Bishop v. State

837 S.W.2d 431, 1992 Tex. App. LEXIS 2686, 1992 WL 289606
Court of Appeals of Texas·Decided September 16, 1992·No. 09-91-129 CR, 09-91-130 CR·Published·Cited by 14 cases

Opinions

OPINION

WALKER, Chief Justice.

These consolidated appeals come to us from convictions for the felony offenses of Burglary of a Habitation and Aggravated Sexual Assault (three counts). Following its guilty verdicts on all three counts of Aggravated Sexual Assault and the Burglary charge, the jury assessed appellant’s punishment for each of the four offenses at confinement for life in the Institutional Division of the Texas Department of Criminal Justice, and, in each case, a fine of $10,000. The jury also made an affirmative finding of the use or exhibition of a deadly weapon by appellant during the commission of the offenses. The judgments indicate that the sentences are to run concurrently. Although appellant raises five points of error on appeal, our discussion of appellant’s first point will be dispositive of the causes before us.

We note at the outset that appellant does not complain of the sufficiency of the evidence to sustain his convictions. Indeed, although both parties correctly characterize this case as being circumstantial in nature, we have not been presented with such strongly incriminating evidence in quite some time. Appellant presents us with his first point of error as follows:

The trial court erred in admitting evidence of appellant’s sexual proclivities and practices pursuant to Rule 404(b), Texas Rules of Criminal Evidence.

The evidence of these “proclivities and practices” was elicited by the State, over appellant’s strenuous objection, from appellant’s ex-wife, C.S. This occurred as the State cross-examined Ms. S. during appellant’s case-in-chief. Ms. S.’s testimony was as follows:

Q. (the State) Ms. [S.], you are aware already of what we’re about to go into and I apologize. I know this might be embarrassing, but I think I need to ask you this. During the course of your relationship with Terry Joe Bishop, did he like to engage from time to time in anal intercourse?
A. (Witness) Yes, sir.
Q. During the course of your relationship in order to satisfy himself, did Terry Joe Bishop ever ask you or require you to perform sexual acts such as fondling on yourself?
A. Yes, sir.
MR. SPEERS (the State): Pass the witness.
MR. GLENN (for appellant): Nothing further, Your Honor.
MR. SPEERS: Excuse me. I have one more question, Your Honor.
[433] THE COURT: All right.
(BY MR. SPEERS:)
Q. Was Terry Joe Bishop during the course of your relationship capable of performing sexually for an extended period without ejaculating?
A. Yes, sir.
MR. SPEERS: I will pass the witness now.
MR. GLENN: I pass the witness, Your Honor.

The record reflects that prior to the admission of the above testimony before the jury, a hearing took place out of the jury’s presence in which appellant’s counsel objected to the admission of the testimony based upon his understanding of the law of relevance under Tex.R.Crim.Evid. 404(b),1 as well as the fact that the testimony, even if relevant, should be excluded as more prejudicial than probative, citing Rule 403. The State responded that Ms. S.’s testimony did not consist of an “extraneous offense” as contemplated by Rule 404(b); that the testimony was admissible as “character evidence;” that because the key issue in the case was identity and that appellant’s defense raised the possibility of another man having committed the crimes, that the State was allowed to “rebut” such evidence to show that appellant committed the crimes against the victim; and that Ms. S.’s testimony was clearly relevant, and therefore admissible, under Rule 401.

Texas Rules of Criminal Evidence 401, 403, and 404(b) provide the following:

Rule 401: “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
Rule 404(b): Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided, upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State’s case in chief such evidence other than that arising in the same transaction.

It is virtually conceded by both parties that the sole issue in the trial was the identity of the perpetrator of the brutal acts committed against the victim. The victim testified that an unknown perpetrator entered her house without her permission during the early morning hours of September 6, 1990, threatened her life and the lives of her children, and sexually assaulted her orally, vaginally, and anally at knife-point for approximately one to one and one-half hours without ejaculating, and in a very violent and brutal manner. The victim also testified that at one point during the attack, the perpetrator forced her to masturbate herself in order to show him what made her feel good. The victim, however, could not identify the perpetrator as he wore some sort of stocking over his face and no lights were turned on in the victim’s house at any time during this predawn attack.

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Bishop v. State, 837 S.W.2d 431, 1992 Tex. App. LEXIS 2686, 1992 WL 289606 (Tex. Ct. App. 1992).

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