Parsley v. State

709 S.W.2d 746, 1986 Tex. App. LEXIS 7563
CourtCourt of Appeals of Texas
DecidedApril 23, 1986
DocketNo. 09 85 081 CR
StatusPublished

This text of 709 S.W.2d 746 (Parsley 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
Parsley v. State, 709 S.W.2d 746, 1986 Tex. App. LEXIS 7563 (Tex. Ct. App. 1986).

Opinion

OPINION

BROOKSHIRE, Justice.

In District Court No. D-850005, Gary Paul Parsley was indicted for aggravated sexual abuse. This was one of two indictments for aggravated sexual abuse. The indictment alleged penetration of the vagina of the victim on or about October 8, 1984. The indictment contained one enhancement paragraph, being a final conviction in Jefferson County of aggravated robbery on November 21, 1980. The jury found the accused guilty. Upon Appellant’s written pleading for the bench to assess punishment, the judge did so after conducting a hearing on punishment. Appellant was sentenced to fifty years confinement and a $10,000.00 fine. This same sentence was given in the other three companion cases.1 The court ordered the sentences to run concurrently.

The Appellant argues that fundamental error was committed in enhancing the Appellant’s punishment herein and in sentencing the Appellant to both a prison term and a fine.

The trial court did not make a formal finding that the enhancement paragraph was true in this case. Aggravated sexual abuse is classified as a felony of the first [748]*748degree and the sentence assessed by the court was within the punishment range. Without enhancement, this aggravated sexual abuse offense was a first degree felony. The court did not err. Ground one is overruled.

Appellant argues reversible error in that the District Court admitted evidence of “extraneous offenses”.2 The Appellant put the identity of the assailant into issue. Alibi witnesses were proffered on behalf of the defense. Thereafter, in response, the State introduced testimony of two female convenience store clerks. Each identified this Appellant as the person who had previously robbed each of them. Appellant concedes:

“It is well established in Texas that evidence of another crime is admissible to prove identity when identity is an issue....”

In fact, Appellant unequivocally concedes in his brief that the identity of the accused was affirmatively put into issue by alibi witnesses produced by Gary Paul Parsley; but, the Appellant argues that there were no common distinguishing characteristics relating to these offenses, nor did these extraneous offenses demonstrate any common element, nor were they relevant to any issues in the Appellant’s case. We disagree.

In the case subjudice, the female victim was robbed, kidnapped, and assaulted in the early morning hours. She was working at a Billups Convenience Store and Service Station located in Bridge City. The victim was behind the counter when the Appellant, whom she saw and definitely identified, entered the store. She said several times that she could observe and recognize the distinguishing features of his face. She had seen him at a distance of about one foot. After the Appellant entered the store, he walked to a cold drink cooler. Then he approached the checkout counter. At that point, the victim looked at the Appellant eye to eye at a distance of about twelve inches. Then Appellant demanded the paper money out of the register and displayed, according to the victim, a twelve-inch all-metal kitchen knife.

Appellant ordered the victim to take out all of the bills; he did not want the silver. He ordered the victim to the backroom. In the backroom he ordered the victim to disrobe. At once, he grabbed the victim by the hair and told her, “Let’s go.” This version is according to the victim’s recounting of the dramatic and, according to her, “brutal events”. After driving away— again according to the victim — the Appellant told her of his plan to rape her. Appellant’s car was driven by him to a secluded area. He ordered the victim to undress.

Under the threat of the use of the knife and verbal threats and instructions, she got into the back seat of the vehicle. Then [749]*749various acts of sex took place. According to the victim, the Appellant kept the knife nearby and ready. He told her, “Don’t -me off or I’ll cut your throat.” The victim testified that she performed sexual acts because she was afraid of dying.

The Appellant then drove to a different location and had forced sex with the victim at the separate location. The victim described the Appellant and her assailant as being one and the same person — a man of about five feet five inches, blue eyes, stocky, dark brown medium length hair, with a short forefinger, and some facial hair. The victim testified that she was with her assailant, who was the Appellant, for about an hour. She made a positive identification of the Appellant by looking at mugbook pictures. Later, she made another identification of Appellant in a live lineup. At that time, she immediately identified him in a lineup of five. During the trial, the victim identified the Appellant in the courtroom as the man who committed the assaults upon her, as well as the robbery and the kidnapping.

We have examined the evidence in the two extraneous offenses. We find that they have common elements. Another victim was a female clerk at a convenience store. She was on duty in the early morning hours. She heard the front door buzzer go off. The assailant grabbed her by the hair and then by the arm. He forced her to the register. He told her to open the register. He pushed her down. Then the assailant took most of the bills out of the register. He later slapped her on the head, calling her a bitch, and expressed his desire that she go outside the convenience store. The assailant pushed her toward the door. When this clerk got outside, she began screaming. Her assailant began dragging her toward his car. When she resisted, he repeatedly struck her in the face. The assailant got into a car, being a dark or rusty colored Camaro. This robbery victim definitely identified the Appellant as the man that robbed her on September 24, 1984.

There was a second extraneous offense. There the victim was the female store clerk at a Country Pantry located on State Highway 105 near Vidor. She was on duty in the early hours of the morning of July 11, 1984, stocking shelves. A man came into the store and asked what time it was. The man walked around the store and looked at certain coolers. The female clerk started toward the cash register. As she approached the register, the man came up behind her with a knife. The female clerk felt the knife in her back and heard the man to say, “I want all your money.” The register was opened and the man took the money out. The man told the female clerk, “You’re going with me.” They both started walking toward the front door. The man was behind the female clerk with a knife and with the money. The female clerk was instructed to get into a truck parked outside. When she got outside the door, she started screaming and running into Highway 105. She heard the squeal of tires as a truck left the parking lot. This female clerk (of the Country Pantry) identified the man who robbed her as being the Appellant. She testified that the Appellant wore a moustache on the night of the crime. The other victim, of the other extraneous offense, swore that her assailant wore a moustache.

The “other cases” involved female clerks and convenience stores. They were each alone in the stores. The events took place in the early hours of the morning. In the tried case and in the extraneous cases, money was taken from the store cash register. The victims were either abducted or an attempted abduction took place. Each extraneous affair showed assaultive behavior toward the female clerk. In two cases, a knife was brandished.

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Bluebook (online)
709 S.W.2d 746, 1986 Tex. App. LEXIS 7563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parsley-v-state-texapp-1986.