Jannise v. State

• Decision Date: 28 March 1990
• Docket Number: No. 09-88-089,09-88-089
• Parties: Clifton Larry JANNISE, Appellant, v. The STATE of Texas, Appellee. CR.
• Court: Texas Court of Appeals

Page 623

789 S.W.2d 623

Clifton Larry JANNISE, Appellant, v. The STATE of Texas, Appellee.

No. 09-88-089 CR.

Court of Appeals of Texas,

Beaumont.

March 28, 1990.

Rehearing Denied April 11, 1990.

Petition for Discretionary Review May 10, 1990.

J.C. Zbranek, Richard Baker, Zbranek & Hight, Liberty, for appellant.

Michael Little, Dist. Atty., Jerry E. Andress, Asst. Dist. Atty., Liberty, for the State.

OPINION ON MOTION FOR REHEARING

BROOKSHIRE, Justice.

Our previous opinion filed February 14, 1990, is withdrawn. This opinion is substituted therefor.

A jury convicted Appellant of aggravated sexual assault of a child and assessed punishment at ten years' confinement in the Texas Department of Corrections. Appellant urges eight points of error.

The first point of error alleges error in the admission of so-called extraneous offenses. Appellant combines several different arguments under this point. He first complains of the admission of other acts between himself and eight year old C.C., the named complainant. He next complains about the girl's mother testifying to what she had been told by the child. He then complains of the admission of acts between himself and A.H., a nine year old girl. Finally, he complains of the State's arguments at both stages of the trial in connection with the extraneous offenses.

The indictment alleged two counts of sexual assault occurring on or about November 29, 1985. The State introduced a voluntary statement of Appellant wherein he admitted (1) touching the breasts and inserting his finger in the vagina of C.C. on November 27, (2) placing his finger in the vagina and rectum of C.C. on November 29, and (3) rubbing his body against hers on November 30. C.C. testified that Appellant (1) touched her vagina and breasts on "night one", (2) touched her breasts and inserted his finger in her vagina on "night two", (3) inserted his finger in her rectum on "night three" and (4) the next morning, day four, rubbed his body against hers. The State introduced another voluntary statement of Appellant wherein he admitted (1) rubbing the breasts and vagina (but denying any penetration) of A.H. on November 27, (2) attempting to rub A.H.'s vagina on November 28, and (3) rubbing the buttocks and attempting to rub the vagina of A.H. on November 29. A.H. testified that (1) on the "first night" she could not recall if Appellant touched her vagina, but witnessed Appellant touching C.C.'s vagina, (2) on a subsequent night Appellant tried to touch her vagina and she witnessed Appellant removing his fingers from C.C.'s vagina and (3) she could not recall any other instances.

Battles v. State, 63 Tex.Crim. 147, 140 S.W. 783 (1911) (opinion on rehearing) established an exception to the rule barring admission of extraneous offenses by a defendant to explain the charged act and view the act in light of the relationship between the defendant and the minor as well as to weight the plausibility of the child's accusations. This rule was reestablished in Johns v. State, 155 Tex.Crim. 503, 236 S.W.2d 820 (1951) and both cases were thoroughly analyzed and reaffirmed in Boutwell v. State, 719 S.W.2d 164 (Tex.Crim.App.1985). See and compare Cruz v. State, 737 S.W.2d 74 (Tex.App.--San Antonio 1987, no pet.). This continues to be the rule today, therefore evidence regarding additional sexual offenses involving C.C. were properly admitted.

This court in Turner v. State, 716 S.W.2d 569 (Tex.App.--Beaumont 1986), rev'd on other grounds, 754 S.W.2d 668 (Tex.Crim.App.1988) held that outcry testimony was admissible. In any event, the child testified to the acts and Appellant's statement admitted most of the acts. Therefore, if the outcry testimony was inadmissible, it was rendered harmless. We think, however, the outcry was admissible. See Heckathorne v. State, 697 S.W.2d 8 (Tex.App.--Houston [14th Dist.] 1985, pet. ref'd).

It is important to stress that Appellant made two voluntary statements. In one of the statements the Appellant admitted that the Complainant-victim C.C., along with her friend A.H., were both staying with the Appellant and his wife in a trailer.

Some additional, important details and narratives are below set forth. On November 27, 1985, at night, he entered the bedroom of the trailer where both of the very young girls were sleeping. He shut the bedroom door half-way. On this night he touched the breasts and stomach of C.C. and placed his hand on C.C.'s vagina. He then inserted one of his fingers inside C.C.'s vagina. This insertion lasted for about five minutes. Appellant left the bedroom. The next night, the day after Thanksgiving, he again placed his finger in the vagina of C.C. On the same night he placed his finger inside of C.C.'s rectum. On the next day, Saturday, he rubbed himself up and down against C.C. He declared that that was the last sexual activity he had with C.C.

A second voluntary statement exists in the record. It was taken concurrently with or shortly after the first statement. The objection to this second voluntary statement was that it was immaterial and irrelevant to any issue in the case; that it was merely inflammatory because it does not concern any of the allegations in the indictment or issues being tried. We do not agree. We think the actions of Appellant involving A.H. were res gestae. Further, Appellant objected that no predicate had been laid and that there was no showing that the issues involved in this case would permit introduction of these so-called extraneous matters. Finally, Appellant objected that it was not shown that the second statement was freely and voluntarily given.

In the second statement the Appellant swore that on the very same night of November 27, 1985, that A.H., a young girl, was staying with him and his wife in the trailer in Kennefick in the same bedroom with C.C. At the identical hour, about 10:30 p.m., the Appellant went into the bedroom where C.C. and A.H. were sleeping. He pulled down A.H.'s panties, rubbed her breasts and her vagina. The second night was Thanksgiving, a Thursday. Appellant went back inside the bedroom and again pulled A.H.'s covers down along with her panties. He tried to "play with" A.H. He rubbed her vagina. Then she woke up and he left. The last night, the night of the day after Thanksgiving, he went back into the same bedroom where A.H. was sleeping. Again he pulled A.H.'s panties down; he touched her buttocks; he tried to massage her vagina. A.H. turned away and pulled the covers up. These sexual assaults happened almost simultaneously in respect to C.C. and A.H. They were certainly res gestae. Offenses do not occur in a vacuum and the jury reasonably ought to have the benefit of the immediate intertwined, intermingled surrounding circumstances.

TEX.R.CRIM.EVID. 404(b) provides that evidence of other crimes, wrongs or acts may be admissible to demonstrate proof of motive, opportunity, intent, preparation or plan, knowledge, absence of mistake or absence of accident. Following a reasonable interpretation of Rule 404(b), in our opinion, this Rule 404(b) makes admissible the acts involving A.H. These sexual acts against C.C. and A.H. were so closely related, intertwined and intermingled that to attempt to separate them would be arbitrary and unrealistic. The jury is entitled to have at least a fairly complete narrative of the facts in order to reach and return a just verdict.

The plain language of Rule 403 shifts the focus somewhat from the test enunciated in Williams v. State, 662 S.W.2d 344 (Tex.Crim.App.1983). The approach under Rule 403 is to admit relevant evidence unless the probative value of the relevant evidence is substantially outweighed by the danger of unfair prejudice to the defendant.

We must first determine if the so-called extraneous offenses are relevant; and, then, we determine if their probative value was not substantially outweighed by unfair prejudice. TEX.R.CRIM.EVID. 403. This analysis is for the trial judge in the first instance and, absent a clear abuse of discretion, will not be disturbed on appeal. Templin v. State, 711 S.W.2d 30 (Tex.Crim.App.1986). See also United States v. Jarabek, 726 F.2d 889 (1st Cir.1984); Pleasant v. State, 755 S.W.2d 204 (Tex.App.--Houston [14th Dist.] 1988, no pet.); Cole v. State, 735 S.W.2d 686 (Tex.App.--Amarillo 1987, pet. granted).

Clearly, these acts were very relevant and importantly material to the issues in the case inasmuch as the indictment charged that the Appellant knowingly and intentionally caused certain sexual acts to be committed against C.C., a child who was then younger than fourteen years of age. One allegation charged the Appellant with the penetration of the female organ of C.C. A separate allegation charged him with intentionally and knowingly causing a penetration of the anus of C.C., a child that was then younger than fourteen years of age.

It is axiomatic that the State had the burden to prove each and every element of the offense beyond a reasonable doubt. The State proceeded to discharge this heavy burden. The acts involving A.H. (not the Complainant-victim) were relevant to show absence of mistake or accident on the part of Appellant. These acts negated any theory of accidental touch, rubbing or penetration. The acts against A.H. strongly tended to disprove mistake or accident. These matters were for the jury to weigh.

Of course, it could be argued that these matters were prejudicial to the Appellant; but realistically the whole case of the State is prejudicial against the Appellant. The State was endeavoring to obtain a conviction and discharge its onerous burden of proof.

While Turner, supra, conceded that each case involving so-called "extraneous acts" or "offenses" must be decided on an ad hoc basis, the revised wording of Rule 403 acts to discourage ad hoc review. The test is a determination of whether the trial court abused its discretion. We conclude that no unfair prejudice, confusion of the issues, or misleading...