# Dubose v. State

> Court of Criminal Appeals of Texas · November 26, 1975 · 531 S.W.2d 330

URL: https://www.frixlaw.com/law-library/cases/9684277

## Case

- **Full name:** Donald Wade DUBOSE, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 26, 1975
- **Citations:** 531 S.W.2d 330; 1975 Tex. Crim. App. LEXIS 1175
- **Precedential status:** Published
- **Opinion:** On rehearing by Onion
- **Judges:** Brown, Onion, Douglas
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9684277

## Opinion text

OPINION ON STATE’S MOTION FOR REHEARING
ONION, Presiding Judge.
On original submission this cause was reversed because of the prosecutor’s comment during jury argument on the appellant’s failure to testify. In concluding the argument was improper we noted that the evidence reflected that only the complaining witness, Peggy Lou Edwards, and the robber were present at the time of the alleged offense and the jury was aware there was no other witness that could be called to testify about appellant’s presence at the robbery.
On rehearing the State claims the factual basis for the court’s decision is “simply incorrect” and contends that one Ballard observed the robbery and was a witness at the trial. A re-examination of the record reflects that the State has misread the record.
Robert C. Ballard, assistant manager of a Woolworth store in the shopping center where the alleged offense occurred, testified that on the date in question the appellant came up to his store as it was being closed and was told the store was closed. He related that later he heard a woman “later . . . identified as Mrs. Woods” scream, that he went out into the parking area, that he did not see the appellant with “Mrs. Woods,” but to his left he did see the appellant walking about fifteen feet away. He observed the appellant look back at him and other individuals there and then get into a red Ford pickup and drive away.
It is obvious that Ballard’s testimony related to an extraneous matter involving “Mrs. Woods” which he did not personally observe. This testimony in no way made him a witness to the instant robbery case where the complaining witness was shown to be Peggy Lou Edwards.
The State also urges that the prosecutor’s remark raised the question of the credibility not the contradiction of the complaining witness and since her credibility could have been attacked in other ways than by the appellant’s own testimony there was no reversible error in the argument. We remain convinced, however, that when the remark is viewed from the standpoint of the lay jurors it could hardly be construed as anything but reference to appellant’s failure to testify. See Yates v. State, 488 S.W.2d 463 (Tex.Cr.App.1972).
Although it was not mentioned in the opinion on original submission, we conclude in connection with appellant’s second ground of error that the extraneous offense introduced in the State’s case in chief through the testimony of Florence J. Wood 1 should not have been admitted as it was over objection. We find no basis for the admission of this extraneous offense. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). We observe that appellant did not testify or offer any evidence.
The State’s motion for rehearing is overruled.
. This is apparently the same person referred to by the witness Ballard as “Mrs. Woods.”

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9684277. Public record. Not legal advice.