holding that extraneous offense was inadmissible because the similarities between the charged offense and extraneous offense were not so unusual or particularized as to signal conclusively that they were the handiwork of the same person
How later courts described this case
- holding that extraneous offense was inadmissible because the similarities between the charged offense and extraneous offense were not so unusual or particularized as to signal conclusively that they were the handiwork of the same person
- concluding extraneous offense evidence should not have been admitted in prosecution for aggravated sexual assault of child where only ultimate fact to be resolved by jury was whether criminal offense occurred as alleged by complainant
- noting that evidence of a defendant's particular modus operandi is a recognized exception to the general rule precluding extraneous offense evidence because the modus operandi evidence tends to prove a material fact at issue, other than propensity
- noting that signature characteristics of crimes may be admissible when there are “contested issue[s] of identity or. any of the other grounds for admission listed in Rule 404(b),” which includes absence of mistake or lack of accident
Written by the judges who cited it.
Distinguished
Distinguished by Bobby Blake Newton v. State (2007)
) Owens is distinguishable.
Distinguished by a later decision (2004)
by Newton).) Owens is distinguishable. Owens concerned evidence
The opinion
OVERSTREET, Judge,
concurring in part and dissenting in part.
I agree with the majority opinion’s conclusion that the admission of the extraneous offense evidence was error. However, I strongly disagree with its decision to remand the case to the court of appeals for a determination of whether the error was harmless pursuant to Rule 81(b)(2). I believe that the more appropriate disposition would be for this Court to make such a determination now while the case is before us rather than keeping it in “appellate orbit” by remanding it back to the court of appeals. See Miller v. State, 815 S.W.2d 582, 586 (Tex.Cr.App.1991).
This is not a novel or radical idea, as no less than the Honorable Former Presiding Judge Onion has long advocated such an approach. 1 See Zani v. State, 758 S.W.2d 233, 248 (Tex.Cr.App.1988) (Onion, P.J., dissenting), aff 'd, 767 S.W.2d 825 (Tex.App.—Texarkana 1989, pet. ref d); Jones v. State, 720 S.W.2d 535, 536 (Tex.Cr.App.1986) (Onion, P.J., dissenting), rev’d, 726 S.W.2d 246 (Tex.App.—El Paso 1987, pet. ref'd); and Woodfox v. State, 742 S.W.2d 408, 411 (Tex.Cr.App.1987) (Onion, P.J., dissenting), rev’d, 754 S.W.2d 763 (Tex.App. — Houston [14th Dist.] 1988), pet. dism’d, 779 S.W.2d 434 (Tex.Cr.App.1989); Black v. State, 723 S.W.2d 674, 676 (Tex.Cr.App.1986) (Onion, P.J., dissenting), aff'd, 739 S.W.2d 638 (Tex.App.—Dallas 1987, no pet.). Other members of the present Court have also recently opined that “justice would be better served if we conducted [a harm analysis] instead of remanding” to the court of appeals and that failing to do so “would result in even greater appellate delay when such can be prevented by this Court at this time.” See Abdnor v. State, 808 S.W.2d 476, 478 (Tex.Cr.App.1991) (Baird, J. joined by Miller, J., concurring and dissenting in part). I also observe that a majority of this Court was recently criticized for failing to remand a case to the court of appeals for reconsideration in light of subsequent precedent. See Gonzales v. State, 818 S.W.2d 756, 770 (Tex.Cr.App.1991) (Baird, J., dissenting). I merely echo the opinions expressed previously by my brethren.
The record reflects that the instant offense was alleged to have occurred on or about August 1, 1987, while the sentence was imposed on November 29, 1989. It would be much more efficient for this Court to make a final disposition and determine the issue now rather than in the distant future as we will assuredly be called upon to do by one of the parties after the court of appeals makes its decision. Because the majority does not do so, I can only concur with its conclusion with respect to the introduction of extraneous offense evidence being inadmissible, but I must dissent to its decision to remand to the court of appeals for a harm analysis.
. One court of appeals has even stated that it "concur[s] in Judge Onion’s sentiment” bemoaning a remand as a wasteful maintenance of the case in appellate orbit. See Adkins v. State, 726 S.W.2d 250, 251 (Tex.App.—El Paso 1987), aff’d, 764 S.W.2d 782 (Tex.Cr.App.1988).