### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 6 -00 074 -CR

Sc ot t M ac K e nz ie , A ppe lla nt

v . The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 403RD JUDICIAL DISTRICT NO. 3041 974 , HO NORAB LE B RENDA KENNEDY , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N A j ur y fo un d a pp e lla nt S c ott Ma c Ke nzie g uil ty

of bu rglary

of a ha bit a tio n w ith intent to commit s exual ass ault and asse ssed punishment at six teen y ear s’ imprisonment. See Tex. P enal Code A nn. § 30.02 (West 2003). I n a si ng le poi nt of error, appellant contends the trial
c ourt e rr e d b y pe rm itt ingthe State to i ntr od uc e e vid e nc e of

an e xtra ne ou s o ff e ns e . We ov e rr

ule thi s contention and a ffirm the judg ment of convic tion.

Th e ba sic fa c ts a

re un dis pu te d. On

Se pte mbe r 5 , 2 00 4, the c omp la ini ngwi tne ss, K.B ., fell aslee p on the couc h in her a partment living room while watching tel ev i s ion with her
ro omm a te and

a fr ie nd . A ft e r K .B . f

e ll a sle e p, the ro omm a te , L .M ., wen t to h e r b e dr oo m. T he ir friend, B .K., ca lled a ca

b and we nt home, l eaving the front door of the apa rtment unlocked. A t about 3:30 a.m
. , K
. B
. aw o k e to f in d a p p e ll an t s ta

n d in g in h e r li v in g r o o m w it h h is p an ts down, masturbating . K.B . shouted at appe llant to lea ve her apar

tment, the n she ra

n to L .M.’s bedroom a

nd2

awakened her. The two women hea rd appe llant in the living room say ing, “ I ’m sorry , I ’m sorry .” They called out f

or him to leave a

nd he did. The two women called B.K
. and told he r what had happene d. They also ca lled the police. B .K. re turned to the a partment be fo re the police a rrived. When she answe red a knock on the door, it wa s appellant. He was “ apolog izi ng profuse ly .” B .K. told appellant to leave and that th e po li ce hadbeen cal led . Ap pel lan t left bu t soo n retu rned , say in g he want ed t o ap ol ogiz e to K.B. B .K . to ld a

pp e lla nt t hat K .B . w ou ld n ot t a lk t o h im. Appellant wrote two letters to K .B., both da ted two day s after

the incident and ha

ndde liv e re d to he r a

pa rtme nt. I n b oth

le tte rs , h e a

po log ize d f

or his c on du c t and

pr omi se d th a t it

wo uld
no t ha pp e n a g a in. I n th e se c on d le tte r, a pp e lla nt wr ote , “I wo uld ne ve r have e nte re d y our h ou se if Ihadn’t thoug ht that it was cool
. I h ad talked to you throug h the window, and by y our body movements thoug ht that y ou wer e cog nizant. I t was onl y afte r I came in that Irea liz ed that y ou had in fac t been a sleep.”

Appellant lived in the same apar tment c omplex as K.B
. and L .M., but in a differ ent bu ild in g. Both w ome n w e re a c qu a int e d w ithhim , h a vin g ta lke d to him aro un d th e po ol a

nd a t a
ne arb y ba r. K. B . te sti fi e d th a t sh e and tw o f ri e nd s h a d o nc e a c c e pte d a pp e lla nt’ s invit a tio n to g o to his apartment f

or drinks, but she had never invited a ppellant to her ow n apar

tment. L .M. testified that s h e ar ri v ed home one nig ht a fe w months before the incident in question to find appellant sta nd ingin t he da rk ou tsi de the a

pa rtme nt. Whe n sh e a sk e d a pp e lla nt wh a t he wa s d oin g , h e sa id he w as l oo ki ng for

K.B.I n ot h er wo rds, the September 2004 incident was introduc ed as a n extraneous offe nse at 1 appellant’ s trial for the July 2002 sexual assault, and the Jul y 20 0 2 assault was introduc ed as a n e xtra ne ou s o ff e ns e a t th is tri a l f

or the Se pte mbe r 2 00 4 in c ide nt.

3 Appellant’s c onduct on the nig ht of Septemb er 5 , 2004, had bee n introduced a s an extraneous of

fense at appe llant’s 2005 trial for a sexual assault that occurr ed in J uly 2002. Se e Ma c Ke nz ie v . S

tate , No. 03 -05- 00 73 1- CR, 20 07 Te x. Ap p. L EX I S 35 8 ( Te x. Ap p. —Aus tin J an. 22, 2007, no pet. h.) (af firming conviction). Appellant testi fied at that ear lier trial, and a portion
o f t h a tt e s t i m o n y w a s i n t r o d u c e d w i t h o u to b

j e c t i o na tt h e i n s t an tt r i a l i n2 0 0 6
. In h i s t e s t i m o n y, ap p el l an t s ai d t h at h e wa s wa l k i n g p as t K. B. ’s ap ar t m en t o n S ep t em b er 5 wh en h e sa w h er t h ro u gh the window. He beca

me sexually arouse d and opened his pa nts. Not realizing that K.B . was a sleep, appellant spoke to he r. She “fidg eted,” which appellant took to mean c onsent for him to enter her apar tment. Appellant said that after he enter ed the apar tment and K.B. awoke, he rea liz ed that he had made “a hor

rible mistake.” Over appellant’ s objection, the trial cour t also permitted the State to offe r evide nce of the July

2002 sexual assault. H.M., the complainant in that case , testified that she wa s visiti ng 1 Austin and staying with a fr iend, A.W. H.M. was ac quainted with appe llant, who was then dating A.W. On the night in question, H.M. we nt to bed in A.W.’s be droom while appe llant and A.W. slept elsewhe re in the a

partment. Dur ing the night, H.M. awoke to find appellant in her bed and ha

ving sexual int erc ourse with her
.

Evidence of other c rimes, wrong s, or ac ts is not admissible to prove a defe ndant’s bad
c ha ra c te r i n o rd e r t o s ho w a c tio n in c on fo rm ity

to t hat c ha ra c te r. Te x. R. Ev id. 40 4( b)
. Extr ins ic misconduct evidenc e may be admissible for othe r pu r p o s e s , h o w e ver, suc h as to prove intent, motive,I t is not c lear whether the State was seeking to pr ove K.B .’s lack of conse nt to appellant’s entr y 2 into her apa

rtment, her la ck of c onsent to his sex ual ac tivity , or both. 4 o r absenc e of mistake. Id
. F o r e xa mp le , in th e o p in io n a f f ir mi n g a p p e ll an t’ s c o n v ic tion f

or the 20 02 se xua l a ssault, th is C ourt he ld t hat th e te sti mony

re g ard ingthe fa c ts o f t

he ins tant o ff

e ns e was prope rly

admitted to prove the c omplainant’s lack of consent. Se e Ma c

Ke nz ie , 2007 Tex. App. L EXI S 358, at *8. We noted t hat i n his testimony , appellant ha d asser ted that he thoug ht t h e sleepingH.M. had c onsented to his conduct throug h her body lang uag e. Id
. E v i d e nc e tha t in 20 04 , a pp ell ant hadsi mi lar ly

in ter pret ed t he s lee pi ng K.B. ’s m ov eme nt s as con sen t t o s ex ual act iv ity invoked the “doc trine of c hance s” to show that appellant intende d to have se x ual interc ourse without H.M.’s conse nt. Id .; se e Brow n v. S tate , 96 S.W .3d 508, 512 (Tex. App.—Austin 2002, no pet.) (discussing use of e x trane ous offe nse evide nce to pr ove intent and doc trine of c hance s).

J ust as the testimony

reg arding the instant offe nse had be en introduce d at appe llant’s trial for the 2002 sexual assault to prove intent and lac k of conse n t i n that case , the State offe red H.M.’s testimony

reg ardingthe 2002 assault at the instant trial to prove K.B .’s lack of consent a nd appellant’ s intent to commit s exual assault. Appellant conte nds that this was err or bec ause the 2
e vid e nc e a t th is tri a l di d n ot e sta bli shthat th e char ged off e ns e and the 20 02 e xtra

ne ou s o ff e ns e possessed sufficient simil arities for the doctrine of chance s to apply . Appellant also urg es that any pr ob a tiv e va lue th e e xtra ne ou s o ff e ns e mig ht h a ve ha d w a s o utw e ig he d b y the da ng e r o f u nf a ir prejudice to the defe nse. Tex. R. Evid. 403.

Under the doctrine of cha

nces, the re must be a

simil arity

between the cha

rg ed and extraneous offe nses, since it is the improbability of a like result being repe ated by mere chanc e that5

g ives the ex trane ous offe nse probative weig ht. Br own , 96 S.W. 3d a t 51 2. Th e de g re e of sim ila ri ty require d, howeve r, i s not as gre at when intent is the m ater ial issue as when identity is the material issue and the e x trane ous offe nse is offe red to prove modus operandi
. Id . at 512-13.

The admissibili ty of the J uly 2002 sexual a ssault w as argued outsid e t h e j u ry ’s prese nce. A sked by

the cour t to describ e the similarities betwee n the cha rg ed off ense a nd the extraneous offe nse, the prose cutor c ited: • [T ]he fa c t th a t sh e mov e d, that w a s h is v e rs ion of wh a t it take s f or a wo man to co n s en t , for him to approa ch her , is ex actly the same ty

pe of e vidence that was elicited at the la st trial w here the movement of the body by [H.M.] was c onsent for him to have sex, because she neve r ver bally consente d. • I n the [H.M.] case it is very simil ar, in that she is a sleep when he decide s to have s e x w it h h e r . H e a

p p r o a c h e s h e r

w h il e s h e is a s le e p . Sh e n e v e r a g r e e d to h a v e s e x. She ne ve r h a d a

re latio ns hip wi th him . He c ra wl s in to b e d w ithhe r, and thi s ma n is having sex wit h her w hile she is aslee p. • When she awoke , he lef

t. J ust like in thi s one, whe n [K.B.] a woke, that is w hen he sto pp e d h is a dv anc e s.
The c ourt found that the two of fense s were “sig nificantly simil ar in natur e, an d en o ug h to be admissible for the pur

poses of showingintent in this instance.” Appellant points out that the jury did not hear e vidence of all the similarities betwee n the two offe nses cited by

the prosec utor and relied on by the court in its ruling
. As previously noted, H. M. te sti fi e d th a t a

pp e lla nt h a d s e xua l inte rc ours e wi th he r wh ile sh e wa s asl e e p. B ut the jur y did not he ar evidenc e that appellant said that he interpre ted H.M.’s body movements as sig nifying he r
c on se nt t o th e se xua l in te rc ours e . T he jur y a lso did no t he ar e vid e nce th at app e lla nt s top pe d h is assaultive beha

vior when H .M. awoke . Of the simil arities mentioned by the S tate outside the jury ’s6

prese nce to justify

the admission o f t h e ex trane ous offe nse, the jury hear d only

that in 2002, appellant a

pproac hed a sle eping woman and e ng ag ed i n s ex u al activit y , albeit of a kind differ ent from that alleg ed in this case.

T h e s i t u at i on befor e us is analog ous to the one pre sented in Fu lle r v . S tate , 8 29 S.W .2d 191, 196-99 (Te x . C ri m. App. 1992). In Fuller , a ca pital murder c ase, the defe ndant objected to the introduc tion at the punishment pha s e o f te s timony

descr ibing the be liefs and a ctivities of the Ar y an B rotherhood, a

prison g ang . Id . at 196. The de fenda nt urg ed tha t t h e ev i d ence was irrele vant because the State had not shown that he wa s a member of the g angor subscribe d to any of i ts beliefs. Id
. The trial c ourt overr uled the objec tion and admitted the testimony , subject to the State later proving appellant’ s connec tion to the g ang . Id . at 19 7; see Tex. R. Evid. 104(b). No suc h
connec tion was made. Fuller , 829 S .W.2d at 197-98. The cour t of criminal appe als held that without probative evide nce that the defe ndant was a member of

the Ary an B rotherhood or subscribed to its beliefs, the previously admitted testimony conce rning the gang ’s beliefs and ac tiviti es in the abstrac t “was vulne rable to a motion to st rike at the conclusion of the State’s ca se, eve n if it was not objectionable on r eleva

ncy g rounds when of

fer ed.” Id . at 198
. Th e c ourt we nt on to hol d that it is not the trial court’s duty to notice whethe r conditionally admitted evidenc e is eve ntually “conne cted up”; rather, the obje cting p ar t y m u s t re u rg e his objection af ter a ll the proof is in, ask that the offe nding e vidence be stricke n, and re quest that the jury be instructed to disre g ard it. Id . at 198-99. Be cause the def

endant did not do this, the err or wa s not preser ved for appea l. Id
. I n th e c a us e be fo re us , e vid e nc e re g ard inga pp e lla nt ’s 20 02 se xua l a ssa

ult of H. M.
wa s r e le va

nt t o p ro ve K. B .’ s la c k of c on se nt and a pp e lla nt’ s int e nt t o c omm it s e xua l a ssa ult on ly to7

the extent that the ext rane ous offe nse and the char g ed offe nse wer e shown to be sufficie ntly simil ar to inv ok e the d o c t r i n e o f c h an c e s . B a s e d

o nt h e S t a t e ’ s p r o f

f e r , t h e t r i a l c o u rtd i d

n o ta b u s e its discretion by ruling that the s imilarities betwee n the 2002 incident and the 2004 i ncident wa rra nted admission of the extraneous off ense pur suant to rule 404(b) and t h at t h e probative va lue of the evidenc e outweig hed the da ng er of unfair pr ejudice. Howeve r, the State fa iled to introduce be fore the ju ry all the proff

ere d evidenc e re g ardingthe similarities betwee n the cha rg ed and e x trane ous offe nses on which the relevanc e of the ex trane ous offe nse depended. Had appe llant moved to strike H.M.’s extraneous off

ense testimony at t he close of t he State’s c ase a nd had the tria l court over

ruled the mot ion , it is p os sib le that r e ve rs ibl e e rr or wo uld be pr e se nte d. B ut a

pp e lla nt d id n ot r e ne w h is objection and did not move to strike H.M.’s testimony
. We must conclude that any err or in the admission of H.M.’s testimony was not pre serve d for r eview. The point of er

ror is over

ruled a nd the judg ment of convic tion is affirmed.

__________________________________________ J an P. Patterson, J ustice Be fore Chief J ustice L aw, Justi ces Patter son and Pury ear Affir med Filed: Mar ch 7, 2007 Do No t Pu

bli sh