Jimenez v. State

• Decision Date: 20 February 1991
• Docket Number: No. 04-89-00588-CR,04-89-00588-CR
• Citation: 804 S.W.2d 334
• Parties: Reynaldo JIMENEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 334

804 S.W.2d 334

Reynaldo JIMENEZ, Appellant, v. The STATE of Texas, Appellee.

No. 04-89-00588-CR.

Court of Appeals of Texas San Antonio.

Feb. 20, 1991.

Ron S. Rainey, Richard Haines Office, Houston, for appellant.

Steven C. Hilbig, Criminal Dist. Atty., Fred G. Rodriguez, Former Criminal Dist. Atty., Jim Kopp, Jay Norton, Barbara Hervey, Bexar County Justice Center, San Antonio, for appellee.

Before CADENA, C.J., ¹ and CHAPA and CARR, JJ.

OPINION

CHAPA, Justice.

Appellant Reynaldo Jimenez, appeals a jury conviction for the offense of burglary of a habitation with intent to commit sexual assault. Punishment was assessed at imprisonment for life. We affirm.

The issues are whether reversible error was committed because:

1) the trial court permitted evidence of extraneous offenses which allegedly occurred on September 4, 1987, and on September 21, 1986;

2) the prosecution improperly commented about the defendant's silence;

3) the charge improperly commented on the weight of the evidence and allowed the jury to convict on an alleged act not charged;

4) the defendant was denied effective assistance of counsel;

5) the prosecution made an improper argument to the jury; and

6) the evidence was insufficient to support the conviction.

The complainant testified that on the night of October 17, 1987, she had retired for the night after turning off the inside lights, turning on the outside lights and locking the doors. Upon hearing the burglar alarm go off in her home, she grabbed her gun and saw a tall, thin intruder standing in the kitchen. She yelled at the intruder and warned him that she would use the gun. When the intruder lunged towards her, throwing open the bedroom door she was trying to shut, she fired three shots towards the door in a slightly upward direction. However, the intruder knocked the complainant to the floor, jumped on top of her, and ran away only after the main alarm went off, leaving blood on the complainant's clothes, and in the bedroom and other parts of the house, both inside and outside. The police determined that the light bulb outside had been unscrewed and mud had been placed on the peephole of the back door; additionally, only one of the three bullets was recovered in the house, and the blood found on the premises and the complainant's clothes matched the blood type of the appellant, which is found in only .07% of the population.

Over objection, the trial court permitted evidence of two extraneous offenses which allegedly occurred on September 4, 1987, and on September 21, 1986.

The evidence disclosed that on September 4, 1987, the same complainant involved in the cause before the court, went to bed at night after securing the house and turning on the exterior and the kitchen lights. She awoke to be sexually assaulted three times over a two hour period by an intruder she identified as the appellant. She testified that after breaking in, the intruder took off all his clothes and forced her to have sexual intercourse with him until he left. She stated that the intruder had a certain odor about him and that she recognized the appellant as being the same man who had assaulted her. It was later discovered that the outside light had been unscrewed and a knife was missing. Thereafter, the exterior bulb was unscrewed every week or two.

Evidence further disclosed that on September 21, 1986, another woman in the vicinity of where the appellant and the complainant resided, was also sexually assaulted. After taking security precautions, the woman was awakened by a tall, thin intruder who threatened her with a sharp object, forced her to take off all her clothes, and forced her to have sexual intercourse three times over a period of about two hours. However, the complainant could not identify the intruder because of the darkness. Thereafter, it was discovered that the outside light bulb had been unscrewed and an analysis of a fingerprint found on the bulb matched that of the appellant.

Appellant, who testified that he weighed 175 lbs. and at 5' 11 1/2"' was the tallest man on his football team, conceded that he lived in the vicinity of all of the alleged incidents, but denied committing the burglary or sexual assaults in question. Although the appellant conceded being immediately outside the home of the complainant at the time of the shooting, he claimed that he had heard her yell, had gone to the door to help when some unknown man had come running out of the house knocking him down. The appellant stated that when he got up outside the complainant's door, he discovered that he had been shot two times but that he had seen neither the person who shot him nor the complainant he allegedly assaulted. Appellant further insisted that he had never been in the home of either the complainant or the other woman he allegedly attacked on September 21, 1986. He stated that he had dragged himself home and his mother took him to the hospital. The appellant conceded that he did not report the incident immediately, but argued that the police were in the hospital where he was taken and he eventually told the police the same story he told the jury. However, the appellant was unable to explain how his blood had been found in the bedroom, other places inside the house, and on the clothing of the complainant.

Initially, appellant contends the trial court erred in permitting the evidence of the two alleged extraneous offenses of September 4, 1987, and September 21, 1986.

The Texas Court of Criminal Appeals stated:

The general rule is that an accused may not be tried for some collateral crime or for being a criminal generally....

* * * * * *

Equally well recognized, however, is that " '[T]hese evidentiary principles, as most, must in some circumstances give way. For extraneous transactions constituting offenses shown to have been committed by the accused (note omitted) may become admissible upon a showing by the prosecution both that the transaction is relevant to a material issue in the case; and, the relevancy value of the evidence outweighs its inflammatory or prejudicial potential.' " Elkins v. State, 665 [Tex.Crim.App.1983], quoting Rubio v. State, 506 [Tex.Crim.App.1980] (concurring opinion) (underlining in original opinion).

See Murphy v. State, 587 S.W.2d 718, 722 (Tex.Crim.App.1979). This is the true "test" of extraneous offense evidence admissibility.

Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983).

In the present case, appellant's defense was based on his contentions that it was an accident that he was in the vicinity of the shooting, that he had never been in the home of the complainant, and that he had never intended to commit a sexual assault, which was a critical element of the charge. Therefore, evidence of the burglary, of assailant's identity, and appellant's intent at the time of the burglary were relevant. This is made particularly obvious by the statement of the appellant in his brief that "[i]n the present case, the only evidence of intent was the two prior extraneous offenses." Considering the entire record, we hold that the extraneous offenses were relevant and absolutely necessary to the State, and the relevancy was not outweighed by the inflammatory or prejudicial potential. The points are overruled.

Appellant next complains that reversible error was committed because the prosecution made improper comments as to the defendant's silence after his arrest.

However, the appellant directs our attention to a part of the record where the appellant was cross-examined by the prosecution without objection and the appellant established that when he had recovered sufficiently from his wounds at the hospital, he denied any guilt to the police and told them his version of what had happened. The appellant has failed to show reversible error. ² The point is rejected.

Appellant next complains that the trial court committed fundamental error in the charge to the jury, which allegedly comments on the weight of the evidence and permits the appellant to be convicted of an alleged act not charged.

When the error alleged on appeal is found in an unobjected to charge, reversal will be justified only when the error is fundamental, which requires the harm created by the fundamental error to be so egregious that it deprives the accused of a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 172 (Tex.Crim.App.1984). Where the indictment alleges that the offense occurred "on or about" a certain date, a charge makes a correct statement of the law when it provides that the State is not bound by the specific date alleged, and a conviction may be had upon proof that the offense was committed any time prior to filing the charging instrument that is within the period of limitation. Box v. State, 730 S.W.2d 862, 863 (Tex.App.--Texarkana 1987), vacated on other grounds, 760 S.W.2d 261 (Tex.Crim.App.1988). Further, a charge under these circumstances, that instructs the jury not to consider any evidence of extraneous offenses at all unless they find beyond a reasonable doubt that the offenses were committed by the accused, and limits that consideration to establishing the intent of the accused, if any, in connection to the charged offense, is also a correct statement of the law and cures any misinterpretation of the charge as to the date of the offense. Id. at 863.

The record here reflects that no objection was made to the charge, and the appellant is, therefore, required to show egregious harm. The charge here contains correct statements of the law approved in Box, 730 S.W.2d 862, regarding the State not being bound by the date on the indictment and the limiting instruction regarding extraneous offenses. Appellant insists, however, that fundamental error exists in the present case because the indictment alleges an offense dated October 17, 1988, when the complainant testified the offense occurred on October 17, 1987. Considering the record as a whole, it is clear the...