*1 publishing media’s information found in- record). pubhc
dictment that was Accord-
ingly, we sustain and six. issues five
Because we have sustained issues five six, we also sustain issue four and the
corresponding part of issue three because
fact issues exist on claim. wiretapping appellants’
We thus need not reach issue
15, concerning of trial the denial their new
motion.
Conclusion judgment
We reverse the insofar as it a take-nothing judgment ap-
rendered on
pellants’ wiretapping chapter claim under granted summary
123 and insofar as it
judgment parties’ on the KTRK defenses limitations, laches, under U.S. Const. Const, I, I,
amend. and under art. Tex. summary
§ affirm judgment 8. We respects.
all other remand the cause. We appellants’
We further overrule motion for
sanctions. COHEN,
Justice who retired from the issuance, opinion’s
Court before this
participating. THOMAS, Appellant,
Karene Morton Texas, Appellee. STATE
No. 01-02-00260-CR. Texas, Appeals
Court of (1st Dist.).
Houston
June *3 Mount, Stallings, Stallings E. &
Patrick P.C., Houston, Appellant. for Rosenthal, Jr., District At- Charles A. Delmore, County, J. torney-Harris William Prosecutor, Division, III, Appellate Chief Curry, Alan District Attor- Assistant Houston, ney, appellee. for TAFT, Panel consists Justices KEYES, and HIGLEY.
OPINION KEYES, EVELYN V. Justice. Thomas, appellant, Karene Morton burglary of a habitation with assault, a first intent to commit sexual eventually hurting her and he by imprison- he was degree felony1 punishable got on his knees years than 99 down stopped. mеnt for life or for no more sex, when years going attempt than five and a fine of no oral less and was $10,000.2 jury appel- legs more than found him that her laughed Patton and told guilty, lant and the trial court assessed Appel- that. long too for to do punishment years’ at 80 confinement. We and made grabbed than Patton’s hand lant affirm. penis. her hold his began to realize that dawn Facts into her He walked approaching. *4 Charged
The Offense if wanted and asked Patton she bedroom him that she year Nelle Patton is a 71 old woman who him to She told did. leave. enjoys playing through fives alone and tennis three said that he would leave ha- to five times a week. She had been if into her go front door she would rings Patton, rassed constant doorbell and bedroom and lock the door. knocks at her door with no one there when if she did being raped and killed fear she had assumed that it answered. She go that she would refused and said teenagers. was go if into the he would into bedroom living Appellant went to the living room. 4, 1999, rang December an intruder On ran bedroom and room and Patton to her “insistently” Patton’s until she left doorbell tried to call the dead-bolted the door. She her bedroom to answer the door. As she because the tele- police, but she could not walking hallway was down the near the grabbed had been cut. She phone lines home, living room her she ran into dressеr and tried to gun her from the appellant Patton described as appellant. gun it. fired and went shoot The being a black man with little or no hair television, bullet in her lodging gold glasses. and rimmed and appellant heard move dresser. She was, appellant Patton asked who how he left, to thought that he had so she went home, gotten had into the and what he to climb out the her bathroom and tried Appellant replied wanted. that he wanted fit, in attempt- and window. She could * * p* “a little Patton tried to distract out, gun she laid the on the ing get to appellant achieving goal from his ultimate hitting the again, window sill and it fired comment, by laughing asking at his ran to garage. Patton then neighbor’s questions, trying аnd to make small talk. escaped through a another bedroom and against Patton backed herself the wall in neighbor, who yelled for her window. She hallway herself. protect order called 911. appellant She realized that had one of her covering knives and was it with a white Pat- arrived at Officer Edward Srebalus cloth. After she told him that the knife win- He observed broken ton’s home. her, it. frightened dropped he area near the pane in the breakfast dow fin- attempted He to recover Patton, back door. includ- Appellant began grope exit, entry gerprints at the ing Appellant penetrated her breasts. A after unsuccessful. few weeks fingers said but was vagina Patton’s with his attack, with a sketch Patton sat down not hurt her. told him that She 30.02(d) (Vernon § § 2. See id. 12.32. 1. See Tex. Pen.Code Ann. 2003); 22.011(f). §id. The produced
artist and a sketch of the intrud- Confession closely appellant. er that resembled an oral confession that made audio-taped on November Extraneous the Guilt/Inno- Offense played jury to the a renewed over cence Phase objection. not contest the Appellant does Georgia 70-year-old Garrett is a woman admissibility appeal. of the confession on lives alone in an apartment. who confession, admits to his beginning of Garrett saw the shadow looking and to into interest older women win- stooping patiо someone outside her people’s he was at- other homes because person away, ran dow. The she called light coming from the win- tracted later, About month police. one Gar- that he was dows. He states face-to-face again, again rett saw a shadow and she year one around a before woman police. called the Garrett stated that both ie., confession, around the time of the appellant. times the individual was Gar- Ap- charged. offense with which he was in- apartment complex rett asked the pellant admits he entered wom- a patio light, jump- stall but someone kept door, *5 ga- a either the through an’s home ing enclosing patio over the fence her door, rage the kitchen which he claims or unscrewing light shining also bulb and that not let into the open, was he was flashlight a into her bedroom window. On woman; that he woman’s home occasion, porno- left another someone bell; that when she rang then her door graphic pictures titled “Promiscuous Gran- bell, her breasts answered the he fondled ny” apartment at Garrett’s door. in legs living her near or her rubbed standing; room where she was and that 6, 2000, On November officers were him the most. The legs her interested to apartment complex called Garrett’s to doing woman told him what he was was - investigate an unrelated disturbance. likе a nice wrong, told him that he looked They nu- complex had been called to the something like person that would not do reports merous times because of of a this, why doing what he asked he was “peeping tom.” While the officers were him, bless doing, and said to “God was apartment complex, Garrett called the woman asked [you].” He left after the police patio. because someone was in her leave; him she him to and the woman told dispatcher A told the officers that a black Appellant him. identified pray for apart- man in had been seen one of the plays tennis the woman as someone who patios. May ap- ment’s Officеr Steven Caucasian, in described her as proached apartment Garrett’s and saw a fifties or sixties. standing pa- man near the window the night that the he was Appellant stated tio. The other officer went into Garrett’s patio, apartment he left his Garrett’s sliding and walkéd apartment explained also Appellant around 1:30 a.m. glass patio ap- to handcuff door onto why patio he was Garrett’s on Novem- flashlight and a pellant. Appellant had a He that he saw a ber stated sliding to a open tool that could be used that interested him couple pots of flower glass door. . a closer look. He ex- get and wanted pots was arrested for this оffense. the flower plained that he could see custody being walkway. get he consented to While from the order “crossed placed line-up. pots, Patton was unable to better look at the flower surrounding patio. positive make a identification. over” the fence admissibility of the taking rulings object had no intention of (5) evidence; pots, any- flower and he had no idea that he was denied State’s apartment. one was of counsel because of effective assistance effect of the errors of coun- the cumulative suppress A motion to was confession sel. during pretrial hearing filed and a purpose held on that motion. The Discussion if hearing was to determine the confession given voluntarily. The trial court Extraneous Offense given ruled that the confession was volun- error, appel point his first tarily During and found it admissible. argues lant that the trial court abused its trial, Patton was unable to make a positive by improperly allowing discretion appellant, testifying, identification of “the pursuant extraneous conduct State to offer sitting man over here looks somewhat like 404(b) prove to Texas Rule of Evidence him, but I can’t swear to it.” She likewise identity Specifically, as the offender. was unable to a positive make identifica- requisite contends that no con appellant’s tion of voice from the recorded nective similarities between the confession, testifying only offense and the extraneous offense exist voice was “similar” to her assailant’s. and that too remote in time to are be admissible.3 Issues error, In five appellant argues We review the decision to admit (1) crimes, the trial court wrongs, abused its discretion evidence of other or acts *6 by allowing the State to offer evidence of under an abuse of discretion standard of prove extraneous offenses to appellate review. See Roberts v. 29 (2) offender; identity (Tex.App.-Houston as the the evidence 600 [1st S.W.3d 'd). legally insufficient support pet. long to his con- ref As as the trial Dist.] (8) viction; factually the in- ruling evidence was court’s was within the “zone of rea (4) support conviction; sufficient to disagreement,” he there is no abuse sonable discretion, was denied uphold effective assistance of counsel of and we must the rul pretrial ing. because his counsel did not obtain Id. complains against
3. also that other evi- ted Garrett under Rules 403 and 404(b) improper 404(b), object any dence under Rule was of- but failed to other extra- against prove identity. Specifi- fered him to neous offense evidence or to lack of notice cally, complains testimony that Patton’s that the evidence would be offered. There- ringing fore, that somеone had been her doorbell preserve appellant has failed to error night year, May’s late at for more than a regard any to lack of notice or to extra- testimony dispatched that he had been to Gar- offenses, neous other than the criminal tres- apartment many peeping rett’s times for tom Garrett, above, pass against addressed and peeping cases and that other tom incidents these issues are waived. See P. Tex.R.App. occurred, testimony had and Garrett's that 33.1(a). note, however, We that the State did looking been someone had in her window and provide appellant that notice to evidence of lеaving pornographic material on her door- that extraneous offenses occurred from Janu- step improperly were offered as extraneous June, 2000, ary, be of- 2000 evidence offense the State. He also com- Specifically, the State notified fered trial. plains provide that the State did not notice "[tjhroughout year the that going that this evidence was to be offered at reports regarding trespass there several trial. Garrett, [Kelley] Cooksey and the Ms. Ms. apartment complex they lived. The Appellant’s objected trial the ad- in which counsel missibility suspect of the extraneous offense defendant is a in each case.” commit- rule, words, general (Tex.Crim.App.1996).
As a
an
In other
prevent
relevant,
being prosecuted
from
to be
the evidence must bear
accused
for some
the
misconduct,
“signature”
Linder
crime or
of the offender.
collateral
the State
may
(Tex.App.
not introduce evidence of
acts
bad
ref'd).
1992, pet.
[1st
Houston
If
charged.
Dist.]
similar to the offense
Id. at 600-
are
However,
distinguishing
there
sufficient common
exception
an
gen
as
extraneous
exclusion,
characteristics between the
of
eral rule of
evidence
“other
such
charged
fense
offense
that
crimes, wrongs,
may
or acts”
be admissible
probative
value of the evidence out
if it
to a material
has relevance
issue other
effect,
its
weighs
prejudicial
may
the court
than
to show
accused acted in
admit
Id. The factors of
evidence.
trait
conformity with some
of character
remoteness
of an
similarity
extraneous
of the
probative
value
evidence is
are
in and of
important,
offense
not
them
“substantially outweighed
not
by the dan
selves,
on the
only as
bear
rele
ger
prejudice.”
of unfair
Id. at 601. Evi
vancy
probative
value
offered
crimes, wrongs,
dence of other
or acts is
evidence of
offenses.
Id.
apart
showing
relevant
from
character
Therefore,
dissimilarity
do
remoteness
conformity
propоnent
if the
that it
shows
per se
render an extraneous offense
fact,
some
“tends to establish
elemental
irrelevant.
The extraneous of
See id.
identity
such as
or intent.” Id.
can,
fense and
offense
there
Identity may
placed
be
at issue or
fore,
offenses,
long
be
as
different
so
through the
dispute
cross-examination
offenses
similarities between the two
are
identifying
Page
witness.
relevant.
such
the evidence is
Id.
763 (Tex.App.-Corpus
similarity
To
be
determine
'd).
ref
This
pet.
Christi
occurs
purpose
tween the
for the
offenses
es
when
identifying
witness has been im
tablishing
courts should
identity, appellate
(1)
peached
about
material detail of the
specific
into
charac
take
account both the
(2)
identification;
the conditions surround
time
teristics of
and the
inter
the offenses
*7
ing
charged
and
the
offense
the witness’s
State,
val between
them.
Johnson
68
identification of the' defendant in that situ
(cit
644,
(Tex.Crim.App.2002)
S.W.3d
651
ation;
(3)
or
an earlier misidentification of
519).
Lane,
Sufficient
ing
at
933 S.W.2d
Id.
defendant.
similarity
by proximity
may be shown
case,
In this
Patton could not visu
mode
place
by
time and
a common
of
ally identify appellant as the intruder.
Lane,
committing
933
the offenses.
Identity
by
at issue
placed
appellant
was
State,
at
(citing
S.W.2d
519
Ransom
503
through his cross-examination of Patton
810,
(Tex.Crim.App.1974)).
S.W.2d
813
identify
she could
regarding whether
State,
Court
In Walker v.
the Texas
home,
lighting in
because of the
her
that offenses were
Appeals
Criminal
held
him long enough
saw
to iden
whether she
(1) they
sufficiently
oc-
similar because
him,
tify
wearing
she was
and whether
(a)
(b)
area,
in the
night,
curred
at
same
glasses.
(2)
(c)
month;
a
within
of one
period
(a)
(b)
a
admissible to
iden
defendant
alone and
carried
To be
show
was
(3)
gun;
were tied in a
tity,
offense
be so small
the victims
an extraneous
must
(4)
manner;
robbery preceded
charged
the offense
similar
similar to
(5)
pennies
but
rape;
marked as the
and
all coins
offenses are
accused’s
504,
588
were taken
the victims.
S.W.2d
Lane v.
from
handiwork.
seventies;
early
In
lived alone a half-
(Tex.Crim.App.1979).
Ran-
som,
Appeals
the Court of Criminal
held
for
apart.
mile
Both had been harassed
sufficiently
that offenses were
similar be-
the same
approximately
some time over
(1)
days
cause
the offenses were three
always
night;
at
assault on
period,
(2)
apart and both offenses were
robberies
December, 1999;
Patton occurred in
(3)
(4)
committed at gunpoint
by the defen-
began
year
a
before
harassment of Garrett
accomplice.
dant and an
503 S.W.2d
that,
arrested outside
appellant
and
813.
11 months after
apartment
Garrett’s
Lane,
recently,
More
the Court of
During
assault on Patton.
this time there
Appeals
although
Criminal
held
many reports
peeping
of a
tom at the
place
time
and
offenses were not
complex
lived. The intrud-
where Garrett
proximity,
apart
close
were a decade
by breaking
er
Patton’s
entered
house
states,
place
took
in different
the mode of
with
back window and then armed himself
committing the offense and the circum-
kitchen; appellant
a knife from her
surrounding
sufficiently
stances
them were
apprehended
patio
on Garrett’s
with a
similar for the extraneous offense to be
entry into a
long,
gaining
bent wire for
identity.
relevant
to the issue of
patio
flashlight.
door and
The intruder
Johnson,
S.W.2d at 519.
Court
Patton;
sexually
someone left
assaulted
Appeals held that offenses
committed
pornographic pictures
elderly
women
other,
within a few hours of each
directed
women,
at lone
involving
another vic-
night
outside Garrett’s door the
before
tim’s
sufficiently
red Ford Taurus were
appellant
patio
was arrested on her
with a
similar.4
black man who was
jury’s
confidence
glasses
produced
when
Patton
a
as
undermine
arrested.
outweighed by
closely
appellant.
greatly
determination or so
sketch that
resembled
contrary
to indicate that a mani
proof as
deci-
uphold
We must
the trial court’s
injustice has occurred. Zuliani v.
fest
crimes,
sion to admit evidence of other
State,
(Tex.Crim.App.
594
97 S.W.3d
court’s
wrongs,
long
or acts so
as the
Valencia,
2003);
563;
King, 29 S.W.3d at
ruling was within the “zone of reasonable
conducting our
wrong;
woman
told
he looked like
To determine if a defendant
person
something
a nice
that would not do
has been denied effective assistance of
this;
why
like
the woman asked
he was
counsel, we follow the standard set forth in
doing
doing;
what he was
and the woman
Washington, 466
Strickland v.
U.S.
appellant,
[you].”
said to
“God bless
He
2052, 2064,
274 perfоrm error. lant must establish that counsel’s prejudicial deprived that it ance was so Conclusion Thus, appellant
him of a fair trial. Id. probability must show that a reasonable judgment the trial affirm the We that, unprofessional for counsel’s exists court. errors, proceeding would the result of the Strickland, 466 U.S. have been different. CONCURRING OPINION Howland, 2068; 694, at 966 at 104 S.Ct. HIGLEY, Justice. LAURA CARTER has the burden at 104. S.W.2d I concur the result reached by a prongs of these
to establish both
However,
disagree
majority.
because I
Jackson
preponderance
the evidence.
majority’s conclusion that there
with the
(Tex.Crim.
954,
State,
956
v.
973 S.W.2d
distinguishing
sufficient common
State,
762,
v.
830
App.1998); Davis
S.W.2d
extraneous of-
characteristics between thе
1992,
(Tex.App.-Houston [1st Dist.]
765
offense, I would
charged
fense and the
'd).
beyond
speculate
cannot
pet. ref We
committed error
hold that the trial court
provided. Jackson v.
877
the record
offense evidence.
admitting the extraneous
768,
(Tex.Crim.App.1994);
771
S.W.2d
(Tex.
92, 93
916 S.W.2d
Gamble
identity, an
To
admissible to show
be
pet.).
no
App.-Houston [1st Dist.]
must be so similar
extraneous offense
presumption
must overcome the
are
that the offenses
charged
the offense
strategy was sound.
trial counsel’s
handiwork. Lane
marked as the accused’s
Gamble,
at 93.
916 S.W.2d
(Tex.Crim.
courts take into ac
App.1996). Appellate
“making
An
a claim of
appellant
characteristics
specific
cоunt both
identify the
must
ineffective assistance
time interval between
the offenses and the
al
of counsel that are
acts or omissions
basing a review of
well as
them.
Id. As
of rea
leged not to have been the result
admissibility
evidence on
of extraneous
judgment.” Strick
professional
sonable
time,
distinguishing
place
proximity
land,
Any
who were abducted from public areas near
glasses
hardly
rimmed
are
unusual
our
homes,
assaulted,
sexually
their
and stran-
community. The two offenses here havе
gled to death.
at 517. In
both
even less
common than the two offenses
offenses, the defendant acted with a co-
Reyes
burglaries
where the
and sexual
actor, involved
himself
the search for
approximately
assault offenses occurred
victims,
girl’s
claimed each
under-
apart
seven months
and in each case the
trophy
wear as a
of the crime. Id.
sleeping
assailant fondled a woman
with a
Characteristics
of Offenses
Reyes
child.
State’s Need to fession, provided specific details criminal It a fundamental tenet of our is only perpetrator crime that may be justice system that an accused Thus, abundant ev- the State had know. only for which he is tried for the offense and no need to appellant’s guilt idence of gen- a criminal charged being and not for the extraneous offense. introduce erally. 827 S.W.2d Owens 404(b) in- (Tex.Crim.App.1992). Rule trial court Because I would hold that the by prohibiting the corporates this tenet the extraneous offense admitting erred evi- identity, of extraneous misconduct but that the admission based on the issue of nothing more than the light dence that shows of the abun- error was harmless propensity to commit general guilt, accused’s I concur dant evidence of 404(b); Owens, criminal acts. Evm. judgment. Tex.R. 404(b) pro- at 914. Rule also allowing the exceptions
vides to the rule show,
admission of extraneous offense alia, identity. emphasize I proof
inter 404(b). exception to Rule this is an case, majority by lowering in this
The excep- invoke the
established standards to tion, that the appears to decide exclusion ROBLEDO, Appellant, Ruth Maria exception, not of extraneous offenses is the I that such a decision suggest the rule. carefully interpre- crafted
eviscerates Texas, Appellee. The STATE and other exception by tation of the this No. 01-02-00596-CR. majority courts. The has deter- appellate that common characteristics are mined Texas, Appeals Court of perpetrator if the of the really important Dist.). (1st Houston per- offense is identified as June offense. More- son accused over, Montgomery’s majority ignores exception, prior allowing
caveat need to must review the State’s court Mont- the extraneous offense.
introduce at 392.
gomery, 810 S.W.2d little, if for intro- any,
There was need of the extraneous offense.
duction trial, excluding presented
evidence offense, was of the extraneous
evidence link
sufficient attempted sexual assault.
burglary and intruder to describe the
Patton was able a sketch
accurately, providing assist intruder, intro- which was
resembling the evidence, identify ap- and to
duced into intruder, with the although as the
pellant to it.” could not “swear
caveat that she