Lang v. State

698 S.W.2d 735, 1985 Tex. App. LEXIS 7383
Court of Appeals of Texas·Decided October 9, 1985·No. 08-84-00166-CR·Published·Cited by 13 cases

Opinions

OPINION

WARD, Justice.

This is an appeal from a conviction for aggravated sexual assault. The court as[736] sessed punishment at twenty-five years imprisonment. We affirm.

On January 20, 1984, at approximately 10:15 p.m., the complainant left the west El Paso apartment where she was staying to see if she had locked her car for the night. In the parking lot, she was grabbed from behind and dragged to the rear of her vehicle. The assailant removed her robe and ripped her nightgown down the front. He struck her in the face several times with his fist, scratched her face, breast and arm, and threatened to strike her head with a large rock. He pulled her underwear down but not off. He then engaged in vaginal and oral intercourse. Throughout these acts, he engaged in “filthy talk.” Finally, the complainant was able to kick him in the genitals and escaped to her apartment where she called the police. Two days later, the complainant received a threatening telephone call. She identified the voice as that of the assailant. The speaker referred to the earlier sexual assault. She reported the call to the police. Appellant was arrested on January 23. In court, the complainant positively identified the Appellant as her assailant.

The Appellant offered evidence of an employment alibi. On rebuttal, over objection, the State offered proof of an extraneous sexual assault by the Appellant. The extraneous offense complainant testified that she was working alone as a convenience store clerk in northeast El Paso at 2:00 a.m., October 18, 1980. The Appellant entered, purchased a soft drink and engaged her in conversation. He began to yell at her, followed her into a storage room and grabbed her. He held a knife to her throat and told her, “[sjweetheart, I am going to kill you....” He pulled her pants and underwear down to her ankles and sexually assaulted her from behind. He engaged in vaginal and anal intercourse, all the while using vulgar, sexual language. In mid-December, 1983, one month before the present indicted offense, this complainant also received a telephone call from the assailant. In court, she positively identified the Appellant as her attacker and as the caller.

At trial and on appeal, Appellant has relied primarily upon Collazo v. State, 623 S.W.2d 647 (Tex.Crim.App.1981), contending that the extraneous and indicted offenses are not sufficiently similar so as to establish the requisite signature-like relationship. Of particular significance is the thirty-nine month time span between the two. The trial court, in overruling the defense objection, placed express reliance upon Dickey v. State, 646 S.W.2d 232 (Tex.Crim.App.1983). The common elements in Dickey and the time span involved there were more supportive of admissibility than the factors in this case. Nonetheless, the opinion in Dickey stated that the similarity requirements should not be a rigid rule and:

Proximity in time and place may be a factor, but it must be considered along with the other facts and circumstances.

Dickey, supra at 236 (Onion, P.J., concurring).

We will not repeat the similarities and dissimilarities in this case. They are readily apparent from the factual summary above. The only additional comment on the factors which is appropriate concerns the nature of the various sexual acts involved. Appellant naturally characterizes them as dissimilar, the State as similar. Such a mechanical process of initial arbitrary classification and subsequent weighing of the elements is unrealistic. There is some similarity in that both times the assailant first engaged in vaginal intercourse, followed by a deviate sexual act. It is more productive to simply recognize and weigh the connection for what it is and avoid an all-or-nothing analysis. It is neither absolute similarity nor absolute dissimilarity.

As Judge Teague pointed out in his dissent in Dickey, the frequent dissection of extraneous and indicted offenses into laundry list comparisons obscures the fact that often the listed items are generic to the type of offense involved and “would probably fit the facts of any number of cases_” Dickey, supra at 240. The only answer to Judge Teague’s concern is [737] to require that in the case of near-generic components there be a greater number of similarities with a greater degree of consistency between the two offenses. Yet each case must be measured on its own merits. The often repeated standard refers to the necessary connective similarity in the singular, not the plural:

This relationship should consist of some distinguishing characteristic common to both the extraneous offense and the offense charged, [emphasis added]

Siqueiros v. State, 685 S.W.2d 68, 71 (Tex.Crim.App.1985), rev’g., 669 S.W.2d 394 (Tex.App.—El Paso, 1984). Thus, one highly distinct common feature may suffice. If there is a single sufficiently distinguishing common characteristic, even a number of dissimilarities will not destroy the relevance or admissibility of the extraneous offense. Collins v. State, 577 S.W.2d 236, 238 (Tex.Crim.App.1979).

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Lang v. State, 698 S.W.2d 735, 1985 Tex. App. LEXIS 7383 (Tex. Ct. App. 1985).

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Lang v. State
698 S.W.2d 735 (Court of Appeals of Texas, 1985)