Albrecht v. State

• Decision Date: 25 September 1972
• Docket Number: No. 45117,45117
• Citation: 486 S.W.2d 97
• Parties: Ervin Herman ALBRECHT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 97

486 S.W.2d 97

Ervin Herman ALBRECHT, Appellant, v. The STATE of Texas, Appellee.

No. 45117.

Court of Criminal Appeals of Texas.

Sept. 25, 1972.

Rehearing Denied Nov. 15, 1972.

David Hollingsworth, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and Ronald G. Woods, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This is an appeal from a conviction for unlawfully passing as true a forged instrument. After the jury returned a verdict of guilty, punishment was assessed by the court at two years.

Appellant challenges the validity of this conviction on the ground that the trial court erroneously admitted into evidence three forged checks which were similar in nature to the instrument which appellant stood charged with having passed. He argues that: (1) under the circumstances of this case, proof of extraneous offenses was impermissible, and (2) the evidence was not sufficiently linked to appellant to justify its admissibility into evidence.

Appellant was charged with having passed a forged instrument to Mary Atzenhoffer. The instrument in question purports to be check number 0432 of the Matcote Company, Inc. payroll account. It is dated March 8, 1968, drawn on the Port City Bank of Houston, and bears a signature, 'Harold Kolkhorst', for the payor. The payee listed on the check is Robert L. Ross, and the amount listed is $183.45.

Harold Kolkhorst, office manager of Matcote Company, Inc., testified that he had not signed the check in question, State's Exhibit 1, or authorized appellant to sign his name to any checks. He further stated that the company had never used a check with the number 0432; that the check in question was not one of the company's checks, although they were similar; that he did not know appellant or Robert L. Ross; and that neither appellant nor Robert L. Ross had been employed by Matcote. Kolkhorst was shown three other checks, State's Exhibits Numbers 2, 3, and 4. Each purports to be payroll check number 0432 of the Matcote Company, is dated March 8, 1968, payable in the amount of $183.45 to Robert L. Ross, and signed by Harold Kolkhorst. The witness testified that the signature on the three checks was not his and that he had not given anyone permission to sign his name to these checks.

Mary Atzenhoffer, office manager of Palais Royal's Oak Forest store in Houston, identified appellant as the person who, on March 8, 1968, had passed to her in said store State's Exhibit Number 1, the check which was the subject of the charge against appellant. She testified that appellant had made two purchases, had tendered the check in payment for these purchases, and had shown her a driver's license bearing the name 'Robert L. Ross'. She accepted the check, credited the purchases, and paid appellant the balance.

Also called to testify by the state was H. H. Foster, a fingerprint examiner for the Houston Police Department. Foster stated that he had examined the checks for fingerprints. His examination of Exhibits 2, 3, and 4 revealed a latent print on each which matched the fingerprints of appellant. The state offered State's Exhibits Numbers 2, 3, and 4, into evidence and they were admitted over objection.

The test for determining the admissibility of any type of evidence is whether the probative value of such evidence outweighs its inflammatory aspects, if any. See, Hernandez v. State, Tex.Cr.App., 1972, 484 S.W.2d 754; Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.

This court has consistently held that an accused is entitled to be tried on the accusation made in the state's pleading and that he should not be tried for some collateral crime or for being a criminal generally. E.g., Rodriguez v. State, Tex.Cr.App., 1972, 486 S.W.2d 355; Ford v. State, Tex.Cr.App., 484 S.W.2d 727; Jones v. State, Tex.Cr.App.,481 S.W.2d 900; Jones v. State, Tex.Cr.App., 479 S.W.2d 307; Powell v. State, Tex.Cr.App., 478 S.W.2d 95; Chandler v. State, Tex.Cr.App., 417 S.W.2d 68; Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836. Evidence of other crimes committed by the accused may be admitted, however, where such evidence is shown to be both material and relevant to a contested issue in the case. E.g., Grayson v. State, Tex.Cr.App., 481 S.W.2d 859; Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Howard v. State, 37 Tex.Cr.R. 494, 36 S.W. 475.

Limitations on the admissibility of evidence of an accused's prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him. E.g., Ford v. State, supra; Windham v. State, 59 Tex.Cr.R. 366, 128 S.W. 1130; Crass v. State, 30 Tex.App. 480, 17 S.W. 1096. See also, 1 Wharton, Criminal Evidence (12th Ed.) Sec. 232; 22A C.J.S. Criminal Law § 682. Thus, before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown. E.g., Jones v. State, Tex.Cr.App., 481 S.W.2d 900; Powell v. State, supra; Ball v. State,118 Tex.Cr.R. 579, 39 S.W.2d 619; Spillman v. State, 38 Tex.Cr.R. 607, 44 S.W. 149.

The circumstances which justify the admission of evidence of extraneous offenses are as varied as the factual contexts of the cases in which the question of the admissibility of such evidence arises. Each case must be determined on its own merits.

Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred--what has been termed the 'res gestae'--under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. ¹ (2) To circumstantially prove identity where the state lacks direct evidence on this issue. ² (3) To prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself. ³ (4) To prove malice or state of mind, when malice is an essential element of the state's case and cannot be inferred from the criminal act. ⁴ (5) To show the accused's motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. ⁵ (6) To refute a defensive theory raised by the accused. ⁶

These exceptions to the general rule excluding evidence of the accused's prior criminal conduct are not mutually exclusive. Nor do they necessarily represent all possible situations in which the state may permissibly prove that the accused has committed a collateral crime. ⁷ For example, an extraneous offense committed by the accused while attempting to flee may, in a proper case, be admissible as part of the 'res gestae' and to show scienter. ⁸ Where the defendant is charged with the commission of a crime committed during flight, evidence of the original crime may be admissible on the issues of scienter and motive as well as to show the 'res gestae'. ⁹

Probably the most common situation which gives rise to the admission of extraneous offenses is in rebuttal to a defensive theory. However, as the above categories indicate, there are situations in which the state may prove that the accused has committed collateral crimes in its case-in-chief. Whether or not the state may prove a collateral crime is to some extent dependent upon the burden of proof imposed upon the state, ¹⁰ and the type of evidence which the state has to offer in proof of the essential elements of its case.

For example, in Jones v. State, Tex.Cr.App., 481 S.W.2d 900, this court held that reversible error was committed in allowing the state to prove the accused had committed an extraneous armed robbery where:

'. . . the intent (to commit the offense of robbery by assault for which the accused was on trial) was established by the appellant's brandishing a pistol and committing the robbery, and identity was positively established by four eye witnesses. Such testimony was undisputed.'

In Jones, we concluded that, even though the state had the burden of proving guilty intent and identity, the state could not permissibly use extraneous offenses as circumstantial evidence on these issues where the state had uncontroverted direct evidence on the issue of identity and guilty intent could be inferred from the act itself. In that type of situation, the prejudicial effect of the evidence far outweighs its relevance to any issue in the case; and the evidence of the extraneous offense serves only to establish the accused's bad character. See also, Ball v. State, 118 Tex.Cr.R. 579, 39 S.W.2d 619; Windham v. State, 59 Tex.Cr.R. 366, 128 S.W. 1130; Harris v. State, 55 Tex.Cr.R. 469, 117 S.W. 839. However, in a robbery case where the state lacks direct evidence on the issue of identity, extraneous robberies committed by the accused are admissible if 'the evidence conclusively shows that whoever attempted the previous robberies did commit the robbery now under consideration.' Wyatt v. State, 55 Tex.Cr.R. 73, 114 S.W. 812. See also, Ford v. State, supra.

In some limited instances, evidence of extraneous offenses may become admissible where the effectiveness of the state's direct evidence, though uncontradicted by other evidence, is completely undermined by defense cross-examination. See, Simmons v. State, Tex.Cr.App., 457 S.W.2d 570; Ferrell v. State, Tex.Cr.App., 429 S.W.2d 901; Olivio v. State, Tex.Cr.App., 422 S.W.2d 182. However, it is not the mere asking of...