Crawford v. State

• Decision Date: 16 April 1984
• Docket Number: No. 07-82-0171-CR,07-82-0171-CR
• Citation: 685 S.W.2d 343
• Parties: Virgil CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 343

685 S.W.2d 343

Virgil CRAWFORD, Appellant, v. The STATE of Texas, Appellee.

No. 07-82-0171-CR.

Court of Appeals of Texas,

Amarillo.

April 16, 1984.

Clifford W. Brown, Mike Brown, Brown, Harding, Fargason & Brown, Lubbock, for appellant.

Travis Ware, Marta Rosas, Sp. Prosecutors, Lubbock, for appellee.

Before REYNOLDS, C.J., and COUNTISS and BOYD, JJ.

COUNTISS, Justice.

A jury convicted appellant of rape of a child, section 21.09 of the Penal Code, ¹ and assessed his punishment at eight years in the penitentiary, probated, and a fine of $10,000.00. Appellant attacks the conviction by six grounds of error, contending the trial court erred in failing to require the State to elect which act of intercourse was being relied on for conviction, in giving an erroneous limiting instruction on extraneous offenses, in granting the State's motion for change of venue and denying appellant's motions, and in refusing to admit rebuttal evidence tendered by appellant. We agree that an election was required and that the limiting instruction was erroneous; therefore, we reverse and remand.

As pertinent here, the single-count indictment charged that appellant:

on or about the 28 day of September, A.D. 1979, and anterior to the presentment of this Indictment, in the County and State aforesaid, did then and there knowingly engage in sexual intercourse with [B______ A______], a female then under the age of 17 years, and not then the wife of the said defendant....

B.A. was employed by appellant to clean his office and occasionally perform various other work for him. She testified that she and appellant had sexual intercourse numerous times over a three-year period beginning when she was 12 years old and ending on September 27, 1979, when she was 15 years old. The majority of the acts of intercourse occurred in appellant's office, although other locations were occasionally utilized. On most occasions, she would report for work, perform her assigned employment duties, have intercourse with appellant in his office, receive compensation and return to her home. The acts of intercourse she related nearest the September 28 date alleged in the indictment were on September 18, 19, 20, 21, 23, 26 and 27.

By his first ground, appellant contends the trial court erred in not requiring the State to elect the act of intercourse upon which it was relying for a conviction under the indictment. Appellant first brought the matter to the attention of the trial court when B.A. testified, and the court indicated it would give a limiting instruction at the proper time. When the State rested, appellant, outside the presence of the jury, again asked that the State be required to elect and state specifically which offense, of the many presented, was relied on for a conviction. The court then advised counsel, but not the jury, that the State would be limited to the acts occurring between September 18 and September 27. Appellant excepted to the ruling because it did not limit the State to a specific date. Later, he lodged the same objection to the jury charge, which authorized a conviction if the jury found that appellant committed the crime "on or about the 28th day of September...." ²

When the State alleges one offense in a single-count indictment and presents evidence of several separate acts, each sufficient to support a conviction under the indictment, it must elect the act upon which it is relying for a conviction. Crocker v. State, 573 S.W.2d 190, 198 (Tex.Crim.App.1978); O'Clair v. State, 364 S.W.2d 375, 376 (Tex.Crim.App.1963); Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366, 368 (1957); Banks v. State, 93 Tex.Cr.R. 117, 246 S.W. 377, 378 (1922). In Bates, for example, the defendant was charged in a one-count indictment with statutory rape. He was convicted after the State proved he had sexual intercourse with the prosecutrix several times within the year prior to return of the indictment. The Court regarded each act of intercourse as being a separate, completed offense, and therefore reversed the conviction because the State had not been required to elect and rely on one of the acts as the crime alleged by the indictment. See discussion in Crocker v. State, 573 S.W.2d at 198.

In this case, the State presented evidence of numerous acts of intercourse between appellant and B.A. Each act of intercourse was, under the State's evidence, a separate crime. Thus, under the well-settled rule discussed above, the State should have been required to elect and select the specific act upon which it was relying for conviction under the indictment, and the jury should have been instructed accordingly. Bates v. State, supra.

The State contends the September 18-27 limitation orally imposed by the trial court was a sufficient election because the acts that occurred during that time constituted a single transaction. However, each of the acts during the time span in question was, as discussed above, a separate, distinct and completed crime. Each time after B.A. and appellant engaged in sex, they went their separate ways. B.A. testified she was not coerced and could have ended the relationship at any time. Thus, as in Bates, supra, an election was required. McNutt v. State, 168 Tex.Cr.R. 27, 322 S.W.2d 622, 624 (1959), upon which the State relies, is inapplicable. The issue in that case was the admissibility of the extraneous offenses, not the requirements for an election, and the State was not asked to elect. Ground of error one is sustained.

By his second ground of error, appellant contends the trial court erred in failing to give the jury a correct limiting instruction on the various extraneous offenses about which B.A. testified. As discussed above, the State presented evidence of numerous acts of intercourse between appellant and B.A., beginning when she was 12 and ending when she was 15. When evidence of the first act was offered, the State conceded the extraneous nature of the evidence but told the Court it was tendered to show appellant's unnatural attention toward B.A. and the probability that the act occurred. The Court admitted the evidence, observing that it would give the jury a limiting instruction. The State then presented evidence of numerous acts of intercourse.

By paragraph 4 of the charge, the trial court charged the jury on the extraneous offenses as follows:

You are further charged that if there is any evidence before you in this case tending to show that the defendant herein committed offenses other than the offense alleged against him in the indictment, you cannot consider said testimony for any purpose unless you find and believe, beyond a reasonable doubt, that the defendant committed such other offenses, if any were committed, and if you find and believe beyond a reasonable doubt from such testimony that other offenses were committed, then such testimony still cannot be considered by you against the defendant as any evidence of guilt in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the weight you will give his testimony, and you will not consider the same for any other purpose.

The instruction, says appellant, is erroneous because it permits the jury to use specific acts of misconduct to test appellant's credibility as a witness, instead of limiting the jury to consideration of the acts for the purpose for which they were admitted. We agree.

In cases involving sexual offenses with children, the general rule against admission of extraneous offenses is often abrogated. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). Related offenses are admitted for the specific purpose of aiding the jury in deciding "whether the particular act relied upon by the state was committed," Bates v. State, supra, 305 S.W.2d at 368, and for other narrow purposes. See, e.g., Garcia v. State, 573 S.W.2d 12, 16 (Tex.Crim.App.1978). When such extraneous offenses are admitted, however, the jury must be instructed on their purpose and told that it can consider them only for the limited purposes for which they are admitted. Hitchcock v. State, 612 S.W.2d 930 (Tex.Crim.App.1981); Sparks v. State, 366 S.W.2d 591, 592 (Tex.Crim.App.1963). An instruction permitting the jury to use the extraneous offenses to test the defendant's general credibility as a witness is erroneous, Sparks v. State, supra, absent unusual circumstances not present in this case. See, e.g., Taylor v. State, 612 S.W.2d 566, 572 (Tex.Crim.App.1981).

The instruction given in this case permitted the jury to use the extraneous offenses to pass upon the weight to be given appellant's testimony. Such an instruction is, within the context of this case, comparable to an instruction that the offenses can be used to test appellant's credibility. As such, it violates the foregoing principles and fails to correctly limit the jury's consideration of the evidence. On retrial, after the State elects the offense upon which it will rely for conviction, the court should limit the jury's consideration of any admissible extraneous offenses to the specific purposes for which they are admitted. Ground of error two is sustained.

By his third ground, appellant attacks the foregoing limiting instruction as applied to a rebuttal witness called by the State. When appellant testified, he denied having sexual intercourse with B.A., stating that he had been impotent for the preceding ten years. In rebuttal, the State called a local massage parlor operator who testified that appellant had intercourse with her and with one of her employees within the preceding four and one-half years.

Appellant was not entitled to a limiting instruction on the massage parlor operator's testimony, because it was offered to rebut a defensive theory. Ruiz v. State, 523 S.W.2d 691, 694 (Tex.Crim.App.1975). Thus, the instruction in question, insofar as it pertains to that testimony, was an error against the State about which appellant cannot...