Alvarez v. State

• Decision Date: 25 April 1973
• Docket Number: No. 46053,46053
• Parties: Julian C. ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 493

511 S.W.2d 493

Julian C. ALVAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 46053.

Court of Criminal Appeals of Texas.

April 25, 1973.

Rehearing Denied Oct. 10, 1973.

Second Rehearing Denied July 17, 1974.

Vern F. Martin, Midland, for appellant.

James A. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist. Atty.,. Midland, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

This is an appeal from a conviction of murder with malice. Punishment was assessed at thirty-five years.

The sufficiency of the evidence is not challenged. The evidence, including testimony of the appellant, reflected that appellant shot and killed deceased in the Montanez Bar in Midland about 9:00 p.m. on September 5, 1971.

Prior to the introduction in evidence of appellant's confession, the court, in the absence of the jury, held an extensive hearing on the voluntariness and admissibility of the confession, as required by Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, and by Article 38.22, Vernon's Ann.C.C.P. The record substantiates the court's finding of law and fact that appellant voluntarily made and signed the confession.

Owing to the disposition we are making of this case, we need only consider appellant's second ground of error in which he complains of the action of the court in declining to delete from confession a certain sentence, to-wit: 'I always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and I am afraid of his people.'

As the State was reading the confession to the jury, appellant objected to the admission of the aforementioned sentence because 'the next sentence in this thing goes to a matter of an extraneous offense for which this man is not on trial here . . .' The court overruled the objection stating:

'I will let it go in, but you might be running a risk, Mr. Mashburn.' ¹

Apparently, the court was aware of the fundamental rule of law that one accused of a crime is to be tried for the offense charged and none other. Proof of extraneous crime becomes admissible only as an exception to the rule stated. Hafti v. State, Tex.Cr.App., 416 S.W.2d 824.

Exceptions to the rule are recognized where the extraneous crime is a part of the res gestae, or tends to show intent or identity, when either or both are an issue, or tends to connect the defendant with the offense for which he is upon trial. Hafti, supra, at 826; I Branch 2d 200, Sec. 188. However, each case must be considered on its own facts as to whether an extraneous offense will be admissible, and each exception to the rule permitting the admission of such testimony must be carefully considered. Franklin v. State, Tex.Cr.App., 488 S.W.2d 826.

The court instructed the jury that evidence of other transactions is admitted only for the purpose of showing identity, intent, motive or scheme. However, the record reflects that identity and intent were not in issue, since the appellant admitted both in his confession and on direct testimony that he shot deceased. See Ford v. State, Tex.Cr.App., 484 S.W.2d 727. By the same token, motive or scheme were not relied upon by the State to justify aforementioned evidence. See Rodriguez v. State, Tex.Cr.App., 486 S.W.2d 355; Grayson v. State, Tex.Cr.App., 481 S.W.2d 859.

The State does not rely on any of the well known exceptions to the general rule that extraneous offenses are inadmissible. In support of the introduction of aforementioned statement, the State argues that since not all deaths entail criminal offenses this statement does not admit to an extraneous offense. However, the fact that the killing was not shown to be a criminal offense does not render the admission of such statement harmless error. See Shaw v. State, Tex.Cr.App., 479 S.W.2d 918.

Additionally, the State relies on Ivory v. State, Tex.Cr.App., 430 S.W.2d 498 and Cook v. State, Tex.Cr.App., 409 S.W.2d 857, for its contention that the appellant cannot complain of the admission of testimony when he later testified on direct examination to substantially the same facts. We recognize the rule of law, but the record before us indicates that appellant did not testify to the complained of extraneous offense. Therefore, the State's reliance on Ivory, supra, and Cook, supra, is misplaced.

While the record does indicate that appellant offered some evidence to raise an issue of self defense, proof of an extraneous offense is in no way probative of appellant's state of mind at the time of the killing in the instant case. Cf. Ford v. State, supra; Rodriguez v. State, supra.

While it is true that the State may introduce the whole confession of the appellant, even though it embraces an extraneous offense, if the offense tends to connect appellant with the crime for which he is on trial, Coomer v. State, 97 Tex.Cr.R. 100, 260 S.W. 568, however evidence tending to show that appellant committed other offenses wholly disconnected with that for which he is on trial should not be admitted. Martinez v. State, 138 Tex.Cr.R. 51, 134 S.W.2d 276.

As a matter of practice, as this Court noted in Martinez, supra, at 277:

. . . The State might easily have pasted a strip of paper over the objectionable portion of the confession and thereby excluded it from the jury.'

See also Schepps v. State, Tex.Cr.App., 432 S.W.2d 926, 939.

We therefore hold that the court erred in failing to delete the complained of sentence from the confession when it was read to the jury.

In light of the punishment assessed in this case, this Court cannot agree with the State that the error resulting from the admission of this extraneous offense was harmless to appellant.

For the error pointed out, the judgment is reversed and the cause remanded.

Opinion approved by the Court.

OPINION

ON STATE'S MOTION FOR REHEARING

JACKSON, Commissioner.

The State, with leave of this Court, has filed a motion for rehearing, in which the contention is advanced and argued that the error of the trial court in not deleting from the confession the statement of appellant, 'I always carry a pistol with me because I shot and killed a man in Lubbock not too long ago and I am afraid of his people,' was rendered harmless because the appellant testified to the same facts on the trial.

In response to questions by his counsel, appellant said the statement in the confession was correct. On cross-examination he reiterated that the reason he carried the pistol was as stated in the confession, that he was afraid some of those people (meaning from Lubbock) would be there. He further testified in answer to questions by his attorney that, referring to the previous trouble, a man hit him with a shovel, from which he had a scar, headaches, and was supposed to have a crushed head; that the reason he came to Midland (where the offense on trial was alleged to have occurred) was because he 'was afraid over there.'

We adhere to the holding in the original opinion that the statement in the confession as to the appellant having killed a man in Lubbock was proof of an extraneous matter, and should have been deleted. The question remains, however, as to whether such error was waived and rendered harmless by the testimony of appellant on the same subject.

In McDuff v. State, 103 Tex.Cr.R. 668, 281 S.W. 1073, a rape case where the State had erroneously proved that defendant had a wife and two children, and he afterwards testified to the same facts, the Court said:

'The difficulty about the state's position is that this testimony by appellant was offered after he had objected to the state going into this matter and after he had had his objections overruled and after prosecutrix had already been permitted to testify that he had a wife and two children. This would rather come under the rule that, when improper testimony is admitted by the state, it is usually not cured because appellant offers other testimony along the same line for the purpose of counteracting the testimony improperly elicited by the state.'

In Autry v. State, 159 Tex.Cr.R. 419, 264 S.W.2d 735, this Court said:

'It is the general rule that the admission of improper evidence is not reversible error if the same facts were proven by other testimony to which no objection was made.

'We must determine if that rule has application here. In this case, the State had improperly introduced, over appellant's objection, proof of prior convictions for misdemeanors not involving moral turpitude. This is error. Pippen v. State, 126 Tex.Cr.R. 163, 70 S.W.2d 598. Now, must we require the accused to sit mutely before the jury and say that he waives that error when he tries to explain to the jury the circumstances under which he was tried and convicted for those offenses? We think not.'

To the same effect, see Garza v. State, Tex.Cr.App., 397 S.W.2d 847; Buse v. State, Tex.Cr.App., 435 S.W.2d 530.

We, therefore, hold that this error of the court was not cured or rendered harmless by the subsequent testimony of appellant.

The State's motion for rehearing is overruled.

Opinion approved by the Court.

MORRISON, Judge (concurring).

I concur in the opinion prepared by Judge Jackson, but, since I prepared the opinion in Autry v. State, supra, I conclude that it is necessary that I add these observations of my own.

The situation in the case at bar is more nearly like that in Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047. From the opinion in Harrison, supra, it is apparent that the Court concluded that the accused there testified only in an effort to explain the inadmissible evidence which had been introduced against him. He had made it known prior to the introduction of the inadmissible evidence that he was not going to testify. In this case, it is apparent that appellant had also not intended to testify because when the State rested and after the inadmissible evidence had been introduced appellant's attorney stated to the...