Williams v. State

481 S.W.2d 815, 1972 Tex. Crim. App. LEXIS 2098
Court of Criminal Appeals of Texas·Decided February 23, 1972·No. 44437·Published·Cited by 9 cases

Opinions

OPINION

DALLY, Commissioner.

The conviction was for a violation of Article 535c, Vernon’s Ann.P.C.; knowingly and intentionally exposing with lascivious intent his private parts to a person under the age of sixteen years. The punishment, five years.

The appellant’s only ground of error is “The trial court committed reversible error in permitting the state to introduce evidence of an extraneous offense . . . ”

Two girls under the age of sixteen years testified that at approximately 7:45 p. m., June 13, 1969, they were walking to the drugstore near the home of one of the girls. The appellant, driving a white automobile, drove up beside them and asked them if they wanted a ride. One of the girls said “no”. The other girl who was closer to the curb looked to see who was in the car. She saw the appellant, who was nude from the waist down. He was holding his private parts “using his hands to make sure she could see it.” She screamed at her companion “don’t look — just run.” The girls ran from the scene. They ran toward a store to make a telephone call to the mother of one of the girls. The appellant again drove by, laughing at them. The girls observed and remembered the license plate number on the appellant’s automobile to be GYW-916. Soon after the offense was committed, the girls related to a police officer what had occurred.

Appellant did not testify; he offered evidence attempting to prove an alibi.

Kate Ward, manager of a motel in Ar-ansas Pass which she said was 150 miles from San Antonio, testified appellant, his wife and mother arrived at the motel at 6:30 or 7:45 p. m. on June 13, 1969. She thought they arrived in a pickup. The appellant’s father, she said, arrived at the motel at about daybreak Saturday morning, June 14, 1969.

The appellant’s mother testified that the appellant, his wife and she left San Antonio about 3:00 p. m. June 13, 1969, in her husband’s pickup and arrived in Aransas Pass at 6:30 to 7:00 p. m. Her son was not out of her sight until after 9:00 p. m. that evening. She testified her husband arrived the next day in Aransas Pass at about daylight. He was driving her son’s cream colored Buick automobile which had been parked across the street from her house when they left San Antonio. She said her husband left Aransas Pass for San Antonio at noon Sunday, June 15, 1969, driving the pickup and taking the boat to leave it at Rockport on his way to San Antonio. Appellant’s mother said that the appellant, his wife and she left Aran-sas Pass in the Buick automobile and drove to Brownsville to visit her mother. They arrived on the evening of the 15th. She said that they remained in Brownsville until June 21, 1969, and that Brownsville was a 5½ hour drive from San Antonio. During the time they were in Brownsville, the appellant was not out of her sight for more than two hours at a time. On June 21, 1969, the appellant, his wife and she [817]*817drove from Brownsville to Rockport. Several checks signed by the appellant’s mother which had been dated and negotiated during the time of their trip at various places before they returned to San Antonio on June 24, 1969, were introduced into evidence.

The appellant’s father testified that he drove a tan or cream colored 1962 model Buick automobile belonging to the appellant John Williams to Aransas Pass. He said this automobile had been parked iacross the street from his house in San Antonio with the keys in it before he started his trip to Aransas Pass at 3:00 a. m. on Saturday, June 14, 1969. He said the appellant usually drove the Buick automobile. Appellant’s father did not see the Buick automobile he left with his family on June 15th until he rejoined them in Rockport on June 21, 1969. He also testified the appellant’s wife’s name was Antoinette.

In rebuttal the State offered the testimony of a fifteen-year-old girl showing she and her girlfriend were walking down a street in San Antonio on the afternoon of June 18, 1969. A white car pulled up beside them and the man driving the car asked if they would like to earn some money. When the girls looked toward him, they observed that he had on no clothes and he was laughing at them. They were unable to identify the appellant as being the driver of that automobile. They were unable to describe the make and model of the automobile but thought that it was a four-door automobile. They did memorize and report to Officer Fleming that the license number on the automobile was GYW-916 and that the driver was an Anglo male, 25 to 28 years old with curly hair who needed a shave.

The custodian of the records of the Automobile Department of the Bexar County Tax Assessor-Collector’s Office testified that the automobile for which the license plate GYW-916 had been issued was a 1962 four-door Buick automobile, registered in the name of Antoinette G. Williams.

The appellant specifically urges that “The evidence relative to the extraneous offense could not be brought within any of the recognized exceptions to the rule which forbids the introduction of evidence of extraneous offenses”; that it was error for the trial court to admit evidence of the details of any extraneous offense; and that the State failed to prove that the appellant was the “perpetrator” of the extraneous offense.

“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of the person or crime, intent, motive, scienter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him.” 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300-301; and see Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1969) and Blankenship v. State, 448 S.W.2d 476 (Tex.Cr.App.1969).

A closely related rule is that:

“If evidence is competent, material and relevant to the issues on trial, it is not rendered inadmissible merely because it may show that the defendant is guilty of another crime.” 1 Wharton, Criminal Evidence Sec. 233 (12th ed. 1955); 1 Branch’s Ann.P.C. Sec. 188 (2d ed. 1956).

The appellant offered detailed alibi evidence to account for his presence from 3:00 p. m. June 13, 1969, until June 24, 1969. A considerable amount of this evidence offered concerned the whereabouts of the Buick automobile. Both direct and circumstantial evidence showed it to be the automobile used by the appellant during the commission of the offense for which he was charged. Evidence to show the location of the Buick automobile became rel[818]*818evant because of the alibi evidence offered by appellant. The State had the right to attack and attempt to disprove the appellant’s evidence as to the whereabouts of the automobile. The State’s evidence showed the automobile to be in San Antonio on the afternoon of June 18, 1969, where it was seen by the two young girls.

There is a distinction not often recognized between the offering of evidence to rebut a defensive issue such as alibi which incidentally tends to show or does show the commission of an extraneous offense and the offering of proof of an extraneous offense for the purpose of showing intent, system or scheme, motive, absence of mistake or identity.

The distinction, however, was recognized by Presiding Judge Hawkins in Ivey v.

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Williams v. State, 481 S.W.2d 815, 1972 Tex. Crim. App. LEXIS 2098 (Tex. 1972).

481 S.W.2d 815 (Williams v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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