Collazo v. State
Collazo v. State
Opinion of the Court
OPINION
A jury found the appellant guilty of sexual abuse and assessed a punishment of confinement for twelve years. The question presented is whether the trial court erred in admitting evidence of an 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 v ith 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*648 specified 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).
“Extraneous transactions constituting offenses shown to have been committed by the accused may become admissible upon a showing by the prosecution both that the transaction is relevant to a [contested,] material issue in the case [and that] the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Ruiz v. State, 579 S.W.2d 206 (Tex.Cr.App. 1979); Jones, supra.”
When identity has become a contested, material issue, as it did in this case, there must be a showing that the extraneous offense which was committed by the defendant was “so nearly identical in method [to the instant offense] as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.” E. Cleary, McCormick’s Handbook of the Law of Evidence 449 (2d ed. 1972). If there is no sufficiently distinctive characteristic, then the relevancy of the evidence cannot outweigh its prejudicial potential. See Ford v. State, 484 S.W.2d 727 (Tex.Cr.App. 1972). Each case inevitably will turn on its unique facts.
In this case the victim was a woman of about 43 years.
To prove that the appellant was the same person who abused the victim, the State was allowed to present evidence of an extraneous offense that had taken place about a year later. The victim of this offense was Carolyn Glowka, a woman of about 30 years.
The State also presented the testimony of a psychiatrist who responded to hypothetical questions that were similar (albeit not identical) to the facts of the two offenses. His opinion was that there was a common motive for the two offenses — to achieve sexual gratification. He was of the opinion that the two offenses were both sexual deviations and had a common element of sadism in which another person was attacked and overpowered. He was of the opinion that the perpetrators of such acts were sexually immature and needed the risk of being caught as a stimulus to be sexually aroused. In his opinion the taking of the shoe was a classic instance of shoe fetishism.
In its brief the State argues that “there is a patent similarity to the offenses.” As we understand the evidence,
What we are left with is that both assaults were made on adult women as they were returning to their automobiles in public places. Was this feature so distinctive as to be the appellant’s signature? Was it so relevant to the issue of identity — so capable of proving that the appellant, who committed the extraneous offense, must have been the same man who committed the alleged sexual abuse — that its value to the jury outweighed the prejudicial effect which inevitably accompanied it? We hold that it was not.
DALLY, J., concurs in the results.
. The victim testified on June 13, 1977, that she was 46 years old. The offense was alleged to have occurred on October 4, 1974.
. “Yes, I told him that Jesus loved him and forgave him, and that I forgave him also. And I also asked him what a nice young man like he was — why was he doing this to me. And when he got out of the car to leave, he looked at me and smirked, and said, ‘Jesus loves you, too, lady.’ ”
.Glowka testified on June 16, 1977, that she was 32 years old. The extraneous offense occurred on October 9, 1975.
. The State’s brief lists seven characteristics which are supposed to be common to both offenses: “sadist acts, in parking lots, with others present, on middle aged women, approached from the back, with desire to humiliate, at expense of being caught.” This list is not well grounded in the evidence. Only one offense took place in a parking lot; only one involved a middle-aged woman, as that term is usually understood; only one woman was approached from the back, Glowka having expressly denied being approached from the back (S.F. 580); and the State’s expert testified that these offenses (as opposed to sadism in the abstract) involved “overpowering” (R. 603), not humiliating. It also will be noted that “with others present” and “at expense of being caught” are merely two ways of characterizing the same evidence in this case, as would be “sadistic” and “with desire to humiliate.”
. In fact the prosecutor made that exact argument to the jury:
“Ladies and gentlemen, I’ll admit to you that a normal person doesn’t go and steal somebody’s shoe, and doesn’t get any sexual gratification out of stealing a shoe. But a normal person also doesn’t sne ik up on a woman in a parking lot after a football game and force her to commit oral sodomy at knifepoint by threatening her' grandson. And I submit to you that this is not a normal Defendant; that he’s the same sort of — I hesitate to use the word ‘sick’, but the same type of person that would do that thing in San Antonio as would do the horrible act that was done on Mrs. ... right here at Antler Stadium.”
Concurring Opinion
concurring.
I concur in the result reached although I do not agree with all that is said in the opinion authored by Judge Roberts. The extraneous offense, under the circumstances, should not have been admitted over the objections offered.
Reference
- Full Case Name
- Faustino COLLAZO, Jr., Appellant, v. the STATE of Texas, Appellee
- Cited By
- 92 cases
- Status
- Published