Bishop v. State

• Decision Date: 24 November 1993
• Docket Number: Nos. 1516-92,1517-92,s. 1516-92
• Citation: Bishop v. State, 869 S.W.2d 342 (Tex. Crim. App. 1993)
• Parties: Terry Joe BISHOP, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 342

869 S.W.2d 342

Terry Joe BISHOP, Appellant, v. The STATE of Texas, Appellee.

Nos. 1516-92, 1517-92.

Court of Criminal Appeals of Texas En Banc.

Nov. 24, 1993.

Rehearing Denied Feb. 2, 1994.

Thomas D. Glenn, Conroe, for appellant.

Daniel C. Rice, Dist. Atty., and Kathleen A. Hamilton, Asst. Dist. Atty., Conroe, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON THE STATE'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

A jury found Appellant guilty of three counts of Aggravated Sexual Assault and one count of Burglary of a Habitation and assessed his punishment for each of the offenses at confinement for life and a $10,000 fine. The jury also made an affirmative finding of the use or exhibition of a deadly weapon. The Court of Appeals reversed Appellant's conviction in Bishop v. State, 837 S.W.2d 431 (Tex.App.--Beaumont 1992), and remanded the case to the trial court. The State brings this petition on three grounds for review challenging the Court of Appeals decision. We granted review on two interrelated grounds to review the Court of Appeals' determination that the admission of evidence of Appellant's sexual practices and capabilities was harmful error and that such sexual practices amounted to extraneous misconduct. We will affirm the decision of the Court of Appeals.

In September of 1990, the victim in this case was awakened in the early morning hours by a man with a knife who threatened her life, and that of her children, and forced her to engage in numerous acts of oral, anal, and vaginal intercourse over the course of approximately one to one and one-half hours. The man also forced the victim to fondle herself to show him "what made [her] feel good". According to the victim, as well as testimony based on medical evidence, the assailant did not ejaculate during the attack.

Circumstantial evidence was introduced in the trial which implicated Appellant, but there was no positive identification. The victim testified that she had been blindfolded during the attack and that her assailant had worn a covering over his head and coverings on his hands.

During Appellant's case-in-chief, the State, over strenuous objection, asked Appellant's ex-wife whether Appellant had liked to engage in anal intercourse from time to time; whether Appellant had required her to perform sexual acts such as fondling herself; and whether Appellant was capable of performing sexually for an extended period of time without ejaculating. The witness answered all three questions in the affirmative.

On appeal, the Ninth Court of Appeals agreed with Appellant that the trial court erred in admitting the above evidence of Appellant's sexual "proclivities and practices", holding that, while the evidence was relevant to the case, it was more prejudicial than probative. The Court of Appeals also held that such sexual practices, while not amounting to an extraneous "offense", did rise to the level of extraneous "misconduct".

In its first ground for review, the State challenges the intermediate court's holding that it was harmful error to admit the following exchanges.

Q. (State) Ms. S____, you are already aware of what we are about to go into and I apologize. I know this might be embarrassing, but I think I need to ask you this. During the course of your relationship with Terry Joe Bishop, did he like to engage from time to time in anal intercourse?

A. (Witness) Yes, sir.

Q. (State) During the course of your relationship in order to satisfy himself, did Terry Joe Bishop ever ask you or require you to perform sexual acts such as fondling on yourself?

A. (Witness) Yes, sir.

MR. SPEERS (State): Pass the witness.

MR. GLENN (Defense): Nothing further, your Honor.

MR. SPEERS (State): Excuse me. I have one more question your Honor.

THE COURT: All right.

Q. (State) Was Terry Joe Bishop during the course of your relationship capable of performing sexually for an extended period of time without ejaculating?

A. (Witness) Yes, sir.

The State argues that the Court of Appeals incorrectly analyzed this issue under TEX.R.CRIM.EVID. 404(b). The State contends that the acts testified to by Appellant's ex-wife did not constitute misconduct and therefore an analysis under that rule is inappropriate.

The plain language of Rule 404(b) speaks to "other crimes, wrongs, or acts" (our emphasis). There is no requirement that the evidence must be that of another criminal offense or even misconduct in order to fall within the purview of Rule 404(b). The intent of this rule is to prevent the introduction of evidence to prove the character of a person in order to show that he acted in conformity with that character. This prohibition applies as equally to evidence of extraneous acts or transactions as it does to evidence of extraneous offenses. See Plante v. State, 692 S.W.2d 487 (Tex.Crim.App.1985); Crawley v. State, 513 S.W.2d 62 (Tex.Crim.App.1974).

We therefore consider the exchanges to be, at a minimum, evidence of extraneous acts and find that analysis under Rule 404(b) is permissible.

The State next argues that even if Rule 404(b) is the correct standard, the evidence was admissible to rebut Appellant's defensive theory and to prove the assailant's identity under the "identity" exception of Rule 404(b). We disagree.

The State asserts that it introduced the evidence in question in order to rebut Appellant's defensive theory that he had been framed, and that a drug dealer whom he owed money to might have been the actual rapist. However, the trial record and the State's own actions in this case belie that argument. The record reflects that, in a pre-trial hearing, the State indicated to the trial judge that it was considering offering evidence of Appellant's sexual practices with his ex-wife in order to help prove the identity of the assailant. Although the State ultimately did not offer such evidence in its case-in-chief, it did proceed to be the first party to introduce to the jury Appellant's assertions about a drug dealer being the actual culprit. When the defense then called Appellant's ex-wife to the stand, the State, on cross-examination, asked her questions about Appellant's sexual practices under the guise of rebutting Appellant's theory that a drug dealer had committed the crime and then framed Appellant--a story which the State itself had implanted in the jury's mind. This hardly constitutes "rebuttal". Moreover, the State may not rely on its own questioning as an invitation to rebuttal. Hatley v. State, 533 S.W.2d 27, 29 (Tex.Crim.App.1976).

The State also argues that the evidence was admissible under the identity exception of Rule 404(b).

In Montgomery v. State, 810 S.W.2d 372, 387-388 (Tex.Crim.App.1990), this Court signaled its intent to eschew formalistic determinations of whether extraneous offenses or actions fell into one of the six categories of exceptions identified in Rule 404(b) in favor of a more general analysis of whether the evidence had relevance apart from character conformity. We held that a party may introduce such evidence when it logically serves to make more probable or less probable an elemental fact or an evidentiary fact that inferentially leads to an elemental fact. Montgomery, at 387. Using this standard, the evidence was relevant to prove identity.

This, however, does not end the inquiry. We must next consider whether the probative value of this evidence was substantially outweighed by its prejudicial effect. See Montgomery, at 391-393.

The traditional rule in regard to the admission of extraneous acts for the purpose of showing identity is that the acts sought to be admitted must be so...