Gipson v. State, 67041

• Decision Date: 22 July 1981
• Docket Number: No. 1,No. 67041,67041,1
• Citation: 619 S.W.2d 169
• Parties: Donald Ray GIPSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 169

619 S.W.2d 169

Donald Ray GIPSON, Appellant, v. The STATE of Texas, Appellee.

No. 67041.

Court of Criminal Appeals of Texas, Panel No. 1.

July 22, 1981.

Robert T. Baskett, Dallas, court appointed on appeal, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr. and Gerald Banks, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and ODOM, JJ.

OPINION

ROBERTS, Judge.

The appellant pleaded guilty before a jury to a charge of aggravated rape. The jury assessed a punishment of confinement for life.

In his first ground of error, the appellant complains of the admission of evidence about an extraneous offense. In its case-in-chief, the State offered evidence that two men abducted W______ from the parking lot of her apartment, that they used a knife to force her into a car which was driven by the appellant and which contained a fourth man, that they drove to a vacant house, and that all four men (in the presence of each other) raped her in the car. The appellant testified that he and three other men were driving around, that Johnny Davis told him to follow W______'s car, that he did not know exactly what Davis and another man were going to do when they got out of the car and accosted W______, that he followed Davis's direction to go to the vacant house, that it was Davis's idea to rape W______, that all four men raped her, and that he was afraid of Davis. On cross-examination the appellant testified that he committed the rape because he was afraid of Davis and because Davis held a knife to his neck and threatened him. ¹

In rebuttal, over the appellant's objection, the court allowed R______ to testify that the appellant raped her about a week before he raped W______. R______ testified that when she stopped her car to buy a newspaper a man holding a knife accosted her and forced her to drive to a vacant house (the same one to which W______ was taken). A car followed them. At the house, R______ and the abductor were joined by the two men who had followed them; one of the men was the appellant. After some discussion, R______ was taken into the house and forced to disrobe. The appellant told the other men to leave the room because he could not perform sexual intercourse in front of other people. The other men left, and the appellant raped R______. No one used force or threats against the appellant; apparently, he wanted to commit the act. It is this evidence which the appellant argues should not have been admitted.

Evidence of extraneous offenses generally is excluded because it confuses and prejudices the issue of guilt of the instant offense. Rumbaugh v. State, 589 S.W.2d 414, 418 (Tex.Cr.App.1979); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1972); J. Wigmore, Evidence, Section 55 (3d ed. 1940). It may be admitted if it is shown to be material and relevant to a contested issue, Albrecht, supra, at 100, and if its relevance to the issue is not outweighed by its prejudicial effect, Id. at 101. Since the circumstances necessarily vary within the factual contexts, each case must be determined on its facts. Id. at 100.

In this case the appellant argues that there was no contested issue to which the extraneous offense was relevant, but the record contradicts him. His testimony raised issues of the degree to which he was a knowing and willing participant in the planning and commission of the offense. The evidence offered in rebuttal was relevant to these issues.

As for the balancing of relevance against prejudicial effect, the cardinal feature of this case is that the appellant already had pleaded guilty. The dangers of confusing and prejudicing the issue of guilt, which underlie the rule against proof of extraneous offenses, are absent when the issue of guilty is itself...