Blakeney v. State

• Decision Date: 15 November 1995
• Docket Number: No. 03-94-00078-CR,03-94-00078-CR
• Citation: Blakeney v. State, 911 S.W.2d 508 (Tex. App. 1995)
• Parties: Perry White BLAKENEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 508

911 S.W.2d 508

Perry White BLAKENEY, Appellant, v. The STATE of Texas, Appellee.

No. 03-94-00078-CR.

Court of Appeals of Texas Austin.

Nov. 15, 1995.

F.N. "Trey" Brown, III, Burnet, for appellant.

Sam Oatman, District Attorney, Steve Keathley, Assistant District Attorney, Llano, for appellee.

Before CARROLL, C.J., and JONES and B.A. SMITH, JJ.

JONES, Justice.

This is an appeal from a conviction for aggravated sexual assault of a child. See Tex.Penal Code Ann. § 22.021 (West 1994). ¹ A jury found appellant Perry White Blakeney guilty of the charged offense and assessed punishment at 99 years' imprisonment and a fine of $10,000. We will reverse the conviction and remand the cause to the trial court for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant lived next door to the seven-year-old victim and his parents. One morning near the end of October 1992, the parents discovered that the child was missing. After a search of the neighborhood, he was eventually found hiding under some weeds, partially unclothed, with some of his clothes scattered on the ground. According to his mother, the child was withdrawn and refused to talk. At some point, the child's disappearance was reported to the police. Although he had already been found, on November 2, 1992, Officer Saldana of the Burnet County Sheriff's Department began investigating the report of the missing child. At Officer Saldana's request, the parents went to the sheriff's office to discuss the events surrounding the child's disappearance. After thirty minutes of questioning by Officer Saldana and another thirty minutes of questioning by a Department of Human Services case worker, the child still had not revealed any information regarding the events of his absence. According to Officer Saldana, during both interviews the child's demeanor was fine until he was asked about his disappearance. Upon being asked about his disappearance, however, he became shy and withdrawn. No allegation of sexual assault and no accusation that appellant had done anything wrong was made during either interview.

Nonetheless, Officer Saldana and Deputy Hollingsworth visited appellant's house later that day, because Officer Saldana had a "bad feeling" about the case. Before questioning began, appellant was given Miranda warnings. When questioned about the child's disappearance, appellant denied any knowledge of the incident. At some point during the interview, appellant told the officers that he was bisexual/homosexual and had been to prison before. Appellant also related that the child had once grabbed appellant's penis while he was cooking. On another day the child had disrobed and jumped in a wheelbarrow full of water, whereupon appellant had told him to get dressed and go home. Appellant also stated to the officers that it was "not his fault" and that the child was being "forward." At some point, the officers asked appellant if he would be willing to continue the interview at the Sheriff's Annex in Marble Falls. Appellant consented, and the interview continued at that location. Deputy Hollingsworth observed that, during questioning about the child's disappearance, appellant appeared to have an erection. Appellant denied having an erection and refused to answer any further questions. Officer Saldana returned appellant to his home. Immediately thereafter, Officer Saldana contacted the parents and asked them to bring the child back to his office the next morning.

The next day, Officer Saldana's attempts to question the child about appellant resulted in his crying and acting withdrawn. The child initially made no statements about appellant, but during a break told his mother that appellant had "touched [the child] on his penis, and [appellant] put his finger in [the child's] butt." Based on this information, appellant was arrested.

DISCUSSION

Date of Offense

In his second point of error, appellant complains that there was insufficient evidence to prove that the alleged offense occurred before presentment of the indictment. ² The State must prove that a charged offense occurred prior to the indictment. See Scoggan v. State, 799 S.W.2d 679, 680 (Tex.Crim.App.1990). The State is not bound to prove the exact date of the commission of an alleged crime and may allege that a crime occurred "on or about" a given date. See Thomas v. State, 753 S.W.2d 688, 693 (Tex.Crim.App.1988). A conviction will be sustained if the State proves that the offense was committed before, on, or after the date alleged, so long as the date of the offense is before presentment of the indictment and the crime's occurrence is not so remote as to be barred by limitations. See Scoggan, 799 S.W.2d at 680 n. 3; Gray v. State, 726 S.W.2d 640, 643 (Tex.App.--Fort Worth 1987, no pet.).

The indictment, filed on December 15, 1992, alleged that the offense occurred "on or about the 24th day of October, 1992." At trial, none of the State's witnesses could pinpoint with certainty the exact date of the offense. However, all the testimony presented indicates that the offense occurred around the end of October or beginning of November 1992, well before presentment of the indictment. The victim's mother testified that the child's first outcry statement occurred on November 3, 1992. At that time, the child related to her the events of past occurrences of sexual assault at the hands of appellant. The victim's father testified that the child's absence for several hours one morning occurred in mid to late October. Although the child's own testimony is not precise as to when the sexual assault occurred, it does indicate that it took place around the time that he was missing. Officer Saldana testified that the parents reported the child's absence on October 19, 1992, and that he began investigating the case a few days before November 2, 1992. We conclude that the record contains sufficient evidence for the trier of fact to find beyond a reasonable doubt that the charged offense occurred before presentment of the indictment. We overrule appellant's second point of error.

Extraneous Crimes, Wrongs, or Acts

In his first point of error, appellant complains that the trial court erred in allowing the State to introduce in its case-in-chief evidence of alleged extraneous crimes, wrongs, or acts committed by appellant. Specifically, appellant complains of the admission of statements he made to investigating officers before his arrest that (1) he was bisexual/homosexual; (2) he had been in prison before; (3) one day the child had grabbed appellant's penis while he was cooking; (4) another day the child had disrobed and jumped in a wheelbarrow in front of appellant, and he had told the child to go home; and (5) the child was at fault because he was being forward. Appellant also complains of the investigating officer's testimony that appellant appeared to have an erection during questioning about the child's disappearance. Having properly objected at trial, appellant argues that all of the foregoing evidence should have been excluded by the trial court because it was irrelevant (Tex.R.Crim.Evid. 401, 402), because it constituted impermissible character evidence (Tex.R.Crim.Evid. 404(b)), and because its probative value was substantially outweighed by the danger of unfair prejudice (Tex.R.Crim.Evid. 403). ³

The trial court has discretion to exclude or admit evidence. Montgomery v. State, 810 S.W.2d 372, 379 (Tex.Crim.App.1990). An appellate court should not set aside the trial court's rulings absent a showing in the record that the trial court abused its discretion. Id.

(a) Relevance.

The Texas Rules of Criminal Evidence favor the admission of all logically relevant evidence. Id. at 375; Tex.R.Crim.Evid. 402. If evidence has any tendency to make the existence of any fact of consequence to the determination of the action more or less probable, it is relevant. Montgomery, 810 S.W.2d at 387; Tex.R.Crim.Evid. 401. Establishing the relevancy of an extraneous act is only the first step, however, in the trial court's determination of whether the evidence should be admitted. Rogers v. State, 853 S.W.2d 29, 32 (Tex.Crim.App.1993) (opinion on reh'g); Montgomery, 810 S.W.2d at 375; Tex.R.Crim.Evid. 401. Relevancy is not an inherent characteristic, but arises from the relation of the evidence to a matter properly provable in the case. Montgomery, 810 S.W.2d at 375. If evidence tends to make an elemental fact more or less probable, or if it inferentially supports or challenges an elemental fact, it is relevant. Id. at 387; Tex.R.Crim.Evid. 401. Because reasonable persons may differ when determining whether a particular inference arises from a piece of evidence, we will not disturb the trial court's ruling as long as it is within the "zone of reasonable disagreement." Rogers, 853 S.W.2d at 32; Montgomery, 810 S.W.2d at 391. If logically relevant, the evidence will be admissible unless the opponent demonstrates that it should be excluded because of some other constitutional, statutory, or evidentiary provision, such as Rule 404. Montgomery, 810 S.W.2d at 391.

The State argues that because the sexual assault victim was male, evidence of appellant's bisexuality/homosexuality is relevant to show appellant's propensity to seek out a male child as a sexual partner. The evidence that appellant is at times attracted to males could arguably make it more probable that appellant would be inclined to sexually assault a male child rather than a female child. It does not necessarily follow, however, that because appellant is attracted to adult males he also seeks out male children as objects of his sexual desire. Because the sex of the child victim in the present case is consistent with appellant's sexual preference, however, we will assume without deciding that reasonable persons could differ when determining whether to accept an inference that a bisexual/homosexual is likely to seek out same-sex child partners. Based on that assumption, we...