Example of Admissible Evidence of Extraneous Sex Offenses

In Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990), the court of criminal appeals found that extraneous acts by the defendant in walking around naked before his daughters with an erection were admissible to show appellant's intent in that case of a later sexual assault on his daughters. The court of criminal appeals stated: It is at least subject to reasonable debate whether the testimony that appellant frequently walked around in front of his daughters naked and with an erection, in combination with other evidence of inappropriate behavior toward them, did have a tendency to show a generalized "intent to arouse and gratify" his own sexual desire vis-a-vis his children. This in turn would support an inference that, if he did in fact touch his daughters' genitals with his hand on the occasions alleged, it was a specific manifestation of that same intent to arouse and gratify his sexual desire, an elemental fact in these prosecutions. Montgomery , 810 S.W.2d at 394. Under Montgomery, such extraneous sex offenses would be admissible as relevant, because it would have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be without the evidence. Montgomery, 810 S.W.2d at 387-388. Reading rule 404(b) in light of rule 401 and rule 402, if evidence: (1) is introduced for a purpose other than character conformity; (2) has relevance to a "fact of consequence" in the case; (3) remains free of any other constitutional or statutory prohibitions, it is admissible. Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996). The mere fact that a party introduces evidence for a purpose other than character conformity, or any of the other enumerated purposes in rule 404(b), does not, in itself, make that evidence admissible. Id. Admissibility of evidence under rule 404(b), in fact, also hinges on the relevancy of the evidence to a "fact of consequence" in the case. Id. When a party makes a 404(b) objection, they are claiming that evidence is being introduced solely for character conformity or, in other words, that the evidence is irrelevant to anything other than character conformity. Id. a rule 404(b) objection demands a relevancy analysis. Id. Under Montgomery, a "fact of consequence" includes either an elemental fact or an evidentiary fact from which an elemental fact can be inferred. Rankin, 974 S.W.2d at 709- 710. In Rankin, the court of criminal appeals held that this court erred in holding extraneous evidence of sexual assaults on other minor children admissible to show "common scheme or plan" and remanded the case to this court for consideration of whether the extraneous offense testimony was relevant to a fact of consequence. See Rankin v. State, 995 S.W.2d 210, 213 (Tex.App.-Houston[14th Dist.] 1999, pet. ref'd). The court of criminal appeals suggested that the extraneous acts could have been admitted as relevant to show the appellant's intent. Rankin, 974 S.W.2d at 709-710 (testimony that the appellant sexually molested two girls just before he molested the complainant makes it more likely that appellant did not act accidentally, but with intent). On remand, this court ruled accordingly that the extraneous acts were relevant to prove guilty intent. Rankin, 995 S.W.2d at 213.