*1 883 625, 426, 208 N.E.2d N.Y.2d 260 state— N.Y.S.2d porate headquarters in the forum up Ehrenzweig Supreme Court also A. & (1965). the United States 439 See at, jurisdiction the exercise of over Law vol. II held International Jayme, Private v. Ben unrelated cause of action in Perkins affects citizenship (1973) (neither party’s 22 Co., Mining supra.9 guet Consolidated jurisdiction). court’s an American in this case has applied The court Texas as a has established The court “minimum contacts” standard. The error forum, drawing to its courts “magnet” require- is the nexus reasoning a defendant any involving trial lawsuit of unnecessary, ment is satisfied and becomes in Texas. purchases who has made ever contacts,” not upon showing of “minimum appeals. of civil I would affirm the court but the defend- upon a demonstration of activity in ant’s substantial and continuous BARROW, J., GREENHILL, J., and C. activ- showing the forum. Absent a of such join in this dissent. ity, requirement high- the nexus becomes a not as- ly significant factor. Texas should jurisdiction
sume over this case that a nonresi- plaintiffs
volves nonresident
dent defendant when the cause of action totally
arises out of facts unrelated to the
forum state.
A separate concurring opinion filed on of
rehearing “long contends that the arms” jurisdiction
state should extend more elasti
cally reaching when for nonresident defend
ants who are citizens of other countries. argument
While this may appeal to those
who contend that noncitizens should receive process citizens,
less due
than United States
MESSENGER, Appellant,
Charles Patrick
Plyler Doe, - U.S. -,
cf.
v.
102 S.Ct.
2382,
Raich,
(1982);
239
(1915),
U.S.
36 S.Ct.
F.2d Honeywell, Cir. Inc. v. (7th Apparatewerke,
Metz
Cir. Product Inc. v.
Cousteau,
(5th
Bryant v. Finnish National Parke, Co., Seymour supra fair 9. See Davis that it never offends traditional notions of & Newton, (limiting facts); play justice Perkins to its and substantial for a defendant Laws, (1980) backyard, where Conflict 34 Sw.L.J. be sued in his own no matter (“The proper arose.”) characterization of Perkins ... the cause of action *2 DeGeurin, Houston, appellant. for
Mike Vance, Raymond Atty. Carol Dist. S. Fuchs, Hardin and James C. Russell Houston, Asst. Robert Brough, Attys., Dist. Austin, Huttash, for Atty., State’s State. ONION, J.,P. and ROBERTS and
Before McCORMICK, JJ.
OPINION ROBERTS, Judge. appeal a conviction of
This is an from found abuse. punish- and assessed appellant guilty twenty-five years. ment at confinement for challenge the suf- appellant does not grounds two ficiency of the evidence. error, trial court erred he contends that the two extrane- about offenses. ous on The instant offense occurred year old thirty-one The victim that on the The victim testified woman. her question was alone in house day she daughter. At with her seven on in the light 2:30 a. m. the came about daughter where and her bedroom the victim standing in sleeping. saw a man She screamed, mother came into the room. her with his The man motioned doorway. mother asked the him. He The then hand for the victim to come to men were in the house. She right any hand. As whether held a baseball bat trying him, began were and the man said that the victim walked toward out the front door. push her him the victim’s shirt and ran out the door. her down and pushed any into the hall. He asked her whether *3 house; the told him men were in the victim T.__ B_, girl, nine old testi- year a there were not. The man then the 2, 1978, during early the on June fied that victim into the front bedroom of the house. hours, entered her morning appellant the calling daughter began When the victim’s bedroom, her out of picked up, her and took her, daughter to the man that told the open He took her to apartment. her something happen bad would to her mother apartment complex. field across from the man then stop yelling. if she did not The began and There he removed her clothes took the front bed- victim back into the organs. When the vic- fondling her sexual time, man held Throughout room. the apart- arrive at her tim saw her mother the baseball bat. The man commanded the ment, girl put the to appellant allowed the him, did, victim to kiss then which she on, walked her gown her back and night engaged in anal intercourse with the victim. He way apartment. the back to her part of He then ordered the victim to commit oral night. then fled into the sodomy upon him. this act the vic- During of these showed that both The evidence long tim was to free herself partially able within about a assaults occurred extraneous her to run out of enough daughter to tell instant offense. four block radius of the the house and call a The man then friend. within that appellant’s The residence was grabbed dragged the victim her hair and the The evidence also showed same area. through looking her the for the house within three weeks three assaults occurred daughter. daughter When she that her saw of each other. escaped, again had the tried to es- victim that neither of appellant The contends him, cape struggle from and after a offenses was admissible. the extraneous night. successful. The man fled into the that in this ease iden- Although he concedes positively appel- victim identified the issue, the argues was in he that differ- tity lant as the man who had victimized her. offenses between the extraneous ences appellant’s defense was alibi. His were few. the similarities great were night ques- ex-wife testified on that the the similarities argues He also tion, gone to a appellant she and the had nor unusual. distinguishing neither apartment, club. had returned to her that, to the argues in addition The State spent together. and had the entire in each of the place, time and proximity of could appellant She also testified that entered a house three assaults sexually not have been the man who had present. when no men were uninvited and he had an ana- abused the victim because two extra- argues, State problem tomical which made forced sex acts prove offenses were admissible neous very painful for him. appellant’s identity. rebuttal, witnesses to the State called (Tex. State, 623 S.W.2d L_ In Collazo W_, a two extraneous assaults. forth the Cr.App.1981), recently set girl, thirteen testified that on offenses of extraneous rules for admission offense, 24,1978, days primary ten after the identity of a defend admitted to show had entered her house We stated: ant. by the p. about 9:30 m. He her whether the presented his com- respond question hair after she did not L_W- erred in evidence mand to come to him. When trial court may mitted the accused become ad questions offense. an extraneous Such showing prose were stat- a principles involve of law which missible State, 587 Murphy ed well in rele both that transaction is cution (footnotes (Tex.Cr.App.1979) 721-722 [contested,] to a material issue vant omitted): omitted) (emphases relevancy value the case [and that] outweighs its inflam of the evidence general rule of “It is an established Ruiz matory prejudicial potential. or proof happen- of similar evidence that prior State, or ings, (Tex.Cr.App. extraneous transactions 579 S.W.2d of misconduct committed specific Jones, acts supra.” to the contested by party is irrelevant contested, become a When has material issues in the case on trial issue, it in this material did therefore inadmissible. the extraneous showing must be proceeding, “In a criminal when the by the de- offense which was committed com extraneous or similar transaction *4 nearly identical in meth- was ‘so fendant accused, sought to be by mitted as to earmark the instant od offense] [to State, admitted constitutes the accused. them as the handiwork offense, criminal introduction of that than the Here much more is demanded transaction is in ‘extraneous offense’ crimes of repeated commission of mere (1) the herently prejudicial because: class, burgla- repeated as the same such accused is entitled to be tried on the used must be ries or thefts. The device charging accusation made in the State’s as to be like a so unusual and distinctive specifies instrument which the ‘materi Cleary, McCormick’s signature.’ al issues’ of the and cannot —con case (2d Evidence 449 Handbook of the Law of proc sistent with the rudiments of due dis- 1972). sufficiently If there is no ed. crime ess—be tried for some collateral characteristic, relevancy then the tinctive notice, of which no Jones v. he has outweigh prej- its of the evidence cannot State, (Tex.Cr.App. 847 568 S.W.2d State, 484 Ford v. potential. udicial See State, 1978); 38 Walls v. 548 S.W.2d Each case (Tex.Cr.App.1972). 727 S.W.2d State, v. 159 (Tex.Cr.App.1977); Young unique its facts. inevitably will turn on 164, (1953); 261 836 Tex.Cr.R. S.W.2d State, 585, at 647-648. 238 623 S.W.2d Couch v. 155 Tex.Cr.R. (1951); (2) accused’s 198 an S.W.2d in the record upon Based the facts an to commit crimes’ is not ‘propensity us, testimony about that the before hold he is which is material to whether issue offense committed the extraneous charged guilty specific of the conduct T_ B_, girl, was nine State; therefore, by the it follows offense involved inadmissible. The instant establishing of evidence introduction woman; offense the extraneous an adult constitutes a trial propensity such a instant offense involved a child. The generally’ ‘criminal the accused means of a threat of force volved the system justice. which offends our offense involved weapon; the extraneous Couch, Young, supra; supra; Clements involved The instant offense weapon. no State, 531, v. 182 147 Tex.Cr.R. S.W.2d intercourse; two acts of deviate sexual State, (1944); 146 Spivey
915
see
fondling of
involved the
extraneous offense
(1943).
140
Tex.Cr.R.
171 S.W.2d
signifi-
are
organs. These
the child’s sexual
Jones, supra; Etchieson v.
See also
cant differences.
State,
(Tex.Cr.App.
574
753
S.W.2d
State,
Cameron
two of-
between these
The similarities
(Tex.Cr.App.1975);
Albrecht
case an assailant
were that
in each
fenses
State,
(Tex.Cr.App.1972).
not have been admitted. which authorized the admissionof the testi- mony concerning one of these extraneous We view the admissibility of the oth Rather, it offenses. was that the er extraneous offense as a much closer person who of the committed the instant and hold that testimony concerning it was issue, offense was and the extraneous properly Although admitted. the same dif enough distinguishing offense showed char- above, ferences are present as set forth the two acteristics that offenses could be evidence also shows that the attack person. said to be the work of the same appellant was interrupted by the arrival of For the error in the victim’s mother when the victim concerning the extraneous offense commit- Although screamed. no sexual attack actu *5 T.__ B_, ted is re- upon judgment ally took place, do not view that differ versed and the cause is remanded. Furthermore, dispositive. ence as the simi larities between this extraneous offense and McCORMICK,J., dissents. the instant offense greater. are much In cases, both of these assailant en banc. Before by the victim her hair and her across both,
the room. the assailant asked OPINION ON STATE’S MOTION whether present a man was in the house. FOR REHEARING These two something similarities show more than simple caution by an assailant. ODOM,Judge.
come much closer to being something of a original appellant’s convic- On submission signature by appellant. For that rea abuse, V.T.C.A., tion for sexual son, the testimony concerning this extrane 21.05, reversed for the Penal Code Sec. was ous offense was properly admitted on the ex- erroneous admission of evidence of an issue of the of person who need not consider the traneous offense. We committed the instant offense. holding correctness of that for reasons stat- ed herein.
We write further attempt clarify to to continuing misconception of the basis jury we notice the rehearing On which extraneous offenses are admissible. and charge fundamentally defective The fact that the appellant’s defense requires therefore reversal. case was alibi would not alone authorize the 21.05, admission of about extraneous at the time of this supra, Section provided: offenses to offense appellant’s identity. show the In this neither of extraneous of- “(a) commits an offense if he person A fenses occurred on the instant commits sexual abuse as defined Sec- offense occurred. neither of the tion sexual abuse of 21.04 of this code or extraneous offenses tended to show that a child defined in 21.10 of this as Section was he not where he said was code he: and finding alleged abuse without acts injury serious or at- ual
“(1) bodily causes victim or had the same aggravation. to the This effect tempts cause death crimi- in the course of the same an omission of that element from the another or fundamental er- episode; charge, nal which constitutes State, Tex.Cr.App., Cumbie ror. “(2) sexual compels submission to the 732; Valdez, see & A Review Odom death, bodily abuse threat of serious Charges Jury Fundamental Error in imminently or be injury, kidnapping to Cases, L.R. Baylor Criminal Texas anyone. inflicted on “(b) offense section is a An under this is denied. rehearing motion for The of the first felony degree.” felony in this case al- information JJ., TEAGUE, concur in ROBERTS leged did: the results. intent to the sexual desire “with arouse McCORMICK, J., dissents. of the Defendant and force of se- threatening the infliction imminent injury to and with- bodily
rious and death [M_S_G-],
out the consent styled spouse not his and hereafter
person Complainant, have deviate by plac- with the Complainant
tercourse the Com-
ing penis in the mouth of
plainant.” aggravating alleged pursuant factor 21.05(a)(2), of “im- supra,
Sec. is the threat bodily injury
minent infliction of serious complainant. allega-
and death” to the allegation
tion use of not an of the force is 21.05. aggravating factor under Sec. AUSTELL, Appellant, Gene Sherrell charged on the Yet when the *6 guilty under verdict circumstances which a authorized, allegations of the would be Texas, Appellee. STATE alleged use and of the of force threats disjunctively: submitted No. 61588. therefore, “Now, believe from you if Texas, Appeals of Criminal doubt beyond evidence a reasonable En Banc. Texas, on or about County, that in Harris 14, 1978, then and did defendant Sept. unlawfully with the intent him, the de- arouse the sexual desire of
fendant, threatening force or bodily imminent of serious infliction or death to and without the con-
injury not [M_S-G_], person
sent of have inter- spouse, deviate [M-S_G_] plac-
course with his, in the
ing penis the defendant’s will [M_S_G_], you
mouth charged.” defendant guilty
find the therefore, charge, authorized sex-
jury to convict