Dickey v. State

646 S.W.2d 232, 1983 Tex. Crim. App. LEXIS 944

• Court: Court of Criminal Appeals of Texas
• Decided: March 1, 1983
• Docket: 64192
• Status: Published

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for attempted aggravated rape. After the jury returned a verdict of guilty, punishment, enhanced by a prior conviction, was assessed by the court at fifty-five years.

In his sole ground of error appellant contends “The trial court erred in overruling appellant’s objection to evidence of an extraneous offense, the State having failed to qualify said offense under an exception to the general rule.”

Appellant offered evidence that at the time of the offense he was playing cards and watching games at one Willie Idelbird’s place.

An exception to the rule that an accused may not be tried for a collateral crime is that evidence of an extraneous offense may be admissible to refute a defensive theory raised by the accused. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr. App.). Upon offering evidence of the defense of alibi, appellant placed his identity in issue. Wintters v. State, 616 S.W.2d 197 (Tex.Cr.App.); Jones v. State, 587 S.W.2d 115 (Tex.Cr.App.).

After the defense rested, the State offered evidence from E_S_that on March 26, 1979 (5 days before the offense in question) a man identified as appellant raped her after he had “put a broken beer bottle to my neck, and told me if I did anything, he would slit my throat.” This testimony was admitted over the appellant’s objection.

Appellant urges that there were not sufficient distinguishing characteristics common to both the extraneous offense and the offense for which he was on trial so as to render the extraneous offense admissible.

In Wintters v. State, supra, the rule stated in many of our cases¹ was repeated:

“Once the issue of identity has been raised, evidence of an extraneous offense is admissible to prove identity only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial.” (Emphasis supplied.)

In holding that an extraneous robbery offense was admissible, this Court in Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.) noted there were a number of dissimilarities in the offenses “such as the fact that the primary offense was committed by appellant alone and the extraneous one involved appellant and two confederates, and the primary offense involved the use of a firearm while the other offense did not.” Citing Ransom v. State, supra the Court noted that present were such common characteristics as proximity in time or place and common mode of commission of the offense, and held that the dissimilarities did not destroy the extraneous offense’s relevance in showing identity.

In criticizing a rigid rule relative to similarities in the primary and extraneous offenses this Court in Ransom noted that such a rule “apparently overlooks the well-established requirement that before any extraneous offense is admissible the offense must be clearly proven and the accused shown to have been its perpetrator.”

In the recent case of Messenger v. State, 638 S.W.2d 883 (Tex.Cr.App.) reversal resulted from the admission of an extraneous offense² where the primary offense involved an adult woman while the extraneous offense involved a child, the primary offense involved a threat of force by means of a weapon while the extraneous offense involved no weapon, and the primary offense involved two acts of deviate sexual intercourse while the extraneous offense involved fondling a child’s sexual organs.

In the instant case the primary offense and the extraneous offense occurred within a five day period. The victims in both instances were white A & M coeds. The assailant in both instances wore sunglasses. Both victims were at or about the places where they resided, the victim in the primary case was in the yard outside her place of residence while the victim in the extraneous offense was in the laundry room of her apartment. In both instances the assailant held a sharp object to the throat of the victim, in the primary offense a knife and a broken beer bottle in the extraneous offense.

We find sufficient similarities in the proximity of time and place as well as the mode of commission of the two offenses so as to constitute sufficient distinguishing characteristics as to permit the State to introduce the extraneous offense after the appellant raised the defense of alibi.

The judgment is affirmed.

1 . E.g. Jones v. State, supra; Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.).

2 . On motion for rehearing, this Court noted it was not necessary to pass on correctness of opinion on original submission since the jury charge was found to be fundamentally defective.