Concurring opinion issued June 12, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-02-00260-CR

KARENE MORTON THOMAS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 180th District Court

Harris County, Texas

Trial Court Cause No. 860452

CONCURRING OPINION

I concur in the result reached by the majority. However, because I disagree with the majority's conclusion that there were sufficient common distinguishing characteristics between the extraneous offense and the charged offense, I would hold that the trial court committed error in admitting the extraneous offense evidence.

To be admissible to show identity, an extraneous offense must be so similar to the offense charged that the offenses are marked as the accused's handiwork. Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App. 1996). Appellate courts take into account both the specific characteristics of the offenses and the time interval between them. Id. As well as basing a review of the admissibility of extraneous evidence on proximity in time, place and distinguishing characteristics, this Court must review the State's need for introducing the relevant evidence. Montgomery v. State 810 S.W.2d 372, 392 (Tex. Crim. App. 1990). I believe there was neither sufficient proximity, sufficient distinguishing characteristics, nor sufficient need to justify admission of the extraneous offense.

Proximity

Although the offenses were committed within a half-mile of one another, they were not proximate in time. One court observed that "as a general rule, the greater the time period between the charged and extraneous offenses, the greater the likelihood of error in admitting the evidence of the extraneous offense." Reyes v. State, 69 S.W.3d. 725, 740 (Tex. App.--Corpus Christi 2002, pet. ref'd.). The court illustrated this observation by listing (i) a number of appellate court cases, (ii) the time period between the charged and extraneous offenses, and (iii) whether the appellate court had found error in the trial court's admission of the extraneous offense. No hard and fast rule emerged. Nevertheless, an appellate court generally found no error in admitting the evidence of the extraneous offense in cases in which the offenses occurred within two months or less of one another. Upon appeal, most offenses separated by two months or more resulted in a finding of error by the lower court. Here, there was a lapse of 11 months between the two offenses. Because the two offenses in this case are not proximate in time, we are required to find stronger similarities showing that the offenses are the handiwork of one individual. The similarities here could be common to a number of offenses targeting elderly women, and the differences are significant.

The majority's reliance on Lane, a case in which the offenses occurred a decade apart in two different states, is misplaced because the similarities in Lane, unlike the similarities here, were extraordinary enough to overcome the lack of proximity. Among other similarities, the victims were young girls of approximately the same age who were abducted from public areas near their homes, sexually assaulted, and strangled to death. 933 S.W.2d at 517. In both offenses, the defendant acted with a co-actor, involved himself in the search for the victims, and claimed each girl's underwear as a trophy of the crime. Id.

Characteristics of the Offenses

The majority also relies on two cases in which the victim's age was a significant factor in the admission of the extraneous offense. In each of the cases cited, however, there existed a distinctive signature of the defendant unrelated to the age of the victims. In Pena v. State, the two burglaries were virtually identical. 867 S.W.2d 97 (Tex. App.--Corpus Christi 1993, pet. ref.d). The burglar entered through a back window, stole a television and jewelry, exited through the front door and used the same car, which was registered to his wife. Id. at 99. Likewise, in Contreras v. State, the robbery and aggravated sexual assault offenses were remarkably similar. 838 S.W.2d 594 (Tex. App.--Corpus Christi 1992, pet. ref'd). In both, the assailant broke into a house while the elderly couples were sleeping, extinguished any lights, hit the husband on the head, forced the wife to have oral sex, and then demanded money from the wife prior to leaving. Id. at 599-600.

In this case, there are no striking similarities such that we have the required distinctive signature of the defendant. Elderly women living alone are often the target of harassment, particularly at night. In this case, the harassment was the persistent ringing of Patton's doorbell, while Garrett was harassed by a peeping tom with a flashlight. Patton's phone line was cut and the assailant entered by breaking a window. The appellant did not cut Garrett's phone line nor did he show any intent to break the glass patio door. Moreover, tall black males with gold-rimmed glasses are hardly unusual in our community. The two offenses here have even less in common than the two offenses in Reyes where the burglaries and sexual assault offenses occurred approximately seven months apart and in each case the assailant fondled a woman sleeping with a child. 69 S.W.3d at 739. The Reyes court concluded that the trial court erred in admitting the extraneous offense because the danger of unfair prejudice substantially outweighed the probative value of the extraneous offense evidence. Id. at 741.

State's Need to Introduce the Evidence

It is a fundamental tenet of our criminal justice system that an accused may be tried only for the offense for which he is charged and not for being a criminal generally. Owens v. State, 827 S.W.2d 911, 914 (Tex. Crim. App. 1992). Rule 404(b) incorporates this tenet by prohibiting the admission of extraneous misconduct evidence that shows nothing more than the accused's general propensity to commit criminal acts. Tex. R. Evid. 404(b); Owens, 827 S.W.2d at 914. Rule 404(b) also provides exceptions to the rule allowing the admission of extraneous offense to show, inter alia, proof of identity. I emphasize that this is an exception to Rule 404(b). The majority in this case, by lowering the established standards to invoke the exception, appears to decide that the exclusion of extraneous offenses is the exception, not the rule. I suggest that such a decision eviscerates the carefully crafted interpretation of the exception by this and other appellate courts. The majority has determined that common characteristics are not really important if the perpetrator of the extraneous offense is identified as the person accused of the charged offense. Moreover, the majority ignores Montgomery's caveat that prior to allowing the exception, a court must review the State's need to introduce the extraneous offense. Montgomery, 810 S.W.2d at 392.

There was little, if any, need for introduction of the extraneous offense. The evidence presented at trial, excluding the evidence of the extraneous offense, was sufficient to link the appellant to the burglary and attempted sexual assault. Patton was able to describe the intruder accurately, assist in providing a sketch resembling the intruder, which was introduced into evidence, and to identify appellant as the intruder, although with the caveat that she could not "swear to it." Most importantly, appellant, in his confession, provided specific details of the crime that only the perpetrator would know. Thus, the State had abundant evidence of appellant's guilt and no need to introduce the extraneous offense.

Because I would hold that the trial court erred in admitting the extraneous offense based on the issue of identity, but that the error was harmless in light of the abundant evidence of guilt, I concur only in the judgment.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Keyes, and Higley.

Publish. Tex. R. App. P. 47.2(b).