McGlothlin v. State

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

MALONEY, Judge.

A jury convicted appellant of aggravated sexual assault for having sexual intercourse with a child younger than fourteen years-old, and assessed punishment at twenty years imprisonment and a $10,000 fine. V.T.C.A. Penal Code, § 22.021. The Eleventh Court of Appeals affirmed in a published opinion. McGlothlin v. State, 835 S.W.2d 267 (Tex.App.-Eastland 1992). We grant appellant’s petition for discretionary review on the issue of the admissibility of subsequent extraneous offenses committed by appellant against the complainant and, in light of our recent decision in Vernon v. State, 841 S.W.2d 407 (Tex.Cr.App.1992), summarily reverse and remand.

The record reflects that the complainant was a friend of appellant’s son and appellant’s family and that she frequently visited their home. The indictment charged and the evidence showed that on December 20, 1988, appellant [the former Meridian police chief] engaged in sexual intercourse *140with the complainant, then a twelve year old girl. The complainant testified at the guilt/innocence phase of the trial that, after the initial offense, she and appellant had sex once or twice a week for about two years at his house and at the police department. She also testified that she had oral sex with him in his police car.

The Court of Appeals held:

The evidence [of the sexual acts occurring after the initial offense] had probative value to show appellant’s intent, motive, opportunity, and plan. The jurors should not be required to view the incident on December 20, 1988, in a vacuum. It was the beginning of a lengthy affair, and the facts surrounding the “romance” make the incident more believable than it would otherwise have been.

McGlothlin, 835 S.W.2d at 269. The court noted in a footnote that its holding was consistent with Boutwell v. State, 719 S.W.2d 164, 178 (Tex.Cr.App.1985) (op. on reh’g) (recognizing an exception for admission of extraneous sexual acts between a defendant and a minor complainant under res gestae). McGlothlin, 835 S.W.2d at 270, n. 1.

We have recently held in Vernon that extraneous sexual acts between the defendant and his step-daughter beginning from when she was six years old to after the indicted incident were inadmissible.

Evidence of other crimes, wrongs, or acts was to be allowed [after the adoption of the Texas Rules of Criminal Evidence, effective September Í, 1986] only when relevant to prove an elemental fact or an evidentiary fact of consequence to determination of the action.

Vernon, 841 S.W.2d at 411 (citing Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Cr.App.1991) (op. on reh’g)). We stated “[i]t is thus clear, at least since Montgomery, that we no longer regard the rule of Boutwell to have any legal force independent of” Tex.R.Crim.Evid. 404(b). Id. Therefore, a sexual relationship between a defendant and the complainant “he sexually abuses is not itself an elemental fact” and “unless it can plausibly be argued that the repetition of [the sexual acts] actually makes an elemental fact more likely, then its repetition is not an evidentiary fact of consequence either.” Id.

Appellant’s petition for discretionary review is therefore granted on ground two. The judgment of the Court of Appeals is reversed and this cause is remanded to the Court of Appeals for a harm analysis under Tex.R.App.P. 81(b)(2).