Stuart v. State ( 1978 )

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for aggravated rape. Punishment was assessed by the jury at 99 years’ confinement in the Texas Department of Corrections.

The sufficiency of the evidence is not challenged. The prosecutrix testified that appellant picked her up while she was hitchhiking, pulled off the main highway, and threatened to kill her if she did not perform oral sodomy upon him. She further testified that after this occurred he raped her twice during which he choked her until she became unconscious. When she regained consciousness she was allowed to dress and appellant then drove her back to the highway where she got out of the car.

Appellant admitted having sexual intercourse with the prosecutrix, but interposed the defense of consent.

Appellant urges that the trial court reversibly erred in admitting over his objection evidence concerning two prior occurrences involving alleged rapes. The appellant was prosecuted for the first alleged rape and acquitted by a jury. He was not prosecuted for the second alleged rape.

Appellant argues that the admission of the occurrence which resulted in an acquittal violates his federal and state constitutional right to be free from double jeopardy.

In McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377 (1941), the defendant was prosecuted for the possession of intoxicating liquor for the purpose of sale in a dry area. This Court held that it was reversible error to admit over the defendant’s objection a police officer’s testimony that he had bought a pint of whiskey from the defendant two months earlier, where the officer admitted that he filed a complaint against the defendant based upon the alleged prior sale and that a trial following this complaint resulted in the defendant’s acquittal. In reversing defendant’s conviction, this Court stated that:

“It has been the consistent holding of this court that upon a trial for possessing liquor for the purpose of sale the State may prove sales of such liquor, if not too remote, upon the issue of the purpose for which the liquor was possessed. (Citations). However, we are not aware of any case where evidence of a claimed prior sale has been admitted over a judgment of acquittal of the particular act charged. The harm here is apparent. The State made a case where it was entitled to and received the benefit of the prima facie presumption of the purpose of sale from the quantity of liquor in appellant’s possession. He undertook to combat the presumption by his claim that he had it for personal use. The issue was sharp. The State then sought the benefit of a claimed sale of which appellant had been found not guilty. We think error was committed in admitting the evidence.” Id., 155 S.W.2d at 378.

As in McDowell, the issue here is sharp. The prosecutrix alleged rape and the appellant defended on consent. We feel that any application of an exception to the rule against admission of extraneous offenses, Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), must necessarily be to an occurrence which has not already been conclusively established by a verdict of acquittal to have not been an extraneous offense in the first place. The prosecution should not be allowed an exception when they have failed to come within the ambit of the general rule. See, Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Blackburn v. Cross, 510 F.2d 1014 (5th Cir.) reh. en banc denied, 517 F.2d 464 (1975); Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972).

Since we reverse appellant’s conviction because of the erroneous admission of the prior alleged rape which resulted in appellant’s acquittal, we do not discuss the error, if any, in the admission of the prior alleged rape for which the appellant was not prosecuted. However, in the event of retrial, we invite the trial court’s attention to our decisions in Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972) and Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974).

The judgment of the trial court is reversed and the cause is remanded.

VOLLERS, J., not participating.