Smith v. State
| Decision Date | 19 October 1966 |
| Docket Number | No. 38934,38934 |
| Citation | 409 S.W.2d 409 |
| Parties | James W. SMITH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Frank Y. Hill, Jr., San Antonio, for appellant.
James E. Barlow, Dist. Atty., Charles T. Conaway, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is indecent exposure to a person under 16 years of age; the punishment, 15 years in the penitentiary.
Trial was had and notice of appeal was given prior to January 1, 1966.
Witnesses for the State, children whose ages were between eight and fourteen years at the time of the offense, testified that they were playing near a glass-walled telephone booth located near their homes. Several of the witnesses testified that the appellant was in the booth with his pants unzipped and was holding his privates in one hand while holding the telephone receiver with his other hand. They testified that appellant grinned and winked at them from within the telephone booth, then stepped outside and stated, 'I will give you a dollar if you will go in the car and take a ride with me.' Several of the children then began to run from the appellant, and he got in his car and drove away. As appellant was driving away, one of the children, a 14 year old boy, wrote his auto license number on the sidewalk, and after conferring with his father, called the police and gave information which led to appellant's arrest.
In Cause No. 38,998, Tex.Cr.App., 409 S.W.2d 408, October 12, 1966, we affirmed the conviction of this same appellant for a similar offense that occurred only one day subsequent to the offense charged in the case at bar. During this trial evidence was admitted, over appellant's objection, of the offense involved in No. 38,998. Cause No. 38,998 involved indecent exposure by the appellant to two junior high school girls, aged 13 to 14 years, as they were walking home from school. Appellant contends that evidence of the extraneous offense should not be admitted.
The general rule is that the accused can be convicted only by evidence showing that he is guilty of the offense charged. See 23 Tex.Jur.2d 294. However, exceptions and variations to this rule allow evidence of extraneous offenses. In the case at bar appellant testified that he might have been in the telephone booth on the alleged date, but denied that he had exhibited his privates to the children. In Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612, this Court stated that proof of prior and subsequent acts are admissible if they explain and lend credence to the testimony concerning the conduct of the parties on the occasion...
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