Ingham v. State

CLINTON, Judge,

dissenting.

The majority says that “appellant’s sole defensive theory at trial for both slayings was sudden passion,” but nowhere in the seven page opinion of the Corpus Christi Court of Appeals is there the slightest suggestion that appellant advanced such a defensive theory. I find it odd that the court of appeals failed to see that. The reason most assuredly is that the State did not so contend before that court. Rather, it argued that Shanabarger and Curtis were “victims” with status equal to “the de *510 ceased” for purposes of § 19.06. In short, the State has now changed its position.

In its petition for review and in its brief the State asserts that when his wife told him that she was having an affair with Brett Michael Butler, “appellant then, allegedly in a fit of uncontrollable passion, stabbed his wife eleven times, more or less, and proceeded to the Butler residence to kill her paramour." 1 It does not point to any page in the record for testimony to support the underscored assertions. On the other hand, appellant responds that “no such thing appears in the record,” explaining that his testimony was:

“He ‘guessed’ he just about went crazy. He could recall nothing else that may have occurred, and remembered only waking up in the hospital. (S/F 421-423).”

Similarly, having carefully read its petition and brief on original submission, I have yet to find an exposition of the “State’s theory of the case” like the majority opinion explicates, to wit: that appellant went to the Butler residence to kill Ralph Shanabarger and Butler was killed “because he was in the wrong place at the wrong time.” (P. 506). 2 The State does say that “[s]ince Appellant also tried to kill Shanabarger and Curtis when he killed Butler, his motive and defensive theory are clearly placed in issue, and are legitimately challenged by evidence of prior difficulties with these two other intended victims.” It relies on Ruiz v. State, 523 S.W.2d 691 (Tex.Cr.App.1975), as does the majority.

In Ruiz the accused implied by his testimony that he and deceased had separated because she was having an affair with another man, and he denied raping the daughter of deceased; according to the Court he was attempting to show that his act in shooting deceased was “done in sudden passion or while he was rendered insane by the deceased’s affair.” However, the daughter testified that extraneous offense was the cause of the termination of the relationship between Ruiz and her mother, as opposed to his testimony that it was for an entirely different reason. The court found the testimony of the daughter was admissible “to rebut the testimony the appellant offered to show his relationship with the deceased and his state of mind at the time the deceased was shot,” id., at 693 .

In Scott v. State, 150 Tex.Cr.R. 529 , 202 S.W.2d 669 (1947), also cited by the majority, an extended difficulty with the Stark family lead up to a confrontation between the Scotts and the deceased Jesse Singleton, and the State was permitted “to show the bitter feeling which appellant himself had against the Starks, in whose behalf Singleton appeared,” id., 150 Tex.Cr.R. 529 , 202 S.W.2d at 670 . The Court found that bitter feeling “would naturally be imputed to [Scott] for Singleton,” ibid; it cited and quoted from 22 Tex.Jur. 767-768:

“A previous difficulty between the defendant and a third person may be proved if it led up to the killing, or involved the deceased in any way, or tends to reveal the defendant’s motive or state of mind. But if the difficulty was in no way connected with the homicide, evidence of it is inadmissible.”

Though the Corpus Christi Court of Appeals cited authorities that are not directly in point, its assessment of the situation in the case at bar seems correct, viz:

“With regard to the alleged acts of misconduct against Curtis and Shanabar-ger, section 19.06 is not applicable, because the facts related were not relevant to the killing nor were they relevant to the previous relationship that existed between the appellant and either of the victims.”

654 S.W.2d at 518.

The majority would have it that such-evidence was admissible under § 19.06 “to *511 show the appellant’s state of mind when he killed Brett Butler,” but does not explain how the one is probative of the other. The sudden passion claimed in Ruiz was rebutted by showing the killing of his former lover was motivated by revenge for what she had done to him, yet the State is not contending that Butler had done anything to offend appellant. In Scott his “bitter feeling” toward the Starks was perceived to extend to Singleton when he stood off Scott in their behalf. Neither situation is said by either the State or the majority to be presented here. We are left to wonder how prior difficulties with Curtis and Shan-abarger had any bearing on appellant’s state of mind in killing Butler.

Of course, as appellant concedes, testimony as to his subsequent violent acts against them was admissible. But they are neither “the deceased” nor “victims” of either killing for which appellant was being tried, so his state of mind relative to them was never an issue in the case. Thus, prior acts of misconduct toward Curtis and Shan-abarger were not relevant. And plainly that testimony fails the Albrecht test: “The test for admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any.” Albrecht v. State, 486 S.W.2d 97, 99 (Tex.Cr.App.1972).

The ultimate issue in this cause is whether ineffective assistance of counsel denied appellant a fair trial. The court of appeals found appellant did not have reasonably effective assistance and, in effect, that the prosecution took advantage of the situation “to spend at least half its time providing the jury with details of various instances of extraneous prior misconduct on the part of the accused which were inadmissible and unnecessary.” Introducing such extraneous transactions is “inherently prejudicial,” Elkins v. State, 647 S.W.2d 663, 665 (Tex.Cr.App.1983).

Because this Court does not affirm the judgment of the Corpus Christi Court of Appeals, I respectfully dissent.

. All emphasis is supplied throughout by the writer of this opinion unless otherwise indicated.

. The theory that the majority says was "advanced by the prosecution in closing argument” to the jury is not iterated here in writing.