Houston v. State

832 S.W.2d 180, 1992 Tex. App. LEXIS 1570, 1992 WL 137488
CourtCourt of Appeals of Texas
DecidedJune 17, 1992
Docket10-91-224-CR
StatusPublished
Cited by35 cases

This text of 832 S.W.2d 180 (Houston 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
Houston v. State, 832 S.W.2d 180, 1992 Tex. App. LEXIS 1570, 1992 WL 137488 (Tex. Ct. App. 1992).

Opinions

OPINION

THOMAS, Chief Justice.

A jury convicted Sherman Houston of the aggravated sexual assault of Nicky D., an eleven-year-old girl, and assessed his punishment at fifty years in prison. His only complaint is that the court improperly admitted evidence that he had taken nude pictures of Nicky and his own daughter shortly before he committed the offense. He contends the evidence had no relevance apart from showing his character and, even if it were relevant to the sexual assault, its potential for unfair prejudice substantially outweighed its probative value. See Tex. R.Crim.Evid. 401, 403, 404(b). We affirm.

NICKY’S TESTIMONY

Houston and his family and Nicky and her family were camping together at Lake Whitney when the offense occurred. Nicky testified that Houston invited her, her nine-year-old sister (Christy), and Houston’s daughter (Tina) to ride in his car to the store to buy ice. Before they reached the store, Houston stopped the car and retrieved a Polaroid camera from the trunk. He then had Tina and Nicky pull their swimsuits to one side while he took two photographs of their vaginal area and buttocks. Christy handed the photographs to Nicky, who tried to hide them by stuffing them into the folds of the back seat where she and Tina were sitting. Nicky planned to destroy the hidden pictures when they returned to camp. Once they reached the store, however, Houston found and kept the pictures in his possession.

When the children and Houston returned from the store, Christy and Tina went to the lake to swim while Nicky remained at the camp site to eat lunch. After finishing eating, Nicky started along a trail leading to the cove where Christy and Tina were swimming. She described what happened:

[DISTRICT ATTORNEY’S QUESTIONING]:
Q When you started walking down the trail, did something happen?
A Yes.
Q What happened?
A Sherman [Houston] stopped me.
Q Okay. Did he stop you where your parents could see you?
A No.
Q All right. And once he stopped you, what did he do?
A He started talking to me.
Q What did he say to you?
A He told me that if he — if I came up to the car toith him, then he would give me the pictures back.
Q Uh-huh. Did you go with him?
A Yes, I did.
Q Did — was he holding you when you went up there?
A No.
Q And where did you go?
A We stopped at — where a little white building is.
Q Is — is this on a trail?
A Yes.
Q What happened?
A He told me that if I let him lick my private, then he would give me the pictures back.

(Emphasis added). Nicky then described how Houston forced her into the white building, pulled down the bottom of her swimsuit, and put his mouth on her vagina.

Christy, who saw the photographs taken, also testified about the picture-taking episode but not about the sexual assault. The State introduced Houston’s confession in which he admitted taking the pictures. [182]*182(The record does not reflect the length of time between the photographs being taken and the sexual assault). All of this evidence was admitted over defense objections based on Rule 404(b) and Rule 403 of the Rules of Criminal Evidence. See id. at 403, 404(b).

SAME-TRANSACTION CONTEXTUAL EVIDENCE

The Court of Criminal Appeals has labeled evidence of extraneous offenses indivisibly intertwined with the charged offense as “same transaction contextual evidence.” 1 Mayes v. State, 816 S.W.2d 79, 86 (Tex.Crim.App.1991). Same-transaction evidence refers to separate offenses that are “intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others.” Id. at 86-87 n. 4. Offenses are intertwined in the same transaction if “in narrating the one it is impracticable to avoid describing the other.” Id. at 87 n. 4. Evidence of all the offenses in the same transaction is admitted out of necessity — you cannot practicably separate one from the other. Id.

The facts and circumstances of the charged offense are relevant evidence. Id. at 85; Tex.R.Crim.Evid. 401. Evidence of how events of the charged offense unfolded and progressed is necessary for the jury to have a full picture and understanding of what took place. Mann v. State, 718 S.W.2d 741, 744 (Tex.Crim.App.1986). Consequently, the State was entitled to prove all of the facts and circumstances surrounding the sexual assault, everything that Houston said and did, including how he used the nude photographs to lure Nicky to where she was sexually assaulted and how he tried to use them to get her to submit to the sexual assault. In fact, had they been available at trial, the State could have introduced the photographs into evidence because Houston had used them as a ploy and inducement to commit the sexual assault. See White v. State, 137 Tex.Crim. 481, 131 S.W.2d 968, 969 (1939) (holding that a book of lewd photographs seized from the defendant at his arrest was admissible in his trial for attempted rape if he had used the book in any way in committing the charged offense). Moreover, because evidence of the photographs was admissible to show the facts of the charged offense, the jury could consider evidence of the photographs as an aggravating factor in assessing Houston’s punishment for the sexual assault. See Wilkerson v. State, 736 S.W.2d 656, 660 (Tex.Crim.App.1987).

Nicky could not practicably narrate the relevant facts and circumstances surrounding the charged offense without mentioning the nude pictures. This is a classic example of same-transaction contextual evidence. The two offenses became inextricably intertwined through Houston’s own words and acts, and the State was entitled to prove both, not only by Nicky’s and Christy’s eye-witness testimony but by Houston’s confession. The amount of time elapsing between the picture-taking episode and the sexual assault did not make the evidence inadmissible as the two offenses were indivisibly intertwined.

RULE 404(B) IS INAPPLICABLE

Rule 404(b), which prohibits the state from introducing evidence of other crimes to show the defendant’s bad character and his “propensity” to commit criminal acts, does not limit or govern the admissibility of same-transaction evidence. Tex. R.Crim.Evid. 404(a), (b). Same-transaction evidence is admitted as an exception to the “propensity rule.” Mayes, 816 S.W.2d at 86 n. 4.

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Bluebook (online)
832 S.W.2d 180, 1992 Tex. App. LEXIS 1570, 1992 WL 137488, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-v-state-texapp-1992.