Garza v. State

¶1dissenting.

¶2I respectfully dissent. It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Bass v. State, 622 S.W.2d 101 (Tex.Cr.App.1981); Hines v. State, 571 S.W.2d 322 (Tex.Cr.App.1981). One exception to this rule, acknowledged by the majority, is that an extraneous offense is admissible to prove scienter, where intent is an essential element of the State’s case and cannot be inferred from the act itself. McCarron v. State, 605 S.W.2d 589, 593-594 (Tex.Cr.App.1980); Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App.1975). Under this exception it necessarily follows that the State in its case-in-chief is entitled to introduce a similar extraneous offense as evidence of the appellant’s intent to commit sexual abuse with the child. See Mulchahey v. State, 574 S.W.2d 112, 113, 117 (Tex.Cr.App.1978). It is the element of similarity, or the lack there of, which the majority holds the admission of appellant’s extraneous offense to be in error.

¶3The presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense. Halliburton v. State, 528 S.W.2d 216, 219 (Tex.Cr.App.1975) (on Appellant’s Motion for Rehearing). I find the characteristics between the extraneous offense and the charged offense as set out in the majority opinion sufficiently similar to permit its admission to prove the appellant’s intent.

¶4In any situation where there are no acts by the accused in which his intent may be inferred, the admission of an extraneous offense will be prejudicial, yet the exception does exist. Rubio v. State, 607 S.W.2d 498, 506 (Tex.Cr.App.1980) (concurring opinion by J. Clinton). I fail to see how the admission of the appellant’s prior extraneous offense is any more prejudicial than to an accused forger being presented with the admission of prior passing of checks. Weir v. State, 503 S.W.2d 571 (Tex.Cr.App.1973); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1975); Harris v. State, 169 Tex.Cr.R. 143, 333 S.W.2d 142 (1960). Neither do I find it more prejudicial than a prior nonpayment offense admitted against a person charged with theft of services. Reger v. State, 598 S.W.2d 868, 871 (Tex.Cr.App.1980).

¶5The appellant’s prior offense tends to show the existence of an unnatural sexual attitude toward children of the age of the victim. Compare McKinney v. State, 505 S.W.2d 536, 541-542 (Tex.Cr.App.1974) and Dillard v. State, 477 S.W.2d 547 (Tex.Cr.App.1972) with Ballard v. State, 464 S.W.2d 861 (Tex.Cr.App.1971) and Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 (1953). The extraneous offense is evidence of the state of mind (intent) of the accused at the time he committed the offense for which he is charged. Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974); McKinney v. State, supra at 541-542. The extraneous offense was properly admitted before the jury for the limited purpose of showing intent.1

¶6*833In response to appellant’s challenge to the sufficiency of the evidence, I find the evidence sufficient to prove kidnapping, Sanders v. State, 605 S.W.2d 612, 614-615 (Tex.Cr.App.1980), and the admission of the extraneous offense sufficient to support the jury’s verdict of aggravated kidnapping. I have reviewed appellant’s additional grounds and find no error. The judgment should be affirmed.