Brewington v. State

• Decision Date: 08 January 1986
• Docket Number: No. 08-84-00389-CR,08-84-00389-CR
• Citation: 702 S.W.2d 312
• Parties: Charles Casswel BREWINGTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 312

702 S.W.2d 312

Charles Casswel BREWINGTON, Appellant, v. The STATE of Texas, Appellee.

No. 08-84-00389-CR.

Court of Appeals of Texas El Paso.

Jan. 8, 1986.

Bryan H. Hall, Jeffrey C. Brown, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, for appellant.

Steve Simmons, Dist. Atty., El Paso, for appellee.

Before STEPHEN F. PRESLAR, C.J., and WARD and SCHULTE, JJ.

OPINION

SCHULTE, Justice.

This is an appeal from a conviction for indecency with a child. The jury assessed punishment at twenty years imprisonment. We affirm.

The indictment alleged two counts of indecency by touching the breast and genitals of Appellant's ten-year-old adopted daughter S____ B____. The evidence reflected that the last incident occurred some time during the latter part of summer in 1983. Prior to jury submission, the State elected to proceed on the genital contact count alone.

Appellant's first two grounds of error challenge the State's introduction of extraneous offenses committed from 1961 to 1975 against two of Appellant's natural children by a prior marriage. Other extraneous offenses against the natural children's friends and against a daughter of his second wife from 1977 to 1983 were not preserved by the "running objection" lodged below and are not complained of on appeal. Appellant's present complaint is threefold: 1) the extraneous offenses are too remote in time to the alleged offense; 2) the offenses were not sufficiently similar in context or mode of commission to justify their introduction; 3) the nature of the State's direct evidence precluded use of extraneous offenses, their prejudicial effect greatly outweighing the probative value. We shall analyze these contentions individually.

Appellant relies upon Bachhofer v. State, 633 S.W.2d 869 (Tex.Crim.App.1982) for his assertion of remoteness. See also: James v. State, 554 S.W.2d 680 (Tex.Crim.App.1977); McDonald v. State, 513 S.W.2d 44 (Tex.Crim.App.1974); Robledo v. State, 480 S.W.2d 401 (Tex.Crim.App.1972); Lang v. State, 698 S.W.2d 735 (Tex.App.--El Paso 1985, petition pending). Under the foregoing case authority, an excessive length of time between indicted and extraneous offenses will preclude admission unless the interval is bridged by intervening misconduct of a similar nature. The following summary depicts the chronological sequence of extraneous offenses utilized in this case:

1961 First breast and genital fondling of natural daughter C____ D____ (age 5).

1961-64 Manual and oral contact with breast and genitals of C____ D____ twice weekly (age 5-8).

1964-66 Same intimate contact continues over protest of C____ D____ and mother (until age 10).

1967-72 Continued attempts at intimate contact; use of alcohol to render C____ D____ vulnerable; encourages sexual activity as C____ D____ begins dating, providing phrophylactics (age 11-16).

1970 Verbally suggests intercourse to C____ D____ while nude (age 14).

1970-75 Oral and manual contact with genitals of natural son C____ H____ (age 5-11).

1972 Ceased acts toward daughter C____ D____ when she left home (age 16).

1975 Last sexual contact with son C____ H____ (age 11).

1975 Divorce from first wife.

1976 Marriage to mother of present complainant S____ B____ (age 3) and her sister W____ B____ (age 9).

1977-78 Began fondling breasts and vagina of W____ B____ (age 10) three or four times weekly.

1979 Family moved to Amarillo; continued sexual contact with W____ B____ (age 12-13), but frequency reduced to once or twice weekly; began fondling breasts and vagina of complainant S____ B____ (age 7).

1979-82 Continuing sexual contact with W____ B____ and S____ B____.

January 82 Last sexual contact with W____ B____ (age 15) six to eight months before family returned to El Paso.

July 82 Mother, W____ B____ and S____ B____ move to El Paso; Appellant visits on week-ends.

November 82 Appellant resumes full-time residence with family in El Paso.

Summer 83 Last fondling of breast and vagina of S____ B____ (age 10).

December 83 Admission by Appellant to wife as to sexual contact with W____ B____.

January 84 Wife, W____ B____ and S____ B____ move to grandmother's house and begin therapy; contact with S____ B____ first suspected.

April 84 Therapy session expressly reveals molestation of S____ B____.

The continuity of extraneous misconduct between 1961 and the commission of the indicted offense satisfies the remoteness rule. The evidence depicted constant indecent sexual contact with these four children, beginning at ages five, five, ten and seven respectively. Initiation of contact with the next child overlapped the course of conduct with the older child in each family. The only gap was between the 1975 divorce from the first wife and the initial contact with W____ B____ in 1977, during the first year of Appellant's marriage to her mother. Presumably he was not residing in a household with children during part of 1975 and 1976. Thus, the gap in misconduct amounted to less than eighteen months over a twenty-two year period. If there is anything remote in this sequence of events, it is the absence of sexual misconduct with children.

Appellant next contends that the extraneous offenses present dissimilar contexts and modes of commission, rendering them inadmissibly irrelevant to any issue in the indicted offense. As discussed below, the material issue supported by these extraneous offenses was the intent of the Appellant. When such is the case:

The degree of similarity required is not so great here as when identity is the material issue, and extraneous offenses are offered to prove modus operandi.

See, e.g., Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974).

Morgan v. State, 692 S.W.2d 877, n. 6 (Tex.Crim.App.1985). The initial similarity in this case is the age of the victims. Both C____ D____ and C____ H____ were first subjected to this contact at age five, S____ B____ at age seven and W____ B____ at age ten. Even the variance provided by W____ B____'s age is tempered by the fact that she was not accessible to Appellant until age nine.

Additionally, the setting in which the acts took place is consistent, either in the family home (all four children) or the family car (C____ H____ and S____ B____). There is no suggestion of molestations outside these protected locales. Even the suggestion of inappropriate sexual overtures to the children's friends or a foreign exchange student indicate occurrence in the same setting.

The type of contact involved is also sufficiently similar in light of the overall pattern of behavior and the standard applicable in a non-identity case. In all cases, manual contact with the child's genitals was involved; with the girls contact was also made with their breasts. The additional oral contact with the genitals of C____ D____ and C____ H____ we do not find sufficiently significant to vitiate their admissibility. With C____ H____, W____ B____ and S____ B____, intercourse was never attempted. It was suggested to C____ D____, however; this distinguishing feature must be discounted in light of the overall sequence of events. It occurred at a more advanced age of the child than was available in the other situations. The other three children were removed from the Appellant's presence sooner. In any event, intercourse did not even occur with C____ D____. In fact, another point of comparison is that, even manually, no penetration ever occurred with any of the children. A final common feature with two of the victims, C____ D____ and W____ B____, was the encouragement of sexual activity provided by the Appellant when the girls reached puberty and began dating. Both were verbally encouraged and provided with or offered birth control measures.

The fact that all children did not reside in the same household or come from the same family unit is not significant. Each stood in the same general child-to-parent relationship with the Appellant, whether natural child, adoptive child or stepchild. While in three instances the contact was heterosexual, in one it was homosexual. At first blush this seems to be a distinguishing feature. However, from the testimony of State's witness social worker Larry Wright and defense psychology witness Dr. Susan White, bisexual contact with prepubescent children is in fact a common or pattern characteristic of fixated pedophiles. Dr. White preferred a diagnosis of regressed pedophile over Wright's evaluation but did not negate the fixated pedophile profile. Thus, even this apparently distinguishing feature may in fact be viewed as a consistency. We find the extraneous offenses sufficiently similar in context and method to support admissibility.

Finally, we address the question of whether the nature of the State's other evidence precluded the use of any extraneous offenses in this trial. A defendant is of course not to be tried as a criminal in general, but only for the offense alleged in the indictment. There must be a probative relationship between proffered extraneous offense evidence and the evidence to prove a contested element of the State's indicted offense. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). The elemental probative value must outweigh the prejudicial effect of the exposure of these extraneous offenses to the jury. Id, at 99. Under Albrecht, intent and motive of the actor are expressly recognized as appropriate areas for proof via extraneous misconduct. Under Garcia v. State, 573 S.W.2d 12 (Tex.Crim.App.1978), the rationale for such proof was expanded to include demonstration of guilty knowledge, unnatural attention toward the child and the probability of the indicted act. The Garcia expression has been repeated by the Court of Criminal Appeals in recent months. Crawford v State, 696 S.W.2d 903 (Tex.Crim.App.1985). In a footnote to the Morgan opinion, Judge Clinton has cautioned restraint in the application of the Garcia principle, urging a non-mechanical evaluation of its propriety on a case-by-case basis. ...