Avilla v. State, 46090
| Citation | 493 S.W.2d 233 |
| Decision Date | 25 April 1973 |
| Docket Number | No. 46090,46090 |
| Parties | Domingo AVILLA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
H. Edward Johnson (Court appointed), Fort Worth, for appellant.
Doug Crouch, Dist. Atty., William A. Knapp, Tim Evans and J. J. Heinemann, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of robbery. Punishment was assessed at thirty years.
Robert Ballard testified that on the 28th of February, 1971, he was awakened in his apartment at Fort Worth at approximately 3:00 A.M. by the appellant who had previously worked for him. The appellant was accompanied by a girl companion. Entrance to the apartment was gained by breaking a front window and opening the door. The apartment was occupied by Ballard and Mullins, who was the owner of the apartment. The appellant and his companion, at gun point, demanded money from the occupants; tied their hands; and took their money, a rifle, radios, a television, and Ballard's automobile. After appellant and his companion left the apartment Ballard untied himself and Mullins and called the police.
On March 20, 1971, appellant was arrested after a highspeed chase and headon collision with another automobile on a one way street.
Appellant testified in his own behalf and stated that Ballard called him and asked him to come to his apartment. By his defensive theory, appellant claimed that he had not robbed Ballard nor Mullins; that he did not have a pistol with him when he went to Ballard's apartment; and, that he did not threaten either Ballard or Mullins. He insisted that Ballard gave him the rifle, radios, television set and his automobile as payment for back wages.
In rebuttal the state called three witnesses who testified that they had been robbed by the appellant. All of these robberies occurred within a three months time period of that in the instant case. Also, all three witnesses testified that one of the things taken from them at the time they were robbed was their automobile.
By his first three grounds of error, appellant contends that these extraneous offenses should not have been admitted.
An exception to the general rule that extraneous offenses are not admissible in evidence is the rule that such may be admissible to controvert a defensive theory advanced by the accused.
In the instant case, appellant admitted taking the items in question but claimed that he did not intend to rob either Ballard or Mullins, and that the items were given to him. Thus, appellant's intent at the time he took the items became a contested issue in the case. Since proof of the extraneous offenses was relevant and material to the question of appellant's intent concerning the offense for which he was being tried, the evidence of the extraneous offenses was admissible for that purpose. See, e.g., Grayson v. State, Tex.Cr.App., 481 S.W.2d 859,...
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Rubio v. State
...to wrongfully engage in criminal conduct, an extraneous offense is admissible by way of rebuttal on the issue of intent. In Avilla v. State, 493 S.W.2d 233, the defendant was convicted of robbery. At trial, the defendant admitted taking property from the complainant, but maintained that it ......
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...of the fact the defendant sought to justify his acts by claiming he had no intent to commit the charged charge. In Avilla v. State, 493 S.W.2d 233, 235 (Tex.Cr.App.1973), this Court "In the instant case, appellant admitted taking the items in question but claimed that he did not intend to r......
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...for theft involves moral turpitude and can be used for impeachment. Poore v. State, 524 S.W.2d 294 (Tex.Cr.App.1975); Avilla v. State, 493 S.W.2d 233 (Tex.Cr.App.1973). In introducing the two intervening convictions of the witness, at intervals of six and 10 years prior to trial, the State ......
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Poore v. State
...830 (Tex.Cr.App.1973). A misdemeanor conviction for theft involves moral turpitude and can be used for impeachment. Avilla v. State, 493 S.W.2d 233 (Tex.Cr.App.1973); Martin v. State, 491 S.W.2d 928 (Tex.Cr.App.1973). A conviction which has been reversed is not a final conviction and theref......