OTHER CRIMES OF THE ACCUSED
IN TEXAS LAH
WINIFRED
E.
AKINS
As general rule, in the criminal trial of a defendant, evidence of other unrelated offenses committed by him is not admisible, as a defendant may not be tried for some collateral crime
or for being a criminal generally.
The Texas Court of Criminal
Appeals has expounded this rule many times.
Cameron v. State,
530 S.W.2d 841 (Tex.Crim.App. 1975); Rodriguez v. State, 486 S.
W.2d 335 (Tex.Crim.App. 1972); Ford v. State, 484 S.W.2d 727
(Tex.Crim.App. 1972).
The reasoning behind this rule is not based on the fact
that the evidence is not relevant or material to the issue of the
defendant's guilt or innocence, but rather that such evidence
is inherently prejudicial, tends to confuse the issues in the
case and forces the accused to defend himself against charges
which he had not
be~n
notified would be brought against him.
Albrecht v. State, 486. S.W.2d 97 (Tex.Crim.App. 1972).
This rule is subject to many exceptions, however, and evidence of
~ther
crim~s
committed by the accused may be admitted
where such evidence is shown to be both material and relevant to
a contested issue · in the case.
(Tex.Crim.App. 1972).
Grayson v. State 481 S.W.2d 859
Relevancy and materiality being found when
a relationship between such evidence and the evidence necessary
to prove that the accused committed the crime for which he stands
charged is shown.
1972).
Jones v. State 481 S.IL2d 900 (Tex . Crim.App.
These exceptions occur, basically, at one of four stages
in the criminal trial:
1) The prosecution's case in chief;
2) Rebuttal of a defensive theory; 3) Impeachment of the defendant's character witnesses or 'o:f the defendanl
4)
' h~mse"'f ,;
As evidence of apr-rorcr.iminal recor.dfor purposes of ' punishment.
The following pages will deal with t he exceptions that lie
within each stage, but there are two rules-of - thumb which
should be kept in mind when dealing with exceptions in stages
one and two.
First, the test for determining the admissibility of evidence
of any collateral crime is whether its probative value outweighs
its inflammatory or prejudical aspects, if any.
Cobb v.State,
503 S.W.2d 249 (Tex.Crim . App . 1974); Albrecht v. State, supra,
Hernandez v. State, 484 S.W.2d 754 (Tex.Crim.App. 1972).
The second rule, which applies also to ,·s tage four,
is that
before evidence' of another offense is admjtt~~, not only must
commission of such other crime be clearly
~roven,
but also it
must be clearly proved that the accused was its perpetrator.
Tippins v. State , 530 S.W.2d 110 (Tex . Crim.App. 1975); Fentis
v. State 528 S . W.2d 590 (Tex.Crim.App. 1975); Landers v. State,
519 S . W.2d 115 (Tex.Crim.App. 1975).
In other words, if the State
can do no more than supply evidence of extraneous offenses which
merely casts suspicion upon the accused, then the evidence should
be rejected.
Haley v. State, 209 S . W. 675 (1919).
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THE PROSECUTION'S CASE IN CHIEF
There are five well recognized exceptions that fall under
this category.
Evidence of an extraneous offense can be used
to shov/:
1.
Identity
2.
Continuing plan or scheme
3.
Res Gestae
4.
Intent or scienter
5.
Motive
These five exceptions are not mutually exclusive, nor do
they necessarily represent all the possible situations in which
the state may permissibly prove that the accused has committed a
collateral crime.
In addition, there is often a great deal of
overlapping between the exceptions above.
Whether an extraneous offense is admissible, during this
stage, is not normally determined until the time it is offered.
And, although the defendant can request an advance ruling on admissibility, the trial judge can refuse to make the determination
at that time.
The reason for this is that in some instances,
evidence of extraneous offenses, although originally inadmissible,
might later become admissible, as commonly happens, for example, when the effectiveness of the stat~s uncontradicted direct evidence is completely undermined by the defense's cross-examination. However,
it must be kept in mind that it is not the mere asking of the
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questions, but
the responses elicited from the witness
rathe~
which are determinative.
In other words, as stated by the
Court of Criminal Appeals in the Albrecht case, supra, at
page 102:
..... Where the testimony of a witness remains unimpeached after cross-examination, the mere fact
that the witness was cross-examined does not authorize the state to introduce testimony of extraneous offenses.
The Court there went on to say, quoting from Caldwell v.
State 477 S.W.2d 877 (Tex.Crim.App. 1971). that to hold otherwise would be tantamount to holding that such testimony would
be admissible in any case where a defendant's counsel exercises the constitutional right of cross-examination.
The first exception. identity. occurs only when identity
is in issue and there is no positive evidence or testimony to
identify the accused as the perpetrator of the offense charged .
,
.
Hafti v. State, 416 S.W.2d 824 (Tex.Crim.App. 1967).
point
ci~cumstantialevidence
At this
as to the defendant's identity may
be admitted by showing some prominately distinguishing characteristic
which is common to both the ccllateral offense and the offense
charged, next showing that
offense, thereby leaving
the defendant committed the collateral
an inference that . he a]so committed tr.e
crime for which he ' is standing trial.
Of the five above listed exceptions, admission of an extraneous offense to show identity is probably the one most-used
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exception.
This is possibly because after the 1974 case of Ransom
v. State, 503 S.W.2d 810, Texas had vague guidelines on what is
needed, common to both offenses, in order to show identity.
In Ford v . State, supra, two years prior to the Ransom, case,
the Court of Criminal Appeals firmly set out their requirements
of admission of an extraneous offense to show identity.
These
requirements were proximity in time and place of the offenses
to the offense for which the defendant is being tried or similarities between the modes of commission of the two crimes.
The
court in finding that the similarities in Ford were insufficient l
stated at page 730:
We recognize 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 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. See
Lancaster v. State, 82 Tex . Cr . R. 473, 200 S.W. 167 (1918);
p e 0 p 1 e v. Rom a n;o, 8 4 APP . 0 i v. 31 8, 8 2 N". Y. S. 7 4 9 (1 9 0 3 ) .
The Court followed this line of reasoning through several
cases, Lee v. State, 496 S.W.2d 616 (Tex.Crim.App. 1973);
Cobb
v . State, 503 S.W.2d 249 (Tex.Crim.App. 1973); Mitchell v. State,
503 S . W.2d 562 (Tex.Crim.App. 1974).
1 Similarities: perpetrator of chemical company robbery was
described as wearing a purple, silk-type shirt and at supermarket
robbery defendant wore a purple or lavender knit or sweater-type
top; tall black male; pistols used in both; ~nd in both cases
persons were injured.
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However, with Ransom, the majority made an about-face and
determined that common characteristics are not really that
important after all, if the perpetrator of the extraneous offense is identified as the person accused of the primary offense.
In Ransom, the only characteristics common to both offenses were that they
both occured in Dallas County, both were robberies; in both cases
the robber had a companion (a woman in one case, a man in the
other) and both robberies occured at gun-point.
The lone dissenting Judge, Justice Roberts, anamantly disagreed with the majority that these similarities were sufficient.
He pointed out that in the case on trial the robber had a woman
companion.
They left a night-club at almost midnight and in the
parking lot of the establishment asked the soon-to-be-victim
for a ride.
The victim agreed to transport the pair for a fare.
When the three arrived at the couples destination, the robber,
acting as though he
wi~
reaching for .his wal .let, pulled a pistol
and robbed the victim, · and his companion searched the car.
On the other hand the extraneous offense occurred in a totally
different manner.
The robber and a male companion, at a few
minutes after noon, entered a tire shop, robbed the owner at gunpoint and fled in an Oldsmobile.
This case left the area of admissibility of extraneous offenses
on the issue of identity a wide-open field and it remained so until
the recent Cameron decision.
In Cameron the similarities were:
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both offenses were committed in Lubbock; by black males; using
a pistol and ordering the clerk to place money in a paper bag.
The extraneous offense was committed by two black males
robbing a Ready Mart food store at 10:30 p.m. while the robbery
for which the accused was being tried was of an investment
company which occurred 8 months later at around 1:30 p.m. by
arguably two black males. 2
In both instances in the Cameron case as well as in both
instances in the Ransom and Ford cases the defendant was positively identified as the perpetrator of both offenses.
The Court of Criminal Appeals in reversing the Cameron case
stated:
Evidence that would also prove a separate offense
is admissible when offered on the issue of identity
only (1) if identity is a controverted issue and (2)
if there are distinguishing characteristics common to
both the extraneous offense and the offense for which
the defendant is , on trial. E.g ... {cases cited) ...... .
A defendant's deriial of the commision of the crime and
his reliance on the defense of alibi makes identity
a controverted issue.
. . . (cases cited) .... Since
the appellant here denied that he committed the offense and offered an alibi defense, identity is a
controverted issue. We must determine whether there
were distinguishing characteristics common to both
the extraneous offense and the offense for which the
appellant was on trial -- in other words, would the
evidence that also proevd the robbery at the ReadyMart Food Store aid in determining whether the appellant is the person who committed the offense at
SIC? ...... .
.... .. We find no distinguishing characteristics common
to both the extraneous offense and the offense for
which the appellant is on trial. The admission of the
evidence fo the extraneous offense, the robbery at the
Ready-Mart Food Store, cannot be characterized as harmless error; its admission in evidence was reversible error.
2 The State argued that the second man drove the get-away car.
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Although the Court in Cameron did not speak disfavorably of
the Ransom decision it appears that the two decisions are not
consistent.
It further appears that the field of collateral
offenses on the issue of identity has been somewhat narrowed
and that Texas has once again been returned to the sound reasoning
of the Ford case.
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The admission of an extraneous offense on the issue of continuing plan or scheme, the second exception, will result in a
portrayal of the defendant as having a propensity to commit the
type of crime for which he is being tried and therefore necessarily
requjres a greater strictness in showing the probative value of the other
crimes.
As a result, there must not only be the commission of
a series of crimes with similarity in results, but there must
also be such a concurrence of common features that the various
acts are naturally to be explained as caused by a general plan
of which they are the individual manifestations.
Wigmore on Evidence
II J. Wigmore,
304, at 202 (3rd ed. 1940).
§
An interesting case which illustrates the proper use of
extraneous offenses to show continuing plan or scheme is Jones
v. State, 376 S.W.2d 842 (Tex.Crim.App. 1964).
In this case the
defendant, a woman, was convicted of larceny.
The evidence showed
"
that the defendant on December 13, 1962, entered an auto parts
place,appafently
drunk, grabbed a man who was v!orking there, and
while putting her hands allover him propositioned him for sexual
intercourse.
When he pushed her away she requested the use of a
restroom and was shown toward it.
On the way she either fell or
pretended to fall and the store owner-complaining witness came to
her rescue, attempting to help her up.
She then raised her dress,
grabbed him, and before he could drag her out of the shop she managed to have even more bodily contact.
Some 5 minutes after she
had departed the owner noticed that the $150.00 he had in his bil-
fold was gone but the bi1fo1d and some checks were still in it.
The first man, the worker, testified that he had had no money in
his wallet and that it was still on his person after the woman
had left.
The state was then permitted to prove that on December 31.
1962, the defendant entered an orthopedic brace company, again
acting as though she was drunk.
This time she grabbed the owner
as if she was trying to keep herself from falling and acting 'as
if she was trying to solicit a street job." She then left sudden1y and the brace maker soon found that his
$20.00 or more, was gone.
bilfol~which
contained
The billfold was later recovered, its
contents, other than the money, was intact.
The state was also permitted to prove that the defendaBt,
on March 6, 1963, went into an automobile servcie shop and grabbed
the proprietor and propositioned him also.
Thinking her to be
drunk he pushed her . ~~ck, but she mana~ed to grab him again. then .
giving up and walking out.
He later discovered that $125.00 which
he had had in his wallet was also missing.
A truck driver had seen the defendant enter the shop and a
few minutes later saw her run out. get into a car parked about
a block and one-half away, and then speed off.
The court stated at page 843:
Appellant was identified by the witnesses as the
person who came to each of the shops, propositioned the
owner (each of whom was married and living with his
wife). put her hands upon them, and left suddenly. her
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departure being soon followed by the discovery that
the men's money had likewise departed ...... .
The two collateral offenses show more than a similarity in results. They show a common plan or systematic course of action. The peculiar way in which
the other business men lost their money upon the same
course of conduct by the appellant was a circumstance
that was available to the state to prove the appellant's guilt of the theft from the person of Hause
(complaining witness). The evidence showed system,
not merely systematic crime, and the court did not
err in admitting it for the limited purpose stated.
As an example of how strong some courts require the
probative value of the collateral offenses under this ,exception to be the
cour~
in its charge to the jury, instructed them that un-
less they believed"beyond a reasonable doub-e' that the de··
fendant committed such other offenses, they could not consider the evidence for any puropse whatsoever. 3
The case ofKir.kQ.atrickv. State 515 S.W.2d 289 (Tex.Crim.App. 1974)
shows that the number of extraneous offenses proved by the state is irrelevant, as long as they ' satisfy the requirements set out above.
In that
case the state was permitted to show, over objection by the defense,
that the defendant, as Justice of the Peace, had misappropriated
fines from some 275 persons accused of crimes, by only partially
transmitting such fines to the Treasurer.
The court stated that
the gravaman of the offense under Article 95, V.A.P.C. is embezzlement of funds belonging to a public body.
Quoting from
page 292:
..... These many transactions in which the appellant
failed to account for funds collected were all a part
of the state's main case, and constituted circumstances
3
See page 2.
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in the chain of events by which the State
showed the ultimate conversion ' of county funds to the
appellant's own use and benefit ..... ~
As seen from the above examples. there appears to be a fine.
almost undetectible line between identity and common scheme or
plan. and an offer of evidence on the issue of both will often
correctly occur.
It can also be seen that to mistakenly identify the accused
as the perpetrator of one of the crimes in the chain would easily
lead
to ~ an
incorrect verdict.
That is why courts sometimes use
greater strictness with this exception. although all that is
actually required is clear proof that the defendant committed
the crime.
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The third exception; res gestae, permits the prosecution
to show another offense committed by the defendant during the
sequence of events surrounding the commission of the crime for
which he is being tried.
The rationale for this rule is aptly stated in the Albrecht
case, supra, where the Court stated that events do not occur in
a vacuum and theref.ore the jury has a right to hear what occurred
immediately prior to and subsequent to the commission of that act
so that they may realistically evaluate the evidence.
This is the first exception considered where the trial courts
in practice, attempt
to use the balancing test to determine
whether the probative value of the collateral crime outweighs
its prejudical aspects.
And, as with any balancing test, the
finding is within the trial court's discretion, resulting in reversal only for abuse thereof.
This has led to many cases shedding very little light on what
is or is not res gestae; as stated in Res Gestae In the Texas
Court of Criminal Appeals:
A Method to Their Madness?, "the pro-
blem is not that the phrase res gestae means mothing, but rather
that i t has become to mean too much from judicial over-kill. 4
Three examples of Texas Court of Criminal Appeals decisions
should indicate the liberality of interpretation which follows
this exception.
One of the stricter applications of the res gestae exception
is found in the case of Cavett v. State, 505 S.W.2d 289 (Tex.Crim.
4
50 Tex.L.Rev. 119, 121 (1971).
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App. 1974), there the complainant, awakened in the night by noise
coming from the downstairs
par~
of her apartment, went to investig-
ate, and found the accused in the process of robbing her.
A strug-
gle ensued and the complaining witness was raped by the robber.
In a prosecution for robbery by assault the state offerred evidence
of the rape which, over objection by the defense, was admitted.
On
appeal the defendant alleged that the admission of the subject rape
was error, as it related to an inadmissible extraneous offense.
The Court of Criminal Appeals disagreed with the appellant
and stated at page 290:
The robbery and rape were committed by a continuious
assault and were so interwoven as to be part of the same
transaction. The evidence sought to be excluded was ad missible u nder the res gestae rule ....... (cases cited) .. .
A less stringent application of the res gestae e xception is
fo u nd in the case of Lamberson v . State, 504 S . W.2d 894 (Tex.Crim.
App. 1974) .
persons to
In this
preten~
c~se
the appellant agreed with some other
to' make arrangements for the subsequent victim
to have a date with a woman so that they could rob him.
When the victim arrived the persons perpetrating the fraud
gave him liquor and then enticed him into a bedroom where he was
beaten severely by the appellant and then robbed.
The group,
including the appellant, agreed to take the beaten victim to an
isolated area where the appellant put the victim on the ground and
drove over him with a car.
The Appellant then got out of the car
and began hitting and kicking the victim for several minutes.
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At the insistance of one of the inembers of the group the appellant ceased
beating the unconscious; but still alive, and 'he and the other
members of the party returned to the house
wh~re
the robbery
and beating had occurred .
I.. .
few i,l i nut e s aft e r
i.\
r r i v i n gat the h GUS e the a p pella n dan d
a member of the party got back into the car and returned to the
isolated area where the victim lay unconscious.
The appellant
then proceeded to strike the victim 20 or 30 times across the
head and chest with the blunt end of a jointed pool cue.
The
testimony shows that the victim was .then left, still unconscious
and still alive, near the edge of a slope which desended to a
shallow creek.
Two days later the victim was found dead.
Cause
of death was drowning.
The main contention on appeal was that the court erred in
admitting evidence that the victim of the robbery was killed, the
robbery having been co' mpleted sometjme prior to de~th, and that
there were no characteristics common to the two crimes.
TheCourt,i .n· affirming the conviction, stated at page 896 :
It is of no importance that the murder had any or none
of the common characteristics as the robbery.
In Smallwood v. State, Tex.Cr.App., 464 S . W.2d 846, the conviction was for robbery.
Smallwood contended that the evidence of his rape of the victim some ti~e after the robbery should not have been admitted.
This Court overruled
the contention and cited the correct rule from 4 Branch's
Ann . P. C,2d, Section 2255, page 613, that "(w)hE:re the offense is one continuous transaction, or another blended
or closely interwoven therewith, proof of all the facts
is proper." See also ....... cases cited ..... .
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Two examples of liberality in determination of whether an
extraneous offense constitutes part of the res gestae are Ross
v. State, 334 S.W.2d 174 (Tex.Crim.App. 1960) and Jones v. State,
472 S.W.2d 529 (Tex.Crim.App. 1971).
In the Ross case the State was permitted to prove, over objection, that when the defendant was stopped for driving while
intoxicated, the offense for which he was being tried, that he
was in possession of a pistol.
On appeal the appellant argued
that the officer's testimony should have been excluded because
it showed a collateral offense and that the testimony had no
effect but to prejudice the minds of the jury against the appellant.
The Court of Criminal Appeals stated at page 175:
The jury was entitled to know that the defendant
on trial had control of a pistol as well as a motor
vehicle while he was intoxicated.
Proof of the circumstances surrounding the .commission of an offense
which form part of the occurence are admissible.
~
.
Appellant was being tried for driving while intoxicated,
the admission of the possession of a firearm served no useful
purpose in determins whether or not the appellant was intoxicated.
It appears here that the prejudical effect clearly outweighed
the probative value of the evidence, and to admitt such evidence
over objection was an abuse of discretion.
The Jones case,
Here the
defend~nt
sup~a,
involved another set of circumstances.
was arrested while, in a department store, for
use of a stolen credit card.
A search of his person recealed a
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quantity of marijuana.
The defendant was prosecuted for posses-
sion of the marijuana, and at his trial thereon the State was
permitted to introduce evidence concerning the arrest of the
appellant for the theft of the credit card.
At page 530 the
Court stated that the arrest of the appellant for the theft of
the credit card was so closely interwoven with the discovery of
the marijuana on the appellant that injecting the facts involved
in the entire transaction was not improper.
This admission could not have realistically aided the jury
in the evaluation of the State's evidence pertaining to the offense charged .
The rule under the res gestae exception, although broad
in interpretation, is capable of definitive requirements, as
set out in Lamberson v. State, supra, and in his subsequent
appeal from his later conviction of the brutal murder discussed
above, Lamberson v. state 509 S.W . 2d j28 (Tex.Crim.App. 1974):
..... Where the offense is one continuous transaction,
or another offense is a part of the case on trial or
blended or closely interwoven therewith, proof of a11
the facts is proper .....
The Court went on to say about the rule just quoted:
The above rule is concerned solely with evidentiary
matters and has no bearing on determining whether two
crimes constitute one single transaction under the double
jeopardy clause . It in no way constitutes an election of
the State under the doctrine of carving . . . . . . . .
.. _ .. Neither does the fact situation present a case of
double jeopardy __ .. cases cited. _.
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The fourth exception under this category is admissibility
of an extraneous offense to show intent or guilty knowledge.
Admissibility under this exception can only occur when scienter
or intent is an essential element of the State's case and cannot be inferred from the act itself.
Alvarez v. State, 511
S.W.2d 493 (Tex.Crim.App. 1974).
There are many crimes from which this inference can be
drawn, as shown by the case of Jones v. State, supra. 5
There
the Court held that reversible error was committed in allowing
the State to prove that the accused had perpetrated an extraneous
armed robbery where:
..... E~en ~ thou~h the trial court limited the jury's
consideration to determining intent and identity,
clearly the intent (to committ the robbery by .assault
for which he was being tried) was established by the
appellant's brandishing a pistol and committing the
robbery, and identity was positively established by
four eyewitnesses. Such testimony was undisputed.
No defensive theory
was urged.
,
The State had the burden of proving identity and guilty
intent, but the State could not permissibly use the extraneous
offense of robbery as circumstantial evidence on the issues
where the State had uncontroverted direct evidence on the issue
of identity and the inference of intent could be drawn from the
act itself.
The Court went on to say that the prejudicial
effect of the evidence far outweighed its relevance to any issue
in the case and served only to establish the accused's bad character.
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The recent case of Allen v. State, 533 S.W.2d 352 (Tex.Crim.
App. 1976) illustrates the admissibility of an extraneous offense to show intent.
In that case the defendant was charged
and subsequently convicted of aggravated assault.
The facts in-
volved an incident where the appellant, while resisting arrest,
made contact, with his foot, on the nose of a police officer.
The appellant, testifying in his own behalf, denied that he
had ever struck or kicked any officer.
In rebuttal the State
offered evidence that over a month after the incident on trial
the appellant, along with others, attacked, struck and kicked
one of two officers who were making an investigation.
The
Court of Criminal Appeals, in affirming the appellant's con. viction stated at page 354:
..... Whether the appellant intended to strike and injure the complainant became a controverted issue by
the appellant's testimony. This testimony concerning
the subsequent assault was admissible to show that
the appellant intended to strike and injure Valdez
(the complainant) when he kicked at him. See Blankenship v. State 448 ·S.W.2d 476 (Tex.Crim.App. 1969);
Barton v. State, 162 Tex.Cr.R. 75, 282 S.W.2d 237
(1955).
This case also demonstrates how often evidence of intent
and rebuttal of a defensive theory (to be discussed infra)
overlapp.
When the rrefendant raises the defense of entrapment, evidence of extraneous offenses also becomes admissible on the issue of intent.
This often occurs in drug cases, such as Elam
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v. State, 518 S.W . 2d 367 (Tex.Crim.App. 1975).
In this case
the defendant raised the defense of entrapment to a sale of
cocaine charge.
The Court of Criminal Appeals held that the
State was entitled to prove that the defendant had made another
sale to an undercover agent, subsequent to the date of the sale
for which he was being tried.
The Court further held that it was i mmaterial that the extraneous offense was subsequent to the offense on trial, as it
could still be used to show intent at the time of the commission
of the earlier offense.
Under this exception, as with the other exceptions, there
must be a relationship between the collateral offense and the
offense for which the accused is being tried.
480 S.W . 2d 401 . (Tex.Crim.App. 1972).
Robledo v. State,
A study of the Albrecht
case, supra, will illustrate this point.
The defendant in ' that ca s e was being tried for passing as
true a forged instrument.
The defense was that the defendant,
identified as the passer of the check, did not know that the
check was, in fact, forged.
The State offered evidence, on the
issue of knowledge, of three other checks which were substantially
teh same as the check for which the defendant was being tried.
The State further showed that each contained the defendant ' s
fingerprint.
The Court stated at page 102:
The act of passing as true an instrument is not one
from which guilty knowledge can be inferred. This court
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has consistently held that since the state must prove
scienter, collateral offenses which form a part of the
same continuing criminal design as the offense in question are admissible on this issue as a part of the state's
main case.
The Court went on to quote from the Robledo case, supra,
at page 103:
Before other insturments alleged to have been forged
by the accused may be received in evidence against him,
both the spurious nature of those ini~ruments and th~
accused's connect.ion with them must be shown to the satisfaction of the court.
In closing, the majority stated, at page 103:
While the presence of appellant's fingerprints,
standing alone, woudl be insufficient to show that
he had passed them, such evidence is sufficient to
show that he possessed them. The fact that he possessed them demonstrates that he had knowledge of
their existence. Therefore, the presence of appellant's fingerprints on forged checks which were substantially identical to the one he was charged with
passing demonstrates that he passed the instrument
in question knowing it to be a forgery. See Vandall
v. State, Tex.Cr.App., 438 S.W.2d 578. We hold that
the evidence was sufficiently · linked to appellant to
be admissible on the issue of knowledge.
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The last exception under this stage, motive, generally
refers to an emotion that would provoke or lead to the commission of a criminal offense.
evidenc~
offer
The prosecution may always
of motive, if it is known to exist, but to
be admissible the proposed testimony must fairly tend to
raise an inference in favor of the existence of motive on the
part of the accused to commit the crime for which he is being
tried.
Rodriguez v. State, 486 S.W.2d 355 (Tex.Crim.App. 1972).
Admission of evidence of an extraneous offense to show
motive, which is never an element of a crime, is generally
permitted for one of two reasons.
First, where the commis-
sion of the offense charged is either conditioned on commission of the extraneous offense or is part of a continuing plan
or scheme which includes the crime charged.
This was discus-
sed in the case of Kirkpatrick v. State, supra, where, as you
will recall, the state ' was permitted to admitt evidence of over
200 instances of conversion of fines by a Justice of the Peace.
The Second reason for admitting an extraneous offense is
. in order to rebutt a defensive theory.
This will be discussed
further in the next section, but a recent example should adequately
illustrate the point.
In the case of Lolmaugh v. State, 514 S.W.2d 758 (Tex.Crim.
App. 1974), the defendant was convicted of the murder of one of
his wife's lovers, who also happened to be her father.
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The
The defendant
offered
: ~vidence
of self defense and there-
fore made motive an issue in the case.
The state was then
permitted to admitt evidence of a statement which the defendant had made stating that. he had shot another of his wife's
lovers.
The Court of Criminal Appeals, in affirming his con-
viction stated at page 759:
.. . .. The proof that he had shot another of his wife's
lovers would tend to show his state of mind toward a
class, lovers of his wife, and this state of mind or
motive was such that he would shoot members of that
class. See Dillard v. State, Tex.Cr.App., 477 S.W.2d
547, 551. The statement would also tend to rebut this
theory of self-defense. Since he had once shot a man
for loving his wife, such evidence would tend to show
that he shot this deceased not in self-defense but
because he was a 10ver . of his wife.
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REBUTTAL OF A DEFENSIVE THEORY
The most common situation giving rise to the admission
of extraneous offenses is rubuttal of a defensive theory.
You will note from the prior section that there is much overlap between the five above listed ex ceptions and the use
of the collateral offense to rebut a defensive theory, as
sometimes exceptions occur at both stages.
The theroies of defense
rebuttal are:
giving rise most often to
lack of intent. alibi. entrapment or that
the defendant was
"framed " ~
or temporary insanity.
Examples of these are seen above in the cases of Allen v.
State; Cobb v. State; Elam v. State; Fo r d v. State;
Ransom v. State; Redd v. State; etc; to name a few.
From the cases considered there appears to be no actual
use of the balancing test under this excpetion, although
it is given
lip~service
by some of the cases.
To determine whether the offense is admissible as part
of the prosecution's case in chief or in rebuttal is to
first determine who has the burden of proof.
If the defendant
has the burden then the collateral offense is admissible
to rebut his affirmative offer of evidence; while if the
state has the burden the offense must be admissible, if at
all, on one of the grounds listed in the preceeding section .
And, as you might imagine. often times a trial court will
-24-
mistakenly admit the offense on the basis of one exception,
when in fact it should
prope~ly
of the other.
-25-
have been admitted as evidence
IMPEACHMENT OF THE DEFENDANT
There are two ways in which the defense attorney puts his
defendants character in issue; either by calling the defendant
as a witness or by "opening the door" with other witnesses showing evidence of the defendant1s good character.
In the first instance it is axiomatic that a witness is
a witness for all purposes, regardless of whether he is the
defendant or not.
w~tness
As a result,
in putting the defendant on as a
the defense attorney is vouching for his defendant1s
credibility and the defendant can, therefore, be impeached if
he has any prior convictions for a felony or for offenses involving moral turpitude.
No predicated need be laid for the
prosecutors inquiry, all that need be done is for the question to
be propounded.
A recent case, which is as of yet without an official cite,
"
Trip p 1 e v. S tat e, dec ide d· by ·t h e Co u r t 0 fer i min a 1 Ap pea 1 son
Apr i 1 7, 1 97 6, has h e 1 d t .ha t i f a vJ i t 11 e s s ( wh i c h n e c e s s a r i 1 y
includes the defendant as a witness) can be impeached by prior
convictions, other than those involving moral turpitude or felony,
if he makes a blanket assertion that he has never been convicted
of any crime.
Although this rule might sound elementary I felt it was
worthy of note.
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IMPEACHMENT OF
OTHER THAN THE DEFENDANT
WITI~SSES
Extraneous offenses can also become relevant to
"good character and law abiding habits".
impe~ch
the defendant's
Jt is axiomatic therefore, that the
defendant may not have a witness testify about his good character traits but
"avoid placing his reputation in evidence".
Childs v. State, 491
S . \~ . 2d
907
(Tex.Crim.App. 1973).
This category can accurately be analygized to rebuttal of a defensive
theory, discussed above, in that this
cate~ory
rebuts the defendant's theory
that his character and reputation are good.
It should be noted that every defense witness is not a character witness.
Although no "magic words" are- required to make a witness a character witness,
the defense must open the qoor by offerin9 evidence of the accused's "900d
character and law abiding habits" .
There has been much -written on what testimony will put the character and
reputation of the accused in issue.
was set out simply that
th~
In the Child's case, supra, the requirement
tenor of the testimony be geared toward showing
good character and law abiding habits.
This case is still qood law today, but
it has been somewhat -limited . by the recent case of Odum v. State, 533 S.W . 2d 1
(Tex . Crim . App . 1976).
In the Odum case, the defense attorney asked the wife of the defendant,
on direct examination, how her husband had acted on a particular niqht.
reply was that he had acted somewhat peculiar.
Her
Then he asked her how the defendant
normally acted and she replied that he normally was good natured and kidded around.
On cross-examination, the prosecutor asked about not only a particular collateral
- 27-
act of the defendant which was
erro~
had heard about a particular incident.
but he also asked whether the
In
reversin~
\~itnesses
the conviction, the Court
stated at page 4:
Appellant correctly contends that the testimony of Helen Odum
on direct examination did not constitute her a character witness
so as to pemit her to be cross-exami ned with "have you heard"
questions. Her testimony was not geared toward a showing of 90od,
lawful character or reputation, but was directed at proof of appellant's
conduct and appearance at a particular time .. .. . cases cited ....
Another point that is important is that the State may not take a witness,
who is not a character witness, and transform him, by its own C]uestions, into
one just so the prosecution can ask the "have you heard" type questions.
Els v. State, 525 S.W.2d 11
(Tex.Crim~App.
1975).
An example of a way in which
one prosecutor attempted to "skirt" thi s rul e is seen in the El s case at
pa~e
13:
Q. Now, when you talked about Charles Els and his efforts in
your behalf, I believe you said he painted a room. And what else?
A.
He helped fix some lights, he fixed my car, he vwuld do anything
I would ask him to.
Q.
Do you know his Pastor Rode?
A.
H·i 5 ·what?··
Q.
His Pastor Rode?
A.
I just met him since Joy has been going over to Charl es' .
Q. And are you familiar with their friends? I mean the friends of
Charles Els and people that he associates and frequents with?
A.
Some of them.
Q. And so, these questions that you have been answerin9 for Defense
Counsel, do you mean to say by your answers that Charles Els is a man of
good character?
A.
\>Jell, I thi nk so.
Q. And that is what you meant when you answered those questions of
Defense Counsel?
A. I never seen him drunk. I have saw him drink a beer, but
I have never seen him drunk or anything .
Q. So, when you \~ere answering the questions of the Defense Lawyerand I will have them read back to you if it is necessary-did you mean to
imply that the Defendant, as far as you know, is a man of good character
and reputation?
A.
I thought so, yes, sir.
I still say so.
Q. And that is what you meant when you were answering this lawyer's
questions?
A.
Yes.
The Court in Els held the actions of the prosecutor in making the witness a
character witness and in asking the subsequent "have you heard" questions
eleciting the extraneous offenses constituted reverisble error.
In closing, it should be also noted that if the character of the defendant
is erroneously inquired into by the prosecutor, whether the witness has heard
of the crime or not, it will result in reversible error.
Hurt v. State, 480
S.W.2d 747 (Tex.Crim .!\pp. 1972); Billingsley v. State, 473 S.W.2d 501 (Tex . Crim.
App. 1971); and Webber v. State, 472 S.W . 2d 136 (Tex.Crim.App. 1971).
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EVIDENCE FOR PURPOSES OF PUNISHMENT
Evidence of the accused's prior criminal record is admissible at the punishment phase of the trial for either enhancement
of punishment, as per V.T.C.A., Penal Code ~~ 12.42, 12.43 &12.4S,
or as evidence of the accused's prior criminal record, as per
Vernon's Ann.C.C.P. art. 37.07.
It is important to note that
under this category the use of the phrase "extraneous offense"
to describe another offense committed by the defendant would actually be a misnomer, as other offenses are limited (with the exception of ~12.4S, supra) to prior convictions.
Interestingly enough,
this is held not to constitute double jeopardy.
Schultz v. State,
SlO S.W.2d 940 (Tex.Crim.App. 1974).
Evidence of the convicted defendant's prior convictions under
ss 12.42 & 12.43, subject to certain requirements, is admissible
ss
in order to assure that the defendant will receive a greater or
'-
"enhanced" sentence than was prescribed for the crime for which
he was being tried.
The requirement, in the two statutes, of
conviction refers to a final adjudication of guilty by a court
of competent jurisdiction, resulting in an unprobated sentence,
not set aside or reversed.
Arbuckle v. State, lOS S.W.2d . 219 (Tex.
Crim . APp- . 1 9 3 7 ) .
Under 37.07, supra, the evidence is actually offered to show
the convicted defendant's character.
-30-
This statute uses the term
"prior criminal record" and interprets it to mean: "a final conviction in a court of record, or a probated or suspended sentence
that has occurred prior to trial, or any final conviction material
to the offense charged."
As might be imagined, whether under either section, the
state has the burden of showing the accused is the person who
was convicted of the prior crime.
Bullard v. State, 533 S.W.2d
812 (Tex.Crim.App. 1976); Elizalde v. State, 507 S.W.2d 749 (Tex.
Crim.App . 1974); Cain v. State, 468 S.W.2d 856 (Tex.Crim.App.
1971).
The means generally used to accomplish this are set
out in the Cain case at page 859:
This Court has approved several different means to
prove the accused was the same person previously convicted. They include, but are not necessariJy limited
to:
(1) Testimony of a witness who identifies the accused as the same person perviously convicted. Garcia
v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631; Brumfield
v. State, Tex.Cr.App., 445 S:W.2d 732; (2) Introduction
of certified coptes of the judgement and sentence and
~ecords of the Te~as Department of Corrections or a
~ounty jail including fingerprints of the defendant,
supported by expert testimony identifying them as
identical with known prints of the defendant. Vessels
v . State, 432 S.W.2d 108; (3) And by stipulation or
!judicial admission of the defendant . Brumfield v. State,
supra.
If the State fails to meet this burden and the evidence
is admitted, with or without objection, the Court of Criminal
Appeals will generally ' reverse and remand the case as to punishment only.
Bullard v. State, supra; Elizalde v . State, supra.
The Bullard case, decided by the Court March third of this
year, overrulled the Elizalde case in part in that the Elizalde
-31..,
case was remanded to be tried using only the same evidence that
was used in the original punishment hearing, excluding evidence
of the prior conviction which had been insufficiently proven.
The Bullard case, on the other hand, was remanded also, but
the Court there stated that the State may again attempt to prove
the prior conviction which the Court of Criminal Appeals had held
to be insufficiently proven for purposes of enhancement.
It should be noted that Enhancement statutes are to be
strictly construed; and, as stated in Tyra v. State decided
March 24, 1976, it is error to enhance punishment where there is
no proof that each succeeding convcition is subsequent, both in
point of time of commission of the offense and in conviction therefor. 1
The final statute mentioned above S12.45 is an unusual statute
in that it permits a defendant, with the permission of the state's
attorney, to confess 6ne or more
unadjudica~ed
offenses and
request that the court take each into account when determining
his sentence for the offense of which he was adjudged guilty.
The purpose of this statute is two-fold:
First, it permits
the defendant to "clean his slate" of other outstanding charges
that could possibly be brought against him when he is released
from prison.
Second, it aids the courts in clearing their dockets.
The official cite is not yet known.
-32.-