*1 738 Dallas, Huttash, Attys., Dist. Robert
Asst. Austin, PARKS, Atty., for the State. Appellant, M. James v. Texas, Appellee.
The STATE ON APPELLANT’S PETITION OPINION No. 213-82. FOR DISCRETIONARY REVIEW Texas, Appeals of Court of Criminal McCORMICK, Judge. En Banc. 1978, appellant was con- February Dec. 1987. forgery1 after a victed of the offense appellant’s by jury. assessed trial years’ confinement and punishment at four fine. $5000 petition for granted appellant’s We dis: the admissi- cretionary review to consider bility of extraneous offenses. into evidence chief, intro- prosecution, its case timely objec- counsel’s duced over defense offenses of of two extraneous tion evidence one for which the the same nature as the main- on trial. The State defendant was offenses, which were that these two tains by the defendant and allegedly committed indicted, admis- for which was prove intent. sible to hand contends Appellant on the other evidence which there was other to show sufficient in reasons that Appellant thus defraud. in this case and issue tent was offenses would of extraneous any evidence little or prejudicial and have extremely issue, regard to this probative value. no that the Court contends appellant further failed, determining admis Appeals evidence, apply the bal sibility of this by this Court ancing test established (Tex. State, v. Albrecht also, v. Hernandez Cr.App.1972). See (Tex.Cr.App. S.W.2d that a determina 1972). requires This test as to whether made tion be out are admitting this evidence effects this evi probative value by the weighed of fact aiding the trier may have dence v. Albrecht reaching a verdict. Dallas, Gibson, Gorsky, Bob Michael P. State, 719 also Boutwell supra. See (Tex.Cr.App.1985); Williams S.W.2d (Tex.Cr.App. 344, 346 State, 662 S.W.2d Michael Wade, Atty. and T. Dist. Henry nothing more really 1984). “test” Johnson, This Sutton, Jim Sparling and Jon Code, 1925) (Penal Article 1008 *2 of a princi than a statement fundamental they given anyone permis- and that had not ple The sign of evidence. “test” has been fur sion to their names. developed ther in the Williams case. For Finally, present the State was able the sake of convenience it will be referred expert testimony from a document examin-
into this as the “Williams” test. positively er who testified that he could appellant’s Because of nature of the appellant signed state that the another claim, person’s (Linda Smith) to review the evidence name to the release presented at trial. The is ac- of lien introduced as State’s Exhibit 11. having cused of executed a deed of say trust to He also able that the an individual in the signed amount of on had two of the three names on the property County. certain located in Dallas 21, document marked State’s Exhibit After the time of the deed of trust’s execu- two of the three names on State’s Exhibit tion, forged proper- release of lien on the 31. Evidence also showed that all three ty question was recorded in the Dallas documents filed and recorded County Appellant deed records. then exe- County Dallas Clerk’s office. The court’s cuted a deed charge new of trust to Oak Cliff instructed them to con- Savings and Loan on the property same in sider the two extraneous offense for the $60,000. Appellant amount of purposes was sub- limited determining appel- of sequently indicted for the offense of for- lant’s intent to defraud and/or his knowl- gery. alleged edge State he had that the release of lien was a appearing names on the fraudulent release document. of question lien. The lien in was dated policy limiting behind the admissibili 21, March allegedly 1972. The names ty into evidence of extraneous offenses forged on the release of lien were Hubert system well established. In justice our of Owens, Williams, Schrang Jean and Linda person may an accused not be tried for Smith, appeared whose notarizing name collateral criminal being offenses or for
release. This release of lien was intro- generally. State, criminal v. su Williams duced the State as pra; State, supra; Albrecht v. Rubio v. evidence, 498,
The State also State, introduced into (Tex.Cr.App. 607 S.W.2d over objection, 1980). noted, As this Court has often evi 21, a release piece of lien on of another dence of extraneous offenses is of an inher property. This ently release was dated June prejudicial may nature and tend to 1972. The State also introduced another confuse the issues of the case. Albrecht v. piece State, release lien on a property supra. third Such evidence carries with it September 6, 1972, dated danger per as State’s Exhibit the additional that an accused 31. Evidence was then may introduced show son be called to defend himself that as a result filing against implied charge having of the execution and pro of all three releases of pensity lien to commit crimes rather than the able to specific execute deeds of on the new offense for which he is on trial. State, three tracts of supra; State, land and thus make a sub- Williams Elkins v. money. stantial sum of The evidence 647 S.W.2d (Tex.Cr.App.1983); $57,- State, (Tex. showed was able to realize Bates Cr.App.1982); 867 from the lien State, supra. known as State’s Exhibit Albrecht v. 11, $70,370 from the lien Ex- under State’s general principle This sound of evidence $148,723.33 hibit from State’s Ex- has, however, exceptions. several This hibit 31. because circumstances in variety exist presented
The State then from fact situations mitigate which either danger each the individuals names were of such evidence or justify whose signed to of such State’s Exhibit 11. These wit- the admission evidence in spite of danger sign nesses testified they did not evidence will create instrument, State, they prejudice. did know who unfair supra; Boutwell v. instrument, signed supra. their names to the Albrecht v. Albrecht, the offense listed can show this Court several both general exceptions to the rule of to a material is
common or transaction is relevant of extraneous of- prohibiting probative the admission value of sue in the and the Albrecht, we stated: fenses. is not the evidence to the trier fact or inflamma outweighed by offenses “Evidence com-. State, supra; tory the accused has been held ad- nature. Boutwell v. mitted (Tex. (1) *3 To show the context 491 missible: v. 692 S.W.2d Plante State, supra, the criminal act occurred—what at Cr.App.1985); which v. Williams gestae’ 665; the ‘res 346; State, has been termed supra, at Mur Elkins v. —under reasoning (Tex.Cr. that events do occur State, 718, the 722 phy v. 587 S.W.2d right has a a vacuum and that the State, (concur supra, App.1979). Rubio v. immediately prior occurred hear what opinion). ring subsequent the commission of if evidence must determine first the We realistically they may that act so that a ma- offenses is relevant to of extraneous (2) To circum- evaluate the evidence. case, dispute in and sec- issue in the terial stantially prove identity where the state evidence ond, probative if of such the value (3) issue. evidence on this lacks direct prejudicial effect. outweighs its scienter, guilty or prove To where intent therefore, is, prong a two test Williams knowledge is an essential element facts of applying In this test the one. from and cannot be inferred state’s case case, probative value find that the we (4) prove To malice or the act itself. outweighs question far of the evidence mind, when malice is an essential state of prejudicial effect. its case and cannot be element of the state's fraud, (5) it is diffi- forgery To of the criminal act. cases inferred from State, motive, 480 particularly intent. v. accused’s cult to Robledo show the (Tex.Cr.App.1972); of the offense Harris the commission 402 where S.W.2d the com- State, either conditioned S.W.2d bar is Tex.Cr.R. 333 v. offense or is a of the extraneous (1960); mission 117 Tex.Cr.R. v. Verner continuing plan scheme of (1931). or part of a This Court part. is also a the crime on trial which guilty knowl- wisely held that intent has theory (6) raised To refute a defense mere from the edge cannot be inferred omitted). (footnotes the accused.” forged instrument. Albrecht passing of a at 100-101. S.W.2d Indeed, otherwise would to hold v. State. unknowing and danger the the that create exceptions appearing Although the list of forged instrument passing of a accidental written and well is an accurate Albrecht liability a strict effectively become could law of evi- to the current statement as of such intent is The issue of offense. As dence, confusion. created much it has forgery of importance in a case overriding State, supra, this v. noted Williams we focus of the effectively the becomes meant to be that was not in Albrecht statement Establishing intent such excep- of case. list State’s and exclusive an exhaustive to do so difficult making evidence crucial and general rule cases is so to the tions matter, of ex- evidence that, practical inadmissible. offenses as a of extraneous rule, always not a admissi- nearly is also in Albrecht offenses is traneous statement State, supra; the admissi- Harris v. to determine or test v. standard Robledo ble. State, supra. offenses. extraneous of v. bility supra; of evidence Vernon Rather, cir- the State, supra. possible that hypothetically Williams While the admissions justify established forgery cumstances could be case the varied as are as offenses evidence, eyewitness testimo- such direct wherein each case circumstances on circum- forgery factual rest most cases ny, State, su- Albrecht question arises. majority the vast In the evidence. stantial pra. of evidence cases, probative value the such inevitably out- will offenses of extraneous such that established well It has become effect. weigh the when clearly admissible evidence applying prong the the attorney first was able to elicit from us, test to the before Williams case we the State’s witness the fact that he had no alleged find the extraneous offenses were training analysis, formal in handwriting relevant to a material element paid he was that he State and State’s case. The transactions involved cases, fifty had testified in time as a each nearly very identical offense witness for State. appellant charged. for which the Tak- alone, Standing expert opinion testi- together, they en showed that it was more mony strong in this was not case likely than that the had even committed formed an to commit the offense necessary to the com- actus reas establish pursuant general plan to enrich him- mission of a crime. It less was even evi- Therefore, self. the extraneous offenses necessary culpable dence to men- show were relevant element of material state, is, tal that the commit- is, that the ted this offense with the intent defraud requisite culpability mental *4 knowledge with the that his acts would to establish that a crime been commit- likely result in a fraudulent transaction prong ted. first The of the Williams test harmful to someone’s interest. is thus satisfied. probative The value of the extraneous prong The second of the Williams test very great, point offenses was and in of probative involves the balance the between fact, very nearly proving essential to the prejudicial aspects the the of evidence prejudice State’s case in chief. Whatever question. In assessing this balance be- attended the admission of such evidence probative tween the value the of outweighed by probative was far its value prejudicial effect, versus its particularly the trier of fact. This is to view nature the of the State’s case. The true in view of the fact that the two extra- State’s case rested entirely on circumstan- nearly neous the offenses were identical to tial evidence. The State's case consisted of one for which the tried. was passed evidence that the likely This evidence made it far more forged documents, opinion expert testi- appellant had committed the offense in mony from documents examiner. He question. similarity The offenses opinion stated in his the the was person inflammatory the signa- impact further the who Linda Smith’s reduced ture on the document marked State’s Ex- this evidence. hibit 11. prong The second of the test is Williams above, As we noted cannot in- princi- also applying satisfied. After the passing ferred from the mere ples of evidence in Albrecht established Albrecht, supra. Therefore, document. Williams, is clear that the evidence offenses, without evidence of extraneous properly admitted. strongest the evidence of the defendant’s We, therefore, overrule con- guilt opinion the testimony of the judgment the tention and affirm expert. Expert testimony State's is Appeals. Court of
just that, opinion testimony. The value of opinion testimony hinges personal the TEAGUE, J., dissents. credibility the offers witness who it and credibility qualifications. of his CLINTON, Judge, dissenting. The trier fact must determine whether be stat- happened may What this case expert testimony accurate or witness’ persuaded quite simply. ed Prosecution believable, jury choose to may dis- unadju- judge trial to admit evidence two regard altogether. testimony See issues of dicated fraudulent transactions on States, 343 McDaniel v. United F.2d 785 knowledge (5th Cir.1965). prosecutor Furthermore, intent and testimony expert appropriated argue they so much to cross-ex- subject witnesses impeachment. knowledge, amination more to showed intent and urge deny appellant probation admissibility of extraneous acts of aggregated because the misconduct.” money amounts of through obtained all three transactions is Id., 879-880, 2; n. also see n. 3. More- quarter “a of a million dollars.” over, 404(b) Tex.Cr.R.Evid. Rules 401 and make no such distinction. prosecution really did not need ex- majority opinion dwells on diffi- how help prove traneous offense to intent and cult it is to forgery, intent in yet knowledge, as post. shall be demonstrated proving it is “so prac- crucial” that “as a First, however, there are several observa- matter, tical evidence of extraneous of- tions that must be made majority about the nearly always fense is Ergo, admissible.” opinion. “probative in most cases value of evidence page majority On 740 the says that it is of extraneous inevitably offense will out- “well established that such evidence [of weigh prejudicial its effect.” At 740-741. is clearly admissible offense] sweeping generalizations such when the can show ... helpful are not in a cause under our old probative value of the evidence to the trier penal code. of fact is not outweighed by Former special forgery article 1008 is a or inflammatory (My emphasis nature.” dealing particular statute class of instru- throughout here and unless otherwise not- ments, any i.e. character of instrument af- ed.) See, however, Tex.R.Cr.Evid. Rule fecting land, including title to expressly 403 for a more accurate statement of the any “acknowledgment” “release” and rule. such Coupled instrument. with arti- *5 precise specific intents, cle there are that, beyond just And when we are mov- money,” one of which is “intent to make ing notion, away the Court from such a the catchall, “any and a viz: fraudulent intent majority opinion reverts to Albrecht’s whatever.” It making was enacted when quaint “exceptions general to the rule.” forged instruments of title was so wide- Furthermore, At 739. it what calls spread practice that Legis- to deter that the garbled page “Williams test” is 740. broadly lature stated means and manner of Whatever evidence is “relevant to a materi- committing higher an offense and affixed a dispute al issue in in in the case” was said penalty ordinary forgery. than A Williams, by quoting Elkins which in turn charge jury to must submit under those quoting my concurring opinion from articles, general forgery statutes. Dil- Rubio, applicable only to be “in a case lard v. 77 Tex.Cr.R. S.W. established evidence.” Before us direct (1915) (Opinion Rehearing, on 177 S.W. at case, now is a circumstantial evidence 107). Article 1010 dictates that minimal as Williams itself makes clear: suffice, proof will viz: “In a circumstantial evidence ad- conviction, warrant it shall “[T]o missibility part as direct State’s prove person to depends rel- transaction’s charged step, any took one did or evance to a material issue which thing one act or in the commission of the prove.” must State offense, step, if from thing such act or Morgan Accord: any of the intentions hereinbefore men- (Tex.Cr.App.1985). 880-881 In Morgan tioned, other fraudulent intention questioned validity unanimous also Court may be inferred....” dichotomy, of that viz: Indictment in this cause is drawn from conceptual “There is likewise no necessi- charge jury article tracks in- ty jury to differentiate between circumstan- appellant guilty dictment.1 found “knowingly determining uttering tial and direct evidence in a false instrument both state that "with knew pertinent part, and affected the title to land ... [and] utter, foregoing forged.” release ... was false and "fraudulently did defraud" “utter, use, publish genuine, a certain was also pub- as true and instructed that use, genuine as true forged lish and false and release ... related include ... [which] alleged in indictment.” Thus at Priscilla Rec. On the back $1.50.” as Lewis] stamp by Dallas majority opinion wrongly says, it bears a date and time page PM; 13,1972 alleged forged April at 12:14 County “The State he Clerk copy by release appearing names on the fraudulent certified to be a true it is also 14, 1972; proof April that he had also county of lien.” clerk on them, forged especially more of one or Land Ti- stamped thereon are “Southwest acknowledgement, his Irving would show knowl- address. tle Co.” and its Post Office edge forged. was false and that the release Exhibit 13 is a deed of trust State’s connection, laboring In this the State is trustees to secure Oak Cliff several named impression has under an it (Oak Savings and Loan Association Cliff signature appellant knew of Hubert Owens $60,000 Savings) payment of its loan alleged in the indictment. margin is a hand- appellant. upper left Brief, p. majority opinion 3. The Rec. 9.00.” It written notation “V54287 concern, does not address this but focuses 7, 1972; executed it shows defraud, emphasiz- instead on his intent to acknowledged April 1972 before can- ing through repetition that such intent Therein cove- Peggy Francis. passing of not be inferred “from the mere alia, agreed, inter that he had nanted and Factually, instrument.” there good merchantable title fee sim- “a record to show both much more hereby conveyed, ple premises free knowledge passing.” intent than “mere except and clear all encumbrances from hereby....” the debt secured experienced Appellant is an real estate developer, doing investor and business as Southwest, Francis, Peggy a “closer” for Company Realty Parks and other entities. a file as the number of identified “V54287” many years For several transactions opened kept Irving office of South- Title were closed Southwest Land Co. indicating west, and other notation fact, Irving (Southwest). As a matter recording paid; file fee to be amount Irving ground office is located on floor relating to a loan papers contained Building, of Parks built and named for being appellant by Oak Cliff Sav- made obligated In March 1972he was opinion pointing out ings, including a title original by promissory note amount outstanding deed of then an there was *6 $55,000 Savings to and Associa- Civic Loan Savings securing its trust in favor of Civic (Civic Savings) Irving, also in secured tion Francis could loan to Owens, by exe- deed of trust to Hubert or mortgagee’s policy title close not issue a appellant in 1970. by cuted October proper release transaction without a lien, notation a handwritten but there was Savings prepare papers does Civic not opinion that it had made on the someone releases; such as deeds of trust and places on bor- released. Southwest been closing According its gives instructions. pro- and responsibility to obtain rower the purport Exhibit “Release State’s lien, extant or there of an duce release (By Corporation),” by executed Lien was The release here was closing. no would be Owens, by Schrang and ac- attested Jean Southwest, anyone in signed by while knowledged by Owens Linda Smith before it came though did not know how she and and —all 1972. That date on March in file Y54287 about, Exhibit 11 was form was other information on the release 12, 1972, “closed” the when she April on by Priscilla typed in office of Southwest taking his As as well loan transaction. Lewis, attorney.2 At secretary for its title in the deed of acknowledgement to [pi for top paper “V54287-pl comparison State’s Exhibit directing filing causing be filed [or] or or former, copy of file any Defendant’s any false with office of record ... recorded in number, title block correct neither knowing reveals the same to and document release, of Hubert Schrang body name directing in Causing forged.” a re- false and or acknowledgement were in enough nor date Owens or recorded is broad lease embrace, be filed her; they be added later sending typed had to provides, as article 1008 “the by typing other data handprinting and "ASST” through by express, or or in other the mails typewriter. manifestly a different on what way.” Savings, signing of Oak Cliff she delivered to 11 denied favor that release or authoriz- them, company ing anyone sign a title check in amount it for and know- $57,867.06. Felker, closing ing Harry in- qualified Deducted costs who did.3 E. filing premium questioned cluded fees and for mort- document examiner for twenty gagee’s policy. According years, positively title to custom stated practice, person signature her office forwarded release no other had Smith, notary and deed of trust to its of Linda public.4 downtown Dallas Al- office, county though argument there to be transmitted to in his oral defense coun- filing recording. Appellant accepted clerk for sel that Felker had indeed formed payoff deposit only” opinion, deftly suggested endorsed check “for an reasons for Realty, jurors reject unworthy account of Parks and on it as of their payment. 1972 his bank forwarded it for “vote of confidence.” signa- All persons purported unadju- three whose Without evidence of extraneous appear offenses, tures on the face of State’s Exhibit dicated such is condensed state of Owens, hours; second, president Savings, university qualified 3. Hubert of Civic that he twenty questioned known for some fifteen document examiner when his cre- years, negotiating particular accepted by dentials were a Kansas court in (actually 1958; third, Kansas, transaction renewal and extension of that after his retirement in existing indebtedness described in a Novem- employed years Arling- was Felker three trust, trustee) ber deed of also to Owens as ton as "an instructor in criminalistics” at North others, doing and three or four but also in civic and, yes, Academy; Central Texas Police that he together Irving work "and on the council and testified on behalf of the Dallas District agreed provid- so on." He never to release lien Attorney "probably fifty then times.” Counsel ed this deed of trust to him as trustee. Jean "handwriting long initiated a discussion about cashier; Schrang secretary was assistant comparison analysis;” had him make writ- appellant through she too his was familiar with legal pad ten notations on a of elements of a dealings Savings years. several with Civic over examination, intending handwriting to offer Similarly, employee as an in its Linda Smith exhibit, writings objection by the as an until an loan office. taking deposition prosecutor, that counsel was court, sustained; him that in drew from majority opinion says appel- 4. The counsel for making comparisons of characteristics Felker lant "was able to elicit ... the fact that [Felker] observations; did not make written notes of his training handwriting analysis, had no formal finally touching only slightly example" "for paid by that he was the State and that he had 715-717). (S.F. He ended his cases, fifty testified in a witness for each time as poser: crossexamination with this the State.” At 741. Bosh! your "Q. At conclusion then of examina- prosecutor proving up qualifi- While the tion, you opinion, reach some then would cations, training experience, Felker said you expressed have of which college actually school or there was not response Ladies and Gentlemen of this questioned teaches documents examination [prosecutor’s] questions; correct? is that (in degree), specific the sense of courses or A. That is correct.” given is "within the Criminal instruction *7 “course”], probably police Justice Courts [sic— argument defense counsel’s oral 5.The tenor of something science courses or of this nature." testimony regarding is that "it is of Felker (S.F. 668). question In the second and follow obligated jurors "deter- opinion," are to his and ups, physical evidence he said he worked founded, whether or not it is well mine whether section of The Southwest Institute of Forensic judgements correct." are accurate or or not the Science, formerly known in Dallas as "Crime lying talking to Mr. Felker "I am not about Investigation Laboratory," a Lab or Criminal question my you, there is no I believe and specializing in senior document examiner exam- personal and his his belief mind that was ining through questioned documents submitted come down here and opinion and he wouldn’t (S.F. 665-666); justice system his the criminal right testify you think he as if he didn't (S.F. 666); salary paid by County is Dallas your responsibility as the last bar- remember qualified questioned as a documents examiner prosecution and the defense between the rier agent employed special as a in 1958 while opinion and to determine that is to look at retiring Investigation, Kansas Bureau of founded, his look at it is well whether or not judgement, at his conclusions.” look appellant, part, acknowl- For his counsel for know about reprised ... we then "what edging ground, Counsel exploring he was much the same testimony first, background sum- Mr. Felker” from bring was able to out new items: above, naturally giving defensive degree police marized slant; Felker a bachelor's science methodology administration, his college Felker for earning he faulted some 160 and pertaining allegations evidence in the by corporation, of release turn to her indictment. Is it sufficient for a rational typewriter proceed type a new file to find that thereon, knew State’s number and most all relevant data forged was false and supplying and that an execution date March 21. he uttered it with intent By to defraud? Savings its terms Civic released “deed of trust all other existing & liens” on his That forged the release is false and is property real described October 1970 disputed. not The State believes it had to course, deed of trust to Owens. Of it must prove appellant signature knew Owens’ properly acknowledged executed and forged; appellant’s position had been is become effective. The release form was evidence is insufficient to both signed by any person while office of forged he knew release was false and Southwest then or later. uttered it with intent to defraud. The ma- jority opinion points out that such responsible cannot A borrower is securing by showing be sustained passing “mere existing valid release of lien. Who but instrument,” says, “Standing approach should and could his alone, expert opinion lender, ... was not pro- friend and civic coworker to strong matter the pose State releasing Owens’ a lien securing [of required prove].” But it does not personal own indebtedness. A clear infer- alone, given stand other circumstantial evi- it, ence is that after prepared Lewis dence of more than passing.” “mere partially completed but unexecuted release possession form came into so In early debt to Civic that he appropriate could have officers of Savings by was secured a deed of trust to Savings However, Civic execute it. property certain real he owned. On undisputed neither anyone nor 12, appellant acknowledged a deed of trust signatures his behalf obtained of Owens Savings, Oak Cliff and received from Schrang. $57,- Southwest check in the amount of 867.06; he endorsed deposited persons Later one or printed more check in his bank Peggy account. Francis Secretary “ASST” ahead of complete fairy. not the tooth A ofman considera- Schrang’s corporate title, and on a differ- experience ble in financing real estate typewriter awkwardly ent typed a block transactions, appellant every reason to number for description full of the real know he rightly was not entitled to property, typed in the name “Hubert Ow- sum of money from particular transac- acknowledgement, ens” on inserted “21” as tion. date in March it being was taken—that day same prepared Lewis A dated it for financial institution ordinarily will agree signatures three and af- money to lend to an individual bor- execution— notary fixed a seal. purports rower Thus it to be payment with secured deed of proper Savings and valid release property to real Civic unless borrower has clear as of March simple. represented title in fee could be When there as outstanding promissory such. note also secured by deed property, of trust to same lien president Savings, of Civic thereby created must be released holder agreed Owens never to release its deed of of that note. If he does not take them trust; Schrang signed neither he nor himself, a generate borrower must at least 11; sign Smith did not *8 by
moves produce others to a valid release Yet, notary public. April sometime before of lien. closing, 12 fully completed purport- and 21, Lewis,
Thus on secretary edly March acknowledged for executed and release attorney, suddenly Southwest’s title way did not found file Southwest and into decide on her own initiative to select a form V54287. concluded, present jurors; and opin- for failure to exhibits edification of he “That
illustrating worthy your common characteristics of known ion is not vote of confidence handwriting alleged forged signatures you and for based the evidence have heard." 746
Meanwhile, 7, 1972, April on on March 21 or day other and affix her short, executed a deed of notary favor of seal. In knowing Oak it was false Savings conveying forged, Cliff prop- relinquished possession identical real he erty bogus described in State’s Exhibit 11. That release to file V54287so it would previously means he purpose objective. met serve its intended with loan Savings, officer of Oak Cliff they dis- Closing by a real estate transaction $60,000 cussed terms conditions of a company arranged: title “closer” must be mentioned, transaction. If not specifically par- convenient date and hour are set for by experience, appellant knew he would be presence ties whose only is needed—here required represent good that he had title appeared 12, April When he if property securing payment, to real it, he already surely did not know he soon that it is “free and clear from all encum- understood State’s Exhibit was then in except hereby.” brances the debt secured V54287, file else Francis would not clos- signed April The deed of trust he 7 ex- ing Savings. his transaction with Oak Cliff Thus, pressly provides.6 so way acknowledged He to Francis that he had to demonstrate of record removal exist- deed executed of trust to trustees for Oak ing encumbrance was Owens to execute Savings purposes Cliff “for and consid- prior release of lien. But since he knew expressed,” knowing eration therein it, agreed Owens had never ap- to release representation property therein that real pellant property also had to know his securing payment promissory of described by still encumbered deed of trust to Owens note property was false because that Savings, just for benefit of Civic as title not “free and clear from all encum- opinion pointed for Southwest out. Finally, accepted rep- brances.” a check resenting proceeds of the transaction and An 7 commitment Oak Cliff promptly deposited to his own bank ac- Saving to loan is worth- Compare count. Decherd v. long less so as his deed of trust in favor (1926). Tex.Cr.R. 283 S.W. at 170 Savings days Civic is extant. Within five up shows at Southwest appellant actively When carried out his transaction, in File part closing V54287. he knew practice from custom and State’s Exhibits From circumstantial evidence thus far routinely 11 and 13 would be forwarded to analyzed reasonably a rational could filing county office of clerk for and record believe and find that alone or ing, they were. The is suffi bogus help completed with incidental cient to show that uttered State’s release and transmitted it to Southwest. 11 with intent to defraud. See hypothesis. There is no other reasonable (Tex.Cr. 371 S.W.2d Sheffield App.1963) (Opinion Expert testimony appel- Felker from 55); Rehearing, to its lant name of Linda Smith State, 165 see also Tex.Cr.R. Sheffield acknowledgement serves to confirm that (1957). finding. belief and It demonstrates that Therefore, say “probative value appellant actually possessed partially form; very great, of the extraneous offense was completed release that he knew Ow- proving very nearly essential acknowledged ens had not “he executed [and] chief,” majority Savings] State’s case as the act of [the release] [Civic page is incorrect. same for the therein does at purposes and considerations weighed in ma- expert testimony, expressed;” Smith had whose that he knew Linda strong “not jority opinion, was less than acknowledgment from Owens not taken an typed Savings. bear a file preprinted That it does not fold of that form 6. On endorsement "pi” suggests logo Savings,” of Southwest and initials alongside below number is a "Oak Cliff TRUST,” prepared South- the deed of trust was appear blanks for "DEED OF west, and fee notation and file number party, Cliff Sav- names of each ings "Benefit of Oak sum, Association,” State’s Exhibit 13 filing hand. later added blanks for and Loan form, Savings proba- and, personalized Cliff finally Oak recording by county is a clerk data *9 agent. bly completed printed Oak Cliff direction to "Return To" culpability pri- show offense, mary essentially to the same regarding unadjudicated
effect Repetition regarded
offenses. what is opinion testimony
as weak will not serve better to Correctly establish intent.
analyzed majority opinion holding
“propensity properly evidence” is admitted
because has such a dearth support allegations
of evidence to of its
indictment that otherwise accused would acquit-
be entitled to a directed verdict of
tal. respectfully
I dissent. DUNCAN, JJ., join.
MILLER and MARROQUIN, Appellant,
Mario Texas, Appellee.
The STATE of
No. 308-87. Texas,
Court of Appeals Criminal
En Banc.
Feb. (court-appointed appeal),
B.R. Dossett Harlingen, Jr., Euresti,
Benjamin Atty. Dist. Garza, Atty., Ch. Asst. Dist. Gustavo Brownsville, Huttash, Atty., Robert Austin, for the State. APPELLANT’S PETITION
OPINION ON FOR DISCRETIONARY REVIEW ONION, Presiding Judge.
Appellant party as a was convicted pounds more than delivery offense pounds of marihuana. less than 200 guilty court jury’s verdict After imprison- punishment years’ assessed ment.