Curtis MсGLOTHLIN, Appellant, v. The STATE of Texas, Appellee.
No. 1256-92.
Court of Criminal Appeals of Texas, En Banc.
Dec. 23, 1992.
On Rehearing Feb. 24, 1993.
848 S.W.2d 139
Today the majority sanctions jury confabulation; plugging evidentiary gaps with speculation аbout what might have happened that is at least consistent with what the State has proved. But confabulation is not itself proof. We should reverse the judgment of the trial court in this cause and remand for entry of a judgment of acquittal. Because the Court does not, I respectfully dissent.
Phil Robertson, Clifton (court appointed on appeal), for appellant.
Andy J. McMullen, Dist. Atty., Hamilton, Robert Huttash, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MALONEY, Judge.
A jury convicted appellant of aggravated sexual assault for having sexual intercourse with a child younger than fourteen years-оld, and assessed punishment at twenty years imprisonment and a $10,000 fine.
The record reflects that the complainant was a friend of appellant‘s son and appellant‘s family and that she frequently visited their home. The indictment charged and the evidence showed that on Dеcember 20, 1988, appellant [the former Meridian police chief] engaged in sexual intercourse
The Court of Appeals held:
The evidence [of the sexual acts occurring after the initial offense] had рrobative value to show appellant‘s intent, motive, opportunity, and plan. The jurors should not be required to view the incident on December 20, 1988, in a vacuum. It was the beginning of a lengthy affair, and the facts surrounding the “romance” make the incident more believable than it would оtherwise have been.
McGlothlin, 835 S.W.2d at 269. The court noted in a footnote that its holding was consistent with Boutwell v. State, 719 S.W.2d 164, 178 (Tex.Cr.App.1985) (op. on reh‘g) (recognizing an exception for admission of extraneous sexual acts between a defendant and a minor complainant under res gestae). McGlothlin, 835 S.W.2d at 270, n. 1.
We have recently held in Vernon that extraneous sexuаl acts between the defendant and his step-daughter beginning from when she was six years old to after the indicted incident were inadmissible.
Evidence of other crimes, wrongs, or acts was to be allowed [after the adoption of the
Texas Rules of Criminal Evidence, effective September 1, 1986 ] only when relevant to prove an elemental fact or an evidentiary fact of consequence to determination of the action.
Vernon, 841 S.W.2d at 411 (citing Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Cr.App.1991) (op. on reh‘g)). We stated “[i]t is thus clear, at least since Montgomery, that we no longer regard the rule of Boutwell to have any legal force independent of”
Appellant‘s petition for discretionary review is therefore granted on ground two. The judgment of the Court of Apрeals is reversed and this cause is remanded to the Court of Appeals for a harm analysis under
OPINION ON STATE‘S MOTIONS FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW
BAIRD, Judge.
Appellant was convicted of aggravated sexual assault and punishment was assessed at twenty years confinement and a fine of $10,000.00. The Court of Appeals affirmed. McGlothlin v. State, 835 S.W.2d 267 (Tex.App.-Eastland 1992). We granted appellant‘s petition for discretionary review, summarily reversed and remanded the case to the Court of Appeals to conduct a harm analysis pursuant to
I.
The Court of Appeals delivered its opinion on July 30, 1992, and relied, in part, on our decision in Boutwell v. State, 719 S.W.2d 164 (Tex.Cr.App.1985). McGlothlin, 835 S.W.2d at 270, n. 1. However, in Vernon v. State, 841 S.W.2d 407 (Tex.Cr.App.1992), we held that Boutwell no longer had any legal force independent of
II.
In its motion for rehearing, the State Prosecuting Attorney concedes:
We do not therefore cоntest this Court‘s reversal of the judgment of the Court of Appeals. The Court of Appeals’ citation to Boutwell demonstrates some likelihood thаt the incorrect (as of November 4, 1992) legal standard in reaching its conclusion that the challenged evidence was admissible under Rule 404(b).
State Prosecuting Attorney‘s mtn. for reh‘g., pgs. 10-11.
Hоwever, the State asks that we revise the scope of the remand from merely a harm analysis under
III.
The State contends that although the Court of Appeals’ reliance on Boutwell was error, it dоes not necessarily follow that the Court of Appeals reached an erroneous result. The State argues that there is a “cоmpelling argument to be made that the evidence was admissible under Rule 404(b) even without the ‘automatic admissibility’ rule of Boutwell.” State Prosecuting Attornеy‘s mtn. reh‘g., pg. 11. We agree that the Court of Appeals should be given the opportunity to determine the admissibility of the complained of evidence in light of the legal standard announced in Vernon.
Furthermore, the State contends the Court of Appeals, having determined the evidence admissible, never had the opportunity to address the issue of waiver. Although not totally clear from the record, it appears thе waiver issue was raised when the case was argued before the Court of Appeals. Indeed both appellant and the State filеd supplemental briefs with the Court of Appeals addressing the waiver issue. Therefore, the issue was properly before the Court of Aрpeals. Also, appellant in his petition for discretionary review conceded that the Court of Appeals did not address the wаiver doctrine announced in DeGarmo v. State, 691 S.W.2d 657 (Tex.Cr.App.1985). Appellant‘s PDR, pg. 7. We believe the Court of Appeals should be given that opportunity.
IV.
Accordingly, the mоtions for rehearing are granted, the judgment of the Court of Appeals is reversed and the cause is remanded to that Court for (1) reconsideration of its holding in light of Vernon, (2) the waiver issue and, if necessary, (3) to conduct a harm analysis under