AT AUSTIN
NO. 3-91-030-CR
WILLIAM EUGENE TRAMMELL, JR.,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT
NO. 429, HONORABLE CLAYTON E. EVANS, JUDGE PRESIDING
After the jury found appellant guilty of the offense of aggravated sexual assault of a child, Tex. Penal Code Ann. § 22.021(a)(1)(B) (West 1989), the court assessed punishment at imprisonment for seventy-five years. The trial court's admission of evidence of extraneous offenses forms the basis of appellant's first two points of error. The first point of error concerns the admission of testimony relative to the appellant's action in causing the sexual organ of a dog to penetrate the sexual organ of the alleged victim, S M J , while the second point of error is directed to unindicted incidents of sexual relations between the appellant and S M J . In his third point of error, appellant contends that he was deprived of his constitutional right to a fair trial by reason of the ineffective assistance of counsel. We will reverse the conviction and remand the cause.
The indictment charges appellant with intentionally and knowingly sexually assaulting S M J by causing his sexual organ to penetrate the female sexual organ of S M J , a child younger than fourteen years of age. S M J testified that during the two-month period she stayed with her natural mother, the appellant (her step-father) "put his private in my private and he made me do it with a dog." While her testimony reveals that the incident with the dog occurred on only one occasion, S M J related that the appellant put his private in her private "a bunch of times."
In his first point of error, appellant asserts the trial court erred in admitting evidence of an extraneous offense concerning S M J and a dog. Prior to the introduction of the first testimony concerning the extraneous offenses, a hearing was held outside the presence of the jury at which the circumstances surrounding the extraneous violations were developed. Following the court's action in overruling appellant's objection that any probative value the evidence of the extraneous might have would be outweighed by its prejudicial affect, Joyce Jones, paternal grandmother of the victim, and Dr. Nancy Kellogg, an examining physician, testified that S M J told them about sexual relations forced upon her by the appellant, and that "Gene [appellant] put the dog on top of me and put the dog's private parts in my private parts." S M J was the last witness to testify for the State in its case in chief.
The State cites Boutwell v. State, 719 S.W.2d 164, 178-79 (Tex. Crim. App. 1985), to support its contention that the complained of violations came within the exception to the rule excluding extraneous offenses in that they are viewed as res gestae, a part of an ongoing course of conduct or continuing scheme in cases involving sexual abuse of the child by one standing in a parental relationship. The Court of Criminal Appeals, in a recent opinion, Vernon v. State, No. 1232-91 (Tex. Crim. App. November 4, 1992), held the rule in Boutwell no longer had any force independent of Tex. R. Crim. Evid. 404(b). In Vernon, the court set forth the following guidelines relative to the admissibility of extraneous misconduct under Rule 404(b):
Evidence of other crimes, wrongs, or acts was to be allowed thereafter only when relevant to prove an elemental fact or an evidentiary fact of consequence to determination of the action. Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex. Crim. App. 1990) (opinion on rehearing). Historical exceptions allowing proof of extraneous offenses for other purposes were conspicuously omitted.
In Montgomery, we explained that the rule of Boutwell was based upon the widespread reluctance of people to believe "that parents or others in loco parentis would actually commit sexual crimes against their own children." Id. at 394. We recognized that successful prosecution of such crimes almost invariably depended upon the credibility of a child complainant, and that
[w]here the accused calls that credibility into question, evidence of other identical or similar acts of sexual misconduct perpetrated by a parent against his own child may well serve to shore up testimony of the child if in logic it shows a lascivious attitude (relevant to culpable intent) and a willingness to act on it (relevant to prohibited conduct) that a jury might otherwise be loath to attribute to a parent toward his child.
But we insisted that admissibility under such circumstances was to be conditioned upon relevancy of the evidence to material issues in the case. It is thus clear, at least since Montgomery, that we no longer regard the rule of Boutwell to have any legal force independent of Rule 404(b).
The State further urges that the complained of evidence was admissible to rebut appellant's defense of no access and that he was not the type of person who would commit such offenses. Appellant's wife testified that S M J was never alone with the appellant. Appellant testified that he had a good relationship with S M J and that he was not the type of person who displayed unnatural attention toward his stepdaughter.
The first step in determining whether evidence of other crimes is admissible is its relevance to prove an elemental fact or an evidentiary fact of consequence. There must be sufficient distinctive characteristics in the charged offense and the extraneous misconduct to prove a material fact issue; otherwise, the relevance of the evidence cannot outweigh its prejudicial effect. Owens v. State, 827 S.W.2d 911, 915 (Tex. Crim. App. 1992); Collazo v. State, 623 S.W.2d 647-48 (Tex. Crim. App. 1981). In Owens, the defendant was charged with aggravated sexual assault of a child. The evidence showed that the defendant had penetrated his eleven-year-old daughter's vagina with his finger. After the defendant took the stand and denied the alleged offense, the State introduced testimony of the defendant's older daughter that her father had sexual intercourse with her and had put his hand down her blouse and pants. The court found that there were not sufficient similarities in the two offenses to prove a material fact issue. The court reasoned that the extraneous offenses did nothing more than show character conformity in violation of Rule 404. Owens v. State, 827 S.W.2d at 916-17.
In Montgomery, the defendant was tried under two indictments for indecency with two of his young daughters. The evidence to support the charged offenses showed that he had put his hands on his daughters' genital areas. The court found that the State had no compelling need to show that the defendant walked around naked, with an erection, in the presence of his children, either to prove specific intent or to shore up testimony. The court reasoned that such extraneous misconduct created a "grave potential for decision on an improper basis, as jurors may have lost sight of specific issues they were called upon to decide and convicted appellant out of revulsion against his parental demeanor." Montgomery v. State, 810 S.W.2d at 397.
In the instant cause, the extraneous conduct and the primary offense cannot be characterized as identical or similar. The only relevance of the extraneous misconduct was to show that the appellant has a propensity for being a sadistic sexual deviant. Rule 404(b) expressly prohibits evidence of other offenses "to prove the character of a person to show that he acted in conformity therewith." Any probative value the extraneous offense may have was clearly outweighed by its prejudicial affect. We conclude that the trial court abused its discretion in admitting evidence of the extraneous offense.
After finding that the trial court erred in admitting evidence of extraneous offenses or misconduct in Montgomery, Owens, and Vernon, the Court of Criminal Appeals remanded to the courts of appeal for a determination of whether the error was harmless under Tex. R. App. P. 81(b)(2). Rule 81(b)(2) provides that an appellate court shall reverse the judgment under review, "unless the appellate court determines beyond a reasonable doubt that the error made no contribution to the conviction or the punishment." It is difficult to imagine more reprehensible conduct than that shown to have been committed by the appellant in the extraneous offense. The extremely inflammatory nature of evidence showing one in a parental relationship placing the private parts of a dog in his stepchild's private parts is obvious.
We conclude that the trial court's error in allowing the jury to hear testimony about the extraneous violation prejudiced the jury's decision-making process and affected a substantial right of the appellant. Therefore, this Court cannot determine beyond a reasonable doubt that the error made no contribution to the conviction. We sustain appellant's first point of error. In light of our disposition of this point of error, we find it unnecessary to address the appellant's remaining points of error.
The judgment is reversed and the cause remanded.
Tom G. Davis, Justice
[Before Justices Jones, Kidd and Davis*]
Reversed and Remanded
Filed: January 27, 1993
[Do Not Publish]
* Before Tom G. Davis, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).