Coleman v. State, 55242
Citation | 577 S.W.2d 695 |
Decision Date | 08 November 1978 |
Docket Number | No. 2,No. 55242,55242,2 |
Parties | Lucien COLEMAN, Appellant, v. The STATE of Texas, Appellee |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
J. R. Musslewhite, Houston, for appellant.
Carol S. Vance, Dist. Atty. and Robert A. Shults, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before ONION, P. J., and DALLY and VOLLERS, JJ.
The appellant was convicted of the offense of aggravated robbery and a jury assessed the punishment at life. The appellant raises seven grounds of error, all of which involve the introduction of evidence relating to extraneous transactions which reflect the commission of extraneous offenses.
In its case-in-chief the State presented testimony that the appellant committed a robbery, along with two accomplices, at a Rice Food Market on March 31, 1975. It was shown that appellant and his accomplices got money from the manager, a cash register and deliverymen. A fingerprint expert identified one of the prints lifted from the cash register as belonging to the appellant.
Appellant was the only defense witness and he testified that he did not know where he was on the date in question but that he was not at the food market where the robbery occurred. He further stated that he had never been in that market.
In rebuttal the State presented evidence that the appellant had participated in four other robberies. The admissibility of the evidence of the four other robberies is raised by appellant in grounds of error number two, three, four and five. In those grounds of error the appellant contends that there were insufficient similarities between the extraneous transaction and the primary offense to warrant the introduction of such evidence.
The law is well settled that an accused may not be tried for some collateral crime or for being a criminal generally. Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Halliburton v. State, Tex.Cr.App., 528 S.W.2d 216; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493. However, there are exceptions to this general prohibition against the use of extraneous transactions which show extraneous offenses. It was pointed out in Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, 100, that
(Footnotes omitted.)
From the evidence in this case it is clear that the appellant's testimony raised the defensive issue of identity and contradicted the evidence which the State had presented upon this issue. It is clear that the extraneous transactions, if sufficiently relevant, were material to this issue and admissible. The question that is presented is whether or not there were sufficient similarities to show such relevancy as to enable the probative value of this evidence to outweigh its obvious prejudicial effect. Without discussing the evidence in detail it is sufficient to say that the extraneous transactions were probably admissible because they showed a similar method of operation in that the robberies were effected in the early morning hours, by a group of two or more, where the manager, checkers and customers or salesmen were victims.
However, appellant's ground of error number six raises an issue which is dispositive of this appeal. In that ground of error the appellant complains about the admissibility of an extraneous transaction tending to show that the appellant was a participant in a burglary of a habitation belonging to W. K. Duke. The State contends that this extraneous transaction is admissible because an automobile was taken at the same time of the burglary and the evidence tended to show that this was the same automobile used in connection with appellant's getaway in the robbery at the Lewis and Coker Store which was shown as an extraneous transaction on the issue of identity. It is the State's contention that the burglary and auto theft were a part of the same criminal transaction as the Lewis and Coker robbery the next day and were admissible. The State relies upon Query v. State, Tex.Cr.App., 485 S.W.2d 924 and Avilla v. State, Tex.Cr.App., 493 S.W.2d 233.
It appears that the State's reliance upon these two cases is misplaced. In Query v. State, supra, this Court held that an extraneous offense that was a part of the same transaction as the Primary offense is admissible. In Avilla v. State, s...
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