*1 in Jackson v. procedure struck down 397-99, 9, Denno, at 378-79 fn. 378 U.S. 9, 405-06, 416-18, 84 at 1782 fn. S.Ct. J.,
1792, 1796, (Black, dissent and at
ing). Denno, response Leg- our to Jackson v. 38.22, compelled to Article
islature was enact 6,13 amend Article 38.2314 to
Section procedures in
bring our line with federal Therefore, I v.
mandate Jackson Denno. adopt preponderance the federal procedure now
evidence standard since the has been federalized as the
before Court interpretation of the of another federal
result process Amendment’s clause.
Fourteenth due
I dissent. J.,
KELLER, joins this dissent.
Roger SLEDGE, Appellant, Dale Texas, Appellee.
The STATE of
No. 1214-95. Texas, Appeals
Court of Criminal
En Banc. 10, Ford, Worth, Sept. appellant. Fort Robert Atty., Fort Goggan, Asst. Dist.
M. Susan Austin, Paul, Worth, Atty., Matthew State’s for the State.
Before the court en banc. PETITION APPELLANT’S OPINION ON REVIEW DISCRETIONARY FOR KELLER, Judge. in this has issue right to involving a between the
case as
clash
317,
vol.2,
Leg.,
p.
vol.
ch.
Leg.,
p.
59th
59th
ch.
See Acts
13. See Acts
procedures
Article
set out in
commonly
to as a
Section
are even
referred
hearing.
v. Denno
Jackson
*2
jury
Crimes,
grand
Wrongs,
indictment
“on or
the
Other
and Acts.” See Tex.
404(b).
pleading
convention often used in
Evid.
filed
R.Crim.
State
cases
assault of a
Ac-
motion,
sexual
child.
response to the extraneous offense
appellant,
cording
question
to
the
is whether
listing several instances of sexual abuse. At
by proof
the
obtain a conviction
of
motion,
State
pre-trial
on
hearing
a
the
upon
a
act from
act
the
different
the
which
that
appellant
revealed
the conduct of
to-
grand jury
proof
indicted—indeed
of an
the victim
been
wards
had
continuous over
act which the State has labeled “extraneous.”
years. Appellant requested
several
record, however,
An examination of the
re-
elect
the
incidents for which it
absolutely nothing exceptional hap-
that
veals
seek
conviction.
in
pened
supports
this
ease.
record
court,
orally,
open
The State
in
informed
Appellant’s
facts,
neither
account of the
nor
proceed
appellant
the court and
that it would
wrongdoing.
of constitutional
specifically
episodes
on two
which
described
grand jury
appellant
A
indicted
the
eleven,
occurred when the child was ten and
aggravated
of
offenses
sexual assault and
because those
were
clear in
incidents
most
indecency
pursuant
with a child
to sections
episode
her mind. The first
was described
22.021 and 21.11
Code.1
of
Texas Penal
prosecutor
by the
as an
which
incident
The two-count
indictment
that
child,
appellant
her on her
undressed
laid
County
offenses were committed
Tarrant
stomach,
and,
on her anus
rubbed Vaseline
August
Appellant
on or about
1988.
penetrate
among
attempted
things,
other
to
by jury,
subsequently
and was
waived
incident,
anally.
appellant
the second
thirty
twenty
convicted and sentenced
pornographic
watch
forced the victim to
years imprisonment respectively. The Sec
him
movie with
and re-enact
the scenes.
Appeals
ond Court of
affirmed
conviction.
During
episode appellant
that
made
vic-
Sledge
(Tex.App.
I. proceed argued that it could on the two year they The record that fell within ten establishes offenses because 31,1988 charged appellant aggravated as- from the statute limitation child, indecency alleging sault and with a that See art. 21.02.3 Over ob- date. jection, the offenses on or about the court that it would allow stated a “Request for Notice evidence of the two filed introduce pretrial hearing Intention be- State’s to Introduce Evidence offenses elected4 at appeals holding judgment 1. It Did that should noted that this the court of err in I, § appellant precedence case reflects that convicted 21.02 takes over Art. 10 of art. and, one count sexual assault the Texas Constitution? two, (3A) appeals count record, of sexual It is clear holding assault. from did the court err in however, petitioner's process rights that was convicted child, due indecency two petitioner’s count with a not sexual not violated when convictions assault. on rest unindicted extraneous acts? Specifically, granted following grounds we refer the Texas All references to articles for review: Code of Criminal Procedure unless otherwise Did the court err in indicated. CODE PROC. ANN 21.02 TEX. CRIM. 1989) (Vernon commonly allows State to convict 4. An "election” is more understood place presented, and based take the evidence is on after 404(b) restricting through is avoided the use of the identified motion? confusion silentio, (1A) appeals, Did in which the after the court of sub term those situations particular extinguish presented, concept evidence is chooses a of extraneous offenses upon state act which to seek conviction. of Texas? transactions year elected two within the ten statute cause fell clearly informed proceed” “[t]he limitation. The court then commented oc- defense presented to lack of notice that this years prior to the date or three curred two and, remedy in an effort alleged in the and involved situation, a continuance order granted him *3 108. Sledge 903 S.W.2d at separate events.” designated on a defense based the “the Appeals concluded that The Court offenses. sufficiently limited to those evidence was trial, At con- the State introduced evidence the the State” at transactions described cerning only specified it the two transactions at court pre-trial hearing. Id. hearing, pre-trial proving at the that the clearly was hold the went on to that alleged in and 1987. conduct occurred 1986 appellant’s conviction. sufficient sustain Appellant moved for an instructed verdict Id. claiming prove that State failed to happen on case because the incidents did not III. 1988, 31, in alleged or review, ground for he appellant’s In first Therefore, appellant argued, the indictment. in Appeals erred that the Court asserts in alleged the indictment were dis- offenses 21.02 allows State holding that article proven from those at trial. tinct unindicted,6 on convict a defendant based contention, disagreed identified as such extraneous offenses verdict, his motion for instructed overruled 404(b) Rule motion. He through pre-trial a appellant of of- and convicted the indicted proven at trial was that the conduct contends fenses. happened extraneous because 31, 1987 rather “on or about II. He alleged in the 1988” as indictment. appeal, appellant legal challenged On allegation in that the claims sufficiency of the on his no- evidence based specific a act that occurred related to that, discrepancies tion due the August, recognizes that the Appellant 1988. dates, proven conduct at trial was extra- broadly is language “on about” construed or alleged neous the conduct in the indict- argues not but that should under Appeals ment. The Second stated Court of- interpreted extraneous to include phrase that was to know what “on Appellant opines “entitled fenses. required bypass act of [he] misconduct the State to extrane- about” allows against.” Sledge, a requirement to defend 903 S.W.2d at law and the that ous offense explained Ap- court further that on an indictment.7 conviction be based affirming the trial pellant cases more than one act of sexual asserts that child, must, court, Appeals a against Court of has condoned misconduct a the State unindieted, of- upon request, conviction proper choose the misconduct fenses. Sledge, for which it will seek conviction. 106, citing
903 S.W.2d Crawford IV. (Tex.Crim.App.1985).5 696 S.W.2d mind, has held that parameters With those the court This Court allege an indict- that, “the date hearing, found at the need must, § request, Constitution and 7. Article 10 of the Texas held that the State Crawford presented. election the evidence is the United States Constitu make an Amendment to Fifth after require trying for a before a defendant tion that, Court claims in his brief to this present the felony, first accusation must stated, specifically supra, that the "... the Slate grand jury a true grand jury. If the votes to a bill, proceed prosecution this on an case accusing person indictment it returns an petition for unindicted count.” Brief on discre- This of some offense. named in indictment tionary p. simply review 9. This is true. concept in Texas article 1.05 of is codified is "Unindicted” characterization Procedure. Texas Code Criminal count, “specifically and the State neither stated” conceded that the counts “unin- nor dicted.” ment. subject Mitchell v. 168 Tex.Crim. grand was the (1959). Instead, 330 S.W.2d It is well jury’s settled picked true bill. language that the “on or an indict August, solely because it date was the ment allows the State a date other last date had contact with the child. alleged than the one the indictment as “[Tjhere’s fact, said, prosecutor long present as the date is anterior to the go we offenses intend to on both ment of the and within indictment the statu implication of those offenses.” The clear tory 21.02(6); period. limitation See art. in the offenses indictment Scoggan v. 680 n. 3 were the designated same as (“[t]he (Tex.Crim.App.1990) State is not pre-trial proven Ap- and then later at trial. bound date pellant’s argument State obtained ... long proved so is a date conviction on unindicted offenses thus fails *4 anterior to the of indictment case, is, because there in this no reason to and the crime’s occurrence is not so remote believe that the offenses to the limitation.”); as to be barred Thomas v. grand jury from were different the offenses 692 (Tex.Crim.App. proven at trial. 1988) (“[wjhere an indictment alleges that transpired some relevant event ‘on or about’ aspect appellant’s The of second claim particular date, put the accused is on notice is that proved the offenses were “extraneous” proof happened that the event because the them State denominated as such any statutory period within time the of 404(b) support in its In R. notice. of this limitations.”) contention, Appellant asserts that the same ease, In the instant the dates of the of- the alleged appears conduct indictment proven—1986 fenses and 1987—are anterior heading under the “Extraneous Offenses” presentation of the indictment on De- argues the notice. He that because the State 5, 1989, cember year within the and are ten labeled the conduct “extraneous” it necessar 12.01(2)(D). period. limitation See art. ily was extraneous definition could Therefore Court’s under this construction of not qualify appel for which the offenses was allowable the State to disagree. charged. lant was We proceed on events occurred in that 1986 and Labeling pur- “extraneous” for offense though even alleged that poses of notice not transform does the char- the offenses “on or case, acter of the But in this offense. there 31,1988.” argument is another reason is not that, nevertheless, Appellant argues persuasive. under cases like cited those R.404(b) episodes notice lists seven of ignore can requirement the constitutional of episodes designated misconduct. Those grand jury proceeding indictment on an (2) (3) clearly the notice as the grand jury may offense of which the not have is, episodes pre- however, which were described at the heard evidence. There in this Although hearing. episodes those two testimony present case no evidence that episodes are the grand ed to the same jury related offenses other convicted, proven Contrary alleged trial.8 was acts in the claim, appear indictment—digital penetration of it does not R.C.’s sex- there was an ual of act that occurred of R.C.’s breasts—are And, Judge Meyers’ argues sexually younger that in order to was dissent assaulted. constitution, comply child, with our the State is re- greater possibility that her abuser quired case, that an occurred within a could never be In this for in- convicted. days few of the date in the indictment. stance, repeatedly sexually the child victim is, course, contrary This of to well-established years, assaulted over a of seven but she Furthermore, law on the such matter. an inter- exact date never could name an of of the pretation provision constitutional adopt reasoning offenses. If we were of prosecutions against render for offenses children dissent, appellant would be immune from impossibility—it a virtual is not often that a child conviction.. knows, days, even within a few the date that she silentio, (la) 404(b) appeals, sub Did the court R. notice. That is not listed concept of of- committed, extinguish the say, on each of Texas? fenses dates, against a number of sexual offenses acts, one Of the State listed child. these (3) appeals holding Did court of err (for date) indictment; only the each of Arti- precedence 21.02 that article takes 404(b) in the R. remaining acts were listed 10 of the Texas Constitution? cle Section notice. The first count indictment (3a) appeals court of err Did the digital penetration organ, but' of R.C.’s sexual process rights petitioner’s due 404(b) number R. incident petitioner’s violated when the alleged only penetration. second rest unindicted extraneous convictions con- count of the acts? breast, but by touching tact incident (Tex. Arcila 404(b) R. notice contained number Crim.App.1992), we shall defer held we As to each no breast contact. judgment is appeals where its to the court episodes, State listed of the two ap supported by record acts, acts, charged uncharged not the but discharged has pears 404(b) Appellant’s argument the R. notice. impartial application duty “conscientiously by support facts fails because the do fair consider pertinent legal doctrine and *5 which he was claim that conduct for ” Arcila, supra, at of ation the evidence.... by the was labeled “extraneous” convicted reserve its discre “This court should State.9 tionary part, for most prerogative, review grounds Appellant for review are over- dispel any generated past in the confusion judgments ruled. The below courts law, settled by our case to reconcile own are AFFIRMED. of between the various courts differences promote
appeals, the fair administra justice by courts appellate of trial and tion MANSFIELD, Judge, concurring. Arcila, supra, at throughout Texas.” for Appellant was indicted on two counts 200(b),(c); Degrate Tex.R.App.Proc. v. citing the offenses of sexual assault and State, (Tex.Crim.App.1986). 712 755 S.W.2d indecency with a child. Tex. Penal Code opinion An examination of the of court Appellant Sections 22.021 and 21.11. waived present case it appeals of in the shows to be by jury. a appellant trial The court found applicable law it in accord with our case guilty charges him to of both and sentenced legal after a applies the correct doctrine thirty years twenty years imprisonment, Appel- careful consideration of the evidence. respectively. Appellant’s af conviction was opin- aver it is in conflict lant does not Appeals. of firmed Second Court appeal with re- of other courts of ions Sledge (Tex.App. v. 105 presented. Accordingly, I spect to issues 1995). —FortWorth petition for discre- would dismiss granted appellant’s petition for tionary improvidently granted. This Court review However, following discretionary has elected not review consider because the Court for grounds so, four for review: to do I concur result expressed reasons herein. (1) of err in Did court alleged the offenses de- article The indictment Texas Code of Criminal Procedure a occurred “on or about to convict scribed therein 21.02 allows State “request filed a for 1988.” on an extraneous offense defendant based 404(b) to introduce evi- of intention a motion? notice State’s through identified R.404(b) of an conviction "conviction does include references render notice offense”, to come to appellant we would have other occurrences of acts for convicted, an that even if act e.g., the absurd conclusion he was convicted of accused, more than once an of the notice in- committed R.C.’s breast and number prove only act allegation repeated once—as an indicted of fon- State an instances cludes dling fact to or as extraneous act. her breast. But in order crimes, wrongs denee of other At plicit adequate and acts.” claims that he not did receive hearing, alleged prepare conduct he defense and that was appellant toward victim had been contin- notice as to miscon- what acts of period years, though uous over a several up against duct intended to allege. Appellant the indictment did not so him as its case in without chief thus requested, hearing, merit. specific him of inform instances of conduct so consistently This Court has held that the prepare as to enable him to a defense. phrase puts “on or about” in an indictment response, informed the proof notice to present that would evi- act or of criminal acts mis dence conduct that occurred on Au- applicable conduct occurred within the stat gust appel- 1988. The State inform did period. ute limitations v. Thomas present lant and the court it (Tex.Crim.App.1988); 753 S.W.2d the acts in the indictment oc- (Tex. Scoggan curred on two earlier occasions. The State Crim.App.1990). Recently, another child 404(b) also, notice, ap- in its Rule informed sexual assault case with facts similar to the pellant of its intent introduce evidence case, present although offenses, i.e., other extraneous acts or con- occurring an offense “on duct which during the same crimi- date, engaged had in a continu nal charged transaction as the offenses. course criminal ous misconduct with the years named victim over several hearing,
At the the State informed (though all within the of limitations judge that it statute would introduce evidence that 1986-1987, period). appellant performed The evidence at trial did “on or about not establish dates on which the the defendant’s bedroom criminal misconduct occurred. Court City, This Drive Haltom *6 held, effect, in language with the “on or about” penis, R.C. his R.C. of permits in contained fingers.” with his The also informed to the offense the the court it would introduce evidence with evidence of appellant acts of sexual misconduct “on or about at 3139 involving City, the victim Drive Haltom and named while defendant forced movie, appli time within to watch the pornographic R.C. a defen- (but cable statute of limitations occur penis, dant forced to masturbate his R.C. ring before of penetrated of vagina defendant of with R.C. indictment). fingers, Mireles v. 901 S.W.2d perform defendant R.C. to forced 1 (Tex.Crim.App.1995) (plurality op.). oral sex on him.” described, hearing, at the adequate notice of the received detail, charges against referred to him to considerable incidents so as meet his due preceding paragraph.2 process right prepare The trial court to able to an ade- granted appellant days Indeed, a quate appellant continuance of ten unlike defense.3 Míreles, to for trial. Trial supra, merits did notice actually not commence until more than six of what acts of misconduct the State would attempt hearing. Appellant’s prove up against months after im- to him. Further- County 1. The victim referred of and on or is initials Tarrant State aforesaid throughout day opinion. August, this 31st of did then and intentionally, gratify with intent there defendant, appellant, engage 2. The indictment on or sexual desire of said in sexual R.C., day August, by touching of child about the 31st did: Then the breast of a contact younger intentionally years spouse knowingly of the and there penetration than 17 and not cause R.C., organ female a sexual of defendant.... younger years age child who was requisites spouse by inserting Texas of said defendant 3. The indictment meets the R.C.; 21.02, finger includ into Procedure article the female sexual Code of Criminal ing implicit requisite Two: is of Article Count And it further Roger Sledge said court that said Dale Section (Vernon 1989) a to convict allows the State ten-day more, continuance granted he was on an extraneous based itself not commence prepare and trial did 404(B) mo- Ap through hearing. months after the identified until over six any notice defi pellant tion[?] does demonstrate impact have ciency, less one that could much silentio, appeals, sub court of 1A. Did the prepare his defense. Adams ability to ed his of- concept of extraneous extinguish the (Tex.Crim.App. Texas[?] in the State of fenses 1986). Finally, appellant does not offer appeals err the court of 3. Did 21.02 conflicts argument that Art. persuasive Art. precedence over takes Art. 21.02 Texas Con 10 of the with Article Section § Constitution!?] I of the Texas stitution. in hold- err the court 3A. Did he respect appellant’s contention With rest on convictions petitioner’s ing that was, effect, on extraneous convicted based acts[?] unindicted offenses, opinion identi my it is the incidents unimpressed by his “account majority, of hearing not extraneous at the fied of constitutional the facts” and all, part of a stream but were fenses all of wrongdoing, overrules misconduct acts of criminal sexual continuous the ma- respectfully dissent from grounds. I named in the indictment. the victim approach and conclusions. jority’s present The State was free misconduct
any specific instances grounds is granted of these The crux of all the named victim trial varied presented at that the evidence the statute of limitations that occurred within thus render- allegations, from the indictment of miscon period. The two instances to sustain ing insufficient the evidence hearing that at the duct the State identified that variance guilt; and that jury’s verdict of attempt prove up at trial were specifying in its by the was caused indictment, differing properly alleged in the Extra- of Intent to Introduce pretrial Notice they allegedly occurred only in that the dates offenses were that certain neous Offenses to that in the indict were antecedent thus not the offenses “extraneous” difference, however, immateri ment. This these To review leged in the indictment.1 Míreles, supra.4 al. offenses al- must look at the grounds, one indictment, the offenses declared leged in the Accordingly, judgment I concur in the Notice, *7 by and the State’s “extraneous” the Court. trial. introduced at evidence OVERSTREET, Judge, dissenting. I. granted grounds several
We discretionary Specifical- petition review. for ALLEGATIONS INDICTMENT ly, granted grounds ask: counts. The contained two holding The indictment appeals err in 1. Did the court of appellant committed alleged that 21.02 first count Proc. Ann. Art. that Tex.Code Crim. speci- for the acts not so may well be un- reindict be noted the State It should able, retry fied. grounds, jeopardy on double acquitted in a cause with facts similar ground re- Interestingly, appellant’s for second present present where it elected to case asked, view, grant, we did not of criminal sexual of one or more acts (without specifically identifying them misconduct err in Did the court of would, trial). acquittal in advance of sustain evidence to sufficient effect, apply criminal sexual mis- to all acts of aggravated sex- petitioner’s convictions involving defendant and the same conduct assault!?] ual assault and prior during However, appellant's victim that occurred crux of noted granted, grounds of the indictment. been date of that have claims in the 3-A, that he was proceed particularly on one or more 1 and is the State elect to numbers Should (specified been identified in advance acts that had specified convicted of acts misconduct defendant) rather than the offenses and the proper notice to the court via results, leged in the indictment. be able to acquittal an aggravated “by inserting sexual assault years age, Ms scheme from 7 to 14 but rather finger into go the female sexual [the intended to into: complainant],” younger named who was two instances that the child remembers years age, day on or about the 31st mind, readily going most in her into the August 1988. appel- Count two breasts, touching one instance of the of her indecency lant committed with a child one; during there’s other acts involved “engaging] in sexual contact touching the then there’s another instance breast of complainant],” [the same named fingers with the and the younger years who was than 17 age, on or surrounding acts that. And the dates of day about the 31st August going years those are to be within 10 file-stamped indictment is December alleged. that date Those I are the two go into intend and what involved those alleged: Thus the indictment acts, continuing but as far as the from 1) by appellant sexual assault in- intending seven to I’m not bring serting finger into the female sexual or- all that I because think the recent case law gan complainant; prohibits my me to at ease in cMef. 2) indecency by appellant with a cMld touch- Appellant complained that if it’s not ing complainant. the breast of the 31, 1988, hardly then he was on notice of when the prose- be. II. cutor commented that had seen the records, CPS complainant’s and some of the STATE’S NOTICE OF EXTRANEOUS written statements. When asked the trial OFFENSES planned court if go she on that prosecutor 404(b), responded negatively Pursuant ap- Tex.R.Crim.Evid. pellant go and said that she filed a intended to on when the Request “Defendant For No- complainant old, years tice of was 10 pointing State’s Intention or to Introduce Evi- Crimes, out go dence that the law allowed her to of Other into within Wrongs Acts.” It years specifically of the date of the requested that indictment. The give rea- expressed then sonable notice advance of trial some concern of its intent notice. introduce its case-in-chief “evidence of crimes, wrongs, other or acts other than that discussion, Upon prosecutor further arising in the transaction which the De- indicated that statements “also corre- added) (emphasis stands indicted.” spond penetration.” continuing fendant with the file-stamped January This instrument responded When the trial court that she did signed 1992. The trial court the attached that, allege prosecutor retorted that granting order that motion. allege alleging she did when because actually certain date she’s alleging within 10 11, 1993, May On the trial court conducted years of that date. The trial court then arraignment hearing. As to *8 indicated that because the indictment Notice, Request prosecutor indi- date, acts, a certain continuing and not and cated that she had continual sexual conduct there were statements that show those cer- by appellant, using and that he was indicted dates, tain on or then the last date he contact had with the child going the State was to be tied that. The because the child had been from molested prosecutor responded if gave then she ages 7 to and she took the last date continuance, appellant notice now and a then prosecutor where the child was 14. The also “go years she could into the 10 and “go indicated that she intended to into the age.” agreed. The trial court dates, they’re going but to be on that date[,]” “[t]hey recess, going prosecutor back be when After a short then younger, years she was complain- since 10 is what our described two incidents which the worMng framework is in vividly with that last date ant recalled or 11 when she was 10 old; alleged.” prosecutor years also said that she one of which involved did go continuing rubbing intend to into the penetrating her -with Vaseline and porno- complainant] to watch [named digitally, and the other her anus movie, forced [named defendant graphic porno movie with her appellant watching a penis, his de- to masturbate complainant] masturbate making penis, touch his her and vagina [named him, penetrated she was him her breasts as fendant and fingers, defendant prosecutor complainant] also with his couch. The laying on the perform complainant] other there was “a lot of [named mentioned that forced throughout place conduct that took him. oral sex on was seven life from the time she this child’s (4) Ray Drive in at 3139 1982 thru years including age, to the time she was City, repeated instances where de- Haltom intercourse, every man- oral sex of full-scale complainant]’s va- [named fendant touched ruled The trial court then ner and means.” tongue inserted his his and gina with indicted, because that as the case vagina. her tongue into made to outcry and the statement statement (5) Ray Drive in 1982 thru representative, the notice the DHS where de- City, repeated instances Haltom degree is limited to such complainant's penetrated [named fendant that occurred in that the events fondled fingers [named his vagina with likely have been more 1988 would be complainant’s breasts. by appellant preparing de- upon relied [sic], 7-4-88, in Leveland 12-87 thru fense, prosecution was instruct- and that the Texas, fondling, repeated [sic] instance notice, just give given, as as to ed to with his penetration by Defendant vaginal upon incidents that would be relied performed by Defendant fingers, oral sex case, trying that the trial State in complainant] and instance on [named would allow those incidents complainant] had [named where defendant limi- proved long were within the penis. touch his date of the tation based 8-88, Knowledge in at 4429 7-4-88 a continuance be- grant indictment. It did City, penetrated [named Haltom defendant had an appellant claimed he had not cause penis. complainant’s vagina with opportunity for those incidents. began on before the court The bench trial 25, 1994, January filed its On 26,1994. January Extra- Notice of Intent to Introduce “State’s fur- gives It stated that neous Offenses.” III. its “intent to introduce evi- ther notice of guilt dence of extraneous offenses both AT TRIAL EVIDENCE punishment phase of the and innocence and court, at trial before the In a bench trial.” The Notice further indicated presented two wit- guilt/innocence elect to introduce “[t]he nesses, complainant her older broth- following committed of all of the er, The com- appellant. cross-examined It thereafter recited sev- Defendant[.]” this of birth was that her date plainant testified listings: en testimony elicited April 1975. The State (1) 1981-1982, in Hal- at 3139 Drive an incident that regarding from her defen- City, repeated tom instances where “[a]bout when she was in 1986 or 1987 fingers into com- [named inserted his dant “[e]leven, maybe.” age at the grade fifth” vagina, fondling of plainantl’s [named their occurred at this She indicated instances where complainant’s vagina and City. in Haltom Race Street [sic] house on penis. had touch [her] incident involved that this She testified *9 1986—1987, Ray at 3139 or about On pornographic of a video- watching portions City, in the defendant’s Drive in Haltom appellant, and tape movie with bedroom, penetration of com- [named anal mouth was on so that her pushing her down penis, plainant] with his offense ob- Appellant’s extraneous penis. his fingers. complainant] with his complainant [named overruled. jections were ap- incident involved 1986, that this Ray Drive also testified at 3139 On or about into inserting finger his touching and pellant City, forced Haltom while defendant 262 area, personal pellant
her i.e. her fingers, female sexual or- with his but that extraneous gan, rubbing on her breast underneath [sic], though offense occurred in “Leveland” clothing. Hockley County is in Levelland rather than County. allegations, Tarrant All of these testimony The State also elicited from the other than # aver that complainant regarding another incident oc- curring Ray City. “about 1987” on Race Drive in [sic] Haltom These offenses County Street Tarrant in her mother’s and included the State’s Notice of Intent bedroom, appellant’s when she “[a]bout Introduce Extraneous Offenses all corre- age, the same eleven.” This incident in- spond allegation aggravated to the sexual appellant rubbing volved Vaseline into her inserting finger assault into inserting anus fingers vagi- into her complainant’s organ. sexual In arguing na. over extraneous evidence, objection prose- to this The State’s “intent Notice to intro- pertained aggra- cutor stated that this duce evidence of extraneous also offenses” count, previous vated sexual assault while the corresponding listed extraneous offenses videotape evidence with the went movie allegation indecency with a child of the breast count. complainant’s touching alleg- breast. # 5 doing testified and denied 1987, repeated es from 1982 thru instances things complainant’s to her. The brother did complainant’s where fondled the testify specifics any as to the sexual City. breasts at Drive in Haltom indecency assault or committed on the com- Since these are included plainant. State’s Notice of Intent to Introduce Extra IV. Offenses, neous fur gave which the State ther notice of its “intent to introduce evi CORRELATION BETWEEN offenses[,]” obviously dence of extraneous ALLEGATIONS, NOTICE, they are “extraneous” to the two offenses AND PROOF alleged in the An indictment. “extraneous” As discussed offense is an offense other than the offense 1) aggravated offenses: sexual recently in the indictment. We have by inserting appellant’s finger assault into stated, “An extraneous offense is defined as complainant; the female sexual misconduct, resulting act of whether 2) indecency by touching with a child not, prosecution or that is in the not shonm complainant. breast of the Both offenses charging papers.” Rankin v. to have occurred “on or about (rehear (Tex.Cr.App.1996) S.W.2d day August the 31st 1988[.]” ing pending) [emphasis original]. In the The State’s Notice of its “intent to intro- similarly past, not so distant this Court stat duce evidence of extraneous offenses” listed ed, “An is one that extraneous offense aggravated several incidents of both extra, beyond, foreign or to the offense for indecency assault with a child. Several party Ridinger which the is on trial.” listings of those notice involve 286, 174 146 Tex.Crim. penetration. sexual assault or insertion (1943). alleges # 1 as an extraneous offense 1981- appellant inserting fingers into the Therefore, all of the offenses listed complainant’s vagina. alleges # an extra- State’s Notice of Intent to Introduce Extra- appellant penetrated neous offense that Offenses, gave no- neous which the State complainant’s vagina fingers with his on or tice of its “intent to introduce evidence alleges, about 1986. # 5 from 1982 thru offenses[,]” “extraneous,” i.e. repeated instances of extraneous offenses charging papers are not shown in the and are appellant penetrated complainant’s where extra, beyond, foreign to the offenses for vagina fingers. alleges with his # 6 an extra- *10 vaginal penetration by ap- neous offense which was on trial. purpose that of an It is well-settled
V. notice of give is to indictment ANALYSIS charged specific with which he is above, conviction, court, in listings upon several of the As noted and to enable the aggravated pronounce proper judgment, Notice involve sexual and to en State’s appel- penetration plead judgment assault insertion or that able the accused fingers complainant’s vagina, in further lant’s into the it bar of corresponds prosecution sexual for the same offense. Lehman (Tex.Cr.App. allegation “inserting finger his into assault 792 S.W.2d 1990); organ of named com- Articles 21.11 and [the the female sexual and see plainant]” Specifically, goes saying in the indictment. that V.A.C.C.P. And without (the to Intro listing purpose Notice’s #3 incident of a “Notice of Intent watching pornographic videotape provide noti movie Extraneous is to duce Offenses” Ray City Drive in Haltom on or about extraneous of fication of intent to introduce appellant penetrating complainant’s fenses, with other than those i.e. offenses case, vagina fingers fondling with his and in And in this the indictment. breasts) comports with the above-discussed precisely what the State did with Notice. trial, testimony listing at trial. Also Unfortunately the Notice’s when came time (involving penetration by appellant #2 only present the State chose bedroom) correspond seems to corresponded designated the which with its ex testimony above-discussed about Vaseline of traneous offenses. The same bedroom, though #2 does not mention fenses can not be both extraneous and named inserting fingers vagina. overlap into her And in the indictment. There is no be listing # designates the Notice’s as extra- the indictment and the ex tween repeated Notice; neous offenses “1982 thru 1987” yet traneous offenses there is an appellant penetrating instances of overlap presented by the com- between the evidence plainant’s vagina fingers with his and fon- the State and the offenses the State’s dling Ray her breasts at Drive in Haltom Notice. extraneous offense City. majority also states that the gave
Since the indictment, State’s Notice actual notifi- digital pen- acts cation that the offenses which were testified complainant’s etration of offenses, to at trial were “extraneous” i.e. breasts, complainant’s fondling of the are papers were not charging shown listed the State’s written Notice. extra, beyond, foreign are However, to the offenses Sledge v. at 256. trial, for which was on then those clearly shown the State’s Notice obviously offenses were not the digital specific listings does indeed include leged the indictment. All of the evidence complainant’s penetration of the sexual or- gan, vagina, touching, fondling, i.e. i.e. indictment were included in the extra- State’s complainant’s breasts on Drive in neous offenses Notice. City. Haltom states, majority “Labeling an offense VI. purposes ‘extraneous’ notice does transform the character of the offense.” CONCLUSION (Tex.Cr. Sledge v. 1997). 21.02(6), V.A.C.C.P., However, alleg Though if re-
App.
the indictment
Article
quires simply that the time mentioned
thing,
es one
and the extraneous offense
else,
alleges something
obviously
“must be some date anterior
notice
then
indictment, and not
parties
are
being
prosecution
so remote that the
of the offense
allegations are the offenses
limitation[,]”
and this Court has
guilt/innocence
tried and which
will be deter
is barred
prove “on
are some
found evidence to be sufficient to
mined and
extraneous offenses
alleged if it the actual date
thing
being
other than the offenses
tried.
or about” the date
*11
he
merely
that limita-
erred to affirm his convictions because
of occurrence
falls within
occurring in
appellant’s complaints go
convicted of offenses
period,
tion
to was
offenses”
and 1987 and listed as “extraneous
was evidence at all of offenses
whether there
those,
pre-trial hearing
opposed
those
at a
as
designated
other than
the State’s
August,
or about”
Regardless
occurring
of offenses
“on
extraneous offense Notice.2
31,1988
as listed in the indictment:
allegation,
or
the “on
about”
corre-
the evidence at trial described offenses
again,
question
involves the
issué
sponding
designated
as extraneous
or
may
whether
use the “on
Regardless
in the State’s Notice.
of the
bypass
phrase
about”
an indictment
offenses,
admissibility
of the extraneous
extraneous offense law and indictment re-
pre-
of what was said at the above-discussed
a conviction based on
quirements to secure
hearing,
the written
Notice of
“State’s
conduct not
an indictment.
Offensesf,]”
Intent
to Introduce Extraneous
Review,
Discretionary
pg. 11.
Petition for
just
day
which was filed
before the trial
very
By
doing,
challenges
so
he
constitu-
distinguishing
began, provided
Ann. art.
tionality of Tex.Code Ceim. PROC.
“extraneous” offenses from the offenses
21.02(6),
provides
which
that:
leged in the indictment.
sufficient if
An indictment shall be deemed
appeals
Accordingly, I
the court of
believe
requisites:
following
it has the
analysis
point
erred in its
must be some
The time mentioned
claiming
error
insufficient evidence to
date anterior
allegations. Accordingly I be-
indictment,
so
and not
remote
lieve that this cause should be remanded
prosecution
of the offense
appeals
reanalysis
the court of
in line
by limitation.
is barred
designating
with the State’s written Notice
course, appellant’s complaint has little
Of
majority
Because the
“extraneous” offenses.
phrase
to with the
“on or about”. Mireles
do
so,
respectfully
not do
I
dissent.
does
v.
J., dissenting).
(Tex.Crim.App.1995)(Meyers,
BAIRD, J., joins.
Instead,
long standing prece
questions
MEYERS,
dent,
21.02(6),
dissenting.
Judge,
in art.
that “the State
codified
prove a certain date at
obliged
[is]
A
should be based
conviction
Texas
actually alleged one in the
trial even if it had
presenta
an indictment issued after the
Although
Id. at 464.
ultimate
indictment.”
attorney’s
case to the
tion
district
prove the
ly finding the evidence sufficient to
jury.
grand
No conviction can stand
indictment,
allegations in both counts of the
proceed in this fashion. Tex. Const.
does not
appeals
sympa
the court of
nevertheless
I, §
Ann. art.
art.
10. Tex.Code CRiM. Proc.
thized with
concern
he
Thus,
1.05.
amend. V.
defen
U.S. Const.
for an unindicted of
have been convicted
cannot be convicted of extraneous of
dants
fense.
or,
words,
other
offenses not listed
fenses
21.02(6)
Indeed,
Crawley
problems with art.
abound
the face of the indictment.
v.
especially apparent
in those
(Tex.Crim.App.1974);
rights example, of’ the defendant ... For
if the record shows that the amendment is charge so as to
made a different occur- course, example, § 1. Of the Slate need not use the "on or mandate of art. 10. For observes, language. majority might As the someone for the sexual assault of a indict language, meaning any given use of such when it has the one date. No child "within doubt, monlh”of days", narrowing pres- significantly any "within few would often rule the time frame prosecution ently impede, decrease the chance for a successful allowed in art. 21.02 will to some against degree, ability in those chil- the State’s to obtain convictions. cases Instead, job ability to facilitate the State’s dren. alternatives exist that would both But our is not cost, enough especially allow the State convic- when latitude to obtain to obtain convictions in nature. tions in such cases and also lend substance to that cost is constitutional