Dickey v. State

decide, I nothing there is now ex- Because matters governing statutes such in the dismissal. concur of rigid formalities relax the more pressly Arti- conviction. ordinary appeal after CAMPBELL, TEAGUE, MILLER and ap- “such 44.36, V.A.C.C.P., directs that cle JJ., join. upon heard and determined peal shall be arising from the the law and the facts MILLER, dissenting. Judge, design that “the record” and instructs that this Judge with Clinton concur review is to discretionary of the appeal to the trial court be remanded writ should justice” applicant. do substantial I would do so hearing to set bail but for a V.A.C.C.P., 44.37, that the Article mandates “appeal” from denial considering the after Court, court, “shall including this appellate corpus as a writ of habeas of the issuance of and make such orders judgment, enter such in the court of crimi- original proceeding the case law and the nature of as the parte Sheppard, Ex appeals. nal See then, pertinent that intending require,” and appar- It (Tex.Cr.App.1977). achieve a sta- promptly thus resolved issues to avoid seeking is not ent that of the Court finality judgment of tus fact, has, ex- —“the in local relief available final and con- Appeals of shall be Criminal in the lower his remedies hausted all of V.A.C.C.P., 44.38, provides clusive” —Article courts. in the same application further that “no writ, except

case can be made for by for law.” specially provided

cases of this Court overwhelming majority

An opinion the outset that

believed from Appeals of of the Court judgment and DICKEY, Appellant, Gary Lynn to a was entitled applicant and that wrong1 bail for reasonable hearing petition debated, while we appeal.2 But

pending Texas, Appellee. of STATE in the languish applicant this continued 64192. No. ultimately until County Bexar Jail Texas, Appeals the habeas Appeals affirmed Court of Criminal Court Banc. En pro- in the extradition court’s order promises Writ ceeding. The Great 1, March 1983. by not be suffered injustice need kind have here breached citizen. We the matter to become and allowed promise

moot. by resolved 44.35, by appeals merits of issues on the as construed Article V.A.C.C.P. explore 198, the record court than parte Quinn, intermediate Ex Court procedural faults. 1977). for (T App. in the trial court made ex.Cr. years Indeed, many error writ of with its Supreme of Texas has jurisdiction the Court approval recent constitutional of the 2. Since judicial application writ appellate acceptable modifying that an found amendments alia, contain, authority of the fol- in criminal cases inter a “Statement structure and of error legis- implementing “general statement meant a enactment of which is lowed Case” by: September this Court “The effective suit” followed lation of the nature experience correctly Appeals months states more than seventeen opinion has of the Court decidedly suit, except a re- different role as new and its result of the nature and Yet, we viewing resort in Texas. any].” court of last Rules following particulars: Texas [If difficulty coming to some Procedure, 469(c). seem to have still Tex- Our own Rule of Civil assigned purposes and grips Appellate with intended Trial and of Post Rules as Criminal which, Court, as the essence pattern. functions part from that taken Procedure examine, analyze them, and is more I see (3). See, 304(d)(2) e.g., Rule rulings courts of opinions evaluate Stasny, C. David Bryan, appellant. III, Travis B. Bryan, Atty. Dist. Torrey, Atty., W.W. Asst. Dist. Bryan, Rob- Huttash, ert Atty. State’s and Alfred Walk- er, Austin, Asst. Atty., State’s for the State. OPINION DAVIS, G. Judge. TOM Appeal is taken from a conviction for attempted aggravated rape. After jury returned a verdict of guilty, punishment, by conviction, enhanced a prior was as- by sessed the court at fifty-five years. ground In his sole of error con- tends “The trial court erred in overruling appellant’s objection to evidence of an ex- traneous having State failed to qualify said offense under an the general rule.” Appellant offered evidence that at time of the offense he was playing cards and watching games at one Willie Idelbird’s place.

An exception to the rule that an not be tried for a collateral crime is that evidence of an extraneous offense may be admissible to refute a de the accused. Al theory fensive raised brecht v. (Tex.Cr. 486 S.W.2d 97 App.). Upon offering evidence of the de alibi, appellant placed fense of in issue. Wintters v. (Tex.Cr.App.); Jones v. 587 S.W.2d 115 (Tex.Cr.App.). rested, After the defense of- State E_S_that

fered from (5 on March days before the of- question) fense in appel- a man identified as raped lant her after he “put had a broken neck, beer bottle my and told me if I did slit throat.” volved an adult woman while the extrane- anything, my he would This testimony the appel- child, was admitted over primary ous offense involved a objection. lant’s means offense involved threat force a weapon while the extraneous offense Appellant urges that there not suf- weapon, of- involved no ficient com- distinguishing characteristics fense involved acts of deviate sexual two mon to both the extraneous offense and the for so while in- offense which he was on trial as to intercourse the extraneous offense render the a fondling organs. extraneous offense admissible. child’s sexual volved State, In v. the rule stat- supra, Wintters case the of primary In instant repeated: ed in many of our cases1 fense and the extraneous offense occurred identity “Once issue of has been in day five The victims period. within a raised, evidence of an extraneous offense both white A M coeds. instances were & if prove identity only is admissible to The in instances wore sun assailant both distinguishing there is characteristic some glasses. at Both victims were or about to both extraneous offense resided, places they the victim in the where for and offense which the accused is yard case was in the her primary outside on trial.” (Emphasis supplied.) place residence while the in victim In holding robbery that extraneous laundry was in the room extraneous offense admissible, in offense was this Court Collins apartment. of her In both instances State, (Tex.Cr.App.) v. 577 236 not- S.W.2d object a to the throat sharp assailant held ed there number were a of dissimilarities victim, knife primary in the offense a as the offenses “such the fact that in the and beer bottle extraneous a broken primary by appel- offense was committed offense. lant alone the extraneous one involved confederates, appellant and two and the in the We sufficient similarities find use of primary offense involved the a fire- place of time as well as the proximity arm while the other offense did not.” Cit- two so mode commission of the offenses State, supra ing Ransom v. the Court noted as to constitute sufficient present that were such common characteris- permit characteristics as to the State proximity place tics as in time or and com- after the introduce the extraneous offense mon mode of commission raised the defense alibi. and held that the dissimilarities not did judgment is affirmed. The destroy the extraneous offense’s relevance showing identity. ONION, Judge, concurring. Presiding rigid In relative to criticizing rule simi- rule, cases larities in of- in criminal primary general and extraneous “As a all, convicted, fenses this noted Court Ransom that such the accused can be if a rule overlooks the well-estab- “apparently he is shows that by evidence that requirement lished that before extrane- charged. Conse- guilty ous offense is the offense must admissible has evidence that he committed quently, proven clearly be and the accused shown to wholly crimes that are remote and other have been its perpetrator.” offense with which disconnected from the ordinarily charged he is inadmissible State, Messenger In the case of v. recent ” 194, Tex.Jur.2d, Evidence, p. .... 23 § re- (Tex.Cr.App.) 638 S.W.2d 883 reversal 164, 294; State, Young v. 159 Tex.Cr.R. sulted from the admission of an extraneous (Tex.Cr.App.1953). offense2 where the offense in- 261 836 S.W.2d State, supra; State, rehearing, E.g. v. 2. this Court noted Jones v. Todd 598 On motion State, necessary (Tex.Cr.App.); pass S.W.2d Ransom v. on correctness 286 was not jury opinion original (Tex.Cr.App.). S.W.2d since the 503 810 submission fundamentally charge defec- was found to be tive. exceptions There are rule. The general offered evidence of alibi— Albrecht v. (Tex.Cr. that at the time of the offense he was Tex.Jur.2d, Evidence, App.1972); 23 § watching games cards and at Willie playing p. 300. One is that evidence of place. Idelburd’s offense may be admissible to State, contending identity had refute a theory defensive raised ac called thus been into offered an ex- v. Albrecht cused. supra. When a traneous offense on the issue. theory defendant raises the defensive E_ S_, Jones an A & M places University issue. student, (Tex.Cr.App.1978); testified she at the lived Casa Del Owens (Tex.Cr. Apartments, College Sol No. Sta- App.1969). Once issue of 26,1979, p.m., tion. March about 9 On she raised, of an extraneous offense was of the apart- alone laundromat may become admissible. “It must re- complex. ment entered the membered, however, though that even evi- wearing and with sunglasses laundromat a dence of crime may another be relevant to beer broken bottle and forced her from the the instant proceeding, such evidence building into a field. From there he forced should not be admitted unless the commis- nearby lawyer's her a and into an to office sion of the other crime is and clearly proved he walkway. raped enclosed There her. the accused is shown to perpe- have been its E_S-made positive a identifica- Tex.Jur.2d, trator.” Evidence, p. § appellant tion as the of perpetrator of the Further, the extraneous offense is offense. admissible on the issue of identity only, in majority The and the do not dissent disa- addition to the above if requirements, there gree general prohibiting as rule the distinguishing some characteristics com- offenses, excep- use of extraneous nor the mon to both the extraneous and the rule, tion to such where defensive the theo- offense for which the accused is trial. ry places alibi issue. Each Ransom v. (Tex.Cr. the conclude issue of was raised in App.1974). by appellant’s instant case alibi defense The question presented in the instant authorizing the use of extraneous of- case is whether trial erred court it were fense if otherwise admissible. Each admitting evidence of an of- extraneous agree seem that the evidence shows that fense on the of identity. issue appellant was the of both perpetrator of- The State offered evidence at- They disagree whether fenses. over there tempted aggravated rape as charged distinguishing were sufficient characteris- T_ H_, indictment. an A & M tics to both to authorize offenses student, University testified that about 5 the of the extraneous admission offense. p.m. on March working 1979 she was observed that It is the offenses occurred alone in garden in the back yard days of in the city within five each other house where she lived at 706 Place in Park Station, College County. Brazos Each vic- College appellant ap- Station. She related tim a white A M coed and the was & proached her and asked to use her tele- in each case a black assailant man phone as his car had broken down. She sunglasses identified wearing who was gave a description clothing and noted as the Each appellant. each victim sunglasses. Appellant wore her followed were time at victims alone at the or near house, pulled into the a knife and ordered place they resided when offenses her into pull the bedroom. He tried occurred. The victim in the instant case ensued, down her A pants. struggle and yard p.m. was in of her house. About 5 T_H_screamed, at grabbed knife, by the and the left she was lured into the house ruse of the house. She clearly identified the as the need for a There he appellant’s telephone. perpetrator of the and placed attempted offense. a knife to her throat near the county at 706 Park Place and rape her. The victim in the apart- Apartments. Both victims offense was laundromat Del Sol Casa p.m. ment at 9 With a broken complex hearing After A & M coeds. were a field and beer bottle he forced her into evidence, judge they stated the local district a law- walkway then into an enclosed neighborhood. near same occurred in the both raped office where he her. In yer’s the fact that dissent also relies on sharp object incidents the used a occa- sunglasses worn on both the kind victim to enforce his to the throat of the the record. If the sions were not shown demands. have testi- experts were and could victims dissent, concluding there were not sunglasses Ray-Ban, fied that sufficient characteristics X, have or Brand this would Dior Christian extra- offenses to make the common to both desirable, not detract this does been admissible, the instant so, it does bear may While this be pistols. seems to indicate day night. or The dissent of mode of the commission on the common of because in the instant similarity a lack to commit a person prone the house A case the offense occurred inside the offenses. resort may offense the victim of an offense type while in the extraneous certain The dis- time. to an outside location. are available at the weapons was forced whatever the extraneous offense sent overlooks of time and Considering proximity area, in an enclosed eventually committed of the commission of the mode place, that the overlooks that it was detection similarities, I would and the other offenses in both cases. If appellant sought to evade distinguishing there conclude victim in the instant he had attacked the offenses, common to both characteristics daylight, he p.m. at 5 yard case in her along with identification and that Likewise, in the been observed. might have of both of- perpetrator as the stayed in the offense if he had extraneous ex- admission of the authorized the fenses interrupt- might room he have been laundry identity. offense on the issue traneous residents. complex by apartment ed other in its the court further observed that It is sought to out into the dark he By going of- the use of extraneous charge limited present The evasion avoid observation. identity. fenses to the issue in both cases. “is no contends that there The dissent reached. in the result I concur two offenses were com- evidence that does neighborhood,” but

mitted in the same ODOM, dissenting. Judge, “neighbor- by what it means not define appellant con- of error only ground In his contend dissent does not Surely hood.” an of evidence of admissibility tests the never be extraneous offense can that an hear- rape. After a aggravated in the same unless committed admissible jury, presence ing outside of- instant or neighborhood as the com- there were sufficient trial court ruled place in time Proximity fense. sup- characteristics mon along factor, it must be considered a offense of the extraneous port admission and circumstances. with the other facts identity. issue of city in the same Here the offenses occurred

237 crimes, The rules matter ex- the mode of commission of the or relating to this State, pressed in 616 Wintters v. S.W.2d perpetrator, the mode of dress (Tex.Cr.App.): 200 element which marks both any other having “It is crimes as been committed well established that may not be tried for some collateral crime person.” same being or for generally. criminal Hines State, appellant presented In this case [(Tex.Cr.App.)]; 571 322 alibi S.W.2d Thus, State, [(Tex.

Cameron v. defense. an extraneous S.W.2d ]; State, Cr.App.) Halliburton 528 would be admissible if distinguish- [(Tex.Cr.App.)]. One of ing characteristics were shown. In overrul- we exceptions recognized have to this ing appellant’s objection the trial court general prohibition against the use of ex found common distinguishing characteris- offenses, traneous is that such evidence is tics: approximately “Committed the same theory admissible to refute a defensive woman; day, time of aby black man-white State, raised the accused. Buckner v. apartment; neigh- alone her in the same [(Tex.Cr.App.)]; Al- borhood; within a week of the offense on App brecht v. [(Tex.Cr. record, however, trial.” The reflects the .)] When the raises the . attempted rape daylight, was in broad theory places defensive p.m., about 5 while the extraneous offense issue. Jones v. 587 was after dark at p.m. about 9 In one case [(Tex.Cr.App.)]. S.W.2d 115 Once the victim was working yard in her when raised, issue of has been approached by appellant who asked to use of an extraneous offense is admissible to her phone and then assaulted her after they prove identity only if there is some distin- entered her house. In the other the rapist guishing characteristic common to both approached the victim in the laundry room the extraneous offense and the offense apartment of her complex and the first for which the accused is on trial. Todd v. thing put he did was a broken beer bottle to State, 598 [(Tex.Cr.App.)]; S.W.2d 286 her neck and threaten her. She then was Jones v. supra; Ransom v. forced to an outside location rape where the 503 S.W.2d 810 [(Tex.Cr.App.)].” was committed. There is no evidence that In Ford v. 729-732 the two offenses were committed in the (Tex.Cr.App.), Court discussed the re- same neighborhood. only The similarities quirement of common distinguishing char- among those relied on by the trial court acteristics: supported by that are the record are that “... if it is established that the ac- the offender was black and the victim offense, cused committed an extraneous white, and that the offenses were within a and that there distinguishing is some period. one week DeVonish v. characteristic common both to it and the (Tex.Cr.App.), upon S.W.2d 800 which the trial, offense for which the accused is on relied, trial expressly clearly court is distin- then an inference be drawn that the may guishable. the person was who committed primary hand, offense. On the other The in on State its brief relies additional if there is no common distinguishing victims were similarities: both Texas A & characteristic, then the evidence is of- coeds, M the assailant in each offense wore fered to show that the accused has sunglasses, plac- and both assaults involved crime, once committed a and is therefore neck, ing sharp object a to the victim’s one likely to have committed the principal knife, a other a broken In beer bottle. permitted. offense. This is not State, supra, Ford v. it was found that pistol use of a in each case does not consti- “The common distinguishing character- distinguishing a characteris- tute may istic be the proximity time and weapons tic. were less similar Here the place of the extraneous offense to the There also was no testi- pistols. than two offense for which the being accused is Or, sunglasses worn. mony tried. about the kind of may common element be Although logic nores happened ignores both victims to be Tex- when it the common coeds, as A M given any & this is not distinguishing characteristics prong of the weight by showing a they lived in two-prong test for admission of extraneous same neighborhood or both lived in a stu- prove identity. offenses to housing dent area. The additional similari- majority’s logic To the flawed I must urged by ties an stronger State are no dissent. indication of the two being acts committed by single a offender than are those recited MILLER, J., joins opinion.

by the trial court. purpose of allowing TEAGUE, Judge, dissenting. the rule excluding extraneous offenses in I respectfully majority’s dissent cases where for extraneous, holding this cause that an use of the inference that the accused identi- collateral, and extrinsic criminal offense fied as the perpetrator of the extraneous was admissible to the appellant’s rebut de- offense guilty is also the in the case party alibi, fense of which was the reason trial, because he is by identified witness- trial court ap- es admitted into evidence at to the extraneous offense and the simi- offense, pellant’s support larities between the two offenses trial. The extraneous conclusion they by aggravated rape were committed had occurred al- person. same If attempted aggrava- there are not sufficient most a week before the similarities to support conclusion that rape ted offense for which both offenses were committed the same place. totally tried had taken It was unre- individual, made, the inference not be chief, lated to the case in State’s and did and the reason for an exception to fashion, not in any way, shape, or form exclusion of extraneous offenses does not disprove or rebut the defense of appellant’s arise. In this case there were not sufficient testified, alibi. Appellant support had similarities to support a conclusion that his defense of that “Me and 13 more both offenses were committed by the same others ... were over Willie Idelbird’s person. The extraneous’offense should not [playing cards],” when the offense have been admitted. complaining was committed. The witness in the extraneous offense was not shown majority opin- relies on the plurality prosecution to have even known where ion in Ransom v. Willie (Tex.Cr.App.), place in which it was stated that Idelbird’s situated the requirement Bryan. similari- “apparently ties overlooks the well-estab- majority find the reasons the personally lished requirement that before extrane- gives upholding admissibility ous offense is admissible the offense must unacceptable, totally and the accused clearly proven shown and believe that members of this sincerely have been its the con- perpetrator.” To reasons, Court, they carefully analyze if the trary, today’s majority what and the Ran- authorities, the and the roots of the authori- plurality obviously som overlook is that the ties the and cites for sustain- majority gives relevance of an extraneous offense to the ing admissibility the of the extraneous of-

issue of on identity depends indepen- two fense, unacceptable. find also will them propositions, dent both of which must general English speaking “The rule in all Distinguishing shown. com- characteristics jurisdictions person is that an accused is mon to the extraneous pri- offense and the entitled to be tried on the accusation made mary support offense must be sufficient to pleading and not on some State’s a reasonable inference that both crimes crime, being a criminal collateral person. were committed the same With- is deemed axio- inference, generally. The rule now out such an the extraneous of- jurisdictions.” in all resolving fense does not contribute to the matic and is followed 164, State, 261 identity majority’s position ig- Young issue. The 159 Tex.Cr.R.

239 (Tex.Cr.App.1953). S.W.2d 836 is admissible to princi- prove identity, Such when identi- ple of law has been law of part issue, ty is in if there is some distin- State for over one hundred years. Cesure guishing characteristic common to both the (1876). Further- Tex.App. extraneous offense the offense for more, I, 10, the intent of Article Section majority, which the accused is on trial. The Constitution, Texas provides which the fol- discussion, without also informs us that lowing: “In all prosecutions criminal the “Upon offering evidence of the defense of right accused shall have ... to demand alibi, appellant placed his in issue.” the nature and cause of the accusation reveal, My yet research has in the con- him, against thereof”, and to copy have a text which the majority uses the word person that an accused given shall be suffi- “identity”, where this has ever Court dis- cient information so that he may prepare cussed the word why “identity” has his defense to lodged against the accusation submit, meaning I majority gives it. him. Huntsman v. 12 Tex.App. 619 however, “identity”, that the word when (1882); Evans v. suggest used to that the accused has (Tex.Cr.App.1981). in this issue, into simply means that cause was not put through notice accused has made sufficient upon attack pleading State’s that the extraneous of- identification testimony complaining fense would be during offered into evidence witness to cause it to result in either no the course of his trial. He was thus no equivocal identification or identification of position to defend against the extraneous wrongdoer.2 accused as the offense at the trial for charged offense.1 years ago, in Many Northern Securities To admit into during the trial of States, Company v. United 193 U.S. charged criminal indepen- offense an 400-401, 436, 468, 24 S.Ct. 48 L.Ed. 679 dent, unrelated, and collateral crime also (1904), Justice Holmes commented that flies in the face of presumption of inno- “Great cases like hard cases make bad law. cence, and has a tendency to draw away the For great great, cases are called not by minds jurors subject from the reason of their real importance shaping the primary and to excite future, the law of the but because of some prejudice toward the accused and mislead accident overwhelming of immediate inter- jurors as to the main issue are they est appeals feelings which to the and dis- resolve, is, whether or not the accused judgment.” per- torts the Justice Holmes is guilty of the criminal offense for which haps needed to add may that bad law also see, is on trial. Also Gardner v. result from distorted or interpre- erroneous 11 Tex.App. (1881). tations subsequently that are made of a The majority opinion pointedly tells us case, particular interpretations which that “an not be tried for a until, adopted thereafter re-adopted collateral crime.” But it then proceeds to ergo, the original misinterpretation is hailed smash its statement in- smithereens as being founded in stone. voking and applying a judicially created exception because the appellant injected general pro- to the rule of into the case the defense being applied of alibi. The hibition that in this cause exception is that evidence of another crime comes through to us what find to be During argument jury, However, instance, appellant’s appel- a case. in this following: really say counsel stated complain- “I can’t lant in his cross-examination of the happened what on that other disputed case because I ant never that an offense had been frankly really prepared wasn’t for this. I against complainant, committed the or made an prepared Gary Dickey wasn’t to defend consent; two only issue as intent or that she had charges trial, totally different in one that are erroneously wrongdoer. identified him as the unrelated.” Thus, complainant’s ability it was the to identi- fy wrongdoer the as the that was This, course, say of does not mean to that the issue; placed appellant’s identity. in not the identity of the accused will never be in issue in

dictum that was expressed garding newly exception in this Court’s the created State, decision of characteristic”, Ford v. 484 S.W.2d 727 “distinguishing common (Tex.Cr.App.1972). Because of erroneous quickly everything Judge reflects that Rob- interpretations holding, of that decision’s opinion newly erts stated about the bad law has placed been caused to be exception predicated upon created books. The majority’s foundation of the issue, i.e., assumption that was in holding based, stone, not on but instead case, expressly stated: “In the instant reason, Id., quicksand. Ford, For assuming that identity was in we do should be overruled. not feel that there was sufficient connec- supermarket tion between the robbery None other than the author the Ford robbery-murder compa- at the chemical opinion, Roberts, Judge observed in his dis- ny to render evidence of the former admis- opinion senting Ransom v. tending sible as to indicate that (Tex.Cr.App.1974), how the committed the latter.” State, Id., holding being in Ford v. misinterpreted by members of this Court. good example This cause is also a of why There, he holding told us what the true “distinguishing common characteristics” Ford, Ford was: “Under evidence [of facts, exception put should be to bed. The alibi to rebut was held offense] majority opinion, as set out with the [only] be admissible if it the ac- single possible exception culprits that both be, place cused at a where he claimed not to wearing sunglasses, do not otherwise or if the evidence showed the impossibility lead one to conclude that relation to the of the even if the two offenses were the extraneous offense primary Although dissimilar.” not cited the ma- equivalent was so distinctive as to be the jority in its Ford of the opinion, root appellant’s signature. See Collazo exception applies above in this majority (Tex.Cr.App. cause. 1981). majority I submit that all the has State, Id., reading opinion general

After Ford v. done in its is to list some carefully characteristics, I find that what has caused inter- proba- erroneous which would pretations to be made of in that holding bly fit the facts of number of cases this case lies in opinion decided, the fact that the unnec- two compare Court has them to the what essarily unduly gave emphasis offenses, and on that account hold that However, is actually Judge dictum. Rob- there are common character- out, pointed erts after his elaborate discus- primary istics between the offense and the sion newly exception, created However, extraneous offense. if one care- following: fully majority opinion, reads the think conclude, have, case, evidence, they will as I that the simi-

In the instant if rele- all, offense and vant at was admissible on the larities between only few, and that identity. Appellant’s issue alibi con- the extraneous offense sufficiently distinguishing, cerned the date of commission of the they are neither present offense. That he was elsewhere to render admissible into novel nor unusual two months later does not refute nearly in this cause the extraneous of- Also, his alibi. the evidence was offered dissenting Judge fense. Also see Odom’s purpose showing flight. That opinion filed in this cause. nearly was Houston two trying lies in The fault flight. months later does not indicate evanescent. Where apply truly it. It is (Tex. See Jones v. making line in judge does a trial draw the Cr.App.1972), whether or not to admit the determination and then held that an extraneous offense an extraneous offense? How into evidence was inadmissible. characteristics must there many common pri- reading supra,

A careful of Ford v. be? What if the characteristics therein, mary re- offense and the extraneous Judge and what Roberts stated are in all things identical prisoner but for the fact load the down with separate and that in one offense culprit gold had a charges past crime, distinct which it tooth but in the other he did not have a supposed cannot be he is or will be in gold tooth? In light of the present state of proper condition to meet or explain, and the law regarding the admissibility of an necessarily which tend to very gravely offense, I believe that a trial prejudice him in the minds of jury judge, making the determination wheth- upon the question guilt of his or inno er or not to admit an extraneous cence. evidence gives Such opportunity rather than attempt read and to understand for the conviction of an person accused past this Court’s “distinguish- decisions on upon prejudice, mere instead evi ing characteristics”, would better dence showing the actual commission of spend his time polishing ability his to flip the crime for which the defendant is on sum, coins. In there is absolutely pre- no trial. It compels a defendant to meet dictability our law when it comes to indictment, charged accusation not deciding whether to admit into evidence an might which he successfully giv refute if extraneous offense on this basis. This lack en the opportunity to do so unembar of predictability readily apparent becomes rassed other issues.” Miller v. when Odom, one considers Judge that 176, 163 18 Okl.Cr. P. 133-134 author of the landmark decision of Albrecht (Crim.Ct.App.Okla.1917). 486 S.W.2d 97 (Tex.Cr.App.1972), attempt will now to why demonstrate relegated today to the position of a dis- hold, this Court should where the State has senter. presented through clear, its witnesses a un Many years ago, the Oklahoma Court of blemished, and picture unmarred of the of Criminal Appeals pointedly stated in the trial, fense for which the accused is on following words why such an exception that injects the accused only into the case the the majority of this applies today Court alibi, defense of that extraneous of unworkable. fense is inadmissible. also Carpenter See “In the very nature of things, there can- (Tex.Cr.App. not many cases where evidence of 1980) Submission; (Opinion on Original separate crimes, and distinct with no uni- Cain v. 806 (Tex.Cr.App. ty motive, intent, or connection of 1982). plan, will serve to legally identify the cause, In put to trial

person who committed one as the same for allegedly committing the offense of at- person who is guilty of the other. The tempted aggravated rape person of a I shall very fact that it is much easier to believe Joan, refer person’s to as which is not that in the guilt of an person when it name. positive, categorical, Joan made a is known or suspected that previ- he has unequivocal, clear, sure, certain, precise, ously committed a proves similar crime identification, and sound both in and out of the dangerous tendency of such evidence court, convict, that appellant to not was her assailant. upon the evidence of the Through testimony crime her and other testimo- charged, upon the superadded ny, present evidence of the was able to previous crime. Hence State to clear, unblemished, jury our courts have proverbially been careful and unmarred subject picture involving such evidence to the of the offense Joan.3 rigid most scrutiny, presented and have invariably jury, excluded it also in cases where compe- through its relevance and pic- defense another tency clearly allowed, are not shown... jury ture. The should have been [Such] more, evidence tends necessarily directly picture without decide which conclusively clearly attempted only 3. The record establishes shows that he estab- dispute attempted complaining did not that an lish that the witness was mistaken aggravated rape person had been committed. His in her of him as the who identification cross-examination the State’s witnesses had committed the offense. ant, is not proof independent of an crime injected preferred. The fact that Also, positive not where there is into the the defense of alibi did admissible. case case, picture the identification the state’s testimony support mar or blemish to n Joanmade of the was appellant. Identity not independent other offenses is proof of jury only in the sense that admissible. either required should have been to believe offense, facts under the The extraneous testimony or positive Joan’s identification into bar, not have been admitted should he was else- appellant’s evidence that major- trial. To the appellant’s evidence at picture prosecution where. The third admissible, I re- holding that it was ity’s more than nothing the case did injected into VIII, Land dissent. also Vol. spectfully See confusing possibility allow for the Review, “Evidence —Rules Law and Water on trial as to what crime jury Probability,” Admissibility and Law of committing, prejudice and to allegedly Review, 50-2, Law “The Texas and Vol. appellant. In Texas.” Other Crimes Admissibility Of when majority tells us that case, defense of alibi into the injected the in issue. Is that identity

he then injecting not

a correct statement? Did directly cause call

defense of alibi ability identify to question

into Joan’s such, the her assailant? As

appellant as to reha- permitted should have been

State However, how did the extra- Joan. bilitate OLIVER, Appellant, D.R. committed the week neous offense that was identify ability Joan’s before rehabilitate when we Again, Texas, Appellee. assailant? appellant as her The STATE issue, we are being in as speak No. 62740. complaining of the focusing upon ability make an identification witness to Texas, Appeals Court of Criminal testi- extraneous offense accused. Unless Panel No. 2. ability goes complainant’s mony March assailant, accused as her identify the into evidence. This not be admitted should the rule that adopt should therefore

Court through has its case prosecution

where unblemished, clear, presented

in chief alleged picture

unmarred injected into accused has

and the alibi, an extraneous

case the defense unless it be admissible shall not the de- defense or shows the alibi

refutes or it can be impossible of alibi

fense the com- it rehabilitated

established the ac- identify ability witness’

plaining

cused. 824, 826 State, 416

In Hafti Belcher of this Judge

(Tex.Cr.App.1967), following: stated the

Court that if to be consistent appears

The rule ques- leaves no of the state testimony defend- as to intent

tion neous offense notes the assailant in each from the fact p.m. at 5 daylight offense was in broad case, wore sun- appellant, identified as was after while the extraneous offense or disguise effort at glasses apparent in an has an obsession p.m. dark at 9 Unless one more difficult. to make identification movies of the 1930’s B-grade with horror acknowledges sharp that a The dissent strikes phantom and 1940’s where the the victims’ instrument midnight, he knows the stroke throats, was a knife but notes one time until he stalking rapist often bides his bottle. This the another was a broken beer alone, victim is whether knows his chosen similar” than two dissent claims is “less other hour of p.m., p.m.

Case Details

Case Name: Dickey v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 1, 1983

Citation: 646 S.W.2d 232

Docket Number: 64192

Court Abbreviation: Tex. Crim. App.