Bush v. State

• Decision Date: 03 February 1982
• Docket Number: No. 68855,68855
• Citation: 628 S.W.2d 441
• Parties: Paul Barry BUSH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 441

628 S.W.2d 441

Paul Barry BUSH, Appellant, v. The STATE of Texas, Appellee.

No. 68855.

Court of Criminal Appeals of Texas, En Banc.

Feb. 3, 1982.

State's Motion for Rehearing Denied March 17, 1982.

Kenneth W. Fields, court appointed, Pampa, for appellant.

Harold L. Comer, Dist. Atty., Pampa,

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

ODOM, Judge.

This is an appeal from a conviction for capital murder for killing a peace officer. At the punishment phase of the trial the jury answered the issues under Art. 37.071, V.A.C.C.P., affirmatively and the death penalty was assessed. The cause was tried in Wichita County on a change of venue from Hemphill County.

Although appellant raises thirty-six grounds of error on appeal, our disposition of the case requires treatment of two issues. We find it necessary to respond only to these contentions: (1) whether the trial court erred in receiving evidence of appellant's use of drugs, (2) and whether the evidence is sufficient to prove that appellant had knowledge that the murder victim was a peace officer.

The evidence establishes that appellant Bush borrowed a car from a friend Larry King and drove to Canadian on July 12, 1980, to burglarize a drugstore. Upon entering the store, an alarm was tripped and deputy Marion (Corky) Guthrie arrived from the Hemphill County Sheriff's Department. Sheriff Wright arrived shortly thereafter and found Guthrie lying in his car directly in front of the pharmacy. On arrival at the hospital, Guthrie was dead of shotgun wounds.

Larry King testified at trial that on the morning of the shooting, appellant told him he had "killed a cop." He told King that he broke into the pharmacy and was searching for Preludins when he heard a car pull up to the store. He hid behind a wall and "... he said when he raised up, he said he thought the police officer was going to run over him. And he said he shot, and he said the car hit the building." He further told King that he heard Guthrie yelling for help over the police radio and that he snuck over to one side of the car and shot again.

I.

In grounds of error 15, 16, 24 and 25, appellant complains of testimony admitted over objection regarding his use of the drug Preludin, as it violates the rule prohibiting the introduction of offenses extraneous to the crime charged. The responsive argument by the State is that appellant's use of Preludin and his desire to obtain the drug is admissible as res gestae as well as to demonstrate his motive to burglarize the drugstore where the shooting occurred.

The testimony of Larry King is relied upon in ground of error 15 and we find that it violates the general rule prohibiting the introduction of extraneous offenses. King related that the appellant asked him if he wanted to commit robbery and also told him he knew that Preludins were located in the window of the drugstore. Appellant objected when King was asked why appellant wanted Preludin and following arguments outside the presence of the jury, ¹ the following testimony was admitted:

"Q. Have you ever seen Paul Barry Bush use Preludin?

"A. Yes, sir.

"Q. How does he use it?

"A. With a syringe.

"Q. What would he do with the syringe?

"A. He would stick it in his vein.

"Q. For what purpose?

"A. For a high.

"Q. For a high?

"A. Yes, sir.

"Q. Would that be the same thing as a narcotic effect?

"A. Yes, sir."

As a general rule an accused is entitled to be prosecuted on the accusation contained in the State's pleading and he should not be tried for some collateral crime or for being a criminal generally. Smith v. State, 574 S.W.2d 555; Riles v. State, 557 S.W.2d 95; Eldridge v. State, 537 S.W.2d 257; Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836. Instances where evidence of extraneous offenses committed by the accused has been held admissible were enunciated in Albrecht v. State, 486 S.W.2d 97, wherein the following guidelines were stated:

"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 (citations omitted). 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." (Emphasis added.)

The State argues that evidence regarding the Preludins is part of the res gestae of the offense. In Albrecht, we stated that extraneous offenses are admissible to show the context of the commission of the act because "... 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." (Emphasis added.) Thus, the evidence is admissible only when two or more offenses are so connected that they constitute an indivisible criminal transaction. 23 Tex.Jur.2d, Sec. 196, Evidence. See also Hoffert v. State, 623 S.W.2d 141. Additionally, the probative value of the evidence must outweigh its prejudicial effect. Murphy v. State, 587 S.W.2d 718.

The criminal transaction which resulted in the murder of officer Guthrie included burglary of the pharmacy. It is permissible to introduce evidence of that offense because it is so intermingled with the shooting that the jury is entitled to evaluate the criminal transaction in its entire context. In Calverley v. State, 511 S.W.2d 60, the defendant appealed from a conviction for assault with intent to murder, claiming that the trial court erroneously admitted evidence of an attempted robbery. The testimony showed that the defendant was in the process of escaping from the robbery when the assault occurred. Therefore, the entire transaction was admissible under the res gestae theory. See also Ruiz v. State, 579 S.W.2d 206; Saunders v. State, 572 S.W.2d 944; Jackson v. State, 548 S.W.2d 901. Although the burglary in the instant case was indeed an interwoven part of a criminal transaction resulting in the charged offense, appellant's use of drugs, his method of injection and the "high" effect upon the user cannot be said to be an act that "occurred immediately prior to (or) subsequent to" the commission of the offense. Albrecht, supra. Thus, the testimony does not aid in establishing the context of appellant's actions in shooting the victim.

Res gestae has been defined as applicable to material happenings which are interwoven and immediately surround an event. They are "material to the understanding of the arrest itself and explanatory of what occurred at that time." Gaston v. State, 574 S.W.2d 120. The testimony concerning appellant's use of Preludin is not related in time or place to the commission of the murder. Compare Feather v. State, 169 Tex.Cr.R. 334, 333 S.W.2d 851, and Gomez v. State, 470 S.W.2d 871 (evidence of needle marks material to charge of unlawful possession). See also King v. State, 553 S.W.2d 105; Smith v. State, 547 S.W.2d 6.

Another exception to the rule that an accused is entitled to be tried on the accusation alleged in the State's pleading is that evidence showing motive is admissible even though it would also show the commission of collateral or extraneous offense. Rodriguez v. State, 486 S.W.2d 355. See also Russell v. State, 598 S.W.2d 238 and cases cited therein. The rule, however, is inapplicable to the instant case because appellant's use of drugs is not offered to show a motive to commit the offense for which appellant was charged. Rather, the testimony was offered to demonstrate appellant's reasons for burglarizing the pharmacy. We find that the extraneous offense of drug use is impermissibly offered to show a motive to commit an additional extraneous offense and that it is not material or relevant to the offense charged.

Although the specific issue was not addressed in Rodriguez, supra, the opinion clearly enunciates the rule and its rationale. We recognized that motive is not an essential element of a crime but noted that evidence of motive is always admissible because it is relevant as a circumstance tending to prove the commission of an offense. The application of the rule was clarified as follows:

"However, the proposed testimony, to be admissible as proof of motive, must fairly tend to raise an inference in favor of the existence of a motive on the part of the accused to commit the alleged offense for which he is on trial. (citations omitted)."

See also 23 Tex.Jur.2d, Sec. 199, Evidence (evidence of other crimes admissible to show motive "for his commission of the crime with which he is charged"). The rationale underlying the admissibility of evidence to show motive consists primarily of a finding that it is relevant to the commission of the offense. That offense, however, in each of the cases applying the rule, has been the offense charged. See e.g. Yarbrough v. State, 617 S.W.2d 221; Barefoot v. State, 596 S.W.2d 875; Foy v. State, 593 S.W.2d 707; Hughes v. State, 563 S.W.2d 581; Cherry v. State, 488 S.W.2d 744; Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627; Ellisor v. State, 282 S.W.2d 393. Extraneous offenses are not admissible to demonstrate motive for the commission of an offense other than the offense for which the defendant is presently charged.

The purpose for limiting evidence of motive to those instances where it is linked to the offense charged is that the rationale of the rule would otherwise be nonexistent. That is, we fail to find any relevancy in demonstrating a motive for an offense other than the crime charged, particularly where the evidence of motive consists of extraneous offenses. The result of such a rule would be to allow evidence of...