# Lacy v. State

> Court of Criminal Appeals of Texas · November 29, 1967 · 424 S.W.2d 929

URL: https://www.frixlaw.com/law-library/cases/9768753

## Case

- **Full name:** Albert LACY, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 29, 1967
- **Citations:** 424 S.W.2d 929; 1967 Tex. Crim. App. LEXIS 788
- **Precedential status:** Published
- **Opinion:** Dissent by Onion
- **Judges:** Dice, Morrison, Onion, Woodley
- **Cited by:** 20 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/9768753

## Opinion text

DISSENTING OPINION
ONION, Judge.
In his exhaustive and well briefed motion for rehearing appellant vigorously takes this Court to task and urges that the Court erred in its original opinion when it stated:
“In his ground of error #4, appellant complains of the court’s failure to limit the jury’s consideration of the evidence of the extraneous offenses and other acts of misconduct in his charge on the issue of guilt or innocence.
“We perceive no error, as it is the rule that evidence which goes to prove one of the main issues need not be limited. Lane v. State, 111 Tex.Cr.R. 367 , 12 S.W.2d 1027 ; Arcos v. State, 120 Tex.Cr.R. 315 , 29 S.W.2d 395 ; Moss v. State, Tex.Cr.App., 364 S.W.2d 389 . The evidence of other sales by appellant was admissible to prove the purpose for which he possessed the wine in question — which was one of the main issues in the case. While such evidence showed extraneous offenses, under the rule stated a limiting charge was not required.”
*935 After a careful and mature consideration of the cases as cited by appellant in his motion for rehearing, I have concluded that the trial court erred, over proper objection, in refusing to limit the jury’s consideration of the extraneous offenses. It was upon this very ground of error that Judge Morrison dissented originally, and I was in error in voting with the majority.
The rule cited in this Court’s original opinion is well recognized and is often applicable. 31 Tex.Jur.2d, Instructions, Sec. 133, p. 706. It is also true that evidence which goes to show motive goes to prove the main case, and is never an incidental matter. Wilson v. State, 70 Tex.Cr.R. 3 , 155 S.W. 242 . It should be borne in mind, however, that a distinction between motive and intent should be observed with relation to the question of limiting the evidence. It is not necessary to limit evidence that is a part of the offense and which tends to show the motive actuating the party at the commission of the offense, whereas a collateral crime not growing out of the offense in question and which is introduced for the purpose of illustrating the intent with which the crime charged was done should be limited in the court’s charge. Weaver v. State, 46 Tex.Cr.R. 607 , 81 S.W. 39 . See also 31 Tex.Jur.2d, Instructions, Sec. 138, p. 711.
Further, attention is called to 31 Tex.Jur. 2d, Instructions, Sec. 146, pp. 720-722, which reads in part as follows:
“Where evidence of extraneous offenses is admitted under some one of the exceptions to the general rule rejecting this character of testimony, proof of the commission of other crimes than that for which the accused is being tried should be made the subject of a limiting charge. It is well established that when there is introduced evidence of another offense that might be improperly used against the accused, it is proper for the court to forestall such misuse of the evidence by an appropriate charge limiting the evidence to the purpose for which it was admissible. For example, where the defendant is charged with theft of a certain chattel, proof of the theft of other property should be appropriately limited by the charge of the court.”
“In a prosecution for possessing liquor for the purpose of sale, evidence of sales made prior to the date alleged in the indictment, being admissible only to show the purpose for which the defendant had the liquor that was found in his possession, should be limited in its use or effect to proof of this fact.’’ (Emphasis Supplied)
In Balleu v. State, 128 Tex.Cr.R. 375 , 82 S.W.2d 146 , where the appellant was charged with the possession of whiskey for the purpose of sale as this appellant, this Court said:
“The appellant within the time prescribed by law objected to the court’s main charge because it failed to instruct the jury that the testimony of the sale of whisky by the appellant prior to the 29th day of March was admitted for the purpose of showing, if it did show, the purpose of the appellant in having possession of the whisky found on his premises at the time alleged in the indictment. We are of the opinion that the court should have responded to the objection. The various sales of the whisky by the appellant prior to the 29th of March were separate, distinct, and extraneous offenses and were not admissible except to show the purpose for which, the appellant possessed the whisky, and the testimony should have been limited to that purpose.”
It should be observed further that Lane v. State, 111 Tex.Cr.R. 367 , 12 S.W.2 1027 and Arcos v. State, 120 Tex.Cr.R. 315 , 29 S.W.2d 395 , cited in the original opinion, were decided prior to Balleu. Both of these cases upon further examina *936 tion appear to be distinguishable from the case at bar.
In Lane v. State, supra, the indictment was presented against appellant in two counts, the first charging the unlawful transportation of spirituous liquor capable of producing intoxication, and the second charging the unlawful possession for the purpose of sale of such liquor. The jury was charged on both counts and the appellant was convicted under the first count. At the time Lane was arrested there was found in his possession a book with certain items listed thereon which tended to prove sales of whiskey.
It would appear that Lane is distinguishable from the case at bar because Lane, unlike the appellant in this case, did not object properly to the court’s charge and raised the question for the first time on appeal. In the second place, the evidence complained of in Lane was found on his possession at the time of his arrest. In the third place, the evidence complained of in Lane could not have been appropriated by the jury for an improper purpose such as bolstering the state’s only witness as in the rcase at bar.
In Arcos v. State, supra, the appellant was indicted for the murder of Joe Barrientes. The testimony reflected that the appellant killed two other men at the very same time that he shot and killed the deceased.
It would appear that Arcos is not controlling under the facts of the case at bar for several reasons. In the first place, Arcos plead guilty and it cannot be said that the evidence of the other killings occurring at the same time that Barrientes was killed could conceivably affect the jury verdict of guilty. In view of the appellant’s plea of guilty before a jury, the jury did not have to so find. Further, Arcos testified for the purpose of mitigating punishment that he was not motivated by malice, therefore taking sharp issue with the state’s theory that he was. Such is not the case at bar where the appellant offered no testimony at all. In Arcos the evidence of the other killings was shown to be res gestae and admissible as such. No limiting charge was required as to such res gestae evidence. Still further, the objection in Arcos was that the court’s charge should instruct the jury that in determining punishment they should not take into consideration the other two killings.
In our original opinion Moss v. State, supra, was also cited as authority for overruling appellant’s ground of error #4. Upon closer examination, however, it appears that the facts distinguish that case from the one at bar.
In Moss it should be observed that he, unlike the appellant in the case at bar, testified in his own behalf and admitted shooting his wife in December, 1961, for which offense he was charged in the indictment and also admitted shooting her earlier- in August, 1961. Further, the appellant Moss testified as to the extraneous offense that occurred in 1955. Both of the extraneous offenses therefore complained of were fully developed by the appellant himself and he offered character witnesses to controvert before the jury the state’s allegation of malice. Under the facts of the case here presented, it would not seem that Moss would be controlling with regards to the facts in the instant case.
The majority on rehearing tacitly acknowledges that the rule used to dispose of ground of error # 4 originally has no application, for they do not seek to sustain the affirmance on that basis but shift their attack to appellant’s timely presented written objection to the court’s charge.
The majority suggests that the objection did not point out what evidence was referred to as “in regard to ‘extraneous offenses.’ ” Sight is lost of the fact that there was only one state’s witness who related the extraneous offenses.
*937 Article 36.14, V.A.C.C.P., serves a salutary purpose, but it was not designed or intended, however, as a device to prevent fair consideration on appeal of every overruled objection to the charge by allowing the appellate court to find every such objection did not “distinctly specify.” See this writer’s dissent in James v. State, Tex.Cr.App., 418 S.W.2d 513 .
No particular form of objection has ever been prescribed. The accepted test applied to any objection made is whether or not the objection is sufficiently definite to make reasonably apparent to the trial judge the fault complained of when the charge complained of and the objection are considered together. Wiley v. State, 117 Tex.Cr.R. 449 , 36 S.W.2d 495 ; Gill v. State, 84 Tex.Cr.R. 531 , 208 S.W. 926 .
In considering whether the fault was reasonably apparent to the trial judge at the very time of the objection what was said or not said in subsequent appellate briefs and arguments are not revelant.
When the accepted test is applied to the case at bar, it seems clear that it should have been reasonably apparent to the trial judge who had heard the facts just what defect the appellant had reference to.
In James v. State, 86 Tex.Cr.R. 598 , 219 S.W. 202 , this Court in construing the language of Article 735, C.C.P., the forerunner of present Article 36.14, said:
“The statute should not be given a construction so technical as to deny the right of review on appeal, where a substantial compliance is shown and its end practically accomplished.”
This Court only recently held that Articles 36.14 and 36.15, V.A.C.C.P., control over the provisions of Article 40.09, Sec. 4, V.A.C.C.P., concerning the effect of the certification of a transcription of the court reporter’s notes as to objections, etc. Smith v. State, Tex.Cr.App., 415 S.W.2d 206 . We should not now construe Article 36.14, supra, so strictly that it will become almost impossible to make a proper objection to the court’s charge.
I simply cannot conclude from the record before us that the error of the trial court in failing to respond to appellant’s objection was harmless error or that there was no danger of the jury appropriating the extraneous offenses for an improper purpose.
In view of what has been said above and the additional cited by Judge Morrison in his original dissenting opinion, it is obvious that appellant’s motion for rehearing should be granted and the judgment reversed and remanded.
I dissent to the overruling of appellant’s motion for rehearing.
MORRISON, J., joins me in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768753. Public record. Not legal advice.