dissent">WARD, Justice,

dissenting.

I respectfully dissent. The trial court announced that it was permitting the introduction of the extraneous offense under the authority of Walker v. State, 588 S.W.2d 920 (Tex.Cr.App.1979). In that case, six of the extraneous transactions were offered as tending to show the identity of the Appellant as the assailant, after it was established that the complainant was not impeaehed in any material detail in her testimony by cross-examination by Appellant’s counsel. The court pointed out that the effect of the cross-examination was insufficient to raise the issue of identity, but that the manner of cross-examination by repeatedly referring to the scars on the Appellant’s face and his tattoos permitted the introduction. The defensive implication was that the victim should have reported those scars and tattoos in her description which she had made to the officers.

Walker cited and relied on the case of Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974). There, a defense witness testified that the defendant walked with a limp. The complainant testified that she saw no limp. The court there held that the testimony had raised the issue of identity. The court in Walkerthen stated that the demonstration by defense counsel in referring to the scars and tattoos was the functional equivalent of the witness’ testimony in Lusk, therefore the issue of identity was raised sufficiently to allow the introduction of extraneous offenses relevant to that issue.

In the case before us, defense counsel, by his repeated questioning of the complaining witness, of the arresting officers and of the complainant in the extraneous transaction, emphasized that the Appellant at all times had a thick, dark, bushy mustache. He then questioned the complaining witness vigorously on her failure to include a mustache in her description of the assailant. He further elicited testimony from the officers that she had not mentioned the mustache in either a statement or in an attempted compilation of a composite drawing of the assailant. Again he brought out her failure to identify the Appellant’s voice in a voice lineup. In addition, he presented evidence that none of the Appellant’s fingerprints were found at the scene of the crime. Not only that, he elicited testimony regarding the amount of alcohol and marihuana consumed by the complainant on the night of the attack and repeatedly questioned the lighting in the bedroom. Clearly, the identity of the Appellant was the key defensive issue. This is reemphasized by the Appellant’s first ground of error *400attacking the in-court identification of the Appellant.

The Appellant himself opened up one extraneous offense when he told the complainant on the night of the assault that he had done the offense before, and the little girl’s brother had come into the room and had stopped him.

There is no question that the extraneous transaction offered contained common distinguishing characteristics, and no attack is made by the Appellant on that ground. See: Cobb v. State, 508 S.W.2d 249 (Tex.Cr.App.1974). Here, the extraneous offense took place in the same part of town approximately the same time of night and about three weeks later. In the same manner, the Appellant raised an open bedroom window, entered the room without his shoes, awakened the fourteen-year-old victim with a threat not to scream as he had a knife, and that if she cooperated he would not hurt her or the other occupants of the house.

The majority refers to the case of Todd v. State, 598 S.W.2d 286 (Tex.Cr.App.1980). Although alibi was the named defense, Justice Clinton summed up the court’s ruling holding the extraneous offense admissible as follows:

It is therefore clear that the only purpose for the lengthy and vigorous voir dire and cross examination of the State’s identifying witnesses by appellant’s attorney was to make a defensive issue of the identity of appellant and cast doubt upon his being the guilty man.

We hold that this, coupled with the testimony of appellant’s witnesses, rendered the strikingly similar extraneous rape committed within 15 days of the primary rape admissible to rebut the defensive issue of misidentification of appellant.

This is almost identical to the present case. The entire defense strategy was to undermine the complainant’s identification of the Appellant by the repeated references to the failure of the report of the Appellant’s black, bushy mustache.

This case should be affirmed.

Citation profile

Relationships

How this case has been treated — in progress