Silva v. State

831 S.W.2d 819, 1992 WL 7977
CourtCourt of Appeals of Texas
DecidedFebruary 20, 1992
Docket13-91-032-CR, 13-91-033-CR and 13-91-034-CR
StatusPublished
Cited by16 cases

This text of 831 S.W.2d 819 (Silva 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
Silva v. State, 831 S.W.2d 819, 1992 WL 7977 (Tex. Ct. App. 1992).

Opinions

OPINION

KENNEDY, Justice.

A jury found appellant guilty of one count of aggravated sexual assault and two counts of sexual assault. The trial court assessed appellant’s punishment of prison terms running concurrently at fifteen years for the aggravated sexual assault and two ten-year prison terms for the two sexual assaults. Appellant raises seven points alleging various reversible errors by the trial court. We affirm the trial court’s judgments.

By one indictment, appellant was charged with committing one count of aggravated sexual assault and two counts of sexual assault against his stepson. During [821]*821the State’s case-in-chief, over appellant’s objection, and following a hearing, the judge allowed the State to introduce testimony by the stepson of prior sexual offenses appellant committed against him. By point six, appellant claims that this constitutes reversible error.

Appellant was indicted for an alleged aggravated sexual assault against his thirteen-year-old stepson which occurred on appellant’s birthday, October 11, 1987. Additionally, appellant was indicted for sexual assault which allegedly occurred on January 31,1988, appellant’s stepson’s birthday, and also for sexual assault which allegedly occurred on April 19, 1989, while appellant and his stepson were at home alone for a week.

At trial, appellant’s stepson, the complaining witness, testified about the three incidents alleged in the indictment. Additionally, he testified that appellant had been sexually molesting him since he was four or five years old. He testified that appellant forced him to commit sexual acts when his mother and sisters were not at home. He also testified that when he was about six or seven, appellant took him hunting in orchards nearby their house and forced him to commit sexual acts. He testified that his father would force him to commit sexual acts sometimes as often as three times a week. He testified that appellant always had him perform the same acts.

Appellant testified at trial and denied the offenses he was charged with by indictment. Appellant testified that he took his stepsons to the orchards to pick fruit and denied that he had ever forced the complaining stepson to commit sexual acts. Additionally, appellant testified that he had never been alone with his stepson. On cross-examination, appellant testified that in the twelve years that he had been the complaining witness’ stepfather, the only time he had been alone with him was when the two of them went shopping in town. He denied ever going hunting alone with his stepson.

Appellant’s wife testified on behalf of appellant. She testified that she did not believe her son’s testimony and that he was lying.

Appellant asserts that testimony by the complaining stepson is improperly before the jury because it relates to events outside the indictment. The testimony about which appellant complains is the stepson’s testimony that appellant had sexually molested him since the age of four or five and testimony relating to specific prior sexual offenses not alleged in the indictment.

The general rule is that an accused may not be tried for some collateral crime or for being a criminal in general. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). Therefore, an extraneous offense is not admissible unless the offense is relevant to a material issue in the case and the probative value outweighs the prejudicial effect. Montgomery v. State, 810 S.W.2d 372, 386 (Tex.Crim.App.1990) (opinion on rehearing). Texas recognizes a very narrow exception to the general rule of nonadmissability of extraneous offenses. Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.1985). This narrow exception is a sort of “res gestae” or context exception in cases involving sexual offenses committed against children. Id.

In the case before us, the court held a hearing out of the jury’s presence to determine whether evidence of appellant’s prior sexual offenses against his stepson other than what was alleged in the indictment would be proper. The State’s purpose for introducing the evidence was the “context principle” set out in Boutwell. 719 S.W.2d at 178. Appellant argued that evidence of extraneous offenses would be highly prejudicial and would only serve to inflame the jury. Appellant asserted at the hearing, and here on appeal, that the probative value of the evidence of extraneous offenses is outweighed by its prejudicial effect and should have been excluded. See Tex.R.Crim.Evid. 403.

The State relies on the narrow Boutwell exception permitting admission of similar extraneous sex offenses which occur between a minor complainant and the ac[822]*822cused. 719 S.W.2d at 178. The Boutwell court held that the extraneous acts are relevant and probative under the “res ges-tae” or context rationale from which they arose. Id. This is because generally, when a defendant denies the alleged sexual act or relationship, or undermines the State’s case, then there is a need for this type of evidence to “shore up” some portion of the State’s case. Id. When this is the case, the prior incestuous acts are more probative than prejudicial. Id. at 176. The court in Boutwell held that evidence of these particular types of extraneous offenses is admissible and can aid the jury in properly evaluating the testimony of a minor against an adult responsible for his welfare, or in a position of authority and control over the minor. 719 S.W.2d at 175.

Theoretically, this type of evidence may be introduced to counter the perceived societal aversion to the notion that parents would commit sex acts against their children. Id. Otherwise, a jury would hear, essentially, an incomplete version of the charged offense, as if it had occurred in a vacuum as a one-time act, and standing alone, coming from a child, might seem implausible or incredible. Id. The prerequisite to introduce extraneous offenses based on Boutwell, is that a defendant must deny such relationship or cross-examination must render the other offenses admissible. Id.

Because incestuous crimes usually occur in secrecy, the State’s case may depend on the credibility of the child complainant. Montgomery, 810 S.W.2d at 394. Therefore, when the accused calls that credibility into question, evidence of other identical or similar acts of sexual misconduct perpetrated by a parent against his child may well serve to show the context of the charged offense and to support the testimony of the child. Id.

We review whether the trial court abused its discretion in allowing testimony relating to extraneous offenses between appellant and his stepson. Montgomery, 810 S.W.2d at 386.

In this case, the extraneous offenses were introduced by the State during its case-in-chief, not, as the narrow exception in Boutwell would allow, as rebuttal evidence to a denial of the indicted offenses by appellant, nor to shore up its own case following appellant presenting evidence that would undermine the State’s case. Therefore, the evidence was untimely admitted by the trial court.

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Silva v. State
831 S.W.2d 819 (Court of Appeals of Texas, 1992)

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831 S.W.2d 819, 1992 WL 7977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silva-v-state-texapp-1992.