Evidence of Similar Extraneous Offense Cases
In Clarke v. State, the Fort Worth court of appeals found that evidence of an extraneous sexual assault was sufficiently similar to the offense charged where in both offenses the victims were attacked at home during the night. 785 S.W.2d 860, 867 (Tex. App.-Ft. Worth 1990), aff'd, 811 S.W.2d 99 (Tex. Crim. App. 1991).
The assailant used duct tape to blindfold both victims and bind their hands and feet. Id.
The perpetrator's face was covered during both attacks, and he forced each victim to engage in sexual intercourse several times. Id.
He further either washed the victim's vagina after the attack or made the victim wash her vagina before he left. Id.
The assailant also used a knife in the attack and asked each victim whether she had a gun in the house. Id.
By contrast, in Ford v. State, the Court of Criminal Appeals found that the two offenses at issue were not sufficiently similar to warrant admission into evidence of the extraneous offense. 484 S.W.2d 727, 730 (Tex. Crim. App. 1972).
The perpetrator of each robbery was a tall black man who wore a purple shirt and used a small pistol. Id.
The robberies however, were separated by almost two months in time, and the first robbery was committed by four men, whereas the second was committed by only one who entered on the pretext of seeking work. Id.
In reaching its conclusion, the court recognized that:
"there will always be similarities in the commission of the same type of crime. That is, any case of robbery by firearms is quite likely to have been committed in much the same way as any other. What must be shown to make the evidence of the extraneous crime admissible is something that sets it apart from its class or type of crime in general, and marks it distinctively in the same manner as the principal crime." Id.