Rodriguez v. State, 01-84-0346-CR

• Decision Date: 07 March 1985
• Docket Number: No. 01-84-0346-CR,01-84-0346-CR
• Parties: Michael RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 505

687 S.W.2d 505

Michael RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 01-84-0346-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

March 7, 1985.

Stephen A. Doggett, Richmond, for appellant.

William A. Meitzen, Fort Bend Dist. Atty., Bryan K. Best, Fort Bend Asst. Dist. Atty., Richmond, for appellee.

Before WARREN, DUGGAN and HOYT, JJ.

OPINION

DUGGAN, Justice.

A jury convicted appellant of burglary of a habitation with intent to commit sexual assault and assessed his punishment at seven years confinement. Appellant urges four grounds of error on appeal. We affirm.

The complainant, Gracie Gutierrez, testified that she was awakened at about 2:40 a.m. by someone leaning over her bed. She immediately recognized this person as the appellant, Michael Rodriguez, whom she had known for four years. She told him to leave or she would scream for her father. The appellant, muttering that he "wanted her", got into the bed on top of her and told her not to scream because he did not have any clothes on. He then tried to kiss her, to touch her in the vaginal area, and to remove her shorts. When she began screaming and pulling his hair, he got up, grabbed his pants and shirt, removed the pliers he had inserted in the door latch to prevent it from being opened, and ran out the bedroom door.

Guadelupe Gutierrez, the complainant's mother, testified that when she heard Gracie screaming, she ran into the hallway. There, she recognized the appellant as he ran past her, wearing only a shirt and carrying his pants in his hand.

Arnoldo Gutierrez, the complainant's father, testified that he heard Gracie scream, ran out into the hallway, grabbed the fleeing intruder, and began struggling with him. During the struggle, Mr. Gutierrez recognized the intruder as the appellant.

All three of these witnesses testified that as appellant fled, he dropped three items in the hallway: a pair of boots, a belt with the initials "M.R." on the buckle, and a pair of handcuffs.

Appellant's first ground of error contends that the trial court erred in refusing to admit evidence of his prior consistent statements supporting his defense of alibi.

Appellant testified that on the night in question, he picked up the complainant's brother, Ramon Gutierrez, who went with him to a dance at the Torez Ball Room, where appellant met Blasa Regino. Ms. Regino testified, in support of appellant's alibi, that she was engaging in sexual intercourse with appellant in an automobile elsewhere at the time he was alleged to have been in the complainant's bedroom. Appellant testified that he and Ramon left the dance during the evening in the complainant's car, so that he, the appellant, could change his clothes. The two men used the complainant's car, he said, because appellant's own car was blocked in at the ballroom's parking lot. They drove to appellant's grandmother's house, where he went inside and got a pair of jeans, a T-shirt, and a gun, since he anticipated trouble with other persons back at the ballroom. Ramon drove back to the ballroom while appellant changed clothes in the car, placing the clothes he took off into a brown paper sack which he left in the complainant's car. He testified that he also put into the sack the boots, the belt, and the handcuffs introduced as State's Exhibits 1, 2, and 3.

Appellant further testified that after he returned to the dance, he felt out of place wearing a T-shirt and jeans, and again went outside to the complainant's car and changed clothes once more. He put on his "casual jeans" and a beige button-front shirt, leaving the old jeans and the T-shirt in the complainant's car.

Appellant testified further that when the dance was over at about 2:00 a.m., he left in his car with Blasa Regino and Ramon, dropped Ramon off, and then drove with Ms. Regino to another friend's house. This friend was not at home, but appellant and Ms. Regino stayed at this location in his car for about one hour. Appellant then took Ms. Regino back to the Torez Ball Room, dropped her off, and picked up Robert Flores. Appellant testified that he drove to Houston with Flores, and that the two men returned to Richmond before noon. Flores testified as an alibi witness concerning the trip to Houston.

On cross-examination, the prosecutor undertook to impeach appellant's explanation as to why his boots, belt, and handcuffs were found at the complainant's home. The State concedes that the prosecutor's cross-examination of appellant amounted to an accusation that appellant fabricated his testimony after listening to other witnesses during trial. In an attempt to rebut the prosecutor's claim of recent fabrication, appellant called his father to the stand to testify to what Michael had told him "a couple of days after the incident" about leaving his clothes in the complainant's car. The state's objection to this testimony as hearsay and self-serving was sustained, and appellant's father was not allowed to testify before the jury. His excluded testimony was preserved by a bill of exceptions.

When a testifying defendant has been impeached or sought to be impeached by proof of contradictory statements, it is error to refuse to permit him to sustain his own testimony by proof of statements similar to those testified to at trial, and which were made shortly after the transaction and before any motive or inducement existed to fabricate. Rains v. State, 146 S.W.2d 176, 179 (Tex.Crim.App.1941). This rule is equally applicable to the impeachment of testimony by a charge of recent fabrication. However, it is equally well-settled that proof of statements in harmony with a defendant's testimony made after a motive existed which would likely prompt him to testify falsely, cannot be introduced to support his testimony. Id.

The statements in question were made to appellant's father "a couple of days after the incident." While appellant had not been arrested or charged for the alleged offense when he made the statements, the record shows that he knew within hours of the incident that he was being accused of assaulting the complainant.

The assault was alleged to have occurred at about 2:40 a.m. Appellant testified that when he telephoned Manuel Ibarra from Houston that morning before dawn, Ibarra told him that Ramon Gutierrez was looking for him and had accused him of assaulting Ramon's sister. Appellant also testified that he called Ramon when he returned to Richmond from Houston and denied assaulting the complainant. Ramon testified that he had told Steve Ibarra, Manuel's brother, at about 3:30 a.m. that he was looking for appellant because the latter had assaulted his sister. Ramon Gutierrez testified that appellant called and told him that "he didn't do it," and that he wanted his boots back.

Even if appellant had made the statement at issue to his father before he knew of the accusation against him and thereby had a motive to fabricate, the error in excluding the supporting testimony was harmless in light of the overwhelming direct evidence of appellant's guilt. Lewis v. State, 504 S.W.2d 900, 902 (Tex.Crim.App.1974). Further, appellant's father's testimony before the jury would have been cumulative of the testimony of (1) Blasa Regino, who testified that appellant left the dance to change his clothes, and that she was with him in his car at the time of the alleged assault, and (2) Ramon Gutierrez, who testified that he was with appellant when the latter changed clothes in the complainant's car. The excluded testimony was not of such moment as to materially change the state of the case favorably to the accused; accordingly, there is no ground for reversal. Ewalt v. State, 363 S.W.2d 279, 283-84 (Tex.Crim.App.1963). Appellant's first ground of error is overruled.

In his second ground of error, appellant contends that the trial court erred in failing to submit his requested instruction limiting the jury's consideration of extraneous offenses.

The "extraneous offenses" complained of by appellant were introduced into evidence by his own testimony, not through any direct questioning by the prosecutor as to any offense. Appellant testified on direct examination that when he went to get a change of clothes, he also picked up a gun in anticipation of trouble back at the dance. On cross-examination, the appellant volunteered that he went to Houston with Robert Flores on the night in question to buy drugs.

An accused is entitled to be tried on the accusation made in the state's pleading, and not for some collateral crime or for being a criminal generally. Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983). When evidence of an extraneous offense is introduced under a recognized exception to the rule, it is incumbent upon the trial court to instruct the jury that they cannot consider the extraneous offense except for the specific purpose for which it was admitted and unless they find beyond a reasonable doubt that the defendant committed such offense. Nicholas v. State, 136 S.W.2d 221, 221-22 (Tex.Crim.App.1940).

However, when a defendant initially introduces and testifies to the details of an extraneous offense, as appellant did here, he is not entitled to an instruction limiting the jury's consideration of the evidence. Kirkpatrick v. State, 515 S.W.2d 289, 292 (Tex.Crim.App.1974); Moss v. State, 364 S.W.2d...