*1 MALONEY, execution, dissenting. Judge, stay of if desires a that Graham application remedy filing his exclusive grant I the Board Pardons convicting corpus in the for writ of habeas Paroles’, al., Motion for Leave to File its et 11.07 of the Texas pursuant to Article for of Prohibition and Manda- Petition Writ of Criminal Procedure. Code mus, stay grant I would of execution pending further orders of this Court on Propriety Mandamus Relief Attorney by the General its issues raised a rela relief is available when Mandamus including dealing -with petition, those issues adequate that he has no other tor establishes hearing of a before the requirement legal remedy that the action he seeks to request on a Board of Pardons and Paroles Harmon, Buntion v. compel is ministerial. upon actual clemency for based a claim of 945, (Tex.Cr.App.1992); 827 S.W.2d innocence. (Tex. Dunn, 318, 320 Braxton v. Attorney Because this Court denies Here, carried Cr.App.1991). relators have petition leave to file its General of this State that burden. issues, respectfully I dissent. on these stay jurisdiction grant a Exclusive modify a valid death execution or otherwise convicting with the
warrant lies ex rel. Wilson v. with this Court. State Briggs, 171 Tex.Crim. (1961). has had The 182nd District Court prosecu- jurisdiction capital murder over originally of Graham since the cause was tion July ago. On filed more than a decade CREEKMORE, Appellant, Jerry court, acting pursuant to this mandate, its second order for Court’s issued The Third execution. Court Graham’s Texas, Appellees. STATE stay of Appeals’ granting Graham a order effectively emasculated the 182nd execution No. 04-89-00600-CR. order, man- and this Court’s District Court’s date, go directing execution that Graham’s Texas, Appeals of Court of Ap- To allow the Third Court forward. Antonio. San only encourage will peals’ order to stand April fairly constitutional can be described as what “If it the law in the near future. chaos Rehearing Opinion on Motion every judge every [and district Texas that July en banc before appeals] court of must be satisfied out, sentence be carried death appeals] may pre- judge court of [or
district ..., execution of such a sentence vent the a court of last resort then this Court is not Id. at 896. matters in this state.” corpus, habeas application An for writ of 11.07, is the pursuant to Article filed cognizable means which Graham legally Tex. stay may seek a of execution. summarily grant I R.App.Proe. 233. would file and sum- petitions for leave to relators’ marily of the Third Court vacate the order staying execution. Appeals J., WHITE, joins. *2 Bain,
Cecil W. Law Offices of Cecil W. Bain, P.C., Scharmen, Antonio, George San appellant. for Waldrip, Atty., Dib Asst. Dist. Karnes City, appellee. REEVES, C.J.,
Before and BUTTS and RICKHOFF, JJ.
OPINION
RICKHOFF, Justice. Creekmore, Appellant, Jerry was convicted by jury indecency of the offense of with a years Punishment was assessed at ten child. denied, appeal, confinement. raises rt. On U.S. S.Ct. ce (1990). points five affirm. L.Ed.2d 185 error. We required states to re ten-year-old complainant sought cry quest a mistrial because the vio stepfa- out the offense of sexual abuse lated the court’s order disclose “certain Floresville, ther to her school counselor *3 very important regarding information multi Texas, County, by placing Wilson two notes ple multiple and offenses outcries in the counselor’s school mailbox. Sum- complainant.” findings disputed No on the office, to the moned counselor’s the child told fact requested. issues made or The were the counselor ini- that two weeks before the complainant during the first trial testified outcry sexually appellant tial her abused and leaving about the two notes and then about on regular that abuse had occurred began years sexual abuse which four about in the past. basis The child described the prior. objected alleging The defense sur abuse in detail it and testified occurred after mistrial, prise prejudice and for a and moved or appellant’s school either the child’s granted. which admitted to was bedroom. discovery receiving information that included complains of Point error one that venue allegations previous of abuse this victim. sufficiently. not was demonstrated The com- prosecutor counselor testified asked plainant clearly indicated the offense took her she for the notes but could not locate Floresville, home, place in her two weeks them in the school files she could not so prior to her report to counselor at school prosecutor. appro furnish them to the Department in Floresville and the of Human priate standard of review is set forth appellant testified that the Services worker (Tex.App.— Sanders v. complainant and in a lived trailer at 'd), 1990, pet. alleged El ref to Paso as when Rd., County, Goliad State of Texas. Wilson con intentional misconduct sufficiently is established Venue from the equivalent of an intent stitutes the functional The point record. of error is overruled. provoke deduce to a mistrial. We cannot such reading from record a close Next, appellant complains that the trial This prosecutorial misconduct. intentional overruling court erred in his motion to dis- point of error overruled. jeopardy. miss because former This previously way this issue of an considered appellant com- point In of error the third interlocutory appeal from the court’s trial plains to submit that the trial failed overruling application order for writ jury. The plea jeopardy to the of former corpus grounds habeas that on record, however, though plea, shows that the rights denied under was “his the United filed, verified, that no evidence was not I, under sec- States Constitution and ‘Article plea, jury support submitted to the tion 14 of Texas Constitution.’” In sought and no submission 04-89-00403-CV, No. this court de- Cause charge was objection from the to its absence 8, 1989, August nied relief lack of on failure appellant’s made. failures These jurisdiction. Pro- Code of Criminal comply with Texas prevented his cedure articles 36.14 36.15 began The first on June by the trier special plea being heard from August began The second trial 27.07. See fact in with article accordance requested In the first trial and was 36.14, 36.15 arts. Tex.Code Crim.Proc.Ann. granted during mistrial (Vernon 27.07 Supp.1993) and art. 1981 and rulings the first Pretrial motion will witness. (Vernon 1989). there is a not reversed unless clear discretion, context, complains of the admis- four pre Point of error facts con- party offenses sion of extraneous reasonable “third sented demonstrate 404(b), of rule cerning appellant violation disagree could as to cause of minds is, of Criminal Evidence.” Texas Rules the identified intention mistrial —that 404(b). rebuttal, prose- prosecutor. al misconduct See Jacobs Tex.R.Crim.Evid. testi- (Tex.Crim.App.), three witnesses produced cutors age fied were about the same as the The third witness was another niece who complainant and in the care eight when testified she was when she returned sexually way. abused them in the same missionary parents the States with her for a objected Defense “not under Rule 6081 family. Appellant, reunion with the “would theory, objections Boutwell2 but on attempt get me in a corner or out of the going remote, are going these to be house, somewhere, proceed and he would prevent conducting the Defendant from breasts, cross my my me and fondle kiss or take examination on the basis that we are not him, hands and cause me to fondle and this prepared asking for a continuance to type thing.” When she was seventeen she defend and cross examine these witnesses?” told her mother. objection was overruled. appeared These rebuttal witnesses after *4 appellant’s The first witness was daughter testimony challenged by: the victim’s was who hospital testified her mother in the was jealous; suggesting she was that she told having baby another when her father took lies; testimony that her was contradicted her a bedroom and “made me take his witnesses; defense suggesting the child’s pants down, he had an erection and he lesbian; mother was that the child and her penis made me proceeded touch his and he movies; mother watched x-rated that mother ejaculate in front of me.” She never told ways child touched each other in sexual anyone until she was seventeen when she suggestions general and numerous other told the man who is now her husband. On immorality leading general premise all to the cross-examination she admitted this was not plot against appellant this was a only appellant time abused her. disciplinarian. because Appellant’s he was a parents testified their son would
The next witness never sexu- appellant’s was niece. ally They abuse children. She also testified the eight testified when she was or nine dirty magazines, victim viewed appellant living talked about a grandfather’s was behind her caught sex act and with apartment. house in an her hands down visiting, ap- When pants mentally pellant of a retarded child. pick up her and “his hand went up my panties, and under my and he fondled then testified and denied private area.” On another occasion allegations and reviewed the moral attack on unexpectedly “came home caught inme Craig, child and mother. Dr. Judith by myself house the restroom ... I psychologist, clinical was allowed to view the process shorts, was in the pulling my or expert and testified as an on sexu- my underwear, or whatever I had on at the al abuse of children. She testified time, up, pulled and he them down and fon- abuser, profile did not fit her of an my private parts dled pulled my up shirt very strong “there is reason to doubt that” my and fondled breast.” She never told child, opinion he abused the and that her anyone year till the second or third of her great there “is reason to doubt” the victim. marriage. said, On cross-examination she cross-examination, Finally, on the doctor was I help volunteered to way that I asked, you “... interview Mr. [D]id Creek- get stopped could to because I know regard more with to whether or not he was a my mind, it what did to life ... in a child’s answered, pedophile”? expert says “He mind, my I doing assumed that I was says sexually he is not. He he has never just something, why I didn’t it know anyone.” molested then re- happening to me because I assumed peated again summary the answer and happened anybody that it never else in expert repeated, witness “He said he has the world. sexually anyone, yes.” never molested Later appel- She admitted she never confronted the she stated she had no him reason to doubt lant testing about this because she was terrified of because his he scale on the was not him. elevated and behavior his and demeanor did (Tex.Crim. 2. Tex.R.Crim.Evid. Boutwell App.1989). suggest simply coupled But stated an incidental lying. she also erection with
the child should be doubted because her a damnable nonchalance.” After this eu- demeanor, being including “jurors calm and not phemism suggests, too have lost crying. sight specific ... issues and convict out of jurors revulsion.” It is not the have lost The trial to admit evi- court’s discretion issue, sight juror it is but who in dence not be absent clear should disturbed insight the examples need of sexual guid- precise abuse discretion. most behavior directed toward children defen- application ance on the of the standard of provide can in order dants to overcome their context of review Tex.R.CRIM.Evid. recognize reluctance to otherwise uni- 404(b) involving and 403 in cases the sexual maginable parental crime. In the case be- Judge abuse of children is found in Clinton’s fore us the rebuttal evidence of opinion Montgomery daughter nieces as to the abuse (Tex.Crim.App.1990), decided after this appeared suffered after the victim and He that: trial. states severely supporting her were chal- witnesses given the trial court must be wide latitude and, determinatively, lenged, ap- after more exclude, or, particularly in view the pellant’s expert provided child presumption admissibility of relevant statement, additional verification evidence, not to misconduct evi- exclude doctor, through *5 jury made to the he long fit. So as the dence he sees anyone. In never before molested Townsend operates court within thus the boundaries (Tex.App. discretion, appellate of its an court should —Houston pet.), court Dist.] allowed decision, [1st not it disturb its whatever six-year-old allegations abuse of sexual
be. ap- that as rebuttal after children process wholly objectified. The be cannot opinion pellant’s expert also related may disagree men whether in Reasonable profile appellant fit the of an abuser. did not experience particular common inference his own The court held the is for such available. Where there is room “opened had expert of his and that disagreement, appellate an court re- that had been the door” to sexual abuse ruling relevancy verses trial court’s way. Finding in a similar committed accomplishes nothing than more to substi- relevant extraneous rebuttal evidence offense perception its tute own reasonable of com- issue, court did we find the to material experience mon of the trial court. val- weighing inherent abuse its discretion appellate displaces effectively prejudicial potential. ue and court, commandeering the trial a function institutionally assigned elsewhere.
Id. at 390. Group3 The Victim however, concluding In his paragraphs, challenged increasingly Trial courts are Judge is Clinton finds he able to comman- 404(b) application Rule to with this same deer function when balances inherent find them- alleged pedophilie behavior and prejudice probativeness. He decided in resolving of the admis- issues favor selves appellant’s Montgomery that behavior of fre- sibility of acts of sexual to extraneous naked, erection, quently walking with an holdings ever clearer spite children marginal front his children was of value of Criminal contrary by the Texas Court sexually unfairly prejudicial because re- ex- Appeals. logically An additional sound lated with “inherently misconduct children is ception necessary. is inflammatory.” Judge suggests Clinton then society, presumably -parentis that some in our one in is parent includ- Where or loco jurors care, ing Texas abusing and other members of the accused of a child in their control, judiciary, might protection, Montgomery consider “an undifferen- rea- imprudently displayed, soning expanded tiated sexual arousal is so as allow for the Texas, Atty., County, liberally content of this in other cases section borrows Bexar filed Moore, Angela from the persuasive. brief of Ass’t.Crim. Dist. found admissibility they of extraneous acts of abuse to suffer frustration as encounter these upon the accused other children of the “vic- patterns until realize that fact extrane- group. group tim” This will be defined and ous directed children sexual behavior toward discussed in more detail below. pedophilic is the best evidence of behavior of character as the rule was and not evidence 1, 1986, September
Effective
prior to this
meant to envision.
trial,
Montgomery
or the
the Texas rules of
important
evidence became the most
However,
holding
we still have the Vernon
guide
admissibility
of extraneous conduct.
the evidence must be relevant
some
omitting
exceptions,
While
the historical
credibility.
material issue other than
inviting
rule retains an
“such as” before the
logic lapse
always
there is that
character
eight
exceptions.
enumerated
After
charged
sexually
in issue when one is
with
prosecutors still had to show extraneous mis
abusing children in their care.
conduct was relevant as an “elemental fact or
appeals
Another court of
has embraced the
evidentiary
consequence
fact of
to deter
import
category
examining
of this
mination of the action.” Vernon v.
admissibility of extraneous acts between the
411 (Tex.Crim.App.1992); Mont
party, during
defendant and a third
gomery, 810
387-88. The Vernon
guilVinnocence stage of
trial.
Mares v.
found because
did not cross
(Tex.App.
Paso
any
prosecution’s
examine
witnesses or
—El
ref'd),
pet.
acknowledged
the court
tender
witnesses of his own
there
admissibility
upon
of acts of the defendant
impeach complainant
fore did not
that it was
students,
other female
where the defendant
error for the trial
appeals
court and court of
charged
student,
fondling
with
a female
to conclude
previous history
though identity
even
was not an issue.
abusing
his child was an “unnatural rela
There the court held:
tionship” relevant to the issues tried. The
*6
message to the defense becomes that when
the indicted and extraneous offenses are
defending pedophiles, defense counsels must
all connected to a common criminal scheme
lay
during
down
the case-in-chief and not
'progressively exploiting
of
the student-
present witnesses in order to be safe from
relationship
elementary
teacher
with
healing of their
previous
client’s
similar be
students,
setting
school
while in a
female
allowing
havior. A rule
group
victim
extra
by
Appellant,
physically
dominated
neous offense
in sexual abuse of
Appellant’s
gratifica-
achieve
own sexual
children eases allows the defense to be free
tion.
of this restriction
challenge
and
all witnesses’
State,
v.
(Emphasis
Mares
887 Leg., Tex.H.B. of special 69th abuse are of Analysis, R.S. interest. Gonzales Bill (1985). (Tex.Crim.App. 1991), court, relying opin on this court’s analysis This argu- bill summarizes the Court, ion Supreme States United supporters: ments of the bill’s allowing year held seven traumatized long, For too the victims of crime have by old victim testify sexual abuse the use justice been of pro- left out the criminal way of adequate circuit television closed They regarded cess. are often as mere ly protected the defendant’s confrontation simply witnesses of the state or as trouble- rights under State and Federal Constitu spectators, gives some this attitude opinion tions. In Court of Criminal increasing number of victims and their Appeals quoted extensively Maryland from impression families the the state is more Craig, 111 497 U.S. S.Ct. rights concerned with the the criminal of (1990). There, pertinent por L.Ed.2d 666 than with those the victim. opinion tion the Court’s is as follows:
Given the
traditional
transcen-
State’s
protecting
dent interest
added).
in
(emphasis
Id.
welfare of
growing
children and buttressed
The Texas Constitution was also amended
body
documenting
academic literature
provisions including
to contain similar
Tex.
the psychological trauma
child
suffered
Const,
30(c)
(d)
I, §
provides:
art.
& which
court,
testify
victims
must
(c)
legislature may
The
enact laws to de-
guess
we will not second
the considered
fine the term “victim” and to enforce these
judgment
Maryland Legislature
re-
rights
and other
of crime victims.
garding
importance
interest
its
(d)
state, through
prosecuting
its
at-
protecting child abuse
from the
victims
torney,
right
rights
has the
to enforce the
testifying.
emotional trauma
of victims.
Organization
analy-
House Research
bill
citing
Gonzales v.
S.W.2d at
amendment,
sis of the constitutional
states
855-56,
Maryland
Craig,
497 U.S. at
digest portion,
pertinent part:
at 3168-3169.
S.Ct.
amendment,
proposed
This
constitutional
prior
relied on
Court also
decisions
similar
Michigan,
to the one
enacted
Supreme
in finding:
the United States
Court
enlighten
public
serve
about
expressed
“the
affirmation
reaffirma
the purpose and nature
judiciary
tion
of this State and the
justice system.
coupled
When
with the
protection
United
that the
of chil
States
Bill
Rights
Crime Victims’
that was
legitimate
compelling
dren
a state
Legislature,
enacted
the 69th
Ferber,
goal,”
York v.
See New
458 U.S.
implementing legisla-
amendment and its
747, 756-757,
3348,3354-3355,
102 S.Ct.
finally
plight
tion would
address the
(state
(1982)
L.Ed.2d
safe
interest
*8
Adoption
proposal
innocent.
guarding
physical
psychological
one of
the recommendations of
House
being
compelling);
well
of a minor is
Globe
Sentencing
Select Committee on
and Re-
Court,
Newspaper
Superior
v.
457
Co.
U.S.
cidivism, which said
need a set of
victims
596, 607,
2613, 2620,
102
L.Ed.2d
S.Ct.
73
rights
analogous
in
law
to those accord-
(1982) (state
safeguarding
interest in
248
defendants,
(emphasis
ed
add-
protection
minor victims from further
ed).
Foundation,
trauma); FCC v.
438
Pacifica
Analy-
ORGANIZATION,Bill
House RESEARCH
749-750,
3026,
726,
3040-
U.S.
98 S.Ct.
(1989).4
19,
Leg.,
H.J.R.
71st
sis,
R.S.
(1978)
3041,
(government
1073
57 L.Ed.2d
well-being
youth);
interest in
of its
Gins
Appeals
of Criminal
and this
Court
York,
berg
88 S.
previously
child
v. New
U.S.
court have found
victims
Hilbig
interpreted
State
Rel. Steven C.
Honor
reviewed and
Texas Ex
This court has
of
Terry
McDonald,
(Tex.
and its
able
amendment
Texas Constitution
1992).
App.
enabling
previous
legislation on a
occasion in
Antonio
—San
(1968) (state
1274,1281,
allowing
logical
Ct.
889
quoted
child,
psychologist
against
impeached
abso-
that
which
the de
Id.;
lute
that
pedophile:
testimony,
denial to her
he was a
permitted.
fendant’s
was
ac
says
says
cord,
State,
“He
he
not. He
never
he has
v.
Wilson
730 S.W.2d
440-41
sexually
anyone.” Appellant
ref'd).
molested
testi-
1987, pet.
(Tex.App.
Worth
—Fort
committing
charged
fied and denied
of-
ease,
present
In the
the rebuttal evidence
parents
fense. His
denied that he would
of
sexual
the former
abuse victims was cor-
sexually
ever
children.
abuse
The direct evi-
rectly
impeach
to
admitted
the evidence of
presented by appellant
dence
purports to
sexually
that he had never
abused
show that he not
did not
the act
commit
Appellant “opened
child.
the door.” No
charged, but
engaged
that
never had
error is shown.
(sexual
proscribed
kind of
act
of
abuse
children),
further,
and,
that he was the victim
ON APPELLANT’S MOTION FOR
of a conspiracy
complaining
of the
witness
REHEARING EN BANC
mother,
degener-
and her
pictured as moral
ates.
BUTTS, Justice.
impeach
The State was entitled to
Appellant initially
points
asserted six
of
defense witnesses’ evidence
introduction
indecency
for
appealing
error
his conviction
of the extraneous offenses. See
v.
McIlveen
with a child. He
this court
now invites
State,
(Tex.Crim.App.
559
822
S.W.2d
panel opinion
its
error in
reexamine
for
three
1977).
State,
also Bell v.
620
116
S.W.2d
particulars:
ques-
the extraneous offenses
(opinion
(Tex.Crim.App.1981)
rehearing),
on
tion,
jeopardy question,
the double
where it
was held
proof
question (sufficiency
of venue
of the
sufficient,
objection
even if the
evidence).
unchallenged portions
The earlier
right
inquire
State had
under
panel opinion
of the
will continue while this
exception
general
to the
rule
about
replaces
en banc decision
the three chal-
arrest
possession
and conviction for
of
lenged
opinion.
of
portions
original
“opened
marihuana since the
had
rehearing
motion for
is overruled.
the door” on direct examination.
Id. at 126.
Yenue
It was established on direct examination
point.
first address
venue
We
that the
defendant Bell had
nothing
his
original opinion
maintains the
past except
one embezzlement con-
summarily
question
disposed
the court
viction. The
permitted
State was then
sufficiency
of the evidence
on
based
failure
show on cross-examination
defen-
prove
beyond
the State
venue
reason
dant had been arrested for
two offenses
able
While it
doubt.
is correct
venue
aggravated robbery, for possession mari-
State,
proved
must be
the burden is
huana,
fleeing
police
convicted
from a
evidence,
by preponderance
not be
officer.
Id. at 124. No error was shown.
yond a reasonable doubt. TexCode
CRiM.
Rebuttal
sexual
extraneous
(Vernon 1977).
13.17
art.
“Venue
PROcAnn.
offenses was held admissible in
Patton
thus,
is not a ‘criminative fact’
not a
(Tex.App.
S.W.2d
—Fort
constituent element of the offense.” Fair
1986),
grounds,
Worth
vacated
(Tex.Crim.
field
(Tex.Crim.App.1988).
App.1981).
purpose
allowing
stated the
the rebuttal
impeachment
venue,
juris
impres-
Improper
being
correct
the false
flaw,
given
jury by
sion
the defendant
dictional
the defen
waived
incident,
was an isolated
and that he was
dant’s failure to raise it as an issue at trial.
such a
close friend
the sexual
victim
at 779. The
Fairfield
family
intentionally
appellate
presume
he would never
will
venue was
anything
presentation
do
appropriate
to harm them or
them
absent
cause
established
Patton,
trauma.
§91 present jury she never about stated knew the notes and for a and lose un- mistrial the finding attempted prosecution since out she had obtain less his action. to the forced them, but the find counselor unable to controlling The question is whether in the them school files. She stated if present the case the intention available, been the had State would have ally “goad” ap acted to force a mistrial —to appellant. disclosed them to pellant moving into for a mistrial. The trial hearing the conducted before second
Appellant urge to continued he was not present pointedly asked to past ongoing aware of the nature support evidence to his contention that the alleged acts, abusive the State had failed provoked by mistrial was the intentional mis disclose to that. Assertions of these prosecutor. the conduct of record re (failure discovery omissions the to State present that flects did not evidence. ongo- the past disclose two notes and the hand, On the other showed that it State ing nature of charges) the sexual abuse form provided appellant had awith letter from the the basis of jeopardy double indicating report same school counselor claim. contends mistrial resulted conduct, proscribed ed and also that it had prosecutorial from intentional misconduct or given report him a doctor’s and the child overreaching. investigation report abuse/neglect of the Tex general rale is that when the Department of Human in which Services mistrial, jeop defendant moves wrote, for Reyes double the worker Norma “This has ardy claim will not Oregon bar retrial. In approximately been for happening one to two Kennedy, years, 456 U.S. possibly longer [complainant] ap S.Ct. ... (1982), Supreme proximates L.Ed.2d 416 de years Court she was about ” “[ojnly governmen termined that where age.... also documents contained question ‘goad’ tal conduct in explicit is intended statements of sexual conduct occur to times,” moving ring negating theory the defendant into for a “at of a one mistrial a defendant raise bar of time occurrence. At the conclusion of jeopardy double having hearing to a second trial the trial court after overruled motion succeeded plea aborting special to and the the first on his own dismiss double motion.” 456 jeopardy. The issue at submitted to U.S. S.Ct. 2089. The jury. referred to exception” this as a “narrow general rule. The exception narrow Chvojka In Oregon v. Kennedy applies prosecuto- where (Tex.Crim.App.1979), the court of criminal overreaching rial or misconduct results in appeals stated: granting of a on mistrial own defendant’s obtain, however, Different considerations motion. Without demonstration of that ele when the mistrial has been declared at the ment, jeopardy plea a double will not bar request. the circum- defendant’s Where trial. interpreting second Texas cases article which mistrial stances occasion a are not I, section of the Texas are Constitution judicial prosecutorial or attributable Oregon Kennedy. consistent with De overreaching, a motion the defendant (Tex.
mouchete v. ordinarily for mistrial is assumed to re- App. pet.). Dist.] [1st —Houston reprosecution, move barrier to even if Thus, if even defendant succeeds the defendant’s motion is necessitated mistrial, aborting judicial a trial prosecutorial his motion for [Citations error. still bringing overreaching must meet his burden of forth Prosecutorial will omitted.] hearing at the special plea government, through where be found demonstrate that “gross negligence the intentional misconduct or intentional miscon- prosecutor provoked moving duct,” aggravated him into caused circumstances to words, for mistrial. develop “seriously prejudice^] the motive for which a de- “goading” fendant,” prosecution’s causing “reasonably is the him desire con- opportunity a more favorable climate and clude that a continuation of the tainted convict, proceedings defendant would not move would result a conviction.”
892 Dinitz, 608, 600, jeopardy States v. U.S. and state double clauses. [424
United The sec- 1075, 1080, point properly 47 96 L.Ed.2d 267 ond overruled. S.Ct. (1976)]. Extraneous Offenses State,
Chvojka v. S.W.2d at 880-31. 582 complains plea jeopardy Appellant about the ad Since of former constitutes nothing testimony of of pleading more than and does not mission his earlier sexual children, against clearly truth of of al- assaults extra establish the the issues fact leged therein, is on defendant neous offenses. The three the burden the witnesses allegedly the go to forth at his second trial evidence testified to extraneous offenses with by appellant support allegation jeopar- against of his of committed them when former State, dy. 722, appellant’s daughter v. 635 725 were children Anderson S.W.2d were hold (Tex.Crim.App.1982). and two nieces. We the trial court did admitting impeaching not err the rebuttal the of appeals In Anderson evidence. the held that while mistrial did result from error, long passage before the of Texas prosecutorial Since the evidence at the double 1986, Tex. rules of criminal evidence in see jeopardy hearing negated allegations of pros- 402, 608, 403, R.CRIM.Evid. and which some- by overreaching ecutorial means of intention- preclude time work to of admission evidence al misconduct. Id. at 726. The evidence in offenses, of trial courts have al- prosecutor extraneous Anderson failed to show that the lowed evidence when goaded otherwise inadmissible moving the accused into for mistrial by jury opened” “the door is direct defense testi- might acquit of the because a fear that mony to or when the evidence is admissible might gain the the accused or State some theory. is still rebut a defensive This viable advantage in newa trial. law. present In the case the is of record devoid prosecutor guilty the evidence that specifical testified any conduct which could be characterized as ly committing charged denied the offense or prosecutorial overreaching or intentional mis- sexually that he abuse a child. Both would fact, in light evidence at conduct. the parents that he testified denied hearing, say we cannot that even ordi- sexually di ever abuse children. The discovery nary prosecutorial pro- in the error purports to rect defense evidence show allegations prosecu- cess was shown. in, engaged nor would he ever he never had overreaching or torial intentional misconduct (sexual engage proscribed kind act rejected by the after it
were trial court heard children). These assertions broad which, evidence, agree, clearly negat- we proof similar exposed appellant to rebuttal allegations. ed those against See Mares acts other children. State, (Tex.App. 758 S.W.2d 936 —El is- court answered the ultimate refd). false pet. picture Paso Where sue, "pro- whether the intended defense, prosecution by presented is requesting into voke the accused the mistrial testimo may impeach the defense witnesses’ notes, giving appellant not then extraneous offenses. ny introduction of prosecutor, unknown which contained See McIlveen v. class, name, period free the child’s n Further, when (Tex.Crim.App.1977). interview, the counselor’s opened by the on direct examination door informing appellant there would be defense, prosecution right has alleged that the sexual acts had been occur- general inquire, exception under ring past years presently, as aswell where evidence, excluding rule extraneous offense undisputed it was had received Bell relevant extraneous offenses. See about referring reports ongoing the noted sexual (Tex.Crim.App. videotape. as The court activities well 1981) rehearing). (opinion on motion for overruling did not err in motion to dis- defense, for the psychologist A testified plea miss the indictment and bar detailing appellant. She asserting her interview with prosecution violation of federal stated the interview revealed that he was which rebutted similar emotionally satisfying and had a mature extraneous acts. Boutwell (Tex.Crim.App.1986) sex life. be- (opin- adult She confirmed that she rehearing). what he in her with lieved told her discussion ion on motion for Under the psychological him testing him that her similar circumstances this case extraneous *13 display lifestyle not tending reflected he did acts admissible were as rebut patterns usually present theory in child abusers. defensive and claim of a State, prosecutor ques- On cross-examination the v. up. frame Vandefifer 1984, tioned doctor about the (Tex.App. interview. S.W.2d —Texarkana psychologist quoted appellant’s then pet.). absolute pedophile: denial her that he was a “He defense were presented Other theories says says he is not. he He has never sexual- complainant jealous baby was of her ly anyone.” molested She indicated that he sister and her mother and this was the profile did not fit the of an accused sexual get appellant, means to rid she was an abuser because he did not have charac- liar, relationship habitual that a lesbian exist- Further, teristics. the doctor testified ed her and mother between her which was dynamic direct there examination was “the by appellant, complainant witnessed had possibility allegations” by of false child. overtly displayed an unnatural and interest her It was conclusion that the child not was sex, complainant striking and that was telling the allegations truth about the back he at because was a strict engaging against appellant. was retaliation disciplinarian. testimony Rebuttal of extraneous sexual admitting hold the court did err in We offenses was held v. admissible Patton strikingly evidence similar extraneous State, 772 (Tex.App. 717 S.W.2d —Fort sexual offenses. 1986), grounds, Worth on other vacated No error shown. The motion for re- 1 (Tex.Crim.App.1988). The court hearing is overruled. purpose allowing stated the the rebuttal impeachment impres was to correct the false given jury by
sion the defendant that this incident, was isolated and that was he such close friend of the sexual abuse victim family intentionally and his he would never anything do to harm them or them cause trauma. Admission other sex offenses impeaching the defendant’s was DEPARTMENT OF HUMAN TEXAS permitted. Patton v. SERVICES of the State of Accord, 777. Wilson 730 S.W.2d Texas, Appellant, 440-41 (Tex.App. Worth —Fort ref'd). pet. See Ballard (extraneous (Tex.Crim.App.1971) of sex Gary HINDS, Appellee. rebut fenses admissible to defendant’s asser that he did not “mess little tion around with No. 08-92-00314-CV. children.”) Texas, Appeals Court present vigor- case also El Paso. ously maintained was the victim of June engineered by complainant conspiracy mother, pictured degen- were Rehearing Overruled Oct. Appellant presented erates. prosecution instigated by complainant mother, him, and her who had divorced
“frame-up.” An claim accused’s that he theory recognized is a defensive framed notes existed. counselor motion the indictment overruled a to dismiss appellant moved for a appellant’s surprise prejudice, and prior jeopardy and overruled plea mistrial. special jeopardy under Tex.Code (Vernon 1989). CRImPROcAnn. art. 27.05 appellant had responded that The State rehearing Appellant contends on that this report, videotape given a doctor’s been deciding jeop- child, erred not the double report from the of the interview Services, ardy question independent constitu- on state all of them Department of Human Const, I, § grounds. See Tex. art. indicating alleged tional one sexual more than jeopardy protections The double found in the past had occurred Fifth Amendment of the United States Con- event. The ongoing rather than an isolated in the stitution are mirrored Texas Constitu- notes were argued State also that the two jeopardy requests appointment tion.1 based double with the mere for an provi- claim on both the state federal no mention of school counselor but contained subject sions: fur- The State to be discussed. re- argued same information ther [Appellant] moves the Court to dismiss garding been discussed ongoing abuse had prejudice Indictments on the with these complainant had voir dire and also that formerly has basis that the Defendant happened in abuses already testified that the placed jeopardy been for the same of- had past ongoing, and were fense, transaction, arising out of the same granted mis- objected. The trial trial and that the second cause the reason. declare trial but did not under the same Indictments violates Fifth and Fourteenth Amendments to the the court began present Before the Constitution of United States Arti- motion to hearing appellant’s conducted a (sic) I, cle Section Texas Constitu- special plea. Appellant dismiss and the ... tion. wrongfully with- that the maintained State (called state- This court will held the two notes “two written therefore look cases ments”) complainant. application of which reflect both state special plea corpus separate 1. This habeas and unrelated to court dismissed ruling action in 1989 appeal. filed with that this jeopardy in double jurisdiction. court did not have That action