*1 punishment different rule where for a prior felony un- by one conviction
enhanced CAMERON, Appellant, John T. 12.42(c), supra. Carvajal, In this der Sec. argument an the rule rejected Court Texas, Appellee. STATE same use of the conviction prohibiting No. 49972. appli- was not punishment to twice enhance new Penal Code. We can- cable under Appeals Texas. Court Criminal suggestion that the State’s agree with not Dec. 1975. object waived the failure infirmity, agree can we nor such in view of the fact prejudicial
error is appellant had reflects that the record felony in convicted of previously
been “would result in
Michigan and that a retrial Michigan substitution” of the con-
a mere
viction. prior properly conviction was punishment in No.
used to enhance Cause
50,662, but the same conviction should not punishment in used to enhance
have been 50,663. No.
Cause attention calls our
Counsel objection pro by voiced
to a se
sentencing appear which would to be in the complaint repre- of ineffective
nature of a by counsel in the trial court. The
sentation clearly complaint. refutes such
record 50,662 No. is af- Cause
firmed. 50,663 hav- punishment in Cause No. prior con-
ing been enhanced same for enhancement
viction used Cause No.
50,662, jury, requires and set at life judgment of conviction be reversed
that the 50,- No. the cause remanded Cause
663.
It is so ordered.
Opinion approved by the Court.
McAngus, Atty., Asst. Austin, State’s for the State.
OPINION DALLY, Commissioner. appeal
This is taken from a conviction for robbery firearms. Trial was before a jury punishment that assessed of the appellant imprisonment at for years. fifteen appellant asserts that evidence of ex- was traneous offenses erroneously admit- ted; was expressly this evidence admitted of identity issue aid in determin- ing whether appellant person was the who committed this offense. We find there was reversible error.
We will first summarize of- the evidence fered to the offense for which appellant was being tried in this case. On 7, 1972, November Neyland Iris was em- head ployed as cashier of Southwestern In- Company (SIC) vestment City On that Lubbock. date p. at 1:00 m. appel- lant entered the office approached her He her, desk. a pistol dropped a yellow plastic and white bag counter, on the her and directed to “fill up.” it As she was emptying currency drawer, out of the the other one of employees made a move to up. Appellant stand then gun, cocked his against Neyland’s forehead, held and or- open her to dered another drawer. When there she told him was nothing it, her that he appellant told “wasn’t kidding” again open demanded she repeated drawer. she When there was supplies nothing drawer, appel- yet lant another opened. ordered drawer him that she open She told was unable to that drawer because the cashier who had gone. key was Appellant grabbed then bag, plastic which contained $867 currency, and fled on recognized foot. She appellant as he had been a customer at Montford, Lubbock, appel- John T. year one robbery, for about before the SIC lant. made and he had a new loan two or three Griffin, Tommy Alton R. before Atty., robbery. Dist. weeks She said the Turner, Atty., Lubbock, wearing Dist. was jacket, J. Asst. a Jim leather Vollers, large Atty., wig, sunglasses. D. State’s and David S.
«43 entered the black males employees who were Three other of SIC clerk, made in-court where he was employed as eyewitnesses gunpoint as him at approxi- identifications and robbed robbery; who committed the the mately He related p. $300. that at 10:30 m. attempted to show that of- on the aforementioned date the *3 by person; another he was committed fense a confederate and entered the store offered an alibi defense. an down aisle near regis- walked the cash one can ter; they soup took of from the appellant The the contends that brought shelf, back to the counter and objec in admitting, court erred over trial the crackers were. After the asked where chief, tion, case in evidence in the State’s counter, placed were on the crackers Fillin- person proved he and another commit up the sale. rang When he turned to gim robbery Holiday an armed at the Inn in ted appellant the accept payment, pulled had Pecos, 19, Watkins, July 1972. Nadine on pistol Fillingim. a it at out He robbery, in that al complainant was put money told to all of the in a was store’s testify concerning in detail lowed to paper up.” sack and “hurry brown to The offense, appellant but the testi facts of the then appellant go ordered him to into the behalf, fied in his own and on direct exami and lie ap- back room down. Neither the committed, plead he nation he admitted disguised. nor his pellant confederate were to, guilty and was convicted of that offense. was appellant “casually.” dressed accused general rule here is “that an complain of testi cannot of the admission Evidence of other unrelated of mony when he later on direct testifie[s] generally fenses is not a admissible since substantially examination to same may defendant not be tried for some collat State, (Tex. 409 S.W.2d 857 facts.” Cook crime eral or for a generally. criminal way, Put Cr.App.1966). another inadmissi The reasons for the rule have been stated erroneously generally evidence admitted ble State, Albrecht reversal when the require not defend will App.1972): the same ant about facts and ad testifies testimony of to which he mits the truth admissibility ev- “Limitations on the of objected. Moulton v. originally 486 prior of an idence accused’s criminal con- (Tex.Cr.App.1972); Nicholas v. imposed, are such duct because evi- (Tex.Cr.App.1973); legal is without dence relevance to the Ivory v. general issue whether the accused case, 1968). In the instant admit the act charged, committed because guilt robbery his in Pecos after ted evidence is inherently prejudicial, such objecting any to the first admission of evi case, tends to confuse the issues in the attempt that offense. He did not dence of and forces the accused to defend himself evidence, explain or rebut to admitted charges against which he had not been State, supra; as was the case in Nicholas v. be brought against notified would him.” rather, freely he admitted to the truth of it. State, supra. Albrecht Therefore, position is in no to by ruling he was harmed of the claim However, where is relevant evidence court. issue, it an is not prove necessarily to ren inadmissible because it tends to show dered also contends that of an extraneous offense. the commission admitting court erred in evidence of anoth- exception general to the rule of inad As an robbery, allegedly of armed com- er offense missibility, evidence of the commission of 1972, by on March mitted by offenses other the accused is admissible Ready-Mart at the Food Store in Lubbock. identity establish the of the testify, Fillingim was allowed to Richard crime, intent, motive, 14, 1972, system part or as objection, that March two over although gestae. supra. In this both res Albrecht v. robberies were committed in present Lubbock, case the State they sep In the offered the by eight robbery time at the arated in evidence months. The rob chief, grocery on the store was bery in its case in issue committed pistol. men with a identity jury and the was so instructed. two black committed was one black at man SIC Evidence that also would (The argues State that a pistol. with a offense is when offered separate admissible person was the driver of the car in second (1) if identity only identity issue of on the appellant escaped which the from rob (2) if there issue are a controverted SIC.) We bery distinguishing find no distinguishing common characteristics common characteristics to both the extrane both extraneous offense and the offense and the ous offense which offense for g. which defendant is on trial. E. is on *4 trial. The admission of the State, (Tex.Cr. v. 503 810 Ransom S.W.2d offense, the of evidence extraneous the rob State, 503 Mitchell v. S.W.2d App.1974); bery at the cannot State, (Tex.Cr.App.1974); v. 503 562 Cobb error; as be characterized harmless its ad (Tex.Cr. 249 App.1974); Lee v. S.W.2d in evidence mission was reversible error. State, (Tex.Cr.App.1973); 616 496 S.W.2d State, supra. v. Ford State, 484 v. Ford is the cause reversed and the commis 1972). A defendant’s denial of remanded. on of the crime and his reliance the sion identity a of alibi makes contro defense approved Opinion by the Court. State, Lee cf. supra; issue. v. Redd verted State, (Tex.Cr.App.1975); v. MORRISON, (concurring). Judge State, 826 v. 488 Franklin S.W.2d I in the In concur reversal of this cause. here denied App.1972). Since concurring opinion my in Henriksen v. and offered he committed the offense that State, Tex.Cr.App., page 500 S.W.2d defense, identity is a controverted an alibi 497, I said: We must then determine whether issue. “Though not without difficulty, I have distinguishing characteristics there that the above are concluded similarities both the offense common to extraneous and ” . . . sufficient for which the offense was on words, other would evidence trial —in pecu- In that case “a similarities were proved Ready- at the also that bringing paper bag liar trait” into a determining aid in Food Store wheth Mart paper where bags readily are supermarket, available, is the who commit er the and wearing cap glass- and sun at SIC? offense ted the es. State, was said the supra,
In Ford v. only primary similarities between the distinguishing may characteristic common extraneous offense offense place of proximity in time and are be those set case forth in footnote instant for which offense to the offense dissenting extraneous opinion. one tried, the common accused Ford, our holding supra, Under I can- may be the element mode of commission these are suf- conclude similarities offenses. In Ransom v. the criminal ficient. proximity in supra, it was said that both mode of place and the common time DOUGLAS, Judge (dissenting). present. of the offense were commission majority be- the robberies within reverses this conviction There were committed cause of admission of an extraneous days time and a confederate acted three the defendant in both robberies. offense. with If the extraneous offense is rele- is admis- fense. of extraneous offenses
Evidence tending vant in to identity. disprove the defensive The issue identi- sible ” theory, it should by appellant’s be raised cross-examina- ty was admissible. . . . robbery victims supra, opinion and his reliance Halliburton tion of the on In motion Ransom appellant’s rehearing. on an alibi defense. (Tex.Cr.App.1974), this In the instant case the evidence of Court wrote: prior robbery reasonably logically tend- State, supra “. . .In Ford v. [484 appellant’s and, ed to defeat defenses there- 727, Tex.Cr.App.1972], it was S.W.2d fore, was admissible. distinguishing pointed out the common may proximity be the characteristic No doubt of trial the bewilderment place time and or the common mode of lawyers, judges this Court is inconsist- ” of the offenses. . . the commission holdings point. its ent in the same This held that has extraneous offenses to
Court theory defeat a defensive are admissible noted in also Ransom This Court guidelines under Albrecht operandi” “modus re- exact need not be (Tex.Cr.App.1972). peated.1 present does not follow Albrecht. Town- Appellant Shelly also robbery. Appellant send committed the *5 Apparently majority disregarding also had an alibi. the decision Ransom which held that com “Evidence extraneous offenses any not make how the of- did difference mitted the accused has been held ad fense was majority ig- committed. Is the * * * (6) missible: To refute a defen decision noring going back to the raised theory sive the accused.” Al similarities dissimilarities mentioned brecht which Ford out that the accused in App.1972). a purple wore shirt while commit- one offense did not ting wear a purple In Halliburton v. 528 S.W.2d committing the while shirt extraneous of- (Tex.Cr.App.1975), the defendant fense? that she shot the deceased in self-defense. witness testified that Halli- prosecution
A should affirmed. be pri- shot him five after the burton weeks There mary “distinguish- was no offense. pri-
ing characteristic” common to both ONION, J., joins P. in this dissent. extraneous offense. mary and
This Court held that the extraneous of- appellant’s rebut
fense was admissible to theories.
defensive presence
“. . . The or absence of entirely
similarity is determinative of admissibility of the extraneous of- State, Tex.Cr.App., important, following similarities are 1.If 491.2 proved: See also Robinson v. 1974); 1. Both offenses were committed in Lub- McDonald (Tex.Cr.App.1974). bock. by black 2. Both offenses were committed super- 2. In Henriksen the robber entered the males. primary and extraneous pistol in both markets used a in both of- 3. The robber place offenses the attendant and ordered fenses. money paper bag. concurring See place the clerk to 4. The robber ordered by Judge bag. opinion Morrison. money Cf. Henriksen in a