Martin v. State , 1986 Tex. App. LEXIS 9343 ( 1986 )

BROOKSHIRE, Justice,

dissenting.

With respect, this dissent is filed. It is settled that evidence of an extraneous offense is admissible to rebut a defensive theory raised by the accused. Dickey v. State, 646 S.W.2d 232 (Tex.Crim.App.1983); Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972).

The Appellant, Martin, definitely placed the issue of his identity before the jury by offering the defense of “alibi”. This opened the door for the State to introduce evidence of an extraneous offense for identification purposes. Wintters v. State, 616 S.W.2d 197 (Tex.Crim.App.1981); Jones v. State, 587 S.W.2d 115 (Tex.Crim.App.1978).

In Dickey, supra, both the primary offense and the extraneous offense occurred within a 5 day period, both victims being white college coeds. The assailant, in both cases, had worn sunglasses. The coeds had been assaulted at or near the places where they lived. In both assaults, the assailant held a sharp object to each victim’s throat. These similarities were held to be sufficient.

In this case on appeal, the primary offense and the extraneous offense occurred within a 5 day period of time, both victims being white, single women. The assailant in both instances was said to have a stubble-type beard. Each of the victims was assaulted within an area of about a 1 mile radius in public places. Both victims, in our record, were grabbed and attacked from behind. The assaults occurred at approximately the same time of the evening.

Also, the trial judge carefully instructed the jury, limiting the purpose for which the jury could consider “an offense other than the offense alleged against him in the indictment in this case ...” The court charged further that “you may only consider the same in determining the identity of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.” The trial court charged further, on the issue of alibi thusly:

“Now, if you have a reasonable doubt as to the presence of the defendant at the place where the offense was committed, if an offense was committed, at the time of the commission thereof, then you will find the defendant not guilty.”

The majority readily concedes that “D.H. identified appellant as her assailant in a photographic spread, a live line-up, and in the courtroom. Appellant produced witnesses to show he was visiting friends from 6:00 p.m. until midnight on the night of the rape.”

The similarities are sufficient and, under this record, no reversible error is shown. I would affirm the conviction.