Jessup v. State
853 S.W.2d 141
Tex. App.
1993
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*2 DAY, Bеfore FARRIS and JJ. OPINION FARRIS, Justice. appellant,

The Carmella Beth aggravated sexual as- was convicted challenges appeal sault. On she several excluding rulings admitting trial evidence. sustain hеr concern- of- ing admitted evidence of extraneous judg- trial fenses and reverse the court’s ment. nineteen

Jessup’s indictment contained sexually paragraphs alleging each she as- daughter, eleven-year-old saulted her A.J. alleged All to have nineteen offenses were The found occurred on the same ‍‌‌​‌‌​​​​‌​‌‌​​​‌​​​‌​‌​​​‌‌​‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​‍date. count, Jessup guilty of the one submitted tongue in her thаt she had inserted her daughter’s organ, and assessed her sexual thirty-five years imprison- punishment as ment. points, Jessup

In her first and second complains trial court erred in testimony that on other oсcasions A.J.’s vagi- on placed had her mouth A.J.’s put her mouth on na and had forced A.J. to penis Jessup’s boyfriend. State (1) admissible contends the credibili- Jessup challenged AJ.’s because (2) ty, ly purpose. show context in which the serves that Montgomery occurred, (3) offenses App.1990). Logic extraneous offenses were admissible or- dictates that evidence of jurors’ der to overcome the to the challenge aversion extraneous acts does not rebut a *3 parents sexually notion that credibility would assault to the of other if evidence it is their children. challenge. vulnerable to the same upon

The State relies reject argument several cases to the State’s AJ.’s support its contentions. E.g., testimony concerning Vernon v. ‍‌‌​‌‌​​​​‌​‌‌​​​‌​​​‌​‌​​​‌‌​‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​‍extraneous offenses State, 814 (Tex.App. S.W.2d 845 challenges was admissible to rebut the to — Fort 1991), rev’d, Worth testimony 841 S.W.2d 407 her other challenges because the Crim.App.1992), which contrast, cited Boutwell v. attacked all оf her In testimony. State, (Tex.Crim.App.1985). S.W.2d 164 testimony independent the of an witness to Boutwell, In the Appeals offenses, Court of Criminal testimony the extraneous im- of recognized exception and reexamined an outcry, expert to mediate testimony about general against the rule admitting extrane observable evidence of the extraneous of- ous in fenses, offenses cаses of sexual of e.g., physical trauma, assault a or emotional child. at exception permitted Id. 178. The logically could challenge have the rebutted the offenses, admission оf extraneous simi to credibility A.J.’s such evidence charged offenses, lar to the which occurred product would not have any been a between the complainant. accused and the mother, falsely motive of A.J. to her accuse However, Id. longer thus, Boutwell has would not be vulnerable to the value, precedential State, see Vernon v. challenges. 841 S.W.2d 407 (Tex.Crim.App.1992), and The State contends the evidence of the exception recognized it legal has no extraneous offenses was to ex admissible independent force of Tex.R.CRIM.Evid. plain the context in charged which the of 404(b). Vernon, 841 S.W.2d at 410-11. occurred, fenses that is to show the of Therefore, whether challenged the testimo fenses did not in occur a vacuum. This ny admissible, contends, as thе State is argument fails because the extraneous of by measuring determined against it Tex. nothing fenses showed more than that 404(b), ‍‌‌​‌‌​​​​‌​‌‌​​​‌​​​‌​‌​​​‌‌​‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​‍ignoring the discred R.CRIM.Evid. Jessup repeatedly committed the same sort ited exception. Boutwell We sustain against of offenses her child. See Owens points one and two because evidence of the State, two extraneous acts pur served no other App.1992). Nothing Jessup’s marked as

pose proof than as Jessup’s bad charac saults to be unusual or distinctive to make ter and that the offenses were con the extraneous offenses relevant. See id. sistent therewith. See Tex.R.Chim.Evid. only applicable context to the facts 404(b). was the character of the accused. The State contends the evidence Thе State also contends the evi of extraneous offenses was admissible: to dence of extraneous offenses was admissi Jessup’s challenges rebut to AJ.’s credibili ble to overcome an aversion to the notion ty Jessup questioned which occurred when parents that sexually would abuse their allegations A.J. about of sexual abuse A.J. argument children. This only is another suppоsedly against others; made to rebut a expression of the discredited Boutwell theory defensive that her A.J. hated moth rule. attention; get er and lied to and to aid the Jessup’s first of error two are assessing in credibility of the wit sustained. in answering question nesses and Jessup’s guilt. When one accused of sexu point, Jessup complains In her sixth ally assaulting challenges a child the credi the trial court erred in evidence bility complainant, proof unadjudicated of similar of extraneous offenses at admissible, 404(b), acts be may punishment under to phase of the trial. This challenge if logical- rebut the evidence issue has been decided her favor and is by the v. what controlled decision collateral evidence is material for that Grunsfeld State, (Tex.App. purpоse. 813 S.W.2d 158 Owens v. 795 S.W.2d 822 — Dallas 1991), aff'd, (Tex.Crim.App. (Tex.App. 1990), aff'd, 827 — Texarkana 1992). Point six is (Tex.Crim.App.1992). sustained. S.W.2d 911 In this case, Jessup’s testimony pri Tim related three, point Jessup complains In of error marily periods to thе time cared when he allowing the trial court erred in not her to Jessup for the children. Because does not question her former husband Jessup’s testimony contend that Tim con father, guilty plea and A.J.’s about his cerning this matter was false and because having having her assaulted and his been sought the collateral evidence she to intro contempt pay support. held in for failurе to duce was not related to the line of testimo contends the was rele- *4 ny given, we find the trial court did not relationship vant of the because between excluding abuse its in testimony discretion accused, complain- the the the witness and the collateral offenses to about show bias. argues ant. She also she was entitled to show the witness’s bias and attack his cred- relevаncy Because the of the testi ibility. mony concerning the assault conviction and contempt family relationship order to show ‍‌‌​‌‌​​​​‌​‌‌​​​‌​​​‌​‌​​​‌‌​‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​‍A trial court acts its discre within tenuous, outweighed by danger is it is the dеciding in tion to exclude evidence as irrel confusing unnecessarily of the and evant, ruling and we a will reverse exclud Therefore, delaying the trial. we hold the only evidence if a as irrelеvant clear trial court not in did abuse its discretion abuse of discretion is shown. excluding testimony family the to show State, (Tex. v. 535 S.W.2d 637 Williams relationship. Point three is overruled. Crim.App.1976). five, Jessup In four and provides: Tex.R.CRim.Evid. 609 complains excluding the trial in court erred purpose attacking For the of the credi- testimony involving her an about incident witness, bility of a evidence that he has neighborhood аnd in A.J. a child a sexual convicted of a crime shall admit- been be encounter, it to the tended show by ted if elicited from him or established allegations history by of made the com public only record but if the crime was a witness, plaining excluding and in Melanie felony turpitude, or involved re- moral alleged testimony regarding Cleveland’s gardless punishment, of and the court Jessup against by sexuаl abuse Tim his probative determines that the value of son, T.J., because it was relevant to the outweighs this evidence its relationship family issue. prejudicial party. effect to a added); (еmphasis State, Id. see Lucas v. Under the Texas Rules of Criminal Evi dence, (Tex.Crim.App.1989); “[ejvidence Rob which is not relevant is State, 488, 402. Be ertson v. S.W.2d inadmissible.” Tex.R.CRim.Evid. 1985, pet.). alleged App. early Worth Beсause cause the childhood incident — Fort years neither the conviction nor the con six incident Jess- occurred before the felony tempt up guilty perpetrating, order is a or involves a crime was found of the in turpitude,1 of moral the trial court did not trial court did not its discretion abuse excluding excluding testimony concerning its discretion in Tim Jess- abuse See, up’s testimony credibility. е.g., to attack his matter as irrelevant. Bachhofer 869, v. 633 S.W.2d 871-72 Although a defendant is allowed 1982). Op.] App. [Panel great showing in of a latitude bias witness falsely testify, of a also find the trial court did not abuse оr motive witness excluding prof- trial court has considerable discretion as to its discretion Cleveland’s hearsay. may proved testimony and be and fered because it was how when bias drunkenness, gam- turpitude turpitude are 1. Misdemeanors held to involve moral involve moral Robertson, theft, forgery prostitution. bling fighting. are and Id. at Misdemeanors held not to 492. Cleveland the Child Services Protective

specialist with whom A.J. discussed BROKENBERRY, Jess- Appellant, Joe Louis up’s sexual assault. Because Cleveland investigation was not involved Texas, Appellee. The STATE of allegations against and offered testimony concerning statements No. A14-91-00688-CR. investigator, made to another the trial Texas, Appeals Court properly excluded this as (14th Dist.). Houston hearsay. Points four and are ovеr- five ruled. 8, April 1993. Rehearing April Denied 1993. is re- the trial court

versed and the case is remanded for new

trial. HOPKINS, (Retired) Sitting

HARRY J.

by Assignment, concurs and dissents. ‍‌‌​‌‌​​​​‌​‌‌​​​‌​​​‌​‌​​​‌‌​‌​‌‌‌​‌​‌‌‌​‌‌​​​‌​‍HOPKINS, Justice, (Retired),

HARRY

concurring dissenting.

I concur in majority opinion which

holds that the and sentence must

be reversed. I would remand for a new punishment only

trial on by due to error evidence,

the trial in admitting during court punishment phase trial, of the of extra- involving

neous sexual offenses appel- witness,

lant and a complain- other than the witness, and such witness and a male

adult.

However, respectfully I disagree and dis portion

sent from that of majority opin

ion that finds error in reversible the trial evidence of extraneous sex involving appellant

ual offenses and the

complaining appellant’s witness at after credibility tack on the complaining was, view, my

witness. Such evidence

admissible under the decision in Montgom

ery

App.1990).