Jackel v. State

• Decision Date: 06 February 1974
• Docket Number: No. 46262,46262
• Citation: 506 S.W.2d 229
• Parties: William Charles JACKEL, III, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 229

506 S.W.2d 229

William Charles JACKEL, III, Appellant, v. The STATE of Texas, Appellee.

No. 46262.

Court of Criminal Appeals of Texas.

Feb. 6, 1974.

Rehearing Denied March 13, 1974.

Dan J. Anderson, Richardson, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Maridell J. Templeton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., and Robert A. Huttash, Buddy Stevens, Asst. State's Attys., Austin, for the State.

OPINION

GREEN, Commissioner.

Appellant was convicted of rape. His punishment was assessed at life imprisonment.

The sufficiency of the evidence to support the verdict is not contested by appellant.

The testimony of the prosecutrix, supported by other evidence in the record, reflects that such was raped by appellant by the use of force and threats on July 18, 1971. Appellant testified, admitting having had an act of sexual intercourse with prosecutrix on that date, but claims that it was with her consent.

In the course of the trial the State, over appellant's objections, was permitted to introduce evidence of a forcible rape on Mrs. C., ¹ alleged to have been committed by appellant on February 9, 1970. In his third ground appellant contends that the court erred in admitting the testimony of Mrs. C. concerning this extraneous offense.

The record reflects that after the State had made its case and had rested appellant placed his foster father, Cecil Lowrance, on the stand. He testified that on the night in question, after prosecutrix had complained to the police that she had been raped, but before appellant's arrest, appellant stated to him that he did have sexual relations with prosecutrix earlier in the evening, but that this was with her consent. Appellant did not testify at this time, and shortly after this testimony he rested.

In rebuttal, the State called Mrs. C. to the witness stand, at which time the jury was excused from the courtroom, and a hearing was had on the admissibility of her proposed testimony, as requested by appellant in his motion in limine to suppress. The State explained that it intended to offer testimony of a rape committed by appellant on Mrs. C. about seventeen months prior to the instant occurrence to rebut the defensive theory of consent raised by the testimony of the witness Lowrance, and to show intent, scheme and design. Appellant objected fully to the introduction of any and all evidence concerning the extraneous offense, and the trial resulting therefrom. The objection was overruled. Thereupon, in the presence of the jury, the witness testified to the details of an assault made upon her on February 9, 1970, in the course of which according to her testimony appellant raped her by force. She also testified of the trial of appellant for rape, in which he was convicted, Not of rape, but of an aggravated assault, and received a two year jail sentence. ²

Thereafter the appellant testified. He admitted having sexual intercourse with the prosecutrix on the occasion in question, but denied having used force, stating that such act was with her consent and cooperation. Appellant also admitted having had sexual intercourse with Mrs. C. on February 9, 1970, stating it was with her consent. He testified to his version of that affair, which was quite different in details from the evidence given by Mrs. C. He likewise testified concerning the trial and his conviction for aggravated assault.

After appellant had closed his case, the State placed Mrs. C. back on the stand. She again testified concerning appellant's assault on her February 9, 1970. Police Officer Ford testified of his investigation of that affair, giving evidence in contradiction to that given by appellant. Counsel for appellant cross-examined him extensively. Officer Norris also testified to a conversation with Mrs. C. while he was investigating that offense.

Since appellant admitted having intercourse with prosecutrix in the instant case, there is no question of identity or alibi. The only issue as to the guilt of appellant presented by the evidence is whether prosecutrix consented to the act. This State argues that the evidence of the prior rape was admissible to show intent. In Caldwell v. State, Tex.Cr.App., 477 S.W.2d 877, where the conviction was for forcible rape, the State argued that evidence of an extraneous offense ³ was admissible on the issue of intent. In reversing the judgment, the Court speaking through Commissioner Dally said:

'Proof of the extraneous offense was not admissible on the issue of consent. The appellant did not testify. Even if he had and the only issue was consent, 'The fact that one woman was raped . . . has no tendency to prove that another woman did not consent.' Lovely v. United States (169 F.2d 386 (4th Cir.1948)).'

See Thompson v. State, 168 Tex.Cr.R. 320, 327 S.W.2d 745, 748; Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836; Hagood v. State, 104 Tex.Cr.R. 429, 284 S.W. 547; Higgins v. State, 87 Tex.Cr.R. 424, 222 S.W. 241, all cited in Caldwell, supra. See, also, McAllister v. State, Tex.Cr.App., 489 S.W.2d 887.

The State also argues that the extraneous event was properly admitted to show design and system, by showing the appellant's 'modus operandi' in the commission of the two offenses. It is the State's contention that because appellant became acquainted with each of the women on the same day the assault on each occurred, and, according to the testimony of each woman, that each of them was grabbed about the neck and chocked until she could not breathe, and that after each assault was committed appellant appeared calm and inquired what the victim intended to do, the two acts showed a system or design of appellant to commit rape.

The State does not answer in its brief appellant's contentions of error in the admission of evidence of the trial of appellant for the rape of Mrs. C., at which he was acquitted to rape, but convicted of aggravated assault. We hold further that the trial court erred in admitting such evidence over the appellant's objections.

We are next met with the State's contention that if the introduction of the evidence of the extraneous offense was error it was rendered harmless by appellant's testimony regarding the assault on Mrs. C.

It is a well settled rule in this State that accused cannot complain of the wrongful admission of testimony when he later testifies to substantially the same facts. Butler v. State, 171 Tex.Cr.R. 529, 352 S.W.2d 744; Cook v. State, Tex.Cr.App., 409 S.W.2d 857; Ware v. State, Tex.Cr.App., 467 S.W.2d 256; Wood v. State, Tex.Cr.App., 440 S.W.2d 640; Garza v. State, Tex.Cr.App., 442 S.W.2d 693; Washington v. State, Tex.Cr.App., 484 S.W.2d 721, cert. denied, 411 U.S. 921, 93 S.Ct. 1555, 36 L.Ed.2d 314.

Appellant did not testify to substantially the same facts as did Mrs. C. concerning the extraneous offense. See opinion of Judge Odom on rehearing in Nichols v. State, Tex.Cr.App., 502 S.W.2d 169. Appellant's version of this affair was wholly different from that of Mrs. C.

We hold that the error of the court in admitting the evidence of the extraneous offense was not waived or made harmless by the testimony of appellant. For the reason stated, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

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