Opinion
No. 05-04-00557-CR
Opinion issued December 22, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 336th Judicial District Court, Grayson County, Texas, Trial Court Cause No. 048757. Affirmed.
Before Justices MORRIS, WHITTINGTON, and O'NEILL.
OPINION
Thomas Leon Scally appeals his convictions for aggravated sexual assault and burglary of a habitation with intent to commit a felony other than theft. After the jury found appellant guilty of both charges, the trial judge assessed punishment at forty years' confinement in each case. In two issues, appellant contends the trial judge erred in overruling his objections to certain evidence and improper jury argument. We affirm the trial court's judgment.
Background
Officer Wade Miller of the Sherman Police Department responded to a call on March 15, 2000 regarding a burglary of a habitation. The victim, D.O., notified police her apartment had been entered and ransacked. According to Officer Miller, the manner in which the perpetrator entered the apartment was "very unusual." The screen had been removed from the window and "some type of punching instrument had been used directly on the glass, causing a round, precisely sized, hole where an instrument could be inserted, the [window] unlocked, [and] the window . . . raised." Although it appeared nothing had been taken from the apartment, the victim's vibrator had been removed from under her mattress in the master bedroom and placed on the bed in the spare bedroom. Five weeks later, D.O. was awakened by an unfamiliar noise in her apartment. Shortly thereafter, a man jumped on her and threatened to kill her if she screamed. He tied her arms behind her back, then bound her ankles together. After placing a pillow over her head, the man left the room. Returning, he gagged D.O. with a pillowcase, cut the ligature binding her ankles, rolled her on to her stomach, and sexually assaulted her with a foreign object. When she asked what the object was, the man responded, "Well, you ought to know, because I found one under your mattress the last time I was here." Later, the man demanded the PIN codes for her credit and ATM cards. Once D.O. was sure the man had left the apartment, she rolled to the phone and dialed 911 using her tongue. When the police arrived, they discovered the front door had been pried open. They also found a palm print on the front door. In June 2000, Robin Burleson went to bed only to be awakened by a popping noise. She walked thorough her apartment to determine the source of the noise. When she entered her daughter's bedroom, she saw her cat staring out the window. She looked out the same window and saw appellant. Burleson called 911. When the police arrived, they discovered two holes the size a BB gun shot would make in the window near the latch. Burleson's husband found a BB pellet on the floor inside their apartment. Burleson testified she recognized appellant because she was his probation officer. Appellant was on probation for burglary of a habitation in which the front window of the apartment had a hole, apparently from a BB or pellet gun, above the locking mechanism. Terry Dunn, an investigator with the Grayson County attorney's office, testified he executed a search warrant of appellant's residence and discovered a BB gun. The palm print from D.O.'s front door was identified by Betty Modgling, a latent print examiner for the Texas Department of Public Safety, as appellant's palm print. Appellant was arrested and charged with D.O.'s aggravated sexual assault and burglary of D.O.'s habitation with intent to commit a felony other than theft. After he was convicted, he filed this appeal.Extraneous Offense
In his second issue, appellant claims the trial judge abused his discretion in admitting evidence of an extraneous offense during guilt/innocence. Appellant claims the evidence was inadmissible because it did not fall under one of the exceptions listed in Montgomery v. State, 810 S.W.2d 372, 387-88 (Tex.Crim.App. 1991) (op. on reh'g). Appellant also argues that even if the evidence were admissible, its probative value was substantially outweighed by the danger of unfair prejudice. We disagree. We review the trial judge's determination of the admissibility of evidence for purposes other than character conformity under an abuse of discretion standard. Lane v. State, 933 S.W.2d 504, 519 (Tex.Crim.App. 1996) (citing Montgomery, 810 S.W.2d at 391). Rule 404(b) of the Texas Rules of Evidence prohibits the introduction of extraneous bad acts to show character conformity but permits the introduction of such acts for other purposes, including proving identity. Tex. R. Evid. 404(b); Page v. State, 137 S.W.3d 75, 78 (Tex.Crim.App. 2004); Montgomery, 810 S.W.2d at 388. Even if admissible under rule 404(b), rule 403 provides such evidence may be excluded if the "probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury." Tex. R. Evid. 403. Generally, evidence of another act of misconduct may be offered to show it was the accused, and not some other person, who was the assailant in the charged offense, because the accused committed another act very similar to the charged act. Johnson v. State, 145 S.W.3d 215, 220-21 (Tex.Crim.App. 2004). To prove identity, the two acts must be so distinctively similar as to constitute a "signature" act. See Beets v. State, 767 S.W.2d 711, 740-41 (Tex.Crim.App. 1987) (noting defendant's "signature" use of same weapon, motive, time, and means of disposing of bodies, in two different murders); see also Taylor v. State, 920 S.W.2d 319, 322 (Tex.Crim.App. 1996) (prior murder committed ten days before capital murder was sufficiently similar to be "signature crime"). In this case, the evidence the State sought to introduce, and appellant objected to, was Burleson's testimony that she discovered appellant outside her apartment window and that he had attempted to gain entry by shooting two small holes in her window near the latch. The State had previously introduced evidence showing D.O.'s apartment had been broken into five weeks before her sexual assault and that the individual accessed her apartment by creating two small holes in the window near the latch. Although the apartment was ransacked and a vibrator placed on the spare bed, nothing appeared to be missing. When D.O. was sexually assaulted on March 15, 2000, her assailant entered through the front door, leaving a palm print on the door. Her assailant stated he had been in her apartment on a previous occasion and referred to the vibrator. Police were able to link the palm print to appellant only after Burleson reported appellant's attempt to enter her apartment by shooting two small holes in the window near the latch. After reviewing the record, we conclude the evidence was distinctly similar and was therefore admissible to show identity. Next, we must address whether the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. Rule 403 creates a presumption of admissibility of all relevant evidence and authorizes a trial judge to exclude the evidence in question only when there is a "clear disparity" between the degree of prejudice and the probative value. Mozon v. State, 991 S.W.2d 841, 847 (Tex.Crim.App. 1999). In addressing this question, we consider(i) whether the ultimate issue was seriously contested by the opponent of the evidence;
(ii) whether the State had other convincing evidence to establish the ultimate issue to which the disputed evidence was relevant;
(iii) the compelling nature, or lack thereof, of the evidence; and
(iv) the likelihood that the evidence was of such a nature as to impair the efficacy of a limiting instruction.Taylor, 920 S.W.2d at 322. Appellant's identity as the actual perpetrator of the offense was disputed. The defensive theory was that appellant did not commit the aggravated sexual assault of D.O. and that the palm print had been "planted" by the police. D.O. was unable to identify her attacker, and the police had no leads in the case until the discovery of the similar manner of entry at the Burleson residence led to an affirmative identification of appellant through the palm print. Appellant's involvement in the Burleson break-in made it more likely than not that appellant had entered D.O.'s apartment in the same manner. Finally, the jury was instructed it could consider the evidence of the Burleson entry only if it found and believed beyond a reasonable doubt appellant committed the Burleson entry and only for the purpose of determining identity. While the admission of the evidence of the Burleson entry was inherently prejudicial due to appellant's posture in this case, the same may be said of any such "signature" evidence which is probative of a crime for which a criminal defendant stands charged. See Beets, 767 S.W.2d at 740-41. In light of the evidence in this case, the fact that appellant raised identity as an issue during trial, and the degree of similarity between the offenses, we cannot conclude the trial judge erred in holding the probative value of the extraneous evidence outweighed its prejudicial or inflammatory effect. We overrule appellant's second issue.