OTIS ALLEN SMITH, Appellant v. THE STATE OF TEXAS, Appellee

Reversed and Remanded and Opinion filed October 24, 1989
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-85-00654-CR
............................
OTIS ALLEN SMITH, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 204th Criminal District Court
Dallas County, Texas
Trial Court Cause No. F85-96235-LQ
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Opinion on Remand
Before Justices Stewart, Whittington and Burnett
Opinion by Justice Whittington
        Appellant, Otis Allen Smith, was convicted of the offense of aggravated sexual assault. Punishment was assessed at forty years. On original submission, this Court, in an unpublished opinion, affirmed appellant's conviction, finding that evidence of appellant's prior sexual assaults of the complainant's sister was admissible as evidence of unnatural attention toward the complaining child witness and of probability that the act occurred. Smith v. State, No. 05-85-00654-CR (Tex. App.--Dallas March 27, 1986). The Court of Criminal Appeals directed that this Court re-analyze this point in light of Boutwell v. State, 719 S.W.2d 164 (Tex. Crim. App. 1985). For the reasons given below, we reverse the judgment of the trial court and remand the cause for new trial.
        Appellant was accused in this cause of having sexually assaulted an eight-year-old girl, his step-daughter. Over objection of defense counsel, the State introduced evidence that appellant had committed similar acts upon the complainant's sister. For extraneous offenses committed by the accused to be admissible, the offense must be relevant to a material issue in the case, and the relevancy of the evidence must outweigh its inflammatory or prejudicial potential. Williams v. State, 662 S.W.2d 344, 346 (Tex. Crim. App. 1983); Mannie v. State, 738 S.W.2d 751, 755 (Tex. App. -- Dallas 1987, pet. ref'd). Evidence of extraneous offenses has been held admissible (1) to show the context in which the criminal act occurred, (2) to circumstantially prove identity where the State lacks direct evidence on this issue, (3) to prove scienter, where intent or guilty knowledge is an essential element of the State's case and cannot be inferred from the act itself, (4) to prove malice or state of mind, (5) to show the motive of the accused, or (6) to refute a defensive theory of the accused. Albrecht v. State, 486 S.W.2d 97, 100-101 (Tex. Crim. App. 1972). This list is illustrative rather than exhaustive. Williams v. State, 662 S.W.2d at 346. In determining whether an extraneous offense is admissible, we are to avoid the mechanistic invocation and application of general rules and their exceptions. Boutwell, 719 S.W.2d at 171-72.
        In our prior opinion we held evidence of appellant's prior sexual assault of the complainant's sister admissible to prove unnatural attention or probability that the act occurred. We must re-examine this ruling on remand in light of Boutwell's holding that extraneous offenses are not admissible for these purposes. We recognize that the court in Boutwell reaffirmed that extraneous offenses are still admissible if they fall into one of the proper exceptions to the general rule barring their admission. Boutwell, 719 S.W.2d at 179. The State relies on the first and sixth exceptions set out above from the Albrecht case. The State argues that the evidence of the offense against the complainant's sister is admissible because it is "res gestae" or part of one continuous transaction. However, under Boutwell, such evidence is only admissible if it involves prior acts with the complainant; acts with third parties are no longer admissible under the res gestae exception. Boutwell, 719 S.W.2d at 179. The State also argues that the extraneous offenses against the sister are admissible to rebut the defensive theory that complainant and her sister resented appellant's discipline, had discussed parental sexual abuse of themselves and their associates, and responded with these accusations. The extraneous offense evidence at issue does not rebut this defensive theory. It only shows appellant's "propensity" for this type of crime and does not counter the defendant's theory that the sisters were both acting in retaliation. Accordingly, we hold, that the extraneous offense evidence is inadmissible because it does not fall within a proper exception to the general rule barring its admission. The evidence is not relevant to a material issue in the case, and the relevancy value of the evidence did not outweigh its inflammatory or prejudicial potential. Boutwell, 719 S.W.2d at 181; Turner v. State, 754 S.W.2d 668, 673-74 (Tex. Crim. App. 1988). As a result, we conclude that the trial court erred in admitting this testimony.
        We must next examine the case to determine whether appellant was harmed by the introduction of this testimony. More specifically, we must reverse this case unless we can determine beyond a reasonable doubt that the error made no contribution to the verdict or to the punishment assessed. Tex. R. App. P. 81(b)(2). FN:1
        The primary issue at appellant's trial was the credibility of the complainant. There was no medical evidence showing that the sexual assault had definitely occurred. Finally, there was evidence that the complainant and her sister had contact with other children who were knowledgeable on sexual matters. The evidence of appellant's guilt, as a result, was less than compelling in this case. We cannot conclude beyond a reasonable doubt that the introduction of evidence of the extraneous offenses made no contribution to the verdict of the jury.
        The judgment of the trial court is reversed and this cause remanded to the trial court for new trial.
 
                                                                  
                                                                  JOHN WHITTINGTON
                                                                  JUSTICE
 
 
Do Not Publish
Tex. R. App. P. 90
 
850654R.U05
 
FN:1 "If the appellate record in a criminal case reveals error in the proceedings below, the 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 to the punishment." Tex. R. App. P. 81(b)(2).
File Date[10-25-89]
File Name[850654RF]