*1 judge to instruct on jury another theo-
ry of what appellant might
guilty However, of committing. in this in-
stаnce, another, there just was but as rea- legal theory applicable
sonable viable case, was, example,
to this for huddled
when with his cohort outside the building, appellant
closed then had the in- place
tent to find an sleep enclosed trying
and was building enter closed that purpose
for other. It no was for just fact finder to decide what intent
appellant then had. Because trial court not instruct on jury
did the lesser in- offense of attempted
cluded criminal tres-
pass, making deprived finding, depriving appel-
alternative thus of a
lant fair trial. reasons, appellant
For all of the above
was entitled to an instruction on the lesser trespass.
included offense of criminal
El Paso Court Appeals correctly re- the issue in appellant’s
solved favor. Its
judgment should be affirmed and not re- To
versed. the action hold-
ing that not entitled to an on
instruсtion the lesser included offense attempted trespass, criminal and revers-
ing appeals, court of
respectfully dissent. MADDOX,
Lawrence Houston
Appellant, Texas, Appellee.
The STATE of Houston, Isbell, appeal only, Allen C. No. 049-84. appellant. Texas, of Criminal Jr., Holmes, Atty. John B. Dist. and Elea- En Banc. McCarthy Montague nor and Richard Wil- kinson, Attys., Houston, Asst. Dist. Robert Jan. Huttash, Atty., Austin, for
State.
*2
sitting
Appellant
ON
Sandoz were
OPINION
STATE’S PETITION FOR
pickup in front of the
nar-
DISCRETIONARY REVIEW
residence when
officers arrested them. One officer
cotics
CAMPBELL, Judge.
from
“military”
and seized a
rifle
observed
Appellant
the
was convicted of
offense of
pickup.
the
of
floorboard
the
delivery methamphetamine,
of
a controlled
objected
the
of
Appellant
to
introduction
juryA
his punish-
substance.
assessed
weapon
ground
the
into
evidence
the
Depart-
ment at
in
Texas
confinement
the
to the
that it was immaterial
irrelevant
twenty years,
ment of
Corrections
display
thаt
the
crime and
its
before
having
found
an
first
true
enhancement
ap-
prejudicial,
denying
would
be
thus
paragraph alleging
prior burglary
a
convic- pellant
hearing
a fair
A
on such
trial.
tion.
objection
jury’s
was conducted outside the
of
for the First Su-
Court
presence,
aрpellant’s objection
after which
preme Judicial District in Houston reversed
subsequently
was overruled. The rifle was
the trial court ad-
the conviction because
admitted into
trial court.
evidence
the
seized
the
mitted into evidence a rifle
Britt
he
Officer
testified
observed
police
place
time and
the
rifle” on
beneath
“assault
the floorboard
reversing,
arrest.
In
the court
held
below
appellant’s feet. Britt
described
admitting
the
in
that
trial court erred
evi-
as-
as Heckler and Koch model
.308
a
during
arrest,
rifle
the
dence
a
found
rifle, semi-automatic,
through
clip-fed
sault
holding
inherently
such evidence was
that
He
magazine,
gas operated.
a box
any
prejudicial and had no relevance to
put
appellant
testified
his hands
also
that
granted
in
the
issue
the case. We
up immediately
рolice approached
when
petition
in
to
for review
order
determine
unloaded,
pickup,
that
rifle was
but
We
propriety
decision.
reverse
clip
glove
a live
found in the
was
Appeals.
the Court of
rifle
to
compartment. The
was not shown
offensе,
Po-
day
On the
Houston
Pe-
prohibited weapon.
See V.T.C.A.
a
Cargill, working
lice
under cov-
Officer J.D.
Code,
nal
Sec. 46.06.
er,
private
went to a
residence
Harris
general
is that
rule
Texas
County,
conduct
narcotics transaction.
to
There,
Mel,
Paula,
hav-
is entitled to show circumstances
Patty,
met
he
State,
arrest. Williams
surrounding an
prior telephone
ing arranged by a
conversa-
(Tex.Cr.App.1976); Her
buy
to
a half-ounce of
tion with Paula
nandez v.
methamphetamine.
Cargill
learned that
1. All
indi-
otherwise
unless
writer
Jones,
however,
ally,
In
the defendant was ar-
this Court concluded that
robbery
guilt
rested for
more
than two months
since the other evidence
was оver-
after the crime. The
whelming,
vehicle he was
error was harmless.
driv-
ing when arrested was
determined
have
Stanley
(Tex.
In
The defendant in aggravated robbery. weapons, 334 Numerous 174 (Tex.Cr.App.1960) knives, S.W.2d shotguns, handguns, was arrested including a driving for scanner, while The bayonet, police intoxicated. trial a and a wireless testimony cоurt allowed .38 that a caliber microphone were recovered from the vehi handgun by arresting was found officers cle and admitted into evidence at the de held, alia, inside the car. inter This Court fendant’s trial. The evidence that showed jury that “the was entitled to know that shotgun by one was identified the the defendant on trial had control a weapon victim in likely as the most used pistol as well as motor while a vehicle he the robbery. The other items found were was intoxicated. Proof of the circumstanc- improperly this Court have in been surrounding es the commission of an of- troduced, they because were unrelated to part fense which form a of the occurrence prejudicial. the crime and therefore @ Ross, are admissible.” supra find that of the We the reliance Williams, In the defendant was appeals court of on these two cases is possession convicted of of marihuana. Evi- misplaced. Cunningham, supra In both showing gun dence a was found in Stanley, supra and the failed to show defendant’s suitcase soon any connection between whatever the еvi was admitted into evidence. held: We dence introduced and the crimes commit question “The articles in were found in then, cases, Clearly ted. in those evi appellant’s possession at the time prejudi dence both inadmissible and commission and offense bar, howevеr, cial. In the case at arrest. They were circumstances sur- directly to have connected shown been rounding arrest, the offense and the and with, to, contemporaneous insepa and guilt, were relevant not but also the appellant. rable from arrest of proba- issues punishment We find that both the facts and ra- tion. No clear abuse the trial court’s this Court in Williams employed by tionale discretion is shown.” Ross dispositive of the in the majority The opinion of the court below judge The in case at trial the instant bar. primarily relies on two decided cases case did not abuse his discretion in admit- In Cunningham v. this Court. 500 Hernandez, supra. ting the rifle. See (Tex.Cr.App.1973), the defend- appeals of the court of is a in passenger ant was a car matched reversed and cause remanded description car of a believed have appellant’s grounds consideration of other robbery. in aggravated been used of error. stopped subsequent by police car was and a search of same revealed a sawed-off shot- J., MILLER, concurs. gun shotgun was intro- in the trunk. The CLINTON, Judge, concurring. duced into evidence over the defendant’s in objection. that a concur the result The evidence revealed reached handgun had because seizure of the been used to effectuate since the semiautomatic “assault rifle” robbery, and this held that recovered any issue in from feet shotgun had beneath as he sat a no relevance to case, pickup outside house his discre- truck Ms judge trial abused gone companion drug had to effect a admitting tion in Addition- trans- it into evidence. probative of the then, only if the value part single of a parcel action was con poten- outweighs its always tinuing permissi transaction. It is offense;” Smith prove E.g., 646 S.W.2d ble to the “context of tial.3 State, immediately prior (Tex.Cr.App.1983); occurs and subse what Heflin (Tex.Cr.App.1978); Gaston of the quent to the сommission offense always under the reason trial is admissible case,
ing that occur events do not a vacuum since evidence As the instant right have has a the offense happens to coincide with context placed setting proper evidence, in its so that all evi probative value is may realistically dence evaluated. See very high.
Albrecht
It
days past
is true that in
line of
cases
App.1972).
developed for the purported proposition
When evidence is offered under
*4
surrounding
that circumstances
the arrest
rationale,
prejudi-
of
“context
offense”
every
of
were
to
accused
somehow elevated
rarely
of
it inad-
cial nature
it will
render
in every prosecution;4
matters
admissible
truly
stage
long
missible so
as
it
sets the
many of those cases are
cited
the State’s
jury’s
of
comprehension
for the
the whole
petition
Though
for review.
this line of
criminal transaction.
overruled,
directly
cases has never been
it is
under the record of this
Since
clear
trend,
Judge
the modern
since 1978 when
arresting appellant and
particular ease that
State, Yollers wrote Gaston v.
has
finding
feet were constitu-
the rifle at his
recognize
cases,
been to
the error of those
facts of
context of the criminal
ent
rule,
application
the error of their
as a rote
transaction,
correctly
were
ad-
thоse facts
by
and to treat
the issues on a case
case
trial.
mitted
Thus,
prior
basis.5
cases
to 1978
decided
gestae
ques-
“res
of
arrest” are of
however,
errs,
majority
suggest-
precedential
tionable
value and should be
is
rule
ing there
some authoritative
which
viewed as such.
of
generally admits evidence
circumstances
arrest
of—the
surrounding
context
—or
Indeed,
if the case
us involved
before
To
criminal
the con-
prosecutions.
in all
re-
which
of
evidence
admission
only
general
if the
trary,
rule is
way
in no
to
lated
to
are
circumstances of the arrest
relevant
upon finally
called
offense,
we would be
prosecution,2
in the
material
prel978 line
overrule
review
prosecution, is
unique
reason
to that
some
But as stated
by the State.
admissible,
of cases cited
circumstances
оf those
evidence
Again
unconducively
prejudicial nature of true
"res
3.
I note that the
labeled
This is sometimes
1.
however,
gestae,"
generally
adds
irrele-
gestae.” The
"res
term
"context of offense” evidence is
any legal
very
discus
more than confusion
little
vant
littlе,
admission.
In other words
to its
wholly
types
many
unrelated
"balancing”
sion because so
any,
required
is
because the
if
may
may
be
not
admissible
or
probative
evidence is so
value of true "context"
diversity
are also
"res
reasons
labeled
for a
gestae.”
great.
486, 492,
State,
King
v.
See
(Tex.Cr.App.1982);
accompanying text
n. 12
State,
(Tex.
See, e.g.,
v.
S.W.2d 413
4.
Jones
471
(Tex.Cr.
State,
S.W.2d
574
120
see also Gaston v.
progeny.
Cr.App.1971)and its
App.1978).
majority opinion has essen-
5. While I believe the
any given
those
case are
The material issues
individually,
through
tially
this case
reasoned
indictment on which
framed
result,
proof.
v.
not
See Rubio
the correct
I do
feel
has the
of
(Tex.Cr.App.1980)
reached
burden
State,
(Opin-
recognizes
607
498
lack
S.W.2d
it
the notable
assured that
concurring).
the accused
Thus the
logic
ion
gestae
the “res
arrest”
in some of
cases
a material issue
Jones,
of and
itself
cites,
is never
particularly
supra.
it
generally
made one
and will
case
option.
Hardesty
See
defendant’s
130, 133,
n. 6
S.W.2d
earlier, it
rely
unnecessary
on those
at all.6
cases
Tony
GOVAN, Appellant,
O’Neal
majority opinion
quоtes
cites and
dealing
cases
with the issue which when
Texas, Appellee.
The STATE of
properly interpreted
correct;
essentially
189-84.
No.
e.g.,
Williams v.
App.1973) and (Tex.Cr.App.1980), in those because
cases, “the State failed to show connec
tion whatever between the evidence intro crimes committed.”7 But
duced incorrectly then recites an ulti upholding rationale for
mate admission rifle in this case: is that “directly
rifle was shown to con have been with, to, and contemporaneous
nected *5 appellant.”
Only because the with,
“directly contempora- connected to,” by appel-
neous committed lant, is the complained of admissi-
ble. basis, this
On concur Court. Indeed, length if the read the before the State had record and addressed at trial, point carefully any testimony arresting case appel- in this officer before ground rejecting appellant’s complaint best objection lant ever voiced his that the court might discovеred: the about have been appeals sustained. preserved. was not error Incredibly, brought has never Though appeals both the court sequence of events to the attention of either majority opinion for state that a hear- this Court appellate court. Because of this failure and the (that objection ing appellant’s was had on granted concomitant merits, we fact that review on of the rifle was and irrele- discussion that, court, reviewing I believe as a we case), vant material correct to resolve case on the merits. hearing reflects a was conducted record appellant’s objection officers had no that the emphasis supplied throughout by 7. All probable cause truck or seize the to search the writer of this unless otherwise indi- rifle. cated. After "motion limine/motion rifle was exhibited suppress" was overruled the