Messenger v. State

638 S.W.2d 883, 1982 Tex. Crim. App. LEXIS 1026
CourtCourt of Criminal Appeals of Texas
DecidedSeptember 22, 1982
Docket62134
StatusPublished
Cited by43 cases

This text of 638 S.W.2d 883 (Messenger v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Messenger v. State, 638 S.W.2d 883, 1982 Tex. Crim. App. LEXIS 1026 (Tex. 1982).

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction of aggravated sexual abuse. The jury found the appellant guilty and assessed punishment at confinement for twenty-five years.

The appellant does not challenge the sufficiency of the evidence. In two grounds of error, he contends that the trial court erred in admitting testimony about two extraneous offenses.

The instant offense occurred on May 14, 1978. The victim was a thirty-one year old woman. The victim testified that on the day in question she was alone in her house with her seven year old daughter. At about 2:30 a. m. the light came on in the bedroom where the victim and her daughter were sleeping. She saw a man standing in [885]*885the doorway. The man motioned with his hand for the victim to come to him. He held a baseball bat in his right hand. As the victim walked toward him, the man grabbed the victim’s shirt and pulled her into the hall. He asked her whether any men were in the house; the victim told him there were not. The man then pulled the victim into the front bedroom of the house. When the victim’s daughter began calling to her, the man told the daughter that something bad would happen to her mother if she did not stop yelling. The man then took the victim back into the front bedroom. Throughout this time, the man held the baseball bat. The man commanded the victim to kiss him, which she did, then engaged in anal intercourse with the victim. He then ordered the victim to commit oral sodomy upon him. During this act the victim was able to partially free herself long enough to tell her daughter to run out of the house and call a friend. The man then grabbed the victim by her hair and dragged her through the house looking for the daughter. When she saw that her daughter had escaped, the victim again tried to escape from him, and after a struggle was successful. The man fled into the night. The victim positively identified the appellant as the man who had victimized her.

The appellant’s defense was alibi. His ex-wife testified that on the night in question, she and the appellant had gone to a club. They had returned to her apartment, and had spent the entire night together. She also testified that the appellant could not have been the man who had sexually abused the victim because he had an anatomical problem which made forced sex acts very painful for him.

In rebuttal, the State called witnesses to two extraneous assaults. L_ W_, a thirteen year old girl, testified that on May 24,1978, ten days after the primary offense, the appellant had entered her house at about 9:30 p. m. He grabbed her by the hair after she did not respond to his command to come to him. When L_W-screamed, her mother came into the room. The appellant then asked the mother whether any men were in the house. She said that there were and began trying to push him out the front door. The appellant pushed her down and ran out the door.

T.__ B_, a nine year old girl, testified that on June 2, 1978, during the early morning hours, the appellant entered her bedroom, picked her up, and took her out of her apartment. He took her to an open field across from the apartment complex. There he removed her clothes and began fondling her sexual organs. When the victim saw her mother arrive at her apartment, the appellant allowed the girl to put her night gown back on, and walked her part of the way back to her apartment. He then fled into the night.

The evidence showed that both of these extraneous assaults occurred within about a four block radius of the instant offense. The appellant’s residence was within that same area. The evidence also showed the three assaults occurred within three weeks of each other.

The appellant contends that neither of the extraneous offenses was admissible. Although he concedes that in this ease identity was in issue, he argues that the differences between the extraneous offenses were great and the similarities were few. He also argues that the similarities were neither distinguishing nor unusual.

The State argues that, in addition to the proximity of time and place, in each of the three assaults the appellant entered a house uninvited and when no men were present. Therefore, the State argues, the two extraneous offenses were admissible to prove the appellant’s identity.

In Collazo v. State, 623 S.W.2d 647 (Tex.Cr.App.1981), we recently set forth the rules for admission of extraneous offenses admitted to show the identity of a defendant. We stated:

The question presented is whether the trial court erred in admitting evidence of [886]*886an extraneous offense. Such questions involve principles of law which were stated well in Murphy v. State, 587 S.W.2d 718, 721-722 (Tex.Cr.App.1979) (footnotes omitted) (emphases omitted):
“It is an established general rule of evidence that proof of similar happenings, extraneous transactions or prior specific acts of misconduct committed by a party is irrelevant to the contested material issues in the case on trial and therefore inadmissible.
“In a criminal proceeding, when the extraneous or similar transaction committed by the accused, sought to be admitted by the State, constitutes a criminal offense, introduction of that ‘extraneous offense’ transaction is inherently prejudicial because: (1) the accused is entitled to be tried on the accusation made in the State’s charging instrument which specifies the ‘material issues’ of the case and cannot — consistent with the rudiments of due process — be tried for some collateral crime of which he has no notice, Jones v. State, 568 S.W.2d 847 (Tex.Cr.App.1978); Walls v. State, 548 S.W.2d 38 (Tex.Cr.App.1977); Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (1953); Couch v. State, 155 Tex.Cr.R. 585, 238 S.W.2d 198 (1951); and (2) an accused’s ‘propensity to commit crimes’ is not an issue which is material to whether he is guilty of the specific conduct charged by the State; it follows therefore, that introduction of evidence establishing such a propensity constitutes a trial of the accused as a ‘criminal generally’ which offends our system of justice. Young, supra; Couch, supra; Clements v. State, 147 Tex.Cr.R. 531, 182 S.W.2d 915 (1944); see Spivey v. State, 146 Tex.Cr.R. 11, 171 S.W.2d 140 (1943). See also Jones, supra; Etchieson v. State, 574 S.W.2d 753 (Tex.Cr.App.1978); Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

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Bluebook (online)
638 S.W.2d 883, 1982 Tex. Crim. App. LEXIS 1026, Counsel Stack Legal Research, https://law.counselstack.com/opinion/messenger-v-state-texcrimapp-1982.