Gass v. State

785 S.W.2d 834, 1990 Tex. App. LEXIS 789, 1990 WL 39009
CourtCourt of Appeals of Texas
DecidedJanuary 10, 1990
Docket09-88-314 CR, 09-88-315 CR
StatusPublished
Cited by7 cases

This text of 785 S.W.2d 834 (Gass v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gass v. State, 785 S.W.2d 834, 1990 Tex. App. LEXIS 789, 1990 WL 39009 (Tex. Ct. App. 1990).

Opinions

OPINION

BROOKSHIRE, Justice.

The Appellant was charged with two offenses which occurred on separate occasions. One was indecency with a child; the second was aggravated sexual assault of a child. On the Appellant’s motions the two cases were consolidated. The jury returned verdicts of guilty on each charge and assessed ten years confinement for the offense of indecency with a child and thirty-five years for the sexual assault. The complainant-victim was the granddaughter of Appellant. She was eight years old at the time of the offenses.

The Appellant in his brief recounts that the first offense took place in the upstairs bedroom of Appellant’s home around June 15, 1986 when he exposed himself to his granddaughter, touched her genitals, and penetrated the genitalia of the victim with his genitals. About a month later a second offense was committed during which he again exposed himself to the same victim and asked her to place her hand upon his penis. This later event was witnessed by another granddaughter of the Appellant.

The second granddaughter reported the matter to an aunt. Upon an initial confrontation the Appellant refused to talk about the incidents. The next day, however, he admitted his guilt and apologized to the children and all parties concerned. In his brief the Appellant states that he had had problems with alcohol and had been drinking during both transgressions. He signed voluntary statements concerning each charged offense and began receiving counseling for his problems, including pedophilia.

The “Extraneous Offenses” Issue

The Appellant urges several points of error, the first one being that the trial court erred in allowing the State to introduce evidence of “extraneous offenses” during the guilt or innocence phase of the trial without producing a proper predicate.

The victim testified to other incidents of sexual abuse. The record reflects that the Appellant failed to specifically object initially at trial that no predicate had been laid for admission of the extraneous offense. The Appellant’s argument, which he classified as a basic objection, was that he did not intend to cross-examine or impeach the victim as to the events that she had touched upon or testified about excepting only the allegation of penetration. Appellant took the position at trial that there was no necessity for the State to attempt to prove intent, motive, scheme or similar matters. The objection at trial, we conclude, does not comport with the error complained of on appeal. The point of error presented on appeal must comport with the objection raised at trial in order to preserve error. Paster v. State, 701 S.W.2d 843 (Tex.Crim.App.1985) cert. den’d 475 U.S. 1031, 106 S.Ct. 1240, 89 L.Ed.2d 348 (1986), Buxton v. State, 699 S.W.2d 212 (Tex.Crim.App.1985) cert. den’d 476 U.S. 1189, 106 S.Ct. 2929, 91 L.Ed.2d 556 (1986). This point we deem does not present anything for review.

The Exception to the Extraneous Offenses Rule When Small Children are Involved

Nevertheless, an important exception exists to the general rules governing extraneous offenses when those offenses involve sexual abuse or offenses against children of tender age. The victim was very young. Smith v. State, 719 S.W.2d 402 (Tex.App.— Houston [1st Dist.] 1986, no pet.). Precedents have recognized an exception to the general rule which exception permits the admission of similar sexual offenses that occurred between the victim-complainant and the accused to shed light and reveal the circumstances surrounding the act which was indicted or charged against the accused. The exception also shows the unnatural propensities or disposition of the [837]*837accused. Another reason for such exception is to make the young child’s testimony more plausible in light of the relationship of the parties. See Battles v. State, 140 S.W. 783 (Tex.Crim.App.1911). Johns v. State, 155 Tex.Crim. 503, 236 S.W.2d 820 (1951), stated that evidence of similar acts between the victim and the accused are admissible. A public policy has been established to protect very young children from sexual abuse.

The indictment charges Appellant with intentionally and knowingly causing the hand of S.B., a child younger than 14 years of age, to contact the defendant’s penis. Also, the Grand Jurors alleged that Gass intentionally and knowingly, with the intent to arouse and gratify the sexual desire of said defendant, exposed his genitals to S.B. The second indictment alleged that Gass intentionally and knowingly caused a penetration; yet again as a latter part of Count 1 and in Count 2 of the second indictment, the Grand Jurors charged that Gass acted intentionally and knowingly. Furthermore, he acted intentionally and knowingly with an intent to arouse and gratify his sexual desire. Hence, unquestionably, in every situation the issue of “intentionally and knowingly” was a material, contested issue in the case. A defense was intoxication which allegedly diminished or destroyed the necessary intent or scien-ter. Hence, we think that the extraneous offenses fall within well established exceptions to the general rule. The extraneous offenses tended to show the context in which the principal criminal act occurred, to prove scienter, intent or guilty knowledge, to prove state of mind and to refute or rebut a defensive theory. See Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972); Wiggins v. State, 778 S.W.2d 877 (Tex.App. — Dallas 1989, pet. ref’d).

Since the “intentionally and knowingly” was a material, contested issue the next inquiry is whether the extraneous offenses were relevant to the material issue of “intentionally and knowingly”. The relevancy is determined from the doctrine of chances. This doctrine of chances has been defined as an instinctive recognition of those logical, deducible processes which eliminates or lessens the element of a possible innocent intent by simply multiplying occurrences arriving at the same result until the reasonable mind perceives that an innocent intent cannot explain away all of the offenses. The reasonable human mind applies an instinctive and logically deducible process of reasoning to this conclusion: that an unusual and abnormal element such as the lack of intent or innocent intent might conceivably be present in one instance or occurrence; but that the more frequent similar instances occur and like offenses take place with similar results, then the reasonable mind ascertains the necessary relevancy of guilty intent. We think the reasonable trial judge ruled correctly. See Garza v. State, 715 S.W.2d 642 (Tex.Crim.App.1986). Hence, his rulings were proper and could not be considered to any degree as an abuse of discretion. Thus the trial court’s rulings and decisions will not be disallowed on appeal. Templin v. State, 711 S.W.2d 30 (Tex.Crim.App.1986). Also, it must be borne in mind that the State has the burden to prove its case beyond a reasonable doubt to obtain a conviction. And the State has the right to discharge this duty and burden with approved advocacy and permitted zeal.

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Gass v. State
785 S.W.2d 834 (Court of Appeals of Texas, 1990)

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Bluebook (online)
785 S.W.2d 834, 1990 Tex. App. LEXIS 789, 1990 WL 39009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gass-v-state-texapp-1990.