*1 Austin Bills v. State. Jack 30,767. 1959. June No. Rehearing 1959. Overruled October Motion for WOODLEY, Judge, Concurred.
DAVIDSON, Judge, Dissented. Bader, by McKool, Dallas, McKool appellant. & Mike for Henry Wade, Attorney, Dallas, Criminal District Ben F. Ellis, Flagg, Attorney, Dallas, Merle Assistants District Douglas, Attorney, Austin, Leon State’s for the state.
DICE, Judge. sodomy; punishment, years.
The conviction is for Appellant jury entered before a and filed suspended for a sentence. prosecuting indictment, At the trial the witness named in the eleven-year-old boy, night an who was that on the testified question appellant boys he went with the and two other to a they parked wagon drive-in theatre where in a station on the back; third row from the that he went to the concession stand boys one of the and when returned with the other boy wagon; that, were in the back of the station at got appellant’s request, he then in the back where sodomy upon him, an act of after which he returned accompanied him to the front who to the seat got appellant. stand concession back *2 Appellant’s confession in evidence written was introduced taking prosecuting the witness and the in he admitted which night boys question to the drive-in theatre on the in other two sodomy upon that he an act of and further admitted committed upon boys. prosecuting of the the witness one other behalf, appellant support in his testified in As witness own suspended his for a sentence that he had never felony convicted of admitted that the statements been in written confession were true. contained his Appellant predicates appeal upon that the his the contention admitting error committed reversible in evidence before court objection, other jury, the over his crimes and which against charged relate to the offense him and that the did not referring attorney prosecuting error in committed reversible argument jury. crimes and offenses in his to the to such other overruling appel- It is first the court erred in insisted motion, beginning trial, requesting lant’s made at the of the the any testimony per- state’s counsel not to elicit court instruct taining any or offenses other than those related crimes which against charge appellant. overruling directly to the In the motion, suppress err as a the court did not motion to evidence recognized procedure Dominguez State, in this state. v. is not 677, State, Rep. 124, 275 2d v. Texas Cr. S.W. Williams 161 347, Rep. 298 2d 590. 164 Texas Cr. S.W. only the record reflects that A careful examination of by any admitted the court of evidence extraneous crime or of- by appellant appellant’s fense committed the evidence of night getting question on the in and conduct in in acts the back wagon boys station with other of the two who were with the committing prosecuting witness and an act of one of them. acts and conducts were a Such res charged and the of the offense evidence thereof was admissible. 39, 77; par. page State, 18 Texas Jur. Bowles v. 156 Texas Cr. 548, 811; Rep. Gephart Rep. 244 157 Texas Cr. 612, and Botello v. Texas argument counsel, The of state’s of which com- plains, clearly in reference to association night question boys were with him who three other prosecuting witness the families of argument sodomy. the acts he committed whom not infer that did evidence and warranted upon boys other than crimes or offenses other had committed the offense was present occasion when on the those injured party. upon the
Finding error, judgment is affirmed. no reversible Opinion approved the Court. Judge (concurring).
WOODLEY,
The case of Hemmeline v. *3 97, disposition that the of the contention S.W. 2d controls 310 sodomy by appellant boy act of another the oc- the on same casion was because it showed the commission of inadmissible an extraneous offense. Hemmeline
In the case the was offense auto theft to which plea guilty of entered for was was made sus- pended appel- sentence. Evidence that narcotics in were found possession burglary lant’s and that a had been committed in area the where he first seen held to was was be admissible. opinion points
The in unanimous Hemmeline v. out State contemporaneous that the part offenses were with and a trial, case were not disconnected. The contention that guilty plead per- since Hemmeline it was error for the court to prove burglary mit the state to that a had been committed and possession inwas of narcotics was overruled. 627, Williams v. 215 2d distinguished: proved “because the offenses there were dis- appel- connected in of time from the offense to which plead lant (Williams) guilty, while case the offenses (Hemmeline) at contemporaneous part bar a with of case on trial.” sodomy boy, being The act of with another admissible as a transaction, by of appellant’s could be shown confes- cross-examination, by eye sion on his well as an witness. sodomy It is the act of the second which was ad- Appellant’s missible under the so-called res rule. confes- statute, not as a res confession admitted under the sion was gestae statement. Judge join approval expressions, I these
With opinion. Dice’s Judge (dissenting).
DAVIDSON, extraneous committed of other and Proof only to solve thereof tends admissible when accused is some P.C., Edition, disputed" issue in the case. Vol. Branch’s 1, Sec. 188. disputed issue must be one of fact. Daniel v. Rep. 636.
Texas Cr. guilty jury, plea there was no before This facts, au- issue, pleadings or the which would either under the proof of acts of thorize parties.
with third it acts or offenses was If of such other admissible only prove disputed fact it tended some admissible issue in the case. disputed If there issue as to guilt, proceed to final conclusion the case could not jury. Burks v. 145 Texas before *4 admissible, other crimes was there the evidence of the if So guilt plea jury an issue as to was before trial conducted guilty been withdrawn should have of guilty. plea a of not under remain, guilty proof plea to then of the other issue in the of was
If the there existed because no crimes was inadmissible case whereby proof authorized. thereof would be plea proof any event, of of ex- both the In case, repugnant one can not exist traneous crimes to the other. says proof opinion of the other acts of majority gestae transaction part res of the for which
sodomy a was on trial. appellant was applied gestae speaking. this transaction As to is the
Res for which the one case, that transaction proof guilty and which the pleaded he and to which trial subsequent acts final and made before was concluded showed of committed. were subsequent crimes could not there- of those other Proof gestae preceding and closed transac- of part the res fore of be tions. ais
Moreover, proof of other crimes becomes where subject limi- are to the same part such crimes of the res proof there- is that the other crimes —which tation as is of disputed in the case. some issue of must tend to establish in Lockhart v. is the announced this court Here rule 1024: 53 Texas Cr. engaged trouble, parties in a or declarations of
“Statements occurring supposed transac- or acts or matters at the time of the tion, gestae simply admissible are not res because time; declarations, sought stated at the these acts and when but accused, party rel- used on the trial of must have some be evancy bearing materiality upon in- or the issue or issues in such trial.” volved upon itself
The state finds the horns of a dilemma. If the plea guilty stands, proof of the other offenses was not ad- admissible, missible. If other the the then proof destroyed guilty. such concurring opinion, my Woodley jus- In a seeks brother tify authority the affirmance of this case under of Hemmeline Rep. 583, 165 Texas Cr. controlling,
That is neither in nor case here. reached in that case The conclusion was bottomed objected proposition that evidence to was of the of- evident, fense for which the accused was on trial. Such is made Beard v. is relied sustain that conclusion.
I call attention to fact that the Beard case makes clear proof that of other offenses was there authorized because murder, were deemed of the crime of for which Beard clear, tried. To make that the court said: long
“This court has proposition, been committed tenaciously adhere, which party we that a accused of crime particular must be accusation, tried may not be any shown generally evidence of character a criminal be particular unless under the facts of the case evidence of other pertinent offenses to the convictions exception becomes under some general rule of exclusion.” That the Hemmeline case is not in here is further demonstrated the fact that Goodman v. Rep. 636, 152 Texas Williams held not to control the dis-
position (Hemmeline). of that case Both the directly support Goodman and Williams cases this appellant’s position my here, cases, dissent in those here, as evidence of other offenses was no of the of- trial, fense for which the accused was on and there were no of fact issues which would render them admissible. supports challenges my
The Hemmeline case rather than position separate other and crimes was not admissible. proved complete state the act of
When it made a sustained, by proof, guilty. case and by appellant Other offenses persons with other subsequent thereto which no connection whatsoever with pleaded guilty the offense to sep- which he had but which were arate and distinct therefrom should not have been admitted in evidence, especially in view of the fact that was not charged shown to have been ever convicted thereof or thereon. ought The conviction to be reversed. All the law that this subject, out, ought court has written pointed as above destroyed, not my doing. to be are here brethren I dissent.