*1 Well, m my personal knowledge and No error the court sustain- A. hear, ing objections. general feel- the State’s
what what ing is.” error, Finding judg- reversible ment is affirmed. A foregoing testimony review of the re- qualified that the to tes- flects witness was Opinion approved by the Court. tify reject appellant’s and we contention admitting his that the court erred in testi-
mony.
Appellant’s next contention is di testimony rected to the of Levelland Chief penalty stage Police at the Johnson RANSOM, Appellant, Robert Earl the trial. v. only objec- The record reflects Appellee. Texas, The STATE of voiced to the of Johnson No. 47054. objection too, goes was “Our to this Your Honor.” Appeals of Texas. Court Criminal Jan. 1974. objection
Such an specify does not identify any reason or and is not Rehearing Denied Feb. 1974. preserve sufficient to the claim of error for review. Breeden Tex.Cr.
App., 105; Verret v. .App,
Tex.Cr
The record reflects that the sus- j tained questions ob ections to the : “ . you . recommend . could probation that he have in this in?” been convicted you gets probation
“Do think that if he he would live it ?” prefaced questions were not possibly what might or terms conditions imposed. question covering appel- ability probationary comply
lant’s conjectural Miller terms is at best. State, Tex.Cr.App, 442
court had been notified of State’s the admissibili- tention and had determined ty of such evidence. motion Said granted by the court. Roy Hayden testified that he left the J. approximately in Dallas at
Satellite Club p.m. 28, got As 11:30 on lot, appellant parking to his car on the approached asked if he take him and would appellant Hayden and wife home. Appellant pay then refused. offered Hayden Appellant and consented. called Hayden’s got to a woman and the two in Hayden car and directed to a on house stopped, Frank Street. After the vehicle appellant said, pay you” “Let me and produced pistol an automatic stated Hayden got meant “business.” After car, appellant of the searched him tak- watch, containing $6.00, his wallet personal papers. credit cards and The car opened ap- trunk was and searched and the pellant’s woman searched the glove compartment ciga- and took some rettes. (counsel appeal Charles Giddens complaining witness was the Dallas,
only) appellant. for identify appellant. witness to On cross-examination counsel at- Wade, Henry Dist. T. Atty., W. tempted to show that the witness had never Westmoreland, Jr., Atty., Asst. Dal- Dist. approached before seen the man who him las, Vollers, Atty., D. Jim parking on the lot Club Satellite Buddy Stevens, Austin, Atty., Asst. State’s home, asked for a ride established for the State. parking lights there were lot and that light in the 3300 block of Frank Street OPINION subsequently robbery where the occurred poor, and that the witness’ best obser- ONION, Presiding Judge. got vations when the robber in occurred light and out of the car and the dome appeal This is taken from a conviction developed on. Counsel also robbery punishment assault. The pho- that the witness had been shown was assessed at life. attempted im- tographs by police Appellant’s appeal sole contention ply part police suggestiveness on the of the that the trial admitting evi- securing erred identification of the witness’ dence of an extraneous appellant. appellant’s counsel, chief,
Prior
to trial
ob-
After the
State rested its case
viously aware of the
appellant
offered a number of alibi
possibility
appellant, driving
of its admission into ev- witnesses who swore the
idence,
Oldsmobile,
filed a motion in limine to instruct
his own
left Dallas with others
prosecution
not to offer evidence of
Friday evening
for Forreston on the
28, 1972,
extraneous offenses until such
as the
prior
time
to the time
robbery and did not return to Dallas until
testimony by
bi
showing
fre-
sister,
following Sunday. Appellant’s
quently
places together
went
to various
Ransom,
Ann
sup-
Patricia
in addition to
family.
with other members of his
porting
testimony,
the alibi
testified on re-
gave
limiting
The court
instruction
Tuesday,
direct
examination
Janu-
guilt
stage
limiting
of the trial
the use
she,
ary
and others
*3
testimony
of
regarding the extraneous of-
gone
county
had
to visit a relative in the
identity
fense
the
of
and intent.
to
issues
jail.
objected
testimony
to such
State
objections
charge
There were no
such
to
appellant
on the
impeach-
the
special
any
requested
issues.
ing his
witness
had
own
since she
earlier
appellant
every day
testified the
worked
Putting
determining
aside and not
except
day
Friday,
that week
for half a
question
the
of whether the cross-examina
January
objection
28. The
was overruled
complaining
witness was such
witness, contradicting
and the
her earlier
as to authorize the
of
admission
the ex
testimony,
appellant
related
had
1,
traneous
is
offense
it
clear the extrane
25,
Tuesday, January
worked on
but
ous offense was
admissible on the
gone
county jail
to the
instead.
identity and as it tended to
dis
defeat
credit
the defensive
of alibi.
Thereafter,
defense
much of the
testimo-
ny
January
the events of
elicited concerned
First,
complaining
the
witness was
25,
being
appellant
that
it
established
while
place
appellant
sole witness to
at the
family
county jail
and his
were at
alleged robbery.
scene of the
To counter
p.m.,
4
his
from 11 a.m. to about
automo-
this the
offered numerous alibi
Oldsmobile,
bile, an
was stolen and that it
placed
witnesses whose
him
police
learned it was at
was later
away
miles
the time. The issue
iden-
pound,
having
in a
the vehicle
been used
tity
hotly disputed
clearly
was thus
robbery.
raised.
rebuttal,
objection,
In
over
the State
This
had occasion
Daniels,
called
who testified that
James
past to note that
an
evidence of
extraneous
25,
p.m.
Tuesday,
about
12:30
offense is
prove identity,
admissible to
shop
gunpoint
he was robbed at
in his tire
identity
issue,
when
is
only
an
if there is
by appellant
in Dallas
and another man
distinguishing
some
characteristic common
gave
who fled in an
He
Oldsmobile.
chase
to both the extraneous offense and the of
gave signal
policeman.
Officer
fense for which the
is on
accused
trial.
pursued
Maselli
testified
Oldsmobile
State,
727,
Ford v.
484
See
729
find it
abandoned a few blocks
(Tex.Cr.App.1972).
away.
“
is,
.
.
. That
if it is established
strategy
appellant’s
counsel in in-
the accused committed an extrane-
offense,
jecting
events of
25th
is not
ous
and that there is some dis-
clear,
appears
tinguishing
but
have been done to
common
characteristic
both
impact
anticipated
lessen the
intro-
to it and the offense for which the ac-
by
trial,
may
duction of the extraneous offense
at-
cused is on
then an inference
tempting to show the automobile used
per-
drawn that the
accused was
offense was stolen from the
son who
committed the
offense.
perhaps
strengthen
ali-
.
(emphasis
.
.”
supplied)
State,
compare
1. In Albrecht
102
defense
cross-examination.
See
pointed
(Tex.Cr.App.1972),
(Tex.Cr.
it was
out
Caldwell
App.1972),
the confederate in each case been a had man, obviously but different the offense charged Would with Suppose men. isX this make a admissibility boy difference as to young and the fondling a indecently of the extraneous offense? in a We think not. ma- dressed proof shows while hat, matching tie and wear- suit with roon Further, surely logically cannot be his hair shoulder with ing a mustache argued primary that if the a offense shows complaining witness length, he enticed robbery on a residential street a restroom his into young and accused, after acting with a woman offering by them public park on a confederate, asked the victim to take him Suppose candy bars. pieces of chocolate home, a series of armed robberies properly raised au- identity is same county accused, committed act- of extraneous thorizing the introduction ing confederate, with a man at various re- on issue. stores, tail nightclubs, etc., within a short span, time are inadmissible because the ex- the extrane- Suppose that one of further act operandi modus of the primary offense one week after the offenses shows that ous was repeated. act of not X committed instant offense neighbor boy young decently fondling a It argued could be that at time of his bedroom into whom enticed the primary offense the books, and at the showing the comic child wearing to have been broad a clothes, shaved his time X wore hat, brimmed while at the time the ex so it resem- hair cut his mustache and had traneous offense he was described as wear bled a “crew cut.” dress, a steel helmet. While mode of hair, etc., hair style, facial im play Suppose other portant primary part from prior time to time in deter showed that one week offense, a lavender suit mining admissibility wearing of extraneous of fenses, hat, X, long hair given with purple we feel it far too tie and dark man, important another mustache, together a role in recent decisions of this a car near part B, boys into young court based on some the lan enticed two State, showing them some guage supra. See, e.g., in Ford v. school with offers and X and dimes State, them (Tex.Cr. giving Cobb v. 503 tricks S.W.2d 249 App., indecently them. reasoning in B fondled 1973).2 Some of Judge Douglas very reason. writer concurred for this this Cobb 814
Do the two alibi extraneous offenses have as to wherea- distinguishing characteristic common to the bouts on 28th. January Owens v. offense? (Tex.Cr.App.1969); Thompson 258, 339 170 Tex.Cr.R. In the first extraneous offense X was (1960). particular- And is S.W.2d 209 dressed as he was at the time ly appel- true in instant case where the instant in fact he was not dressed voluntarily injected lant first into the all, public park place, he was not in a home, his hair style but in own group people January 25th different, method of and the enticement claimed he 28th. was with was not the In the second extrane- same. man, Appellant’s ground ous offense X was with another error overruled. in a than dressed lavender rather a maroon affirmed. judgment suit, and this in a rather in a time car than public park again used different ON, (concurring). Judge MORRIS
method of enticement. join affirmance in the of this convic- it be foregoing Can said that for the appellant gratuitously tion. offered When reasons the extraneous offenses were inad- proof as he was what he was to where missible? think not. We would doing then State was *5 In each of the extraneous offenses X clearly prove gratu- authorized to that this clearly perpetrator was shown to be the of in itous alibi was false order that the the in extraneous each upon might properly pass validity of the boys young stance lured some meth- primary offered for the alibi which od of a enticement into where the act January 28. fondling place. of These com- could take I concur. mon distinguishing characteristics are the essential the for ones which issue bear they
which were admitted. ROBERTS, Judge (dissenting): The fact of that the method enticement The members this Court majority of money was comic or books and tricks pre effectively have emasculated the now opposed candy, or chocolate State, 484 vious decisions Ford v. S.W. of in that the dressed a maroon was (Tex.Crim.App.1972) 2d and Newman all, or or with lavender suit or not was (Tex.Crim.App. man, another the skies or whether were reason, 1972). unexplained what For some cloudy bright or are not the essential dis- good good in 1974—that was in 1972is tinguishing characteristics where the other is, to this judges the who make Court foregoing para- in factors discussed the day very are ones voted the same who graph present. are Newman, were no Ford in which there opinions concurring filed dissenting illustrations, for much for it is clear So in Attorneys my the Court. brothers on in that the extraneous offense introduced and defense counsel prosecutors this clearly the instant admissible on case was field notice that the put alike now are identity. the of issue open is now wide of offenses extraneous in this territory again. The case law once necessary proper While not admissibility of extran contention, regarding the disposition of sole it State long jumbled a been appear eous extraneous offense offenses would that the consistency in mess, lacking totally to defeat or was admissible as tended that alibi, To extent predictability. al discredit the defensive a been may have cases offense on Ford and Newman extraneous establishing direction for step right directly 25th did not contradict or refute further; go holding logical attorneys might majority The their some which rules strengthens language follow, now ren which contains those decisions have been case gone into the law dered should never ineffective. place. I re books of this in the first State majority today The decide that common State, 450 fer to the S. Owens really impor- characteristics are not cited (Tex.Crim.App.1969), W.2d 324 all, ex- perpetrator if tant after majority and decided person as the traneous offense identified case, citing this elected to this Court. Doesn’t accused approve majority overly-broad completely open for a the door flood therein, specifically language contained offenses, thereby defeating of extraneous allowing speaks the introduc where very purpose behind the restrictions “tend” which e., place, that an should the first i. defen the accused’s to defeat or discredit presently the crime tried possi theory. attorney How an sive could charged being gen- and not for a criminal speculate with bly language and take this erally? ignore majority seem degree accuracy slightest fact that extraneous offenses have tradi- admitting keeping chances of tionally exceptions this admitted as Clearly, Owens extraneous offense? scheme, rule, design, in- to show common wrong rea right reached the result for etc., tent, Apparently, or to rebut alibi. There, charged sons. accused was the new rule that the exclusion of these robbing Pilgrim’s Cleaners on Octo exception. offenses will be de defendant raised the ber 1967. The present case, majority state that in vigorously contested the fense alibi and both were robberies committed of of identification. The State then Dallas, acting testified dur fered five witnesses who case, ap- with a (though in one month, each alone pellant acting with the aid of a woman Cleaners, they Pilgrim’s in a branch of *6 time, man). and the other The Court manner as was were robbed in same finds this sufficient to show a “common Judge Onion used mode of commission of offenses.” stated that: quote from Ford v. has been which good authority until now: not have di- such “While rectly alibi as contradicted the evidence recognize always “We that there will whereabouts on October
be similarities in the commission of 14, 1967, it tended to or discredit defeat type is, any crime. That theory admissi- such defensive and was of robbery by quite likely firearms (Emphasis added) ble.” committed in much the same way other. must be shown What light similarity the offenses to make the evidence the extraneous involved and the contested issue identi- crime is something admissible sets completely unnecessary ty, it to decide apart type from its class crime admissibility of the extraneous offenses in general, distinctively marks it they on the basis that “tended” to discredit crime, the same manner as principal defendant’s defensive alibi. (citations omitted)” majority certainly nothing do Ford, As present case has similari- air when clear the ties, they “but are more in the nature of are admissible rebut alibi. Under the similarities common to the type Ford, rebut an alibi was held crime rather than similarities pecu- placed if to be admissible itself liar to both Ford, supra, be, alone.” he claimed not to if where p. 730. impossibility the evidence showed the alibi, if the two offenses were dissimilar. Whether or not that remains
the law is unanswered.
I dissent.
ODOM, J., joins in this dissent. WINN,
James Appellant, Alton Texas, Appellee. The STATE of No. 47905. Appeals Court of Criminal of Texas. Jan. *7 appointed), Ab- (Court
Richard M. Price ilene, appellant. Abilene, Paynter, Atty., Ed Dist. D. Jim
Vollers, Stevens, Atty., Buddy Austin, Atty., for the Asst. State’s State.
OPINION
MORRISON, Judge. assault; is robbery by
The offense punishment, enhanced under Art. Ver- Ann.P.C., non’s life.
Appellant grounds raises four of error.