537 S.W.2d 257 | Tex. Crim. App. | 1976
OPINION
Appeal is taken from a conviction for aggravated rape. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty-five years.
A recitation of the facts is not necessary. The record reflects that the evidence was sufficient to show appellant’s guilt for the offense charged. However, the judgment must be reversed because of the admission in evidence of an extraneous offense.
Appellant points to the fact that he did not testify, offered no evidence, and that the testimony of the prosecutrix was unim-peached.
The extraneous offense was not admissible under our holding in Albrecht v. State, 486 S.W.2d 97, wherein we said at page 100:
“This court has consistently held that an accused is entitled to be tried on the accusation made in the state’s pleading and that he should not be tried for some collateral crime or for being a criminal generally [citations omitted]. Evidence of other crimes committed by the accused may be admitted, however, where such evidence is shown to be both material and relevant to a contested issue in the ease.” (Emphasis added.)
There was no such issue in the instant case, as the State in its brief concedes. Therefore, admitting evidence of the extraneous offense was clearly erroneous.
After conceding that admission of the extraneous offense was error, the State contends that the error was harmless in view of the “overwhelming” evidence of guilt.
The judgment is reversed and the cause remanded.
. The record reflects that an earlier trial of appellant for this offense had ended with a hung jury.