Wiggins v. State

• Decision Date: 17 August 1989
• Docket Number: No. 05-87-01049-CR,05-87-01049-CR
• Citation: 778 S.W.2d 877
• Parties: Thomas Michael WIGGINS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 877

778 S.W.2d 877

Thomas Michael WIGGINS, Appellant, v. The STATE of Texas, Appellee.

No. 05-87-01049-CR.

Court of Appeals of Texas Dallas.

Aug. 17, 1989.

Discretionary Review Refused Dec. 13, 1989.

Arch C. McColl, David W. Coody, Dallas, for appellant.

Anne B. Wetherholt, Dallas, for appellee.

Before HOWELL, LAGARDE and WHITTINGTON, JJ.

LAGARDE, Justice.

Thomas Michael Wiggins appeals his jury conviction for the offense of aggravated sexual assault, for which the jury assessed punishment at twenty-five years' confinement. In seven points of error, Wiggins claims that the trial court committed harmful error by: (1) admitting the testimony of a rebuttal witness regarding an extraneous offense; (2) permitting the State to ask "have you heard" questions of a defense witness after she testified about Wiggins's character for truthfulness and "honesty"; (3) failing to instruct the jury to disregard testimony of a defense witness about Wiggins's "honesty"; (4) and (5) permitting the State to cross-examine Wiggins about whether he had been fired by two former employers; and (6) and (7) overruling Wiggins's objection to the charge based on the trial court's failure to include an instruction on the possible probation terms of psychological treatment and incarceration for up to 120 days. For the reasons that follow, we affirm.

The facts in this case show that Wiggins met the victim for the first time on December 5, 1985, while both were attending a Christmas party held at a tanning salon. During a short conversation, they discussed the fact that they both lived in the same apartment complex. When the party broke up, Wiggins and the victim each signed the guest register and left to go their separate ways.

The victim returned to her apartment and changed into a sweat suit in preparation for bed. Shortly, Wiggins knocked on her door, and she let him in. Suggesting that they go to the hot tub, Wiggins said that he would go home and get a bottle of wine. The victim agreed. Wiggins left, and she changed into a swimsuit, put her sweat suit on over the swimsuit, and walked out to the hot tub. As the victim started to leave the hot tub and return to her apartment, after having decided Wiggins was not going to appear, Wiggins walked up with a bottle of wine. He had not changed his clothes, and he said that he thought he had left his keys in the victim's apartment. They went back to the victim's apartment to look for his keys but were unable to find them. Wiggins suggested that they just watch television or something instead of going back down to the hot tub, so they sat in her apartment, watched MTV, and talked. Wiggins then tried to kiss her. She put her hands up, stating that it was late and that she had to get up early. He tried to kiss her again. Once more, she stated that she had to get up early the next day.

Wiggins then got up off the couch and walked out of her apartment. At first, she thought that he might be leaving, but then she heard him throwing up outside. He did not leave; instead, he walked back into her apartment and sat down. Eventually, he tried to kiss her again. She resisted and, for a third time, said she needed to get up early the next morning. Wiggins sat back down but, after a short period of time, he picked up his wine bottle and walked into the kitchen. The victim heard Wiggins in the kitchen rattling utensils. After returning to the living room, he unzipped his pants, walked over, and tried to kiss her again. This time, when she pushed him away, he showed her that he had a knife in his hand and threatened her.

Still holding the knife, Wiggins ordered her to sit on the floor and take off her sweat top and pants. She pleaded with him to stop. Refusing, he undressed, put on a condom, pushed her onto her back, and got on top of her. She was cut by the knife, which was pressed up against her fingers. He then committed penile penetration. At one point, he put the knife to her throat and started whispering the Lord's Prayer in her ear. In the process of committing digital penetration, he put the knife down; she grabbed it. During the struggle which ensued, he put his hand over her mouth preventing her from breathing. Although she still had the knife, she was afraid to use it. He told her that he had been stabbed before and confirmed his statement by showing her a scar. He told her that, if she stabbed him but did not kill him, he would kill her.

Asking her if she had ever "done it up the butt," he forced her to get on her hands and knees and proceeded to attempt anal intercourse. Still on her hands and knees, the victim began inching forward toward the front door. She tried to grab the door handle and lock, but her hands, covered with blood, slipped and she was unable to get the door open. They struggled again, and Wiggins forced her away from the door. Unsuccessful in his attempts at anal intercourse, Wiggins then demanded that she perform fellatio. After several unsuccessful attempts to have oral sex, Wiggins said, "[w]ell, I give up." He poured water on the blood on the carpet, rinsed himself off, told her that he would come back if she told anyone, and then he left. The entire episode covered a period of approximately four hours. With these facts in mind, we will now address Wiggins's seven points of error.

Extraneous Offense

In his first point of error, Wiggins asserts that the trial court erred in admitting, over objection, rebuttal evidence of an extraneous sexual assault to prove Wiggins's intent. We disagree. Although the extraneous offense will be set out in some detail later in this discussion, we note that the extraneous offense involved a young woman who agreed to go for a ride in Wiggins's "Vette." According to the woman, Wiggins stopped his vehicle in a parking lot and forced her to engage in oral sodomy and threatened to force her to engage in anal sodomy.

Generally, a defendant is entitled to be tried on the accusation in the State's pleading and not on some collateral crime or for being a criminal generally. Cantrell v. State, 731 S.W.2d 84, 88 (Tex.Crim.App.1987). However, there are exceptions to the general rule that extraneous offenses are inadmissible. Id. at 88-89. The regularly recognized exceptions are: (1) to show the context in which the criminal act occurred; (2) to circumstantially prove identity where the State lacks direct evidence; (3) to prove scienter where intent or guilty knowledge is an essential element of the offense; (4) to prove malice or state of mind; (5) to show the accused's motive; or (6) to refute a defensive theory raised by the accused. See id. at 89, quoting Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex.Crim.App.1972).

Although the enumerated exceptions are regularly recognized, they are not automatic. See Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.1985) (op. on reh'g). As the court in Boutwell held, "The danger of rote application of general rules is that they focus on 'admissibility' rather than the logical analysis all evidence must withstand to determine admissibility." Id. at 172. The "logical analysis" referred to in Boutwell is also called the "true test" for the admissibility of extraneous offense evidence. See Cantrell, 731 S.W.2d at 89; Williams v. State, 662 S.W.2d 344, 346 (Tex.Crim.App.1983).

The test has been stated as follows: "Every case must be examined on its own facts, strengths, and weaknesses to determine whether the extraneous transaction is relevant to a material issue, and whether the relevance value outweighs the prejudicial potential." Boutwell, 719 S.W.2d at 174. See also Hargraves v. State, 738 S.W.2d 743, 748 (Tex.App.--Dallas 1987, pet. ref'd). This Court has broken down the test into two primary parts: (1) whether the extraneous offense is relevant to a material contested issue in the case other than the appellant's character, and (2) whether the probative value of the extraneous offense outweighs its prejudicial effect. See Hargraves, 738 S.W.2d at 748.

Relevancy to Material Issue

We will first examine the question of relevancy of the extraneous offense to a material contested issue in this case. See Reed v. State, 751 S.W.2d 607, 611 (Tex.App.--Dallas 1988, no pet.). Where intent or guilty knowledge is an essential element of the offense, which the State must prove to obtain a conviction, its materiality goes without saying. Cantrell, 731 S.W.2d at 89, quoting Morgan v. State, 692 S.W.2d 877, 880 (Tex.Crim.App.1985). Here, the State must prove, in pertinent part, that Wiggins did "intentionally cause penetration ... without the consent of the complainant." ¹ Intent, therefore, is one of the material issues that is raised by the State's pleading.

Next, we must determine whether intent was a contested issue in this case. See Reed, 751 S.W.2d at 611. Consequently, we must decide if Wiggins raised the issue of intent during the trial of this case. Id. Wiggins contends on appeal that the only issue before the jury was whether, as contended by the complainant, Wiggins forcibly had nonconsensual sexual intercourse with her at knifepoint, or whether, as Wiggins testified, he never had intercourse with the complainant at all. Wiggins argues that intent was not a material contested issue, but, rather, the key dispute was whether Wiggins committed the specific act of penetration of the complainant's female sexual organ with his sexual organ. In other words, Wiggins asserts that the specific offense, as indicted, never occurred, not that it consensually occurred. Wiggins argues, therefore, that the extraneous offense was improperly admitted because consent was not a contested issue.

Of course, we cannot merely rely on Wiggins's assertion, on appeal, that he intended to contest only the issue of penetration and not the issue of consent. Instead, we must look to the testimony at trial to determine the contested issue or issues. In response to questions by the State, the victim testified, in part:

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