Raymond OWENS, Appellant, v. The STATE of Texas, Appellee.
No. 1039-90
Court of Criminal Appeals of Texas, En Banc.
March 4, 1992
Rehearing Denied April 15, 1992.
822 S.W.2d 822
[Trial Judge]: It‘s on file here. Let me read it here.
All right. I‘ll overrule the objection. Go ahead.
The witness then implicated Appellant in an act of sexual misconduct other than that of which Appellant had been given notice.
We cannot believe under the circumstances of this case that the prosecuting attorney and trial judge would have thought to consult the State‘s witness summary before ruling on a hearsay objection unless both in fact realized that the objection sought to exclude testimony not covered by that summary. It is, therefore, evident from the lower court‘s opinion that context played no part in its analysis. The Court of Appeals did not purport to find, nor does it seem at all likely to us that it found, the sense of his objection to have been unclear in this case. Rather, the lower court appears to have held that Appellant was required expressly to say something like, “I object to this as being hearsay which is not excepted by article 38.07 because it has to do with uncharged conduct.” We do not disagree, of course, that an objection of the kind here raised by Appellant should communicate at least this much information to the trial judge. But, taken in context, it is clear to us that all participants at trial in fact understood Appellant‘s objection to do just that, and could not reasonably have understood it to mean anything else. Accordingly, we hold that Appellant‘s objection was sufficient fairly to apprise the trial judge of his complaint.
The judgment below is reversed and the cause remanded to the Court of Appeals for disposition of Appellant‘s claim on its merits.
BAIRD, J., concurs in the result.
McCORMICK, P.J., and WHITE, J., dissent.
CAMPBELL, Judge, dissents with note:
Believing that any error committed by the trial court was harmless beyond a reasonable doubt and consequently, the petition for discretionary review was improvidently granted in the first instance.
Frank Long, Dist. Atty., Robert E. Newsom, Asst. Dist. Atty., Sulphur Springs, and Robert Huttash, State‘s Atty., Austin, for the State.
CAMPBELL, Judge.
Appellant, Raymond Owens, was tried and convicted for aggravated sexual assault of a child. See
At appellant‘s trial, the State produced evidence that during August 1987, appellant sexually molested B____ O____, his eleven-year-old daughter, by fondling her breast and penetrating her vagina with his finger. On October 15, 1988, B____ O____ discussed the incident with her uncle, Glen Owens. B____ O____ testified that she delayed informing anyone of the incident because of her father‘s threat that “he would beat me to death before anyone could do anything about it.” B____ O____ also stated that appellant committed no subsequent acts of molestation against her. On cross-examination, B____ O____ disclosed that throughout the time surrounding the alleged incident of molestation she was dissatisfied at home and felt that her parents were overly strict. She also testified that as she grew older she spent an ever-increasing amount of time at Glen Owens’ home, where she was happier than with her parents. B____ O____ stated that Glen Owens was less strict and had more material things to offer her than did her parents.
Appellant took the stand in his own defense, denying the occurrence of the alleged assault. During his testimony, appellant echoed B____ O____‘s earlier statements regarding her general dissatisfaction at living with appellant and his wife. Appellant stated further that because B____ O____ was displeased with the material things appellant and his wife were able to give her, B____ O____ had developed a close relationship with Glen Owens, who provided her with a more amenable lifestyle.
As a rebuttal witness, the State produced appellant‘s eldest daughter J____ F____, whom the trial judge allowed the jury to hear over appellant‘s timely and proper objection. At the conclusion of the trial, the trial judge instructed the jury that it was only to consider the testimony of J____ F____ for the limited purpose of “determining the system of the Defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.” J____ F____ testified that she too had been sexually molested by her father when she was approximately eleven years old, including two occasions of sexual intercourse. J____ F____ testified that these acts of molestation included appellant putting his hand down her blouse and pants. The testimony of J____ F____ revealed that the alleged extraneous assault on her occurred approximately five years before the charged crime took place and seven years before trial.
On direct appeal, the Texarkana Court of Appeals held that the testimony of J____ F____ was properly admitted under
In his ground for review number one, appellant argues that the trial court erred in admitting the testimony of J____ F____, as this testimony tended only to show appellant‘s tendency to be a sexual deviant. Appellant further asserts that this extraneous offense evidence was improperly admitted, as it did not establish a “system” of appellant. Appellant also denies the existence of any “frame-up” defense. Without addressing appellant‘s arguments regarding the trial judge‘s “system” theory of admissibility, the State responds that the evidence was properly admitted to rebut the defensive theory of “frame-up.”
We turn now to the merits of appellant‘s ground for review. It is a fundamental tenet of our system of jurisprudence that an accused must only be tried for the offense of which he is charged and not for being a criminal in general. See, e.g., Templin v. State, 711 S.W.2d 30 (Tex.Cr.App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Cr. App. 1972). Because extraneous offense evidence carries with it the inherent risk that a defendant may be convicted because of his propensity for committing crimes generally — i.e., his bad character — rather than for the commission of the charged offense, courts have historically been reluctant to allow evidence of an individual‘s prior bad acts or extraneous offenses. Under
In the instant case, the extraneous offense evidence was admitted on the theory that it tended to prove the criminal “system” of appellant. In the context of extraneous offenses, the term “system” can be used synonymously with the terms “modus operandi” or “methodology” to refer to a defendant‘s distinctive and idiosyncratic manner of committing criminal acts.4 See, e.g., Rogers v. State, 598 S.W.2d 258, 261 (Tex.Cr.App. 1980);
The facts of this case present us with two separate issues regarding the trial court‘s “system” theory of admissibility: (1) whether the State presented sufficient evidence to establish a “system” of appellant; and (2) whether proof of appellant‘s “system” was relevant to a material fact in the instant case.
We question, initially, whether the facts of this case adequately demonstrate any type of criminal “system” at all as that term is properly applied to extraneous offense cases. When the State seeks to admit extraneous offense evidence under a theory of “system” or modus operandi, “there must be a showing that the extraneous offense which was committed by the defendant was ‘so nearly identical in method [to the charged offense] as to earmark them as the handiwork of the accused.‘” Collazo v. State, 623 S.W.2d 647, 648 (Tex. Cr. App. 1981), quoting E. Cleary, McCormick‘s Handbook of the Law of Evidence 449 (2d ed. 1972). The State must show more than the mere repeated commission of crimes of the same type or class: “The device used must be so unusual and distinctive as to be like a signature,” Id. “If there is no sufficiently distinctive characteristic, then the relevancy of the evidence cannot outweigh its prejudicial value.” Collazo at 648.
In our view, the similarities of the extraneous offense and the charged offense in the case at bar are not so unusual or idiosyncratic as to signal conclusively that the two offenses were the handiwork of the same individual. Certainly, the two offenses are alike in that they were both sexual assaults committed against minor females, of approximately the same age at the time of the alleged offenses, both of whom were appellant‘s daughter. However, no evidence was revealed at trial concerning any particularized details or unique qualities of the two acts other than these general similarities. These offenses were not so compellingly similar that an objective trier of fact could, upon examining only the similarities of the two offenses, conclude with any certitude that they were so alike as to identify both crimes as the work of the same person. Appellant‘s alleged acts of placing his hands down the garments of both daughters were not so unusual or distinctive that they would necessarily mark appellant as the culprit, as such acts occur in many cases of molestation.
We also note several important dissimilarities between the two alleged offenses. For example, the alleged sexual assaults on J____ F____ continued for a period of approximately two years and included acts of sexual intercourse, whereas the assaultive behavior against B____ O____ consisted of only one isolated incident of illegal touching and penetration with appellant‘s finger.
To hold that these two alleged sexual assaults were so nearly identical in method as to constitute a “system” would run the risk of qualifying almost any two crimes of the same class and against the same type of victim as a “system“:
We recognize that there will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous
To say that two sexual assaults are similar because they are both acts of sadistic sexual deviations is not to point to a device that is so unusual and distinctive as to be like a signature. Almost any two sexual assaults could be characterized as sadistic acts, just as almost any two murders could be characterized as violent acts. This is nothing more than dressing in psychological garb the very thing that the law on evidence of extraneous offenses forbids: proof of the repeated commission of a class of offenses to demonstrate that the defendant is a criminal (or sexual deviant) generally. Collazo, supra at 649 (holding that trial court erred in admitting extraneous offense when only similarities were that the two assaults were on adult women, in public places, as they returned to their automobiles); see also, Messenger v. State, 638 S.W.2d 883 (Tex. Cr. App. 1982).
Even assuming that the evidence was sufficient to establish appellant‘s “system” of criminal activity, we find that such evidence was not relevant to any material fact in dispute. Clearly, extraneous offense evidence demonstrating a unique system may be admitted when the material fact at issue is the defendant‘s identity. See Boutwell v. State, 719 S.W.2d 164, 180 (Tex.Cr.App. 1985) (op. on reh‘g) (“We are not here concerned with the modus operandi or ‘signature’ exception used to prove identity“); Collazo, supra at 648.
In the case at bar, however, we fail to discern how the evidence of defendant‘s “system” has any relevance, beyond propensity, when there was no contested issue of identity or any of the other grounds for admission listed in Rule 404(b). In discussing the improper admission of extraneous offense evidence on a “pattern” (i.e., “system“) theory, Judge Easterbrook, writing for the Seventh Circuit, cautioned:
The inference from “pattern” by itself is exactly the forbidden inference that one who violated the [laws] on one occasion must have violated them on the occasion charged in the incident. Unless something more than pattern and temporal proximity is required, the fundamental rule is gone. That is why “pattern” is not listed in
Rule 404(b) as an exception. Patterns of acts may show identity, intent, plan, absence of mistake, or one of the other listed grounds, but a pattern is not itself a reason to admit the evidence. United States v. Beasley, 809 F.2d 1273, 1278 (7th Cir. 1987) (emphasis in original); see also, United States v. Gruttadauro, 818 F.2d 1323, 1328 (7th Cir. 1987).
Because of the trial court‘s instruction to the jury, we cannot discern exactly what — if any — material fact in issue this extraneous offense was offered to either prove or rebut. It is evident to this Court that given the facts of this case the only ultimate fact to be resolved by the jury was whether the criminal offense occurred, as alleged by B____ O____. There was no dispute about identity, motive, intent, or any of the other exceptions listed in
In resolving the question of appellant‘s commission of the charged offense, the jury had the testimony of both appellant and the complainant, B____ O____. They were the sole arbiters of the credibility of these two witnesses. And because the occurrence of the offense was the only ultimate fact in dispute, any theory of admissibility must naturally stand or fall on whether it legitimately assisted the jury in determining that fact. We fail to see how evidence of appellant‘s “system” could assist the jury in its determination of whether or not appellant molested his daughter,
In short, because the trial court failed to identify any legitimate
The court of appeals, however, held that the extraneous offense evidence was admissible to rebut appellant‘s “implied” theory of “frame-up.” This holding is flawed. As previously discussed, extraneous offense evidence of a defendant‘s system is admissible only as proof of some other proper basis of admissibility. In other words, in a proper factual context, evidence of a defendant‘s system could be used to show, inter alia, identity or lack of mistake. But even assuming (1) a defensive theory of “frame-up” was actually raised at trial, and (2) evidence of appellant‘s “system” could have been offered to rebut that theory, this “frame-up” theory was not presented to the jury in the trial court‘s limiting instruction. Absent such additional instruction, there is no way for an appellate court to know whether the jury properly applied the evidence of appellant‘s “system” to rebut the weight or credibility of appellant‘s “frame-up” theory or relied on it for an improper basis such as character conformity.
Based on the foregoing analysis, we find that the trial court clearly abused its discretion in admitting evidence of appellant‘s extraneous offense, because the trial court‘s “system” theory of admissibility, as expressed in the limiting instruction given to the jury, was wholly inappropriate to the facts of this case. We likewise reject the court of appeals’ misplaced reliance on the “implied” theory of “frame-up” as a basis for admissibility of the extraneous offense testimony of J____ F____.
Having found error in the admission of extraneous offense evidence, we reverse the judgment of the court of appeals and remand this case to that court for a determination of whether the error was harmless under
Notes
BAIRD, J., dissents.
OVERSTREET, Judge, concurring in part and dissenting in part.
I agree with the majority opinion‘s conclusion that the admission of the extraneous offense evidence was error. However, I strongly disagree with its decision to remand the case to the court of appeals for a determination of whether the error was harmless pursuant to Rule 81(b)(2). I believe that the more appropriate disposition would be for this Court to make such a determination now while the case is before us rather than keeping it in “appellate orbit” by remanding it back to the court of appeals. See Miller v. State, 815 S.W.2d 582, 586 (Tex.Cr.App.1991).
This is not a novel or radical idea, as no less than the Honorable Former Presiding Judge Onion has long advocated such an approach.1 See Zani v. State, 758 S.W.2d 233, 248 (Tex.Cr.App.1988) (Onion, P.J., dissenting), aff- ‘d, 767 S.W.2d 825 (Tex.App.—Texarkana 1989, pet. ref‘d); Jones v. State, 720 S.W.2d 535, 536 (Tex.Cr.App.1986) (Onion, P.J., dissenting), rev‘d, 726 S.W.2d 246 (Tex.App.—El Paso 1987, pet. ref‘d); and Woodfox v. State, 742 S.W.2d 408, 411 (Tex.Cr.App.1987) (Onion, P.J., dissenting), rev‘d, 754 S.W.2d 763 (Tex.App.—Houston [14th Dist.] 1988), pet. dism‘d, 779 S.W.2d 434 (Tex.Cr.App.1989); Black v. State, 723 S.W.2d 674, 676 (Tex.Cr.App.1986) (Onion, P.J., dissenting), aff‘d, 739 S.W.2d 638 (Tex.App.—Dallas 1987, no pet.). Other members of the present Court have also recently opined that “justice would be better served if we conducted [a harm analysis] instead of remanding” to the court of appeals and that failing to do so “would result in even greater appellate delay when such can be prevented by this Court at this time.” See Abdnor v. State, 808 S.W.2d 476, 478 (Tex.Cr.App.1991) (Baird, J. joined by Miller, J., concurring and dissenting in part). I also observe that a majority of this Court was recently criticized for failing to remand a case to the court of appeals for reconsideration in light of subsequent precedent. See Gonzales v. State, 818 S.W.2d 756, 770 (Tex.Cr.App.1991) (Baird, J., dissenting). I merely echo the opinions expressed previously by my brethren.
The record reflects that the instant offense was alleged to have occurred on or about August 1, 1987, while the sentence was imposed on November 29, 1989. It would be much more efficient for this Court to make a final disposition and determine the issue now rather than in the distant future as we will assuredly be called upon to do by one of the parties after the court of appeals makes its decision. Because the majority does not do so, I can only concur with its conclusion with respect to the introduction of extraneous offense evidence being inadmissible, but I must dissent to its decision to remand to the court of appeals for a harm analysis.
See
It is not our duty to preemptively execute the function of a lower tribunal, and the preservation of our system of appellate review dictates that we must forbear from the temptation of appropriating the rightful duties of the courts of appeals in the name of judicial economy. Because the court of appeals has not passed on the question of whether the admission of the extraneous offense testimony was harmless error, we must remand this case to that court so it can fulfill the function constitutionally assigned to it by the citizens of this state.