Garza v. State

• Decision Date: 05 April 1982
• Docket Number: No. 05-81-00085,05-81-00085
• Citation: 632 S.W.2d 823
• Parties: Sammy Conrad GARZA, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 823

632 S.W.2d 823

Sammy Conrad GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 05-81-00085 CR.

Court of Appeals of Texas, Dallas.

April 5, 1982.

Rehearing Denied May 17, 1982.

Mark F. Holland, J. Stephen Cooper, Dallas, for appellant.

Kathi Drew, Asst. Dist. Atty., Dallas, for appellee.

Before AKIN, VANCE and FISH, JJ.

FISH, Justice.

Sammy Conrad Garza was convicted by a jury of aggravated kidnapping and sentenced to seventeen years imprisonment. For the reasons to be stated, we sustain five of his nine grounds of error and reverse and remand for a new trial.

In the late afternoon of June 9, 1978, the complaining witness C______, a twelve-year old female, was playing with an eight-year old girl friend in the trailer park where C______ lived. Appellant drove up to the pair in a pickup truck with a camper on the back and asked for directions to the home of the Waltons. C______ gave him directions and he drove away. A short time later, appellant drove up again and tried to persuade C______ to enter his vehicle. He offered her $20, which she refused. He then got out of the truck, grabbed her, and forced her into the truck. As they drove away, appellant released C______ from his grip but warned her not to get out or he would "jump" her. During the drive, appellant grabbed her by the shorts she was wearing and pulled her over next to him. While they were stopped at an intersection, appellant's attention was apparently distracted, allowing C______ to jump out of the truck and escape. Another driver in the area saw C______ run in front of her vehicle and offered the little girl assistance. C______ got into her rescuer's car and related what had happened.

Appellant was arrested soon afterward and indicted for the offense of aggravated kidnapping. The indictment alleged that appellant "did knowingly restrain C______ by secreting her and holding her in a place not likely to be found, to wit: an automobile, with the intent to prevent her liberation, and with the intent to terrorize, sexually violate, and sexually abuse the said C______." To prove this allegation of appellant's intent "to terrorize, sexually violate, and sexually abuse" C______, the State offered evidence that appellant had committed sodomy 31/2 months earlier with a twelve-year old boy. The State conceded that this was its only evidence of the intent that would transform the offense of kidnapping into aggravated kidnapping. ¹

The evidence of this extraneous offense showed that on February 23, 1978, between 5:30 and 6:00 p. m., appellant pulled up beside R______ (a 12-year old boy at the time of the occurrence) as he was walking home from a friend's house. The pickup truck with camper attached driven by appellant on this occasion was different from the one he drove during the primary offense on June 9. Appellant asked R______ where he was going and whether he wanted a ride. R______ initially declined but then accepted appellant's offer of a ride and climbed into the vehicle. Appellant drove for five or ten minutes in a different direction from R______'s destination. After arriving in a wooded area, appellant pulled over to the side of the road and stopped. He told R______ to "unsnap your pants" and to "get up on the seat on your knees." When R______ complied, appellant placed his mouth on R______'s penis for a minute or two. Appellant then acceded to R's request to transport him back to town. Appellant offered R______ money to "do it next week" and then let him out near his home.

Appellant timely objected to this testimony at trial and renews his objection on this appeal. Virtually all of appellant's complaints relate in some way to the admission of this offense, for if he is correct in claiming that this evidence was improperly admitted, then he is also correct that the evidence remaining in the record is insufficient to support a finding of the intent required for aggravated kidnapping.

We examine first the contention that evidence of the sodomy offense was improperly admitted. Ordinarily, of course, evidence of such an extraneous or collateral offense is inadmissible. Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972). The reasons for the rule are well established: (1) an accused is entitled to be tried on the accusation made in the State's charging instrument which specifies the material issues of the case and cannot-consistent with the rudiments of due process-be tried for some collateral crime of which he has no notice; (2) an accused's propensity to commit crimes is not an issue which is material to whether he is guilty of the specified conduct charged by the State; and (3) the introduction of evidence establishing merely a propensity constitutes a trial of the accused as a criminal generally, which offends our system of justice. Murphy v. State, 587 S.W.2d 718, 721 (Tex.Cr.App.1979). Such evidence tends only to confuse the issues in the case, Albrecht v. State, supra, at 100, is inherently prejudicial, Murphy v. State, supra, at 721, and may result in the jury convicting appellant, not for the offense charged, but for the extraneous offense. See McCann v. State, 606 S.W.2d 897, 901 (Tex.Cr.App.1980).

Nevertheless, an extraneous transaction constituting an offense may become admissible upon a showing by the prosecution both that the transaction is relevant to a contested material issue in the case and that the relevancy value of the evidence outweighs its inflammatory or prejudicial potential. Murphy v. State, supra, at 722. Evidence of extraneous offenses have been held admissible, as exceptions to the general rule, to (1) show the context in which the criminal act occurred (the res gestae ); (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. See Albrecht v. State, supra, at 100-101.

In the present case, the State maintains that the sodomy offense was relevant to the third Albrecht exception, i.e., to prove appellant's intent to sexually abuse or violate his victim. Having ascertained relevance to a material contested issue, we must still determine whether the tendency of the evidence to show such an intent outweighs its inherent potential for prejudice to appellant. The Court of Criminal Appeals has indicated that this weighing of probative value against potential for prejudice must be done on the facts of each case. See, e.g., Albrecht, supra, at 100 ("each case must be determined on its own merits"); Ruiz v. State, 579 S.W.2d 206, 209 (Tex.Cr.App.1979) ("whether the introduction of an extraneous offense into evidence is reversible error is an ad hoc determination based on the merits of each case"); Gipson v. State, 619 S.W.2d 169, 170 (Tex.Cr.App.1981) ("since the circumstances necessarily vary within the factual contexts, each case must be determined on its facts").

The rationale for admitting evidence of similar occurrences to prove intent has been ably formulated by a leading treatise writer to be "the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all." 2 Wigmore, Evidence, Sec. 302 (Chadbourn rev. 1979). To illustrate, he cites the example of two hunters, A and B. A hears the bullet from B's gun whistling past his head. The first time, A is willing to accept B's explanation of bad aim or accidental tripping; but if soon after the same thing happens again, and if on a third occasion B's bullet hits A, the immediate inference (as a probability, not a certainty) is that B shot A deliberately. The logical basis for this inference is that the chances of an inadvertent shooting of three successive similar occasions are extremely small. Each successive occurrence tends increasingly to negative an innocent explanation.

Similarly, where the intent of an erroneous addition of a bill rendered in a bookkeeper's accounts is in issue, the erroneous addition of a bill rendered to a former employer ten years before would have no significance, because such accidents will ordinarily happen at intervals; but several other erroneous additions in the bookkeeper's own favor in the same year and in the same book of accounts tend to exclude casual error, and leave deliberate intent, as the probable explanation. 2 Wigmore, supra, at sec. 302; see McCarron v. State, 605 S.W.2d 589, 593-94 (Tex.Cr.App.1980).

What gives these repeated occurrences probative value, according to Dean Wigmore, is their similarity. Just how similar one occurrence must be to the next before it may properly be used to support an inference of criminal intent has often proven difficult for courts to determine. Despite this difficulty, the importance of demanding strong similarity, though not perfect identity, between offenses was illustrated in the panel opinion in United States v. Beechum, 555 F.2d 487, 495-496 (5th Cir. 1977):

"Suppose that a defendant, having shoved a customs officer, is on trial for wilfully interfering with the officer's performance of his duties. The government asserts that defendant's assault on the officer was unprovoked. The defendant claims that he did not mean to shove the officer. The government introduces as a prior similar offense the defendant's aggravated assault upon a bartender in order to show that defendant intended to assault the customs officer. Although the defendant's assault upon a bartender did not result in a conviction, let us say that the government convincingly proved that it took place.

"It might be suggested that the evidence ought to be admitted because the prior offense illustrates that our defendant did not likely...