*1 Boutwell, general plan.” proximity, progressive- in turn led to 719 S.W.2d at physical more intimate contact with the they find that do. 181. We children. that the end results offense conclude that the extraneous alleged with these three children differed impeach- admissible both for evidence was probative use of precluding to an extent testimony proof and as Appellant’s ment of this com- the extraneous offenses. With Points of of a common criminal scheme. genital plainant, the ultimate act was Error Nos. Nine and Ten are overruled. witnesses, touching. the extraneous With touching kissing, it was the buttocks and is affirmed. Appellant’s tongue with insertion of in the child’s ear. Extraneous offenses utilized to may require greater identity
establish con-
sistency precise as to end result also as to manner and means of
but regard plan
achievement. With to common scheme, such distinctions are not me-
chanically applicability determinative of the whether, exception. is distinctions,
considering similarities and the indicted and offenses
both extraneous logically plan,
can related to a central be
scheme or A motivation. series of differ- may components ent suboffenses of a GARCIA, Appellant, Andrew Ricardo central, offense, greater ultimate while a virtually may series of identical offenses
merely repeated, isolated instances of a Texas, Appellee. The STATE of Thus, propensity. despite criminal the dif- No. 08-87-00302-CR. by Appellant, ferences noted the indicted and extraneous offenses are all connected a common criminal scheme of El Paso. progressively exploiting the student-teach- relationship elementary er school fe- students, setting
male while in a dominated Appellant, physically Ap- achieve
pellant’s gratification. own sexual complainant in this case testified not
only to the indicted incident to a but series prior touchings leading up offensive
the March 9 incident. At that she seven-year-old Appellant’s student in
Spanish class. The extraneous offense two nine and ten the time of
witnesses were
the incidents that related and were Appel- Spanish former students of the
lant. The indicted and extraneous offenses transpired type in the same of class-
all setting. They depict exploita-
room all relationship, uti-
tion of the teacher-student requested
lizing proffered or assistance opportunity physical
school as an work *2 to testi-
mented on the Defendant’s failure following passage fy. The was stated stage guilt-innocence argument: Garcia, Defendant, Richard [T]he possession driving and in found any type he did not automobile and got explanation of he of truthful where you, bought T it. He did not supposed of a car and are off lot say, He T get me the title.’ did not an it from itinerate farmer borrowed Timbuktu, Georgia.’ (Emphasis from added). error, intentionally
To be the words must naturally necessarily and denote a com- or mentary on the failure of the Defendant testify. The comment must be viewed jury, of the and the standpoint from language implied more than must be an silence. indirect allusion to the Defendant’s (Tex.Crim. S.W.2d 597 Cook arresting officer testified App.1984). The stopped on routine traf- he the Defendant a driving a without fic detainment for vehicle registration plate. The Defendant a rear that the car had told officer long very and to his uncle for a Del Rio uncle Street. his lived be allud- prosecutor’s argument could not statements, how- ing to these res to the ar- they were made because words resting prosecutor’s officer. you” say to that the Defendant “did not Odessa, Tracey appellant. Bright, for naturally are comment necessarily and a Augesen, Atty., R.C. “Eric” Dist. Odes- The tri- testify. failure Defendant’s sa, appellee. for prompt- and then al court at first sustained objection the defense overruled OSBORN, C.J., Before and following instruction: WOODARD, SCHULTE and JJ. ladies objection, but I will overrule that instructed, spe- gentlemen, you are cifically you are not—that instructed
OPINION
right,
call
every
citizen has the
self-incrimination,
WOODARD, Justice.
right against
to or
you are not to refer
discuss
appeal
This is
a
De-
purpose whatsoever
failure
motor
unauthorized use of a
conviction for
solely a
It is
fendant to take the stand.
peni-
vehicle. The
op-
right and a Defendant’s
Defendant’s
tentiary
a fine of
confinement and
therefore,
com-
do not take the
tion and
$2,500.00. We affirm.
light.
ment of the Prosecutor
parts
prosecutor
Error
avers the
Point of
No. One
other
prosecutor,
untruthful
com-
Defendant’s
during
argument,
final
quite properly recognizes
quot-
arresting
statements to the
officer
ion
manner,
similar
that his
prosecutor’s argu-
from the
ed statement
errorful statement was not
intentional.
straightforward com-
ment is a clear and
garage
The owner of a
testified
he had
ment on the Defendant’s failure to
*3
held the vehicle which
to a former
State,
(Tex.
In
656
458
Owen v.
S.W.2d
employee, who was not the uncle of the
Crim.App.1983),
recognized
the
Court
Defendant,
eight
or nine months under
offends
such a comment
both our State
possessory
charges.
lien for
The vehicle
Federal Constitutions. The Court in that
burglary.
and his tools were taken in a
opinion
recognized
that the adverse
explanation
pos-
The Defendant made an
of
effect of
reference to the accused’s
session at the time of arrest which was
testify
generally
by
is not
State,
failure to
cured
by
refuted
the
Musgrave
State.
v.
(Tex.Crim.App.1980).
jury.
fine. Like court Jackson (Tex.App.
633 S.W.2d [14th —Houston PDRR), I am unable Dist.] prose-
beyond reasonable doubt that the comment in violation of one
cutor’s direct rights most fundamental accused’s by the court’s
was cured instruction
disregard. *4 Ruth
Titus M. and Matha SHEARER
Shearer, Appellants, BANK, Appellee.
ALLIED LIVE OAK
No. 13-87-506-CV.
Corpus Christi. 6, 1988.
Rehearing Nov. Denied