Clark v. State

• Decision Date: 13 June 1985
• Docket Number: No. 01-84-0788-CR,01-84-0788-CR
• Citation: 693 S.W.2d 35
• Parties: James Leslie CLARK, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 35

693 S.W.2d 35

James Leslie CLARK, Appellant, v. The STATE of Texas, Appellee.

No. 01-84-0788-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

June 13, 1985.

Gerson D. Bloom, Galveston, for appellant.

Michael J. Guarino, Galveston County Dist. Atty., Miguel Martinez, Douglas A. Yancy, Galveston County Asst. Dist. Attys., Galveston, for appellee.

Before JACK SMITH, SAM BASS and LEVY, JJ.

OPINION

LEVY, Justice.

After a non-jury trial, appellant was convicted of the offense of indecency with a child. The court assessed punishment at 10 years confinement, probated, and a fine of $500.

Appellant contends that the trial court erred in admitting testimony of prior misconduct (but not resulting in a conviction) to impeach appellant, and that the State was bound by appellant's denial during cross-examination that he had previously sexually abused his own step-daughter.

This offense occurred during a trip taken by appellant, his friend (who was also his employee), the friend's wife, son, 11-year-old daughter, and two others in appellant's motor home. The 11-year-old girl testified that she and her brother went to sleep on a large bed or sleeping platform early on the evening of June 12, 1983. Later, her parents and the appellant went to sleep on the same bed. She was awakened by appellant in the middle of the night, and at that time he penetrated her genitals with his finger. She made no outcry at the time, but told her mother of the incident the next morning. Both of her parents testified that appellant slept next to their daughter that night, and that she told her mother what had happened the next day. When confronted by the girl's father, appellant told him that she must have been dreaming. Appellant testified on his own behalf, denying both the incident and that he had even slept next to the girl on that night.

The testimony showed that appellant had a long-term friendship with his employee, and that the family had accompanied him on other trips. During cross-examination by the prosecutor, the following testimony regarding his relationship with his own step-daughter, P.L., was elicited from appellant without objection:

Q. And you're saying that your relationship with [P.L.] is like a father and a daughter?

A. Yes, it was.

Q. And isn't it true you sexually abused P.L.?

A. No, it is not.

Q. Isn't it true her mother had to fly down to the Bahamas and pick her up because you sexually assaulted her in the hotel?

A. No, it is not.

Q. Isn't it true you sexually assault (sic) that woman since she was 11 years old?

A. No, I didn't.

Over objection, the State then called his step-daughter on rebuttal. She testified, over a second objection based on remoteness, that appellant had sexually assaulted her in a similar manner when she was eight years old, at least 11 years prior to the trial date. She also testified, again over a "running objection", that appellant "got into her bed and started squeezing [her] breasts" two days before her 17th birthday during a trip to the Bahamas. The second incident which she described occurred about two years before trial. Although not as remote, it was somewhat dissimilar to the incident for which he was on trial.

Evidence of an extraneous or collateral offense is generally inadmissible because the accused is constitutionally entitled to be tried only on the accusation made in the charging instrument. Charges of offenses are generally inadmissible for impeachment purposes unless the charges result in final convictions for felony offenses or final convictions involving moral turpitude, none of which are too remote. Shipman v. State, 604 S.W.2d 182, 184 (Tex.Crim.App.1980). A matter is "collateral" if the cross-examining party would not be entitled to prove that matter as part of his case-in-chief tending to establish his plea. Id. The accused's propensity to commit crimes is not logically material to the determination of his guilt of the specific offense charged. Introduction of evidence for the purpose of establishing a "propensity" offends our system of justice because it constitutes a trial of the accused as a criminal generally, Murphy v. State, 587 S.W.2d 718, 721 (Tex.Crim.App.1979), and not as one accused of a specific offense from which he can fairly defend himself.

An extraneous offense may be admissible when the transaction is relevant to, and may tend to resolve, a contested material issue in the case and the probative value outweighs its prejudicial effect. Id. at 722. Extraneous offenses have been held admissible to: 1) show the context in which the criminal act occurred; 2) prove identity circumstantially; 3) prove scienter, where intent or guilty knowledge is an essential element of the State's case and cannot be inferred from the act itself; 4) prove malice or state of mind when malice is an essential element of the State's case and cannot be inferred from the criminal act; 5) show motive; or 6) refute a defensive theory raised by the accused. Albrecht v. State, 486 S.W.2d 97, 100-01 (Tex.Crim.App.1972).

We are of the opinion that the extraneous offenses committed with appellant's step-daughter were not admissible for any of the above-listed purposes. Assuming arguendo that such evidence was admissible, however, we find that its probative value was outweighed by its overwhelmingly prejudicial effect. Cf. Garza v. State, 632 S.W.2d 823 (Tex.App.--Dallas 1982, pet. granted). The remoteness in time of the prior unreported incidents clearly reduces their probative efficacy. With commendable candor, the State concedes that it could not open the door to matters not otherwise admissible and then prove up the collateral events unless such events were themselves independently admissible. Flannery v. State, 676 S.W.2d 369 (Tex.Crim.App.1984); Shipman, 604 S.W.2d at 184; Bates v. State, 587 S.W.2d 121, 141-42 (Tex.Crim.App.1979); Gatson v. State, 387 S.W.2d 65 (Tex.Crim.App.1965).

To permit such incidents to be admissible would contradict the clear intent of Tex.Code Crim.P.Ann. art. 38.29 (Vernon 1979), which provides that "[t]he fact is a defendant in a criminal case ... is or has been, charged ... with the commission of an offense against the criminal laws of this State ... shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment ... a final conviction has resulted...." If the legislature intended to exclude, for impeachment purposes, extraneous offenses which have not resulted in a conviction, Ridler v. State, 375...