all know him and duct identity parties. The tively so did the other any advanced here. We therefore think question. I don't appeals portion did not err in is not hold Also— they bring can it in on that issue. upholding the trial court’s refusal sub- Temple. appellant’s 10. The evidence established house of the offense was and therefore situs court,12
THE your Start COURT: Overruled. Pursuant to this instruction you your witnesses. If want to state appellant voiced essentially objec- the same objection record, you may for the finish testimony tion to the of each witness: stating bring I them to but will allow remote; “The identity matter is too is in the extraneous offenses now that the issue; defense; improbable there no theory put has been no there is issue of defensive court and the before lascivious intent be- jury.” cause ... the intent is within the act itself, only purpose and the is to inflame R.G., Appellant The State called Jr. ob- prejudice jury.” jected that, grounds on the issue, “identity not in nor is lascivious Characterizing objections these incorporated intent because intent into presence made in the of the as “multi * * * act, itself, I don’t think farious,” appeals reject court of first anything there is unreasonable about the appellant’s ed contentions because his * ** defense we have no idea what on appeal of error evidence —that they going say how it—” of the extraneous sexual offenses “was not point judge At this material or relevant interrupted trial issue stating comport objec counsel he case”—did not with his trial opportu- would have an nity to examine each witness tion. outside presence, jury’s prosecutor then asked the agree appellant that We the court to show the court his case.11 respect. erred in this Buckner Jr., R.S., Jr., R.G., P.B., After all (Tex.Cr.App.1978) involving
testified to con- incidences sexual (Opinion appellant’s on motion for rehear appellant, tact with P.J. Lewis identified ing). Appellant’s ground appeal photographs State’s Exhibits two merely it should be — a shorthand ren — as boys appel- adolescent which he testified objection dition of his more detailed voiced given lant had him. Lewis also testified at trial. had him he engaged told had The next reason the court of stated for boy photos. sex with each shown appeals’ complaints rejection appellant’s gave substantially was that each witness prosecutor When the stated he had testimony objection. the same without
finished,
said,
judge
the trial
right.
“All
I will
completely puzzled by
allow them to be admit- We are
this hold-
presence
ing.
ted in the
jury.
The record reflects each of the three
objec-
needs to reiterate his
extraneous offense witnesses testified as
defendant
totally
tion now to each as
come in turn.”
to four
different
transactions.14
*7
court,
prosecutor
pertinent. Though
unnecessary
11. The
told
"It’s Johnson
lieves
it
to
was
so,
State,
versus
not
State” but did
mention
citation.
do
see Buckner v.
only
appel-
We note the
case cited in the
(Opinion
original
State's
(Tex.Cr.App.1978)
on
submis-
styled
(Roberts, J.,
late briefs
Johnson v. State does not deal
sion)
dissenting), defense counsel
with extraneous offense law.
anticipate
any
attempting
was
to
refute
might eventually
thought
reason he
the State
agree
any
12. We cannot
the trial
with
court that
justified
generally
claim
admission
what
duty
upon
additional
devolved
defense counsel
inadmissible evidence.
object
testimony
to each of these witnesses’
in
sum,
appeals’
to the extent the court of
presence
jury
of the
in order to avoid waiv-
objection
characterization of the
as "multifar-
40.09,
6(d)(3),
er. Article
V.A.C.C.P. To the
objection
may
ious”
intimate the
was somehow
appeals’ opinion
extent
that
court of
can be
error,
inadequate
preserve
defective or
it
instruction,
approve
read to
this
it is overruled.
incorrect.
perplexed
appeals’
We
13.
the court of
prosecutor ultimately
before
14.The
adduced
regard.
in
characterization
this
Since evidence
testimony of
extraneous offense
reasons,
the
R.G., Jr.,
may be admissible for a number of
R.S., Jr.,
apparently
P.J.
Lewis
may also be
rea-
in admissible for
number of
having
against
testimony of
decided
P.B.
objections,
appellate grounds
sons. Trial
unlike
error,
only
Lewis testified
about State’s Exhibits 4 and
many independent
of
supporting
contain
objecting party
be-
reasons as
Moreover,
opin-
makes it clear that at the
appeals’
the court of
record
even
of trial each of the State’s witnesses
time
court overruled this
ion states “[t]he [trial]
knew him
only
appellant,
knew
but
times, once as
objection three
multifarious
photo-
identify
could
quite well. Each
to each witness.”
graphs
appellant’s home and all testified
admission
appellant’s objection
As to
Louis Her-
get
“how to
there.”
knew
4 and
photographs,
Exhibits
of the
State’s
he
the defendant
ry testified
“know[s]
appeals
following
held the
the court of
him for
and had known
two
this case”
general
preserve
error:
objection was too
ap-
years. Herry identified bookshelves
photos,
pellant’s living
appel-
and sheets on
room
any
relevant to
issue
“were not
depicted
photographs.
T.M.
lant’s bed
highly prejudicial
case and were
perpetrator
called the
“Lester Boutwell”
appellant
harmful
on the
[and]
appellant. T.M.
identifying
testified
before
objected
we
to the intro-
same reasons
pouting.”
appellant
good
“was
When
duction of the extraneous offenses.”
this,
just
he
he had
asked about
testified
agree
appellant that the
We
with
offense,
appellant
met
at the time of the
respect.
appeals
erred
this
also
pouting]
“but I knew later
he was
[when
State,
v.
Williams, 346; supra, at v. accordingly Elkins We hold the of appeals 663, (Tex.Cr.App.1983); 665 erred in finding the extraneous offense evi- (Tex. Rubio dence appellant’s was admissible to rebut Cr.App.1980) (Opinion concurring). Further, testimony. defensive since the probative contested no evidence had value case, In the instant arewe un upon a material issue in the the effect able to conclude that record as whole of its admission was to bombard the appellant’s reflects material issue as to appellant with evidence that is a “child identity perpetrator as the was raised general.” abuser This therefore his justify alibi evidence so as to admission presents a example classic kind of of the contested evidence. It is true hopelessly evidence which distracts the stranger cases where accused is a to jury from the issues they upon called witnesses, the State’s his evidence that he resolve and adulterates the deliberative was elsewhere at the time of the offense process. surely We say cannot it made no will generally raise material issue as to contribution to the jury’s assessment of identity his as perpetrator. E.g., appellant’s twenty year sentence. Chambers, Ransom, supra; supra. judgment The appeals the court of But in cases as this where the our Cause No. 711-83 is reversed. record as a whole makes it clear that the witnesses, accused is known to the State’s or that his defensive evidence is aimed at By review, first ground appellant for raising theory other “identity,” than it complains of unavailability prom- ignores rationale well stated in iscuity prosecution. defense to him in this Williams, supra, “automatically” to admit disposition For the reasons in our stated highly prejudicial evidence as relevant to ground the same which, contention an subjected issue when analysis, without merit. simply not in the case. Messenger See State, 638 883 (Tex.Cr.App.1982) review, ground his second for (Opinion submission); original on appellant guilty plea contends his was not (Tex.Cr. Franklin knowingly plea entered in that was App.1972). “Each case must considered upon representation made that his trial on Franklin, its own facts....” preserve counsel would and have reviewed danger 829. The application of rote preceding merits the contention. rules focus on “admis ground of appellant’s Our treatment first sibility” logical analysis rather than the all plenary for review reflects our considera- evidence must withstand to determine ad contention; as- tion of that merits missibility. suggests To the extent (without suming deciding) plea sowas the defense of alibi invariably and neces conditioned, has been in all that condition sarily creates a material issue as to “identi things met. ty” dispense as so analysis further Having fully remaining considered the the admissibility of extraneous of we conclude evidence, review Cameron, fense supra, is over appellant’s petition discretionary review ruled. regards improvidently grant- in these Neither were the extraneous of 302(c) ed. See Rule Rules of Post Trial and testimony fense and State’s Exhibits Appellate Procedure Criminal Cases. directly appellant’s rebut judgment of the court alibi evidence. Since none the events accordingly this cause is affirmed. described in the State’s evidence occurred day offense, on the of the instant none of it tended to show was not in Killeen *9 his discretionary
where witnesses said was. in petition he Messen In his for review ger, supra. cause, grounds appellant this five raises
173 (Tex.Cr. v. to conten- Coleman which are identical for review not App.1982) appellant’s stated contentions are For the reasons raised tions two in for grounds properly any and before considera treatment of one in our one, 712, grounds supplemental review that a overrule for tion. stated we Coleman hold raising ground five We further re- of not herein. brief a new error two brief, the improvidently granted on re- original properly not view was raised in the 302(c), grounds advanced. Rule maining for review. before the Court supra. Coleman, supra, agree We that under of the court of judgments
The
appellant’s
properly
were not
contentions
712-83 and 713-83
af-
our Cause Nos.
Appeals
and thus are
before the Court
However,
firmed.
properly
not
before this court.
implications
of the constitutional
because
appeals judgment of the court of
The
unassigned
as
will
these
we
treat
No. 711 is reversed.
our Cause
error,
State, 492
519
see
S.W.2d
Worton v.
TEAGUE,
merits
J.,
(Tex.Cr.App.1973),
and address the
result.
concurs
the
Fundamental unfair-
contentions.
McCORMICK,
711-83,
J.,
No.
In Cause
process in-
of due
ness and considerations
DAVIS
in result and TOM G.
concurs
our
particular
require
this
case
volved in
DAVIS, JJ., dissent.
W.C.
State, 703 S.W.2d
Perry
attention. See
(Tex.Cr.App.1986);
668
Carter
OPINION ON STATE’S MOTION
(Tex.Cr.App.1983). Be-
468
FOR REHEARING
charged
cause
nature of the offense
DAVIS, Judge.
W.C.
were
extraneous acts admitted
opinion
original
we
In our
on
submission
prejudice
such
defendant
held that
evidence showed
value,
will ad-
any probative
we
outweighs
identity
perpetrator
case.
contentions raised
this
dress the
not in
and that his
the offense was
issue
861,
n.
See Ballard
“automatically” put
of alibi did not
defense
improper
(Tex.Cr.App.1971). Where
permit
identity in issue so as to
the intro-
acts in the context
use of
extraneous
duction of extraneous offenses. We reaf-
influ-
might
case
well have
instant
opinion
original
of our
firm
correctness
funda-
enced the outcome and affected the
24, 1985,
April
not
delivered
and need
rean-
particu-
trial
mental fairness
alyze the issue here.
compelled
lar
we feel
address
Ballard,
Beto,
Loper v.
supra;
issue.
rehearing
for
the district
In
motion
1014,
31 L.Ed.2d
U.S.
92 S.Ct.
County
a con-
attorney
Bell
reiterates
(1972);
Dorsey v.
Appeals
raised in the Court
tention
submission,
(Tex.Cr.App.1972).
original
in this Court on
but
will
did
then address. We
do
which we
rehearing, the State
motions for
so now.
of-
if the extraneous
asserts that even
identity,
to show
pertaining
fenses are not admissible
Appellant's grounds of error
like
instant
in cases
they are admissible
of extraneous offenses
to the admission
child
involving the
abuse of a
supple
one
sexual
raised
the first time
were
is-
put in
Appeals
appellant’s alibi defense
because
brief filed in the Court
mental
all.
occurred at
years
sue whether
offense
March
about three
after
on
evidence of
argues,
in the trial
the State
original
brief was filed
similar offenses
Appeals
of other recent
granted ap
The
commission
court.
Court
(1) to show
involving children
pellant
supplemental brief
leave to file the
occurred;
(2) to
probability the act
addressed the contentions raised there
toward
attitude
appellant’s
show
unnatural
in the Court of
in.
State contended
(3)
witnesses; and
to show
Court,
original
the victim
Appeals and in this
both
continuing
of a
part
that the offense was
rehearing,
that under
and on
submission
*10
design
part
appellant.
ty
scheme and
on the
of
for
prove
extraneous offenses to
intent
argues,
essence,
The State
in
cases
prejudice
is minimal
arising
and the
from
offenses,
involving
sodomy
admission,
sexual
like
or
their
comparatively great. See
child,
governed
State,
(Tex.Cr.
sexual
of a
abuse
are
Prior
ous offenses than are other offenses. The
I.
“firmly
State relies on
rules
established”
ago.
many years
fashioned
An examina-
are
“excep-
We
concerned here with one
tion of
discussing
cases
of
admission
many years
tion” established
ago that has
types
extraneous offenses
these
of cases
become,
time,
misap-
over
distorted and
necessary
explain
to
for
Texas,
rationale
plied.
states,
many
like
other
rec-
development
of rules governing the
ognized
very
“exception”
narrow
to the
admissibility of extraneous offenses in sex
“general rule” of nonadmissibility of extra-
cases.
permitted
neous offenses. The Court
gestae” exception
sort of “res
for cases
general
The
rule is that an accused
involving sexual offenses.
not be
for
tried
some collateral crime or for
being a
generally.
criminal
Williams v.
In
Battles
Tex.Cr.R.
(Tex.Cr.App.1983)
(1911),
175
of
such
light upon
charged
the
or where cross-examination
stances
threw
that
as
the other acts admis-
character
to make
in
explained
and
the act
act of intercourse
State,
162,
Wingo
89 Tex.Cr.R.
sible.
v.
showing the relation and mutu-
question by
State,
(1921);
v.
91
to show the attitude between
(Tex.Cr.App.1967);
them
Williams v.
size, age
strength
relative
(Tex.Cr.App.1973).
These deci
parties,
possible,
show how one
sions have apparently
sight
lost
of the fact
position demanding
guid-
in a
care and
exception,
fashion,
stated
*12
person,
ance of a related
has failed to
directly contrary
to the
rule ex
duty
adopted
and has
an unnatural
cluding propensity evidence to
show de
thereto,
by fondling
attitude relative
and
Regardless
fendant’s criminal character.
otherwise,
evidences a desire
sexu-
for
simplification,
openly
Texas
acknowl
gratification
al
toward such child or rela-
edged a limited acceptance
propensity
of
tive. We therefore think that where
involving
evidence in sexual offenses
a mi
such acts become material to thus show
complainant
nor
and the defendant.
they
them
are admissible.
However, extraneous sexual offenses in
Johns,
were
supra,
really
no
still not admissible under this ratio
different than
Battles,
State,
164,
nale.
v.
supra,
permitting
Young
159
the admission
Tex.Cr.R.
(Tex.Cr.App.1953);
State,
The lustful
idea was
But,
is relevant
ato material issue.
we
on the belief that sex
are
offenders
more
recognize
validity
ges
also
of the “res
likely
repeat
their
are
crimes than
other
exception
tae”
context
established
Notes, supra,
criminals.
Battles,
Johns,
at 342. Recent
supra,
supra.
and
Particu
premise
studies call
question
minors,
into
larly
and
involving
cases
such evi
show that sex offenders rate as one of
dence can aid the
properly
evaluat
among
Notes,
ing
lowest recidivists
criminals.
“inherently questionable testimony
supra,
against
responsible
and articles cited therein at 342. of minor
an adult
However,
mistakenly
parties
1. "Corroboration” was sometimes
ration.
third
also testified to
complainant’s
they
used
refer to
own testimo-
saw
circumstances or acts
between the
ny about extraneous acts between the defendant
complainant.
these in-
defendant and
and
those
herself. In
instances the "corrobora-
corroborating
testimony
stances
was
actually
support
was
tion”
admitted to
the credi-
complainant.
bility
complainant
and was not corrobo-
However, McDonald,
authority
su-
position
in a
overruled.
welfare” or
Johnston,
pra,
supra,
properly
See
and
also
and control over the minor.
v.
Veloz
State,
(Tex.App.
The
has been
O’Neal v.
(Tex.Cr.App.1967);
employed
“subterfuge
often
as a
391
Kester v.
S.W.2d
(Tex.App.
Paso
propensity-type
admission of
evidence.”
636
232
— El
Comments,
1982).
typify
“subter
supra, at
We are
here
cases
These
fuge”
propensity-type evi
concerned with the
or
for admission of
operandi
modus
character, dispo-
prove
the defendant’s
plan
common
or scheme
A “true”
dence.
sition,
propensity.
or
State, 87
exception
by Haley
is shown
(1920).
Imwinkelried,
519,
supra,
The
3:23 at 61-62.
demise of that for the court,” reason fendant’s brief in trial Article rule, itself, 13; longer State, 687, and thus rule no 40.04 Keel v. 434 § S.W.2d (Motion exists. (Tex.Cr.App.1968) 690 for Rehear- ing). Obversely, there was “duty” no to In granting trial courts “role in grounds review of error raised for the first appellate State, process,” Reed v. 516 Court; indeed, in the time for the Court to 680, (Tex.Cr.App.1975), S.W.2d 682 do so would bypassing original sanction allowing ideas at were by work that appellate jurisdiction in the trial court.3 judge opportunity trial “full to examine the record, completed arguments hear unless unassigned error reviewed study grant briefs and to the justice, new trial in the interest appellate our pow- court,” same appellate extent as would the authority er and was restricted to consider- “in many recognize he grounds cases would fact ation of of error argu- raised and that error was in case by reversible and ments made appellant and reply by the ...,” promptly grant ... would a new trial State their briefs filed in the trial court. thereby reducing State, 44.33, the number of to supra. Reed v. While Article and, coincidentally, V.A.C.C.P., this “pro Court not so parties allowed the to file tecting appellate record of which so supplemental this Court “such briefs as many judges justifiably they may able trial desire the case before is heard on proud.” Interpretative Commentary argument,” contemplated oral little Special Commentary to Article 40.09. To than a more discussion more recent deci- authority be noted is that time to pertaining grounds extend sions theories file reposed briefs in the trial court. error previously by considered the trial 707, State, Williams v. 413 S.W.2d 708 court. 1977,
(Tex.Cr.App.1967)
Acts
65th
— until
Accordingly,
by appellants
efforts
Leg.
236,
638,
p.
Ch.
when this
took
Court
compensate
comply
failure
with Arti
on that chore.
40.04,
9,
tendering
cle
such as
to the
Once
appellate authority
of a
styled
trial Clerk
this Court a brief
“amend
court
by timely
ap-
was invoked
or “supplementary,”
notice
ed”
were also re
peal
along
were
briefs
considered
For example, relying
buffed.
on Johnson
State,
argument,
any,
granting
oral
new
478
(Tex.Cr.App.1972),
v.
trial
subject
effect,
not
to review
this
and others
the same
the Kalm
State,
Court.
supra.
Reed v.
the other
correctly
grounds
On
held
bach
hand,
grant
should
trial
pro
court refuse to
in a
supplemental
error
se
brief filed
trial,
Court,
a new
“duty”
directly
it became the
of this
in not raised in a brief
grounds
court,
Court to
“all
presented
review
of error and
in the trial
were
prop
arguments
support
urged
thereof
in de-
erly before the Court for review.4
-
Id.,
1966);
State,
641,
grant
those briefs whether to
trial.
new
Snowden v.
410 S.W.2d
trial,
Upon
§ 12.
(Tex.Cr.App.1967).
refusal
new
the clerk trans-
compliance,
Without
add,
mitted record and briefs to the
Court
review
might
"Nothing
presented
for review.”
grounds
arguments
sup-
of "all
port
of error and
See, e.g.,
State,
(Tex.
Trevino v.
Neither
objective
reason for nor
else,
nothing
If
the majority opinion
the rule remains viable in cases in which
thing
makes one
regard-
clear: The waters
appeal
1,
was filed on
September
or after
ing
admissibility
of extraneous of-
See, 149,
1981.
Leg.,
Acts
67th
Ch.
yet
purified.
fenses have
They
to be
291, p. 820. It
contrary
to former Tex.R.
Therefore,
murky.
still
only
I
concur in
414(n),
Civ.P. Rule
authorizing amendment
the result.
supplementation
jus-
of briefs “when
original submission, only
On
I
concurred
requires upon
tice
such terms of the court
in the
majority opinion by
result that the
may prescribe,” and
Tex.R.App.
current
reached,
Judge Clinton
namely, that
74(o).
Pro. Rule
Since exercise of that
trial
admitting
court erred in
extraneous
authority
discretionary,
see cases anno- offenses into
during
guilt
evidence
following
tated at 101 ff.
former Rule
stage
Boutwell,
of the trial of Lester
here-
amending
matter of
supplementing
inafter
appellant.
referred to as the
I did
appellate
an
brief is best left to the courts
opinion
so
paint
because
used too much
appeals.
on such a small issue that needed address-
In the instant cause the
ing
Austin Court of
join
this case.
I also could not
Appeals
grant appellant
did
because,
leave
opinion
except
to file his
extremely
in an
supplemental
sense,
brief and did address the con
purify
limited
it failed to
the waters
supporting
tentions
supplemental
govern
admissibility
of extraneous
of error. Boutwell v.
I
offenses.
now concur in the decision of
1983).
101 (Tex.App.
majority opinion,
that the State’s mo-
— Austin
The Austin Court acted
express
rehearing
denied,
within its
tion for
should be
be-
authority,
denigrate
and we
opinion
original
absolute
cause it is much like the
on
right in
premises by
treating
it, too,
ap
paint
now
uses too much
submission—
pellant’s grounds
“unassigned
issue;
paint
error.”
a small
does continue to
run, making
subject
extrane-
Opinion p.
when
properly
having
the former were found
(Tex.Cr.App.1969),
"not
before this
245
timely
one brief
been
Id.,
court,
Court
regard
for review."
at 445.
In Reeves filed in the trial
the Court
(Tex.Cr.App.1970),
untimely
ous
might
vague,
offenses
in this
of
court
nebulous,
appeals
appellant’s
extremely inexplicable.
considered the
of error without comment directed to the
although
One' reason I
is that
write
presented
fact
that
been
had
in a
majority
opinion
manages
somehow
supplemental brief.
result,
right
reach
denying
the State’s
Coleman,
Regardless
holding
of the
rehearing,
motion for
it makes some state-
Shep-
supra,
progeny,
and its
seen in
that,
ments
because
what this Court has
Citator,
ard’s
holding
that
is inapplicable
held,
recently
clearly
stated and
errone-
to this
majority
cause because
what a
However,
ous.
these statements
because
v.
Garrett
this Court stated and held in
majority opinion’s
do not affect
ulti-
State
642-83,
11,
No.
(Tex.Cr.App.
June
mate,
correct,
but
decision to deny the
1986). There,
rejected
this Court
rehearing,
I
State’s motion for
am still able
State’s
that
contention
San Antonio
I
to concur in
result
that
reaches.
Appeals
Court of
could not consider a new
get
also
write
an effort
this Court
ground
presented
of error
in an amend-
up
come
rule
with a
that will make
ed
brief
that
filed
after
this
simple
what should
subject
be a
less com-
Court had
remanded
cause to that
plicated.
court,
“for
appellant’s
consideration
I will first address some of the erroneous
grounds of error
were then
[that
extant]”.
legal
majority
statements
opinion Quoting
Carter
from
makes.
(Tex.Cr.App.1983),
in which this
Court held
court
appeals
that a
has
majority opinion
states
that under
jurisdiction
unassigned
to entertain
error
State,.
Coleman v.
this Court’s
decision
regardless
of the nature of the
error
(Tex.Cr.App.1982),
question,
acknowledged
this Court
the fol-
appeals erroneously
court of
considered the
lowing:
jurisdiction
“After
attaches
appellant’s
going
contention
to the admissi-
cause,
particular
scope
broad
of review
bility of
the extraneous
offenses:
“We
by appellate
and revision has
asserted
been
agree
Coleman, supra,
that
appel-
under
courts of
that
is
recog-
this State —one
still
lant’s
properly
contentions were not
before
nized, acknowledged and
confirmed
Appeals
Court of
and thus are not
in Carter v.
(469). Thus,
Legislature.”
properly
light
before
Court.”
In
this
State, supra,
this
age-
Court reaffirmed the
change in
appellate
system,
our
court
ef-
jurisdiction
old axiom
“Once
of an
September
fective
and what
this
invoked,
appellate court
exercise of its
times,
Court has stated
held in
recent
reviewing
only by
is limited
functions
clearly
this statement
erroneous.
own
a valid
discretion or
restrictive
stat-
It is true
Court
original
this
held on
Garrett,
supra,
ute.”
the Court also
Coleman, supra,
submission in
that a new
40.09,
“according
held
Article
ground
presented
of error
not be
in a
appellate
on
an
appeal
direct
court
be-
supplemental
pending
in a cause
brief
obliged
every ground
to consider
of error it
this
Court
appeal,
on direct
same
understand,’
Ben-Schoter
fore
‘identify
can
original
had not
presented
been
(Tex.Cr.App.1982),
However,
brief.
majori-
overlooked
especially
might
one that
cause reversal of
ty opinion in
opin-
this cause is this Court’s
judgment
This Court fur-
conviction.”
ion in Coleman Garrett, supra,
appellant’s
motion for
ther held in
that while the
Coleman
rehearing,
see
appeals,
pending
cause is
in the court of
“a
(Tex.Cr.App.1982).
Notwith-
supplemented
brief
may be amended
standing
original
held on
what
it had
sub-
requires upon
justice
time when
mission,
on rehearing
this Court
appeals may pre-
went
terms as the
considered, discussed,
ahead
given
and over-
what
scribe ...”
Court
Carter,
Gar-
appellant’s
supra,
ruled the
contention
that had
stated and held in
rett,
presented
supplemental
been
brief.
a court
is now free
reviewing ap-
present-
not now a de novo
ground of error that is
Court is
to review a
*20
brief,
petitions
discretionary
In
supplemental
pellate
court.
ed in an amended
review,
is to
the deci-
ground
a
of error
its function
review
and in fact
review
appeals.
of
See
presented
any
in
kind of
sion of the court
ante.
that is not even
brief,
authority
has no
to “treat
mandates. There-
this Court
as its discretion
fore,
grounds
unassigned
of error as
er-
not for this Court to recite to a
these
it is
ror”;
reviewing
limited
appeals
ground
grounds
jurisdiction
its
is
court of
what
appeals
on
decision of the court of
and
error it must or must not review
of
form, i.e.,
might
not be
regardless
to determine what is
what
appeal
direct
of what
error,
brief,
unassigned
an
because the latter
this
original
supplemental,
an
brief,
brief,
exclusively
was
for the Austin
or even not in a
instance
amended
Court, to
might
Appeals,
of
and not this
ground of error
be raised.
Court
might
unassigned error.
decide what
Furthermore,
Judge
re-
but as
Clinton
majority opinion
The
holds that “Funda-
cently pointed out for the Court Garrett
1,
State,
of
supra:
September
“Effective
mental unfairness and considerations
1981,
process
particular
in this
case
approval
of
of amended
due
involved
virtue
V,
invoking
require
of Texas and
our attention.”
Is this
Article
Constitution
§
applying
4.04
Federal
law to
enactment of amendments to Articles
Constitutional
V.A.C.C.P.,
However,
44.24,
44.45,
admissibility of
and of Article
this cause?
jurisdiction, power
subject
au-
extraneous offenses is not a
this Court has
by way
thority
judicial
to exercise sound
discretion
review a federal court
law
Beto,
appeals
corpus.
Gephart
to review decisions of courts of
habeas
See
Cir.1971).
hand,
Jurisdiction,
(5th
power and F.2d 319
On the other
criminal cases ...
holding
authority
ordinary
majority opinion’s
to decide an
criminal
if the
means
due
appeal
cause on direct
is now
alone
under the Texas Constitution’s
course
vested
V,
clause,
admissibility
appeals.
law
the issue of the
in courts of
Article
Con- of
Texas,
4.03,
offenses is now of State
stitution of
and Article
V.A.C. of extraneous
dimension,
jurisdiction
appellate
then that
is
C.P.
‘Once
an
Constitutional
Court,
invoked,
coming
[properly]
is
its
of fresh air
from this
exercise
breath
and,
this cause was
only by
its
if that is the
reviewing
limited
functions
Court,
appeal
direct
to this
or was be-
own discretion or a valid restrictive stat-
on
State,
pursuant
provisions
469 fore this Court
ute. Carter v.
V.A.C.C.P.,
11.07,
agree
I would
(Tex.Cr.App.1983)’...” Jurisdiction of this
of Art.
4.04, Y.A.C.C.P.,
majority opinion
that such should
Court under Article
with the
unassigned error in the
decision of a court of
be reviewed as
“review
purposes of
justice
because for
in a criminal case.”
interest
ad-
the Texas Constitution the erroneous
instance,
appeal,
on direct
this
is a viola-
mission of extraneous offenses
Appeals
Austin Court of
chose to exercise
the due course of law clause
tion of
appellate judicial discretion and
its
wrote
Texas Constitution.
admissibility
on the issue that involves the
offenses,
Why
difficult for this
notwithstanding
it has been so
of extraneous
up
presented by
in recent times to come
the fact that the issue was
Court
pros-
brief,
general
judges,
trial
supplemental
in a
sound
rule which
attorneys
ecuting attorneys, and defense
jurisdictional right
to do. The ma-
to the admis-
might
live with when it comes
jority opinion is thus erroneous when
beyond
sibility of extraneous offenses
“appellant’s
contentions
states that
Ap-
comprehension.
properly
my
were not
before
Court
peals ...”
past decisions of this
appears
It
from
admitting extra-
it came to
opinion
that “we will Court that when
majority
holds
offenses,
open the
this
would
unassigned
neous
Court
these
of error as
treat
loose for
out,
let the horses run
pointed
gate
this
previously
error
As
...”
period
time,
replaced
been
but after
horses had
with more
rules and
damage
See;
done much
would then
exceptions.
Court
more
example,
Robin
order them corralled.
son v.
(Tex.Cr.App.
S.W.2d 895
1985);
Plante v.
Many
swinging
of us first witnessed this
(Tex.Cr.App.1985);
Williams v.
pendulum
Hafti
S.W.2d 344 (Tex.Cr.App.1983); Moore v.
(Tex.Cr.App.1967),
which this
State,
ion, p. 173.)
However, majority opinion since the does error correctly
reach
analyzes them, disposes I join the majority opinion.
remainder of the WRIGHT, Appellant,
Jessie Texas, Appellee.
The STATE of
No. 935-82. Texas, Appeals
Court of Criminal
En Banc.
July *23 Cruces, N.M., Lilley,
Michael Las Patri- Palafox, (court appoint- cia Glen Sutherland ed), Paso, appellant. El for Simmons, Atty. Steve W. Nick Dist. Jr., Martinez, Stiles, and R. Bradford Paso, El Asst. Dist. Hut- Attys., Robert Austin, tash, Atty., State. State’s OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW TEAGUE, Judge. allegedly committing joint trial aggravated robberies, separate
three Wright, of one appellant, Jesse convicted but, notwithstanding the of the robberies complaining wit- fact that the other two positively nesses identified the