*1 prints of either with matched co-defendant.
or his be reversed and judgment should remanded. Carson, Bruder, Dallas, Melvyn for JAMERSON, Appellant, McCoy lant. Wade, Henry Atty., Dist. W. T. West- Texas, Appellee. The STATE Jr., moreland, Ormesher, Russell J. Frank Schwille, and Mike E. W. Watts Asst. Dist. Dallas, Vollers, Atty. Jim D. State’s Attys., of Criminal McAngus, Atty., Asst. David S. State’s Austin, for State. 3, 1977. May 25, Denied Rehearing OPINION
ROBERTS, Judge. appeal is an from a conviction for with malice under the
murder jury at punishment assessed Code. 15, 1974, February death. On the Honora- Briscoe, Dolph Governor ble com- punishment to life. muted 15, April 1974 and then sentenced appeal. notice of gave sufficiency of the evidence is not
challenged. The reflects that Lottie record co-managed Waddle a service station Irene was robbed and murdered at Irving. She 1970. A February custom- station body shortly p. her after 1 m. er discovered shot four times in the back. had been She ar appellant was Prairie for intoxica rested Grand to the murder of Mrs. He confessed tion. time he also At that confessed Waddle. 1970 m Ja in Grand Prai robbery on rie; a murder Prairie. Grand error, ground By his first the court erred in contends objection confessions to over *2 288
the along extraneous offenses with other lant’s state mind of at the time of the evidence of these crimes. The urges killing Id., State in the instant case.” at 495. that the evidence of the [Citing, State, Ford v. properly
fenses was admitted to (Tex.Cr.App.1972); rebut the Rodriguez appellant’s defensive theory. 355 (Tex.Cr.App.1972).] Albrecht v. S.W.2d We must sustain contention
The
reverse. None of the
appellant attempted
exceptions
to
to the
raise the de-
against
rule
fense of
admission
insanity by showing that
of
he was
extraneous
apply,
offenses
suffering
including
from a
rebuttal of a
mental
de-
disease or defect
Albrecht,
theory.
fensive
supra.1
caused
chronic alcoholism. He intro-
lay testimony
duced
support
to
this defen-
of the
judgment
trial court is re-
sive theory.
only
expert testimony ad-
versed and the
is remanded.
appellant
duced showed that
was sane at
the time of the offense. The trial
DOUGLAS,
Judge, dissenting.
charged
insanity
on
issue of
as a defen-
Jamerson was convicted for murder with
sive
penal
malice under the
code. Lottie
Irene Waddle was robbed and murdered at
We must concern ourselves with
a service station where she
on
whether
worked
Feb-
the extraneous offenses
proba
had
Twenty-five
ruary
1970.
was
in
dollars
tak-
disproving appellant’s
tive value
defen
en
the cash drawer.
of
from
Some
sive
because if the extraneous of
inventory, including
station’s
several con-
disprove
to
tend
a defensive theory,
oil,
fluid,
tainers of motor
Albrecht,
should be
STP and brake
admissible.
supra.
was also taken.
may
There
be some defensive the
was ar-
are incapable
being
ories which
of
logically
rested in
Grand Prairie for
intoxica-
proof
rebutted
an
of
extraneous
jail.
placed
tion and
His automobile
offense. For example, the fact that one
contained several oil
cans. He
and STP
raped
tendency
prove
woman was
has no
to
robbery-murder
confessed to the
of Mrs.
that another woman did not consent. Cald
Waddle. He also confessed
to
well v.
877 (Tex.Cr.App.
S.W.2d
robbery-murder
1972);
(Tex.
Jackel v.
20, 1970 in
robbery
Cr.App.1974). It follows
the fact
that
that
Prairie;
1970 in Grand
two
were
women
murdered while the appel
robbery-murder
apparently
lant was
sane does not tend to
Grand Prairie.
prove that the third was murdered while he
was not insane.
Appellant executed a
to
consent
search
his residence. The
weapon
was
Furthermore, we
stated
Alvarez v.
found there.
State,
fense is alcoholism. He lay testimony introduced Although not in force “(b) at the time of the in- The term ‘mental disease or defect’ does offense, provision stant the new Penal Code abnormality only not include an manifested insanity supports which defines the defense of by repeated criminal or otherwise antisocial V.T.C.A., reasoning. Code, the above conduct.” provides: Section 8.01 (b) Under Subsection above-quoted of the stat- “(a) prosecu- It an affirmative defense to is ute, Legislature provided has that a defend- that, charged, at the time of the conduct tion may insanity by ant not establish defense of actor, as a result of mental disease the defect, or showing generally. that he criminal Con- either did not know his conduct sequently, we should not allow the State to wrong incapable conforming or was insanity by showing the defense requirements to the his conduct the law he generally. defendant is criminal allegedly violated. expert the defense. The sole wit- What is support the difference between the two testified that was sane at the cases and the ness case? They should be distinguished or of the offense. raised the overruled. time or issue of mental disease defect caused No error shown. judgment should charged alcoholism. The trial court chronic be affirmed. the issue of as a defensive theo- *3 Appellant complains that the court ry. ONION, J., joins P. in this dissent. evidence of the other erred where murders were committed. robberies testimony the three other robber- to defeat the defensive issue of
ies tended and were admissible. The trial followed the correct rule. v. (Tex.Cr. Albrecht DeLAO, Appellant, Antonio sets out when extraneous of App.1972), v. may be admissible. There the Court “(6) are wrote that admissible [t]o Appellee. STATE theory refute defensive raised the ac cused.” Court of Criminal Insanity defensive issue raised in the The evidence accused case. robberies and murders the other commit- like manner tends to defeat
ted defensive Asay v. (Tex.Cr. In S.W.2d 903 the conviction App.1970), was for indecent exposure to a child. He testified that he
was intoxicated at the time of the offense.
The commission of another like offense of proved. him was
nature He contended exception was no there to the rule evidence of an prohibiting This held: fense. . To the contrary, the testi- mony is admissible testimony he was intoxicated.
Tex.Jur.2d, Evidence, Sec. n. 17. See Rangel v.
also Tex.Cr.R. 275.” Sanders question governed by Sanders, In the accused was convicted of robbery. At trial he advanced a defensive temporary insanity by reason of appeal, seizure. On he com-
psychomotor the admission of two other rob- plained of We affirmed the evidence beries. and held admissible to rebut the defensive theo- ry insanity.