Williams v. State

ONION, Presiding Judge

(dissenting).

Today “the majority” adopts a broad, new and dangerous rule — an exception to an exception which finds no support in the law or the particular facts of this case. The majority holds that if any fact connected with an extraneous offense which tends to rebut a defensive issue becomes admissible, then the extraneous offense and all the details thereof also become admissible without any proof that the accused *820 was guilty of such extraneous offense or was its perpetrator. I cannot agree.

The fact that a witness or witnesses saw an automobile bearing license No. GYW 916 in San Antonio on June 18, 1969, would have been admissible in light of appellant’s alibi testimony, but to permit the State to go further and show an extraneous offense and the details thereof without showing that the appellant was the offender was error in my opinion, particularly where the prosecuting attorney testified earlier he had no extraneous offenses in which identification could be made of the appellant as the guilty party.

By offering evidence of alibi the appellant called into question the complaining witness’ identification of him as the man who indecently exposed himself, thus authorizing the admission of any properly proven extraneous offenses on the issue of identity. Owens v. State, 450 S.W.2d 324 (Tex.Cr.App.1969). “The majority” admits that the extraneous offense offered would not have been admissible on the issue of identity, intent, system, etc., unless there was proof that the appellant was the perpetrator thereof, but claims there is a different rule where the same evidence is offered, not on the issue of identity, etc., but to refute the defensive theory which in the instant case was alibi. In support of such position the majority cites no authority but asks the reader to “compare” Chambers v. State, 462 S.W.2d 313 (Tex.Cr.App.1970) and Hart v. State, 447 S.W.2d 944 (Tex.Cr.App.1969), both opinions by this writer. Neither stands for the proposition that extraneous offenses or transactions may be offered without a showing that the accused is the perpetrator. In Chambers the witness reported the suspicious conduct of a group of men to the police along with the license number of their vehicle. He did not testify that the group had engaged in any criminal activity and their acts were not shown to relate to any offense. The evidence was offered to show the steps eventually leading to appellant’s arrest. In Hart there was evidence of an extraneous transaction which did constitute a penal offense admitted but Hart was clearly identified as being involved in the extraneous transaction. The evidence was held admissible to show intent, system, design, and identity. Nor in my opinion does the cited case of Cage v. State, 320 S.W.2d 364 (Tex.Cr.App.1958), cert. den. 360 U.S. 917 , 79 S.Ct. 1434 , 3 L. Ed.2d 1533 (1959), support the position taken by the majority. In Schneider v. State, 392 S.W.2d 130, 133 (Tex.Cr.App.1965), and Hutchins v. State, 360 S.W.2d 534 (Tex.Cr.App.1962), also cited by the majority, the defendants were clearly identified with the extraneous transaction admitted.

In 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294, it is stated:

“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.

There are, of course, exceptions to the general rule.

In 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, it is written:

“Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of person or crime, intent, motive, scien-ter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him. These exceptions to the general rule prohibiting evidence of other crimes are discussed in greater detail immediately hereinafter. It must be remembered, however, that even though evidence of another crime may be relevant to the instant proceed *821 ing, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator.” (Emphasis supplied.)

The distinction sought to be made by the majority is thus not recognized.

In 1 Branch’s Ann.P.C., 2d ed., Sec. 188, p. 204, it is written:

“It is error to admit evidence of another offense when defendant is not shown to be the party guilty of that offense.” (numerous cases cited)

And in Shepherd v. State, 143 Tex.Cr.R. 387 , 158 S.W.2d 1010, 1011 (Tex.Cr.App.1942), the court said in reversing the conviction :

“Whatever the court’s object was in admitting the testimony, it seems to be well settled in this state that evidence of extraneous offenses shall not be received unless the accused is satisfactorily shown to be a party to the commission of such offense, even though proof of extraneous offenses comes within some of the exceptions. In support of the opinion here expressed, we refer to the following authorities: Fountain v. State, 90 Tex.Cr.R. 474 , 241 S.W. 489 ; Denton v. State, 42 Tex.Cr.R. 427 , 60 S.W. 670 ; Nichols v. State, 138 Tex.Cr.R. 324 , 136 S.W.2d 221 , and many other cases there cited.” (Emphasis supplied.)

In Perez v. State, 165 Tex.Cr.R. 639 , 310 S.W.2d 334 (Tex.Cr.App.1958), this court stated:

“Furthermore, there was no proof connecting appellant with the other thefts and for this reason the evidence should not have been admitted. Wells v. State, 118 Tex.Cr.R. 355 , 42 S.W.2d 607 ; Hughitt v. State, 123 Tex.Cr.R. 168 , 58 S.W.2d 509 and Carmean v. State, Tex.Cr.App., 163 Tex.Cr.R. 218 , 290 S.W.2d 240 .”

In Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968), this court, speaking through Judge Morrison, pointed out that “no extraneous offense should be offered unless the State is prepared to prove that the accused committed the same.” (Emphasis supplied.)

In light of these authorities an examination of the “extraneous offense” introduced should be made.

Della Gallegos testified that on June 18, 1969, 1 she and her girl friend, Jennifer Garcia, were walking down a San Antonio street when a man in a white car pulled up and asked if they would like to earn some money. They observed he had no clothes on and was laughing. They ran and one girl remembered the numerals on the license plate and the other the letters. The police were called. At the time of trial Della Gallegos could not remember the license number. She was unable to identify the appellant saying “his hair was different” and testified no charges had been filed in connection with the incident because of a lack of identification. She was unable to describe the make or model of the automobile other than it was white and she thought it had four doors. She expressly denied that it could have been tan or cream colored.

Officer Fleming testified that it was on June 18, 1969, that he received the report from Della Gallegos and her friend; that the license number given him was GYW 916; that the driver was described as an Anglo male, 25 to 28 years old with curly hair who needed a shave. The report did not reflect whether the license number given was a Texas license or from another jurisdiction, nor does it give the year or the color of the plate. The description of the driver contrasts sharply with that of the complaining witness who identified the appellant and who described the man who exposed himself to her as having “brown *822 hair,” “short brown hair” and being in his late thirties. The actual physical appearance of the appellant and his age are not reflected by this record.

William C. Wilford was called as a rebuttal witness during the trial on September 16, 1970. He identified his position as custodian of the records of the Automobile Department for the Tax Assessor’s office of Bexar County. He was simply asked:

“O. Among those license registration tags and receipts do you have a number GYW 916 registered ?

“A. Yes, I do.

“Q. Could you tell us who that tag is registered to?

“A. It’s registered in the name of Antoinette G. Williams.

“Q. Can you give us the address of Antoinette G. Williams?”

“A. 206 Sonora.”

Thereafter Wilford described the automobile as a 1962 Buick, four-door, but stated the color was not listed. At no time did the witness indicate when such license tags were issued to the automobile in question. Whether he was testifying from current 1970 records, from 1969 or earlier records is not revealed. The license receipts, etc., were not introduced into evidence.

This was all the evidence offered to connect the appellant or the Buick (which the undisputed testimony showed to be tan or cream colored) with the extraneous offense.

Clearly the appellant was not identified as being present and there is no showing that on June 18, 1969, the Buick actually bore 1969 Texas license plate Number GYW 916. Whether the “white car” observed by the witness Gallegos even bore Texas license plates is not established by the record.

The rule forbidding the introduction of other crimes is one of evidence and arises out of a fundamental demand for justice and fairness. Gordy v. State, 159 Tex.Cr.R. 390 , 264 S.W.2d 103 (Tex.Cr.App.1953). This general rule should be strictly enforced where applicable because of the prejudicial effect and injustice of such evidence and should not be departed from except under conditions which clearly justify such a departure and are necessary. Higgins v. State, 87 Tex.Cr.R. 424 , 222 S.W. 241 (Tex.Cr.App.1920); Urban v. State, 158 Tex.Cr.R. 106 , 253 S.W.2d 38 (Tex.Cr.App.1952).

The action taken by “the majority” being neither supported by law or facts is totally unjustified. Even Judge Odom in concurring cannot agree with the reasoning of “the majority.” He concurs in the result but for reasons of his own.

I vigorously dissent.

ROBERTS, J., joins in this dissent.

. On the hearing of the motion to suppress she testified as to the date, but when testifying before the jury she admitted she could not recall the date and remembered only that the incident occurred during the summer of 1969.