*1 charge her with one of the available
offenses, does make not the facts inadmissible, long
other offense as were so
they proof necessary were element charged. offense
Because the State would have enti-
tled to start show actions from prove finish if it
appellant’s guilt offense of desecra-
tion object beyond of a venerated reason- doubt,
able put entitled to on the proof punishment stage
same at the of this
unitary proceeding appellant plead after
guilty charged. appel- as The evidence of corpse
lant’s actions Sam toward
Harris was not evidence of an extraneous
offense. That evidence went to show the plead guilty,
offense to which she desecra-
tion of the place burial Sam Harris. The
trial court did not abuse its discretion
overruling appellant’s objections to the evi-
dence. of error is overruled.
The judgment of the trial court af-
firmed. SILVA, Appellant,
Bartolo Texas, Appellee.
The STATE of 13-91-032-CR,
Nos. 13-91-033-
CR and 13-91-034-CR. Appeals Texas,
Court of
Corpus Christi. 23, 1992.
Jan.
Opinion Rehearing on Denial of
Feb. *2 Pena, Edinburg, appellant. L. for
Aron Guerra, Hake, Rene Theodore Dist. Office, Courthouse, Atty.’s Hidalgo County appellee. SEERDEN, KENNEDY, Before HINOJOSA, GILBERTO JJ. OPINION KENNEDY, Justice. guilty found of one
A aggravated assault and count of sexual two counts sexual assault. trial appellant’s punishment assessed running concurrently at fif- prison terms sexual years aggravated as- teen ten-year terms for prison and two sault Appellant raises sev- sexual assaults. two alleging points various reversible errors en court. affirm the trial by judgments. court’s appellant was By one ag- committing one count two counts of gravated sexual assault and stepson. During sexual assault case-in-chief, State’s over testimony believe her son’s and that he was objection, following hearing, lying.
judge allowed the State to introduce testi- asserts that mony by sexual of- *3 complaining stepson improperly is be appellant fenses against committed him. fore the it because relates to events six, appellant claims that this con- outside the indictment. The stitutes reversible error. appellant complains about which is the Appellant alleged was indicted for an stepson’s testimony had sex aggravated against sexual assault his thir- ually molested him age since the of four or teen-year-old stepson ap- which occurred on testimony relating specific five and pellant’s birthday, October 1987. Addi- sexual alleged offenses not in the indict tionally, appellant was indicted for sexual ment. allegedly assault which occurred on Janu- 31,1988,
ary appellant’s stepson’s birthday, general rule is that an ac and also for sexual assault allegedly which cused not be tried for some collateral April 19, 1989, occurred on while being crime or for general. a criminal in stepson and his were at home alone for a Williams v.
week. (Tex.Crim.App.1983). Therefore, an extra neous offense is not admissible unless the trial, appellant’s At stepson, the com- offense is relevant to a material issue witness, plaining testified about the three probative the case and the outweighs value alleged incidents in the indictment. Addi- prejudicial effect. Montgomery v. tionally, he testified that (Tex.Crim.App. sexually molesting him since he was 1990)(opinion rehearing). recog Texas four years or five old. He testified that very exception nizes a gener narrow to the appellant forced him to commit sexual acts al nonadmissability rule of of extraneous when his mother and sisters were not at offenses. Boutwell v. home. He also testified that when he was (Tex.Crim.App.1985). This narrow seven, about six or took him exception gestae” is sort of “res or con hunting in nearby orchards their house and exception text involving cases sexual forced him to commit sexual acts. He tes- against offenses committed children. Id. tified that his father would force him to commit sexual acts sometimes as often as us, In the case before the court held a three times a week. He testified that jury’s presence out of the to deter pellant always perform had him the same appellant’s prior mine whether evidence of acts. sexual offenses his other
Appellant alleged than what was testified at trial the indictment and denied the proper. purpose offenses he was would be The State’s indict- introducing ment. the evidence the “context testified that he took his stepsons pick principle” set out in orchards to fruit and Boutwell. 719 S.W.2d denied Appellant argued that he had ever at 178. forced the com- that evidence of plaining stepson highly preju to commit extraneous sexual acts. offenses would be Additionally, appellant only testified that he had dicial and would serve to inflame the never alone stepson. jury. Appellant hearing, with his asserted at the cross-examination, appellant appeal, probative and here on that the val testified that years in the twelve that he had ue of the evidence of extraneous offenses been the complaining stepfather, outweighed by prejudicial witness’ its effect time he had been alone with him should have been excluded. See Tex. was when shopping the two of them went in town. R.Crim.Evid. going hunting
He denied ever alone with The State relies on the narrow Boutwell stepson. exception permitting admission of similar Appellant’s wife testified on behalf of extraneous sex offenses occur be- appellant. complainant She testified that she did not minor the ac- tween a case-in-chief, not, excep- The Boutwell its as the narrow
cused. 719 S.W.2d
allow,
acts are
court held
extraneous
tion in Boutwell
as rebuttal
would
probative
ges-
“res
relevant and
under the
to a denial of the indicted offenses
evidence
from which
tae” or context rationale
by appellant,
up
its own
to shore
case
generally,
This is
arose.
because
following appellant presenting evidence
alleged sexual
when a defendant denies the
that would undermine the State’s case.
relationship,
undermines the
act or
Therefore,
untimely
the evidence was
ad-
for this
then
is a need
State’s
there
by the trial
mitted
court.
up”
por-
some
type of evidence
“shore
However, when
offenses
extraneous
are
When this is
tion of the State’s case. Id.
improperly
case-in-
admitted
the State’s
*4
case,
more
the
incestuous acts are
the
chief, subsequently admitted evidence can
probative
prejudicial.
than
at 176. The
Id.
premature
the
admission harmless.
render
in Boutwell held that evidence
court
(Tex.
68, 71
Siqueiros v.
685 S.W.2d
particular types
extraneous of-
these
Crim.App.1985);
Michel
jury in
fenses is admissible and can aid the
(Tex.App. Corpus
Christi
—
mi-
evaluating
testimony of a
properly
the
pet.). The facts of the case before
no
his
responsible
an adult
for
strategy
a
aimed at im
us reveal
defense
welfare,
position
authority
in
and
or
a
testimony
undermining
and
the
peaching
the minor.
S.W.2d at
control over
stepson by
show that
the
trying
the
to
Theoretically,
may
this type of evidence
up
charged
made
the three
of
so-
perceived
be
to
the
introduced
counter
strategy directly
This
fenses.
defensive
parents
to the
that
cietal
notion
aversion
expressed in
raised the concerns
Boutwell.
against their chil-
would commit sex acts
pre-
Although the
admitted
evidence was
hear,
Otherwise,
jury
a
would
dren.
Id.
maturely,
subsequent
because of
incomplete
of the
essentially, an
version
no harm to
by defense witnesses there was
offense,
in
charged
as if
occurred
it had
point six.
appellant. We overrule
act,
standing
a one-time
and
vacuum as
child,
alone, coming
might
from a
seem
two, three,
By points of error
and
prereq-
implausible
incredible. Id.
four, appellant
that
the indict
contends
introduce extraneous offenses
uisite to
counts,
alleges three
ment
numbered
Boutwell,
defendant
based on
is that a
alleges
count
three different of
that each
relationship or cross-exami-
deny
must
such
that the State
fenses.
contends
offenses ad-
nation must render the other
count,
required to elect under each
was
missible.
proceed
it
before
offense
would
jury.
charging the
usually occur
incestuous crimes
Because
depend on
secrecy,
may
the State’s case
reviewing
we find
When
the
credibility
complainant.
of the
the
child
alleging
it
counts each
that
contains three
There-
question of whether has been de complete
(cid:127)nied a statement of through facts
no fault of his Emery own. See 531-36 (Tex.Crim.App. RUSSELL, Appellant, Randall 1990). We conclude that he has not. 50(e), Under Rule an must dem- Texas, Appellee. STATE
onstrate that he “timely has made a re- No. 12-91-00043-CR. quest” for a statement of Emery, facts. A request S.W.2d 533. for the state- Texas, Appeals Court of appeal ment of facts on must be a “written Tyler. request to the official designating Jan. portion of the evidence pro- and other Rehearing April Overruled ceedings to be included therein.” Emery, 533; Tex.R.App.P. 53(a). 800 S.W.2d at request appears record,
No and it apparent from the affidavits of the court