*1 423 (one safety gross negli and that such which blocks appellee’s of I find evidence Rawlings sear) In than the would in gence totally insufficient. the hammer rather Daniels, Co., v. Goods Inc. discharges more Sporting prevent fact accidental 1981, 435, (Tex.Civ.App Gauge in shot safety the Star S.W.2d than the — Waco n.r.e.), clearly the evidence writ ref’d an alter Simply demonstrating that guns. of knew the (one that the defendant showed that blocks design is available native dangerous product of its from propensity hammer) to establish is not sufficient the specific occurrence of happening of the existing design is defective. Da that an plaintiff complained yet and took which the Co., (5th berko v. Heil F.2d 445 Cir. steps to or warn the no correct defect 1982). Likewise, Ford Motor Co. plaintiff. of stated, Simply there is no evidence Nowak, 582, (Tex.App. 593-594 appel- aggravated element which raises 1982, n.r.e.), the —Corpus Christi writ ref’d is, gross negligence; that lants’ conduct to opinion majority was that the basis for the or should have known appellants that knew clearly the defendant evidence showed that fire, weapon in the manner that this could prior knowledge of the defect specific had appellants that discharged in which it and and question from its own test results not to consciously deliberately and chose of from occurrences of the exact nature danger. of the known Ab- appellee warn plaintiff complained, and which evidence, no evidence to sent this there is made that the defendant record established finding appellants’ that support jury’s correct de a conscious decision “reckless, grossly wanton and conduct was potential the user of the dan fect or warn negligent” appellants’ that conduct and ger. action.” was an “unconscionable bar, Returning to the case at the record opinion that I am therefore of only particular design that has reflects be re- judgment of the trial court should years for 104 and has been existence appellee that recover versed and rendered other than been used manufacturers only damages. his actual Erbi, weap- of the Armas the manufacturer question. on in There is no evidence in the any Gauge shotguns
record that other Star safety en-
had fired while on without ever
gaging trigger. There is no evidence pro- test which indicate this any results of one pensity, any nor is there evidence LEWIS, Appellant, Harry Douglas single previous occurrence similar injuries.4 appellee’s one which caused any is no evidence of of the factors There Texas, Appellee. The STATE of Corp., listed in Turner v. General Motors No. 05-83-00115-CR. (Tex.1979), reiterated Inc., Con/Chem, Kindred Texas, Appeals Court (Tex.1983) jury with which the Dallas. utility product of the verses weigh June 1984. no in its There was the risk involved use. discharges are less that accidental evidence Rehearing July 1984. Denied words, design. other other likely “fix”, that no evidence of there was design existed that was alternative
that an economically
mechanically and feasible 9, 10, jury it believed special The court in effect told issues numbers 4. shotguns "danger” of a in all it existed a controverted fact when such trial court assumed spoke "danger” was danger gun design, such and that “of that such could fire similar triggers." ‘safety’ engagement to Interarms. known with *2 appellant complains
Initially, of the ad mission of two witnesses’ con cerning extraneous offenses. extraneous of that evidence of concedes fenses admissible when became *3 by de identity put in issue his alibi State, fense. Jones State, (Tex.Crim.App.1979); Albrecht v. 97, 100-01 (Tex.Crim.App.1972). 486 S.W.2d however, argues, He extrane two are and ous offenses so remote dissimilar pro any from offense in this case that greatly outweighed by their bative value is effect, prejudicial rendering in thus them State, Ransom v. 503 S.W.2d admissible. Upon appeal, our review must admissibility of extraneous offenses is, must make an be de novo—that we independent examination of rather determine if the court’s than trial by supported conclusion is the record. Carpenter (Tex.Crim.App.1980). An extraneous of if prove identity fense is admissible to distinguishing there is some characteristic both common to the extraneous and for is on the offense which accused trial. Ford (Tex.Crim.App.1972). “The common distin may proximi guishing characteristic be the place ty and of the extraneous time the offense for which the ac offense to McColloch, Dallas, S. Michael for appel- Or, being tried. the common ele cused is lant. may ment of commission of be mode Henry Wade, Keck, Atty., Jeffrey Dist. crimes, or the of dress of the mode Dallas, Atty., appellee. Asst. Dist. for perpetrator, which other element having crimes as been commit marks both STOREY, Before and WHITHAM Ford, 484 person.” ted the same ROWE, JJ. S.W.2d at 729-30. When accused STOREY, clearly identified and shown to be Justice. offense, perpetrator of the extraneous how appeal This is from a conviction ever, mere fact that certain dissimilari intent burglary of a habitation with to com- present ties does not make the extrane are (1) it rape. Appellant mit contends Ransom, 503 ous offense inadmissible. testimony regarding error to admit standards S.W.2d at 813. With these offenses, (2) the trial court two extraneous us, facts before we turn review continuance, (3) granting erred the two primary offense and to those of jury prosecutor improper argu- made thus, and, disagree ment. We affirm. offenses. undress, forced P.H.
Primary perform made her Offense —K.B. him, sodomy attempted oral on sexual K.B., complainant, testified that she intercourse with her. He then bound her lived in a house with her brother in North- arms, through took her backyard, into a.m., west Dallas. At about 3:30 to 4:00 alley, alley and down the a distance of 31, 1982, May Day, Memorial she was at about three or four houses. He made her home alone. She was awakened again perform oral on him and glass sound of her broken. backdoor raped then her. then told door, appel- K.B. locked her bedroom go positive- home and take a bath. P.H. lant broke down the door and entered her ly appellant identified as her assailant. bedroom, attempting identity to conceal his by pulling part his T-shirt over of his face. badly His arm had been cut when he broke Extraneous Offense —L.B. *4 glass carrying door. He was a revolv- The State also called L.B. as a rebuttal Appellant er. ordered K.B. to her remove witness. in She testified that she lived nightgown. He then ordered her into an- house with her common-law husband part other of the house. He forced her to 16, 1981, April North Dallas. she On was perform her knees and forced her to oral p.m., at home alone. At about 10:00 she sodomy on him. He then took K.B. out the asleep watching fell television but was door, through backyard, back into an appellant grabbed awakened when her and alley, alley and down into the next attempted held a revolver to her head. He point again block. At that he forced K.B. mask, identity to conceal his with a ski but perform sodomy to oral on him and then pushed during strug- the mask was off raped Appellant her. then sat down and gle. living Appellant took L.B. to the room K.B., talking saying started to that he open drapes. he made her He where gun had a so that he wished she when then her her forced to knees and forced her broke into her home she could have shot sodomy him in to commit oral on front of him. He then told her to walk back to her open pushed He then window. to slowly. house When she reached her back night- the floor and told her to remove her gate, around to appellant she turned find gown and cover her face with it. L.B. gone. positively appel-
was K.B. identified complied appellant raped her. He then lant as her assailant. go told her to take a shower. When she shower, appellant came out of the had left. Extraneous Offense —P.H. positively appellant L.B. identified as her rebuttal, the State called P.H. who assailant. testified that she lived a house with her (The considering testimony in Northwest Dallas. the P.H. extrane sister offense, judicial revealed that also lived ous we take notice brother street.) this At about offense was committed within several on this block of 25, 1980, p.m., May day primary offense.1 Both of 11:45 before blocks during nighttime Day, she was at home alone. fenses occurred hours Memorial case, Day. In each was in her bathroom when she heard before Memorial She open. She shut the bathroom victim lived a house with someone else her backdoor door, appellant open forced the door but was at home alone at the time of the but appellant at- offense. The entered each house and entered the bathroom. identity by covering through attempted his the rear and to conceal tempted to conceal during identity his He then his both cover- his face with sweatshirt. Campbell, judicial geographical Campbell may which are locations. v. 1. We take notice of facts 376, notorious, (Tex.Civ.App easily n. 2 well known or ascertainable. 477 S.W.2d 378 . —Amaril 1972, writ); Corp. Eagle Trucking Company Coach v. Texas Bitulithic lo Dixie Motor 503, 992, (Tex.1981); (Tex.Civ.App. Dallas), Fry, Company, 177 612 S.W.2d 506 Ex S.W.2d 994 — 589, Britton, (Tex.Crim. grounds, 180 S.W.2d parte rev'd on other 142 Tex. 382 S.W.2d (1944). App.1964). includes distances between two This State, ing appeal. face with a T-shirt sweatshirt. Buckner was Each victim first forced commit oral 524-25
sodomy in the
and was then
house
taken
conclude, however,
the of
We
through
backyard,
alley,
into an
out
fenses
not so remote
to render them
are
as
alley.
Each
and some distance down
stated, proximi
As we have
inadmissible.
again
forced to commit oral
factor
ty
is but one
considered
time
be
Finally,
raped.
they
before
were
extrane
determining
admissibility
appel-
instructed to return home and
both
ous
The
in this case
offenses.
find
lant did
follow. We
sufficient
provides
we hold
other similarities which
of-
similarities
render
Furthermore,
presence of
sufficient.
fense admissible.
intervening
similar offense works
The L.B. offense was also committed in
an otherwise
of
ameliorate
too-remote
city
the same area of the
as the instant
fense.
See Bachhoffer
one mile.2 L.B. also
offense—within about
(four
(Tex.Crim.App.1982)
lived in a house
someone else
with
intervening
years
held too
with no
ap-
alone at the time of the offense. The
remote);
McDonald v.
pellant used a
in both offenses.
revolver
(one
(Tex.Crim.App.1974)
year
with
offense,
primary
appellant
in the
As
at-
remote).
held
intervening offense
not too
tempted
identity
to conceal his
—first
covering his face
a ski mask
then
with
*5
next
the
Appellant
complains of
ordering L.B.
her
by
nightgown
to remove
his
for
trial court’s denial of
oral motion
it. Appellant
and cover
face with
argues
He
he
sur
continuance.
that
was
forced each of the
to commit oral
victims
L.B.
prised
testimony
the
of P.H. and
by
raped them.
before he
In each
they
because he had no notice that
were
case,
by
appellant
escape
telling
his
made
going
testify
appel
trial.
to
at
anWhen
go
victim to
else
the
somewhere
and then
surprise,
lant claims
a motion for continu
leaving
looking.
while she was not
We
ance is
to the
of
addressed
sound discretion
find sufficient similarities to also make this
State,
Hightower
court.
extraneous offense admissible.
920,
(Tex.Crim.App.1981);
926
TEX.CODE
(Vernon
art.
contending
addition to
29.13
that
CRIM.PROC.ANN.
possess
Pamp.Supp.1984).
offenses do not
suffi
We note that
State
similarities,
argues
appellant
testimony
cient
also
did not
in its case-in-
offer
chief,
to
issue
are too remote. The State
but in rebuttal
a defensive
to
“In
appellant
by appellant.
contends
failed
raise the
raised
such a situation
defendant,
State,
remoteness issue at trial
he did not
rather than
deter
because
object
ground.
specifically
on this
We do mines
a contested issue will be
whether
raised,
by
find the
cited
not be
not
authorities
the State
and his determination will
controlling
presents
cases
made
he
his case.”
to be
as those
involved
known until
State,
169,
admitting prior
impeach Gipson
convictions for
619
170-71
S.W.2d
State,
purposes.
(Tex.Crim.App.1981). Appellant’s
Horn v.
491
motion
ment
See
writing
nor
it sworn to.
(Tex.Crim.App.1973);
170
Brem v. was neither
was
S.W.2d
Therefore,
State,
comply
it did not
TEX.
Finally, appellant complains suggest jury of two tor that the offenses improper jury argument by guilt. instances of We do appellant’s are evidence of instance, prosecutor. ap argument In the first interpret prosecutor’s not pellant ruling failed to secure a on his clear that suggestion guilt. It is be a and, thus, preserved nothing objection for to con prosecutor asking jury review. Todd v. S.W.2d testimony of P.H. and L.B. as sider the (Tex.Crim.App.1980). In the second in pur appellant’s identity evidence of —the stance, following prosecutor made the were admitted. pose for which the offenses argument: such, proper sum argument was a As Alejandro v. of the evidence. mation Now, going I’m to beat dead (Tex.Crim.App. here, standing up you also know horse 1973). complainant’s]
that her [the P.H. and L.B. No corroborated Affirmed. it, mean, peo- I these aren’t doubt about actresses, ple up, we made these aren’t WHITHAM, Justice, dissenting. really just there are women that were I concur respectfully part dissent here in Dallas to earn a living trying part. overruling appellant’s I concur in living happened and who to fall decent error, ground first for reasons dif- gets victim to him over here. When he majority. from that of the I find ferent little time on his hands he doesn’t know ground appellant’s merit in second of error. goes do with himself and he out what to Accordingly, I reverse and remand. would Day, rapes somebody, on Memorial 16th, April Then on the other twice. ground I will address second K.B.’s testi- time. So that corroborates view, my the trial court of error first. revolver, mony, taking them too. The admitting testimony the L.B. erred in know, you alley, out in the that business. Contrary the ma extraneous offense. him, identifying They too. they’re And similari jority’s holding, find no sufficient him, might say, I think it’s it be didn’t *6 against complainant ty between the offense him, said, they him. If it resembles mind, my against and the offense L.B. To They passed eyewit- him. also the that’s the offense there are similarities between test, picked too. L.B. ness identification against complainant and the offense six-picture lineup. him a P.H. out of L.B., in the against they “but are more lineup. him out of a six-man No- picked to the nature of the similarities common Now, you-all him set body missed once. type of crime itself rather than similarities you you us what policy the here and tell alone.” Ford v. peculiar to both offenses know, people You three came want. (Tex.Crim.App. Office, police to the D.A.’s the down 1972). is, guy they say, here he catch the and majority the similarities the Consider rapes— guy is the that this against the perceives the offense between Judge— MR. ROBERTSON: against L.B. complainant and the offense you —what do MR. ANDERSON: First, my mile. In distance of one the us to do? want view, given high- the a distance of one mile to going —I’m ob- MR. ROBERTSON: the population of ly concentrated urban to, referring he’s to other cases that ject meaningless. Sec- areas involved is Dallas scope the of the evidence. it’s outside ond, sharing of a house with someone the objection. Overrule the THE COURT: else, being alone at the time excep- Note our MR. ROBERTSON: view, rape woman In of a my offense. tion. type of the crime alone is common similarity peculiar to that, a the extra- itself rather than Appellant contends because and L.B. complainant against for a limited the offenses offenses were admitted neous concealing his Third, act of prosecu- rapist’s to allow the purpose, it was error view, my testimony. to P.H. In justify face. In concealment of the ra- L.B.’s case, however, episode pist’s type face is common to this of crime the entire criminal similarity peculiar a to itself rather than in L.B.’s The assailant occurred house. against complainant and L.B. living drapes offenses open forced L.B. to room Moreover, wearing ski-mask, in a as sodomy submit to and commit oral and L.B., from against is dissimilar at- rape the uncovered window. To in front of pull a T-shirt tempting to over one’s face mind, alleys is a my sexual violence com- garment against as in the offense sexual from distinguishing characteristic garment and as two plainant a sweatshirt living room in front of uncovered violence years against earlier in the offense P.H. Third, attempt by is there windows. Fourth, the order to L.B. to remove her against com- rapist both her nightgown and to cover face with the by a plainant P.H. cover his face to nightgown. majority The the order treats garment wearing upper he on his rapist’s to face efforts cover L.B.’s as against A body. T-shirt the offense L.B. at concealment. had been taken to complainant. A sweatshirt in the offense room, living open living to forced against rapist The the offense drapes room and forced to oral commit against attempt not cover his did L.B. All sodomy. this before L.B. was told to garment wearing on his face he was I see cover her face. fail to an effort at upper body. rapist’s identity concealment of the such only offenses can Evidence of extraneous event, complainant episode. In identity where be admitted on issue Fifth, face. forc- required not to cover her distinguishing characteristics there are ing commit complainant L.B. each common offenses such both sodomy raped. my oral before are his handi- accused’s acts earmarked as view, forced oral is common work, figuratively, “sig- marked with type crime similarity itself rather than a nature.” Collazo peculiar against complain- to the offenses ap- not do find Sixth, L.B. escape ant and the effort to pellant’s the offense “signature” affixed to view, my unobserved victim. against Accordingly, I would hold L.B. escape type unobserved common to this similarities there are sufficient similarity pe- rather crime itself than complainant against between the offense against complainant culiar to the offenses against L.B. If there is no and the offense and L.B. characteristic, sufficiently then distinctive Furthermore, there three distinct dis- are *7 cannot out- relevancy of evidence against offense similarities between the Collazo, potential. weigh prejudicial its L.B., hand, on the one and the offenses Therefore, I hold at 648. would First, against complainant P.H. there admitting trial court erred that the Day proximity is in both the the Memorial concerning extraneous testimony of L.B. an against P.H. complainant and ap- I sustain Consequently, would offense. proximity Day There was no Memorial ground of and re- pellant’s second error against majority L.B. The the offense verse and remand. Day proximity much Memorial makes of concur, however, majority’s in the hold- Second, testimony. there justify the P.H. concerning P.H. ing that the of trips alley into an from the victim’s are the In an offense was admissible. home, subsequent in- sexual violence and case we are present such as the cases in both of- structions return home The com- looking for common elements. against and P.H. complainant fenses may be distinguishing characteristic mon alley in violence in an There was sexual place of the ex- in time and majority proximity against L.B. The the offense offense for which alley much sexual in an traneous offense makes of violence Or, the accused is tried. the common offense to perceived ameliorate a too-re- may element be mode of commission of mote offense that leads them to strain to crimes, or the mode of dress of the hold that the testimony of L.B. concerning perpetrator, other element which an extraneous offense was admissible. As having marks both crimes as been commit- above, discussed holding wrong. is person. Ford, ted the same Nevertheless, majority goes great Thus, at 729-30. remoteness in time is but below, lengths, as bridge shown a two view, my one element. the absence of year period against between the offense operate one element does not to the exclu- complainant against and the offense P.H. Therefore, sion of other elements. I can- with the against offense L.B. which oc- agree majority must find an curred approximately year intervening one before the similar offense to ameliorate against an offense permit complainant otherwise too-remote offense to approxi- Indeed, majori- P.H. evidence. it is the mately year one after the against ty’s intervening efforts to find an similar majority needlessly emphasizes
That the proximity in time can be found in its lan- PRODUCTIONS, INC., STEVE TYRELL guage “[furthermore, presence al., Appellants, et intervening similar offense works to ameliorate an otherwise too-remote of- RAY, Lynn Appellee. Viki view, my ample fense.” common ele- No. 14035. concept ments outside the proximity Texas, Appeals Court of may permit time be found to the P.H. testi- Austin. mind, mony. my To appellant’s on or near 13, 1984. June Day against Memorial sexual violence com- plainant alleys forceably and P.H. in after
removing them from their homes and after
attempting by garment to cover his face wearing upper body
he was com- *8 enought firmly
mon element affixed “signature” to the offenses
against complainant regardless and P.H. therefore,
proximity agree, in time. I in admitting
the trial court did not err concerning
testimony of extrane- Consequently,
ous offense. concur
overruling appellant’s ground of er- first
ror.