*1 Jr., Antonio, Morriss, Will A. for COLLAZO, Jr., Appellant, Faustino Kerrville, Tuck, Grady Joe State’s the State. J., ONION, Before P. and ROBERTS
Panel No. 1. DALLY, JJ.
Sept. OPINION
Rehearing Denied Dec.
ROBERTS, Judge. jury appellant guilty
A found the sexual abuse and assessed a years. ques confinement for twelve tion court is whether the trial admitting erred in evidence of an extrane princi ous offense. Such involve in Mur ples of law which were stated well (Tex. phy 721-722 587 S.W.2d (footnotes omitted) Cr.App.1979) (emphases omitted): “It is an rule of established happen- evidence that proof of similar ings, spe- prior extraneous transactions or cific acts of misconduct committed party is irrelevant mate- the contested rial issues in the case on trial and there- fore inadmissible.
“In
proceeding,
a criminal
when the
extraneous or similar transaction commit
accused,
ted
sought
be admitted
by a criminal of
fense, introduction of that ‘extraneous of
inherently prejudi
fense’ transaction is
(1)
cial because:
the accused is entitled
be tried on the
made in the
accusation
charging
speci
instrument
fies the
‘material issues’
the case
cannot —consistent v ith the rudiments
process
due
tried for some collateral
—be
notice,
crime of which he has no
Jones v.
(Tex.Cr.
Walls v.
App.1977); Young v.
(1953);
commit crimes’ is not an issue which is guilty material to whether he is *2 specified State; charged conduct the In this case the victim was a woman of therefore, it follows years.1 attending 43 high introduction of about After a establishing evidence school in her son had propensity such football a played, the victim three-year-old a and her trial of the accused as a grandson car returned to her which was ‘criminal generally’ which our offends parked on a street stadium. It near the system Couch, justice. Young, supra; dark, nighttime was and the scene supra; State, Clements v. lighted by lights and the was the stadium 531,182 Spivey 915 S.W.2d see lights automobiles. The victim had 11, 140 the opened door of her and had leaned car Jones, See also supra; Etchieson half-way the into the car to child on 574 (Tex.Cr.App. S.W.2d 753 up when from the seat a man came behind 1978); Cameron v. 530 841 S.W.2d her, side, in poked something sharp and (Tex.Cr.App.1975); Albrecht v. her, down, get lady.” told “Get over and S.W.2d (Tex.Cr.App.1972). Thinking joke, it was a the victim turned “Extraneous constituting transactions around look. The man the child offenses shown to have been committed said, get around the neck and “Get in and by the may accused become admissible shut, keep your lady, down and mouth un- upon showing by a the prosecution both (It your less want hurt.” girl little was that the transaction is to a relevant [con- long-haired shown that the child could have tested,] material issue in case [and appeared to girl.) got have been a man relevancy value evidence that] pushed into the car and victim over. outweighs its inflammatory or opened clothing his and the victim’s potential. Ruiz v. clothing attempted and have sexual in- Jones, supra.” victim, with the was unable to tercourse but contested, penetration. Continuing When identity has become ma- achieve to hold a child, issue, genitals placed terial the man his as it did in this there must with the and forced be contact victim’s mouth showing offense engage her to in deviate sexual intercourse. which was committed was defendant words,2 exchange After the man an left. “so nearly identical in- method [to happened Ten later the to see days victim stant as to earmark as the them offense] appellant at an and she intersection handiwork accused. much Here recognized him had abused as the man who more is than demanded the mere appellant her. The the man class, commission of crimes of the same abused and he offered who had the victim such repeated burglaries as or thefts. The identity. alibi and mistaken device used be distinc- unusual and tive as signature.” Cleary, to be like a E. was the same prove appellant To McCormick’s Handbook of of Evi- the Law victim, person who abused the State (2d 1972). dence 449 ed. is no If there of an ex- present was allowed to evidence characteristic, sufficiently distinctive then place about traneous offense that had taken the relevancy of the evidence cannot out- year later. The victim of this offense was weigh prejudicial potential. its Ford v. Glowka, See of about 30 Carolyn a woman shopping After Mall years.3 at North Star inevitably Each case will unique turn on its Antonio Glowka returned to her car facts. lot. It parked which was in the 1977, leave, got 1. The victim on June that she out of the car to he looked at me testified years too, smirked, said, you, was 46 old. The offense was loves ‘Jesus ” on have occurred October lady.’ 1974. “Yes, him I him and told Jesus loved that she 3.Glowka testified on June forgave him, forgave also. him And years offense oc- was 32 old. The extraneous young I also asked him what a nice like he man on curred October why doing And when to me. was — p. was 5:00 m. and it was on not dark. As volved assaults adult women as Glowka started to appel- unlock her car and, her,
lant came beside her looking at places, were sadistic and both offenses said, me, “Excuse ma’am.” Glowka turned may sexual deviations. It be noted first give closer to her car to room that are instances generally pass. appellant put his shoulder to say that of sadistic sexual deviations. To *3 back, middle of pinning Glowka’s her they two are similar car; against right leg, is are both acts of sadistic sexual deviations jerked off, her shoe away ran with it. point not to to a device that is so unusual Glowka ran to another car where she had it signature; and distinctive as to be like a man; officer, seen another he was a police merely is to characterize a feature of that captured (The appel- any class of offenses. Almost two lant episode testified that the entire was an sexual assaults could be characterized as accident.) acts, just mur- any sadistic as almost two ders could acts. be characterized as violent State also testimony nothing dressing psy- This is more than psychiatrist who responded hypotheti- chological garb very thing that the law cal (albeit that were similar not on evidence of forbids: extraneous offenses identical) to the facts of the two offenses. commissionof a class opinion His was that there was a common of offenses to demonstrate that the defend- motive for the two offenses—to achieve (or deviate) general- ant is a criminal sexual gratification. sexual opinion was of the ly.5 that the two offenses were both sexual
deviations and had a common element of What we are left with is that both as- sadism in which person another at- saults were made on adult women as tacked and overpowered. He was of the opinion that the perpetrators of such acts places. Was this feature so distinctive were sexually immature and needed the appellant’s as to be the Was it signature? risk of being caught as a stimulus to be ca- identity relevant to the issue of —so sexually aroused. opinion In his taking pable proving appellant, who of the shoe was a classic instance of shoe offense, committed the extraneous fetishism. have been the same man who committed
In its brief argues the State sexual its value to abuse—that “there is a patent similarity to the of the jury outweighed effect fenses.” evidence,4 As we understand the inevitably accompanied it? We hold the similarities are that both offenses in- that it was not. prosecutor
4. The argu- State’s brief lists seven In fact characteristics made that exact supposed which are jury: to be common to both ment to the acts, lots, parking offenses: “sadist with gentlemen, you “Ladies and I’ll admit to present, women, aged others ap- on middle person go a normal and steal some- doesn’t proached back, from the with desire to humili- shoe, body’s get any gratifi- and doesn’t sexual ate, expense being caught.” at This list is stealing But a cation out of a shoe. normal grounded Only not well in the evidence. one person ik in a also doesn’t sne on a woman lot; parking only offense took in a one lot after a football and force her woman, middle-aged involved a as that term is sodomy knifepoint by to commit oral at threat- usually understood; only ap- one woman was ening grandson. her' And I submit to Defendant; proached back, having from the Glowka ex- not normal he’s the this is pressly being approached from the back ‘sick’, same of—I to use the word sort hesitate (S.F. 580); expert and the State’s testified that type person but the same that would do that (as opposed these offenses abstract) to sadism in the thing in San Antonio as would do the horrible (R. 603), “overpowering” involved not right here at act that was done on Mrs. ... humiliating. It also will be noted that “with Antler Stadium.” present” expense others caught” and “at merely ways characterizing are two the same evidence in this as would be “sadistic” and “with desire to humiliate.” For the in admitting evidence, judgment is reversed and the cause is
remanded.
DALLY, J., concurs in the results.
ONION, Presiding Judge, concurring.
I concur in the result reached agree
do not with all that said
opinion by Judge authored Roberts. The offense, under the circumstanc- Boston, Davis, Jerry L. New for Wilder. es, should not have been over admitted Davis, Ark., James E. objections offered. Armour.
Lynn W. Cooksey, Atty. and Donald Dowd, Asst. Dist.
State. John Lewis WILDER and Artie OPINION ON REMAND FROM THE Amour, Appellant, OF THE COURT SUPREME UNITED STATES
v.
DALLY, Judge.
appellants
of
The
were convicted of the
capital
punishment of
fense of
murder and
Texas,
death was
Court
assessed. This
affirmed
En Banc.
v.
the convictions in Wilder and Armour
Nov.
Supreme
granted
United
Court
States
appellants’
writ of
and subse
certiorari
re
quently
judgments
vacated the
light
manded
cases to this Court
Smith,
Estelle
U.S.
101 S.Ct.
(1981); Wilder v.
these cases was at the trial.
Subsequent re Supreme to the Court’s mand in these cases Governor the punishment State of Texas commuted imprisonment. of each to life penalty imposition Since the of the death