Dickey v. State

TEAGUE, Judge,

dissenting.

I respectfully dissent to the majority’s holding in this cause that an extraneous, collateral, and extrinsic criminal offense was admissible to rebut the appellant’s defense of alibi, which was the reason the trial court admitted it into evidence at appellant’s trial. The extraneous offense, an aggravated rape offense, had occurred almost a week before the attempted aggravated rape offense for which appellant was tried had taken place. It was totally unrelated to the State’s case in chief, and did not in any way, shape, fashion, or form disprove or rebut the appellant’s defense of alibi. Appellant had testified, in support of his defense of alibi, that “Me and 13 more others ... were over at Willie Idelbird’s [playing cards],” when the primary offense was committed. The complaining witness in the extraneous offense was not shown by the prosecution to have even known where Willie Idelbird’s place was situated in Bryan.

I personally find the reasons the majority gives for upholding the admissibility of the extraneous offense totally unacceptable, and sincerely believe that members of this Court, if they carefully analyze the reasons, the authorities, and the roots of the authorities the majority gives and cites for sustaining the admissibility of the extraneous offense, also will find them unacceptable.

“The general rule in all English speaking jurisdictions is that an accused person is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Young v. State, 159 Tex.Cr.R. 164 , 261 *239 S.W.2d 836 (Tex.Cr.App.1953). Such principle of law has been a part of the law of this State for over one hundred years. Cesure v. State, 1 Tex.App. 19 (1876). Furthermore, the intent of Article I, Section 10, Texas Constitution, which provides the following: “In all criminal prosecutions the accused shall have ... the right to demand the nature and cause of the accusation against him, and to have a copy thereof”, is that an accused person shall be given sufficient information so that he may prepare his defense to the accusation lodged against him. Huntsman v. State, 12 Tex.App. 619 (1882); Evans v. State, 623 S.W.2d 924 (Tex.Cr.App.1981). The appellant in this cause was not put on notice through the State’s pleading that the extraneous offense would be offered into evidence during the course of his trial. He was thus in no position to defend against the extraneous offense at the trial for the charged offense. 1

To admit into evidence during the trial of the charged criminal offense an independent, unrelated, and collateral crime also flies in the face of the presumption of innocence, and has a tendency to draw away the minds of the jurors from the subject in issue, the primary offense, and to excite prejudice toward the accused and mislead the jurors as to the main issue they are to resolve, that is, whether or not the accused is guilty of the criminal offense for which he is on trial. Also see, Gardner v. State, 11 Tex.App. 265 , 275 (1881).

The majority opinion pointedly tells us that “an accused may not be tried for a collateral crime.” But it then proceeds to smash its statement to smithereens by invoking and applying a judicially created exception because the appellant injected into the case the defense of alibi. The exception is that evidence of another crime is admissible to prove identity, when identity is in issue, only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. The majority, without any discussion, also informs us that “Upon offering evidence of the defense of alibi, appellant placed his identity in issue.” My research has yet to reveal, in the context in which the majority uses the word “identity”, where this Court has ever discussed why the word “identity” has the meaning the majority gives it. I submit, however, that the word “identity”, when used to suggest that the accused has placed identity into issue, simply means that the accused has made sufficient attack upon the identification testimony of the complaining witness to cause it to result in either no identification or equivocal identification of the accused as the wrongdoer. 2

Many years ago, in Northern Securities Company v. United States, 193 U.S. 197, 400-401 , 24 S.Ct. 436, 468 , 48 L.Ed. 679 (1904), Justice Holmes commented that “Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Justice Holmes perhaps needed to add that bad law may also result from distorted or erroneous interpretations that are subsequently made of a particular case, which interpretations are thereafter adopted and re-adopted until, ergo, the original misinterpretation is hailed as being founded in stone.

The exception to the general rule of prohibition that is being applied in this cause comes to us through what I find to be *240 dictum that was expressed in this Court’s decision of Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). Because of erroneous interpretations of that decision’s holding, bad law has been caused to be placed in the books. The foundation of the majority’s holding is based, not on stone, but instead quicksand. For this reason, Ford , Id., should be overruled.

None other than the author of the Ford opinion, Judge Roberts, observed in his dissenting opinion in Ransom v. State, 508 S.W.2d 810 , 815 (Tex.Cr.App.1974), how the holding in Ford v. State, Id., was being misinterpreted by members of this Court. There, he told us what the true holding of Ford was: “Under Ford, evidence [of an extraneous offense] to rebut alibi was held to be admissible [only] if it placed the accused at a place where he claimed not to be, or if the evidence showed the impossibility of the alibi, even if the two offenses were dissimilar.” Although not cited by the majority in its opinion, Ford is the root of the above exception the majority applies in this cause.

After carefully reading Ford v. State, Id., I find that what has caused erroneous interpretations to be made of the holding in that case lies in the fact that the opinion unnecessarily and unduly gave emphasis to what is actually dictum. However, Judge Roberts pointed out, after his elaborate discussion of the newly created exception, the following:

In the instant case, the evidence, if relevant at all, was admissible only on the issue of identity. Appellant’s alibi concerned only the date of commission of the present offense. That he was elsewhere nearly two months later does not refute his alibi. Also, the evidence was offered for the purpose of showing flight. That the appellant was in Houston nearly two months later does not indicate flight. See Jones v. State, 481 S.W.2d 900 (Tex. Cr.App.1972),

and then held that an extraneous offense was inadmissible.

A careful reading of Ford v. State, supra, and what Judge Roberts stated therein, regarding the newly created exception of “distinguishing common characteristic”, quickly reflects that everything Judge Roberts stated in the opinion about the newly created exception was predicated upon an assumption that identity was in issue, i.e., he expressly stated: “In the instant case, assuming that identity was in issue, we do not feel that there was sufficient connection between the supermarket robbery and the robbery-murder at the chemical company to render evidence of the former admissible as tending to indicate that appellant committed the latter.”

This cause is also a good example of why the “distinguishing common characteristics” exception should be put to bed. The facts, as set out in the majority opinion, with the single possible exception that both culprits were wearing sunglasses, do not otherwise lead one to conclude that in relation to the primary offense, the extraneous offense was so distinctive as to be the equivalent of the appellant’s signature. See Collazo v. State, 628 S.W.2d 647, 649 (Tex.Cr.App.1981). I submit that all the majority has done in its opinion is to list some general common characteristics, which would probably fit the facts of any number of cases this Court has decided, compare them to the two offenses, and on that account hold that there are distinguishing common characteristics between the primary offense and the extraneous offense. However, if one carefully reads the majority opinion, I think they will conclude, as I have, that the similarities between the primary offense and the extraneous offense are few, and that they are neither sufficiently distinguishing, novel nor unusual to render admissible into evidence in this cause the extraneous offense. Also see Judge Odom’s dissenting opinion filed in this cause.

The fault of the exception lies in trying to apply it. It is truly evanescent. Where does a trial judge draw the line in making the determination whether or not to admit into evidence an extraneous offense? How many common characteristics must there be? What if the characteristics of the primary offense and the extraneous offense *241 are in all things identical but for the fact that in one offense the culprit had a gold tooth but in the other he did not have a gold tooth? In light of the present state of the law regarding the admissibility of an extraneous offense, I believe that a trial judge, in making the determination whether or not to admit an extraneous offense, rather than read and attempt to understand this Court’s past decisions on “distinguishing common characteristics”, would better spend his time polishing his ability to flip coins. In sum, there is absolutely no predictability in our law when it comes to deciding whether to admit into evidence an extraneous offense on this basis. This lack of predictability readily becomes apparent when one considers that Judge Odom, the author of the landmark decision of Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), is relegated today to the position of a dissenter.

Many years ago, the Oklahoma Court of Criminal Appeals pointedly stated in the following words why such an exception that the majority of this Court applies today is unworkable.

“In the very nature of things, there cannot be many cases where evidence of separate and distinct crimes, with no unity or connection of motive, intent, or plan, will serve to legally identify the person who committed one as the same person who is guilty of the other. The very fact that it is much easier to believe in the guilt of an accused person when it is known or suspected that he has previously committed a similar crime proves the dangerous tendency of such evidence to convict, not upon the evidence of the crime charged, but upon the superadded evidence of the previous crime. Hence our courts have been proverbially careful to subject such evidence to the most rigid scrutiny, and have invariably excluded it in cases where its relevance and competency are not clearly shown... [Such] evidence tends necessarily and directly to load the prisoner down with separate and distinct charges of past crime, which it cannot be supposed he is or will be in proper condition to meet or explain, and which necessarily tend to very gravely prejudice him in the minds of the jury upon the question of his guilt or innocence. Such evidence gives opportunity for the conviction of an accused person upon mere prejudice, instead of by evidence showing the actual commission of the crime for which the defendant is on trial. It compels a defendant to meet an accusation not charged in the indictment, which he might successfully refute if given the opportunity to do so unembarrassed by other issues.” Miller v. State, 18 Okl.Cr. 176 , 163 P. 131, 133-134 (Crim.Ct.App.Okla.1917).

I will now attempt to demonstrate why this Court should hold, where the State has presented through its witnesses a clear, unblemished, and unmarred picture of the offense for which the accused is on trial, and the accused only injects into the case the defense of alibi, that any extraneous offense is inadmissible. See also Carpenter v. State, 596 S.W.2d 115, 120 (Tex.Cr.App.1980) (Opinion on Original Submission; Cain v. State, 642 S.W.2d 806 (Tex.Cr.App.1982).

In this cause, appellant was put to trial for allegedly committing the offense of attempted aggravated rape of a person I shall refer to as Joan, which is not that person’s name. Joan made a positive, categorical, unequivocal, precise, clear, sure, certain, and sound identification, both in and out of court, that appellant was her assailant. Through her testimony and other testimony, the State was able to present to the jury a clear, unblemished, and unmarred picture of the offense involving Joan. 3 The appellant also presented to the jury, through his defense of alibi, another picture. The jury should have been allowed, without more, to decide which picture it *242 preferred. The fact that appellant injected into the case the defense of alibi did not mar or blemish the identification picture ■Joan made of the appellant. Identity was in issue, but only in the sense that the jury should have been required to believe either Joan’s positive identification testimony or the appellant’s evidence that he was elsewhere. The third picture the prosecution injected into the case did nothing more than allow for the possibility of confusing the jury as to what crime appellant was on trial for allegedly committing, and to prejudice the appellant.

The majority tells us that when appellant injected the defense of alibi into the case, he then placed his identity in issue. Is that a correct statement? Did not injecting the defense of alibi in this cause directly call into question Joan’s ability to identify the appellant as her assailant? As such, the State should have been permitted to rehabilitate Joan. However, how did the extraneous offense that was committed the week before rehabilitate Joan’s ability to identify appellant as her assailant? Again, when we speak of identity as being in issue, we are focusing upon the ability of the complaining witness to make an identification of the accused. Unless extraneous offense testimony goes to the complainant’s ability to identify the accused as her assailant, it should not be admitted into evidence. This Court should therefore adopt the rule that where the prosecution has through its case in chief presented a clear, unblemished, and unmarred picture of the alleged offense, and the accused has only injected into the case the defense of alibi, an extraneous offense shall not be admissible unless it refutes the alibi defense or shows the defense of alibi was impossible or it can be established that it rehabilitated the complaining witness’ ability to identify the accused.

In Hafti v. State, 416 S.W.2d 824, 826 (Tex.Cr.App.1967), Judge Belcher of this Court stated the following:

The rule appears to be consistent that if the testimony of the state leaves no question as to intent or identity of the defendant, proof of an independent crime is not admissible. Also, where there is positive testimony to support the state’s case, proof of other independent offenses is not admissible.

The extraneous offense, under the facts at bar, should not have been admitted into evidence at appellant’s trial. To the majority’s holding that it was admissible, I respectfully dissent. See also Vol. VIII, Land and Water Law Review, “Evidence — Rules of Admissibility and Law of Probability,” and Vol. 50-2, Texas Law Review, “The Admissibility Of Other Crimes In Texas.”

. During his argument to the jury, appellant’s counsel stated the following: “I really can’t say what happened on that other case because I frankly wasn’t really prepared for this. I wasn’t prepared to defend Gary Dickey on two different charges in one trial, that are totally unrelated.”

. This, of course, does not mean to say that the identity of the accused will never be in issue in a case. However, in this instance, the appellant in his cross-examination of the complainant never disputed that an offense had been committed against the complainant, or made an issue as to intent or consent; only that she had erroneously identified him as the wrongdoer. Thus, it was the complainant’s ability to identify the appellant as the wrongdoer that was placed in issue; not the appellant’s identity.

. The record conclusively establishes that the appellant did not dispute that an attempted aggravated rape had been committed. His cross-examination of the State’s witnesses clearly shows that he attempted only to establish that the complaining witness was mistaken in her identification of him as the person who had committed the offense.