Bevers v. State

• Decision Date: 31 May 1991
• Docket Number: No. 2-89-302-CR,2-89-302-CR
• Citation: 811 S.W.2d 657
• Parties: Lanny Gene BEVERS, Jr., Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 657

811 S.W.2d 657

Lanny Gene BEVERS, Jr., Appellant, v. The STATE of Texas, State.

No. 2-89-302-CR.

Court of Appeals of Texas Fort Worth.

May 31, 1991.

Discretionary Review Refused

Oct. 2, 1991.

Donald S. Gandy, Fort Worth, for appellant.

Tim Curry, Crim. Dist. Atty., and David K. Chapman, Asst. Dist. Atty., for appellee.

Before JOE SPURLOCK, II, FARRIS and DAY, JJ.

OPINION

JOE SPURLOCK, II, Justice.

On November 9, 1989, appellant, Lanny Gene Bevers Jr., was found guilty of aggravated sexual assault plus one felony enhancement and was sentenced to life in the state penitentiary plus a $10,000 fine. TEX.PENAL CODE ANN. sec. 22.021 (Vernon 1989) and TEX.PENAL CODE ANN. sec. 12.42(c) (Vernon Supp.1991).

Appellant pled "not guilty" in a trial to a jury. The court assessed punishment and ordered that the sentence not commence until the judgment and sentences on two prior convictions, one for aggravated sexual assault, and the other for retaliation (TEX.PENAL CODE ANN. sec. 36.06 (Vernon Supp.1991)), both ceased to operate.

Appellant complains in six points on appeal that the trial court erred in admitting evidence of a prior conviction for aggravated sexual assault of the same victim occurring seven years before the assault for which he was on trial. In a seventh point, he argues that the trial court erred in admitting evidence that he had made threatening phone calls to the victim following the present assault. In his eighth and ninth points, he contends that the trial court erred in failing to dismiss the indictment in this matter. He argues an impermissible delay in presentment of the indictment operated to deprive him of his constitutional rights to due process.

We disagree with all nine points on appeal and affirm the judgment of the trial court.

Appellant's points all relate to either the admission of extraneous offenses or to the constitutionality of the State's delay in prosecution. Appellant does not challenge the factual basis of this prosecution.

The complainant in this case was awakened from deep sleep by a loud noise--a man had kicked in her bedroom door sometime after 2:58 a.m. on September 8, 1984. The intruder was wearing a stocking mask and was armed with both a knife and a gun.

The masked intruder leaped at the complainant and grabbed her as she tried to get away. In what the complainant later described as a gruff, crackling voice the man told her not to scream, to shut up and to roll over on her stomach. She complied with his commands as he then threatened to shoot her in the head. He then hit her twice in the head with his gun, causing blood to gush into her eyes.

The complainant struggled to get free of her assailant, who by now was on top of her holding her down in a vise grip. As the intruder held the victim's right hand behind her back, he forced the knife through her wrist and worked the blade back and forth severing the woman's right thumb in a manner she described as if he were boning a chicken. She only later realized that her thumb had actually been cut off when, momentarily escaping her attacker and running to the kitchen, she discovered she could not turn a door knob with her right hand. As she managed to open the door with her left hand, though she was right handed, her attacker pulled her back into the kitchen and the two fell to the floor.

The assailant then asked the complainant her name. When she replied, inventing the name "Sally," he said, "No, you're not Sally," and then called her by her true first name. ¹ When he asked about her daughter the complainant falsely told him she was staying with friends.

The assailant wanted the complainant to clean the blood off herself, so he pulled her by her hair to the bathroom, posed her in front of the mirror, shoved his gun under her chin so hard that he bruised her deeply, and began to shake and quiver as he instructed the woman to look at herself, not at him. He then ordered her into the bathtub to clean up. He repeatedly forced her right hand under water, even though this increased the bleeding.

After threatening to kill the complainant, the man wandered toward her daughter's bedroom door, in view of the bathroom. He partially opened the door several times, then closed it, causing the complainant to fear for her daughter's life.

The complainant pretended to faint, then tried again to get out of the house and away from her attacker. She ran to the front door but the assailant reached her before she could get out. She then ran to her bedroom to try to use the telephone, but the line was dead. She later learned that her assailant had removed the kitchen phone extension from its hook. Her unlisted telephone number was visible on both extensions. That fact became significant when evidence of threatening phone calls made by appellant to the victim months after the attack was introduced.

During her attempts to escape her attacker she noticed a cigarette lighter on the floor and thought it odd; it had not been there before and no one in her family was a smoker.

The complainant continued trying to escape, despite her assailant's efforts to get her back into the bathtub. She ran through the living room and hall and to the door to the garage in the kitchen where her assailant slammed the kitchen door into her leg, breaking it in two places. She collapsed on the floor and awoke to find him hitting the kitchen table with a large knife.

The man then sexually assaulted the complainant. The particular facts of the assault are significant since one purpose for the trial court's admission of evidence of the earlier rape conviction was to show the identity of the attacker by showing the similarity of the two crimes. He first inserted two fingers into her vagina, then forced his limp penis into her vagina. Next, he forced his penis into her anus and then her mouth. Finally he performed oral sex on her. At no time did he ejaculate.

The rapist then jerked the complainant up by her hair, urging her to walk on her broken leg. She kept falling and he kept pulling her up. Though the woman could not walk, the rapist ordered her back to the bathtub to clean up again. Prodded by her attacker, the woman managed to pull herself back into the tub.

While she was in the tub, he went back to the door of her daughter's room and again opened and closed the door several times. The rapist then took towels from a linen closet and, wiping the floor in a broad circular pattern, attempted to clean the spilled blood from the bathroom and hallway.

As the rapist cleaned, the complainant managed to get out of the bathtub and crawled all the way to the garage before he caught her in front of her car. The assailant then threw her onto a pile of bags in the garage and began wiping up the garage floor as he had tried to clean the bathroom. The complainant managed to crawl out through the slightly open garage door and slowly make her escape to the nearby home of her neighbors. They called the police at approximately 5:22 a.m.

Testimony established that the cigarette lighter found on the floor of the complainant's bedroom contained fingerprints identified as appellant's.

In his first five points on appeal appellant argues that evidence of his 1977 conviction for rape of the same victim should not have been admitted. He complains that admission of the evidence impermissibly bolstered the testimony of the victim as to identification of the appellant, that the evidence should have been excluded because the probative value of the evidence was outweighed by its prejudicial effect, that the admission of the evidence deprived appellant of his state and federal constitutional rights to due process, and that the admission invaded the province of the jury.

The victim never identified the appellant as her attacker. The identity of the rapist was established through circumstantial evidence, part of which was the evidence that he had previously raped the same victim in a similar manner. The first point on appeal, in which appellant claims that the extraneous offense impermissibly bolstered the victim's identification of the appellant, is without merit.

It is arguable that admission of appellant's prior conviction for rape served to bolster the victim's identification of him as her attacker in 1977. However, as discussed in connection with other points on appeal, the fact that appellant had already been incarcerated for raping the same victim seven years earlier provided his motive for the second crime.

Obviously the admission of evidence that an accused being tried for a brutal rape had already been convicted of aggravated sexual assault of the same victim is highly prejudicial. See TEX.R.CRIM.EVID. 403. Rule 403 allows exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

The general rule is that extraneous offenses are inadmissible unless the purpose of admission falls within a few recognized exceptions. Kelley v. State, 677 S.W.2d 34 (Tex.Crim.App.1984). The exceptions to the general rule are enumerated under TEX.R.CRIM.EVID. 404(b). According to rule 404(b), evidence of prior convictions may not be admitted to show character, but may be admitted to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

As appellant notes, the purpose for allowing evidence of extraneous offenses for purposes of showing identity is to allow the State to show that certain distinguishing features are shared between the extraneous offense and the present offense. The distinguishing feature should be of such a unique character that if the extraneous offense were committed by the accused then the present one probably was as well. Both crimes, in other words, bear the unique signature of one offender. See e.g., Russell v. State, 665 S.W.2d 771 (Tex.Crim.App.1983).

Appellant concedes that the State is entitled to attempt to show similarities between the...