Collins v. State, 55815

• Citation: 577 S.W.2d 236
• Decision Date: 21 February 1979
• Docket Number: No. 3,No. 55815,55815,3
• Parties: Michael Ted COLLINS, Appellant, v. The STATE of Texas, Appellee
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 236

577 S.W.2d 236

Michael Ted COLLINS, Appellant, v. The STATE of Texas, Appellee.

No. 55815.

Court of Criminal Appeals of Texas, Panel No. 3.

Feb. 21, 1979.

Floyd W. Freed, III, Houston, for appellant.

Carol S. Vance, Dist. Atty., Lupe Salinas and W. F. Roberts, Jr., Asst. Dist. Attys., Houston, for the State.

Before DOUGLAS and TOM G. DAVIS, JJ., and CORNELIUS, Commissioner.

OPINION

WILLIAM J. CORNELIUS, Commissioner.

In a jury trial appellant was convicted of the offense of aggravated robbery. His punishment was set at twenty-four years' confinement in the Texas Department of Corrections. The only ground of error presented is that the trial judge erred in allowing evidence of an extraneous offense committed by appellant.

The State's evidence revealed that at about 1:30 p. m. on December 18, 1975, Glen Pearson and Neal Prince, who were subscription solicitors for a Houston newspaper, went to a housing project at 790 W. Little York in Houston for the purpose of soliciting customers. They had a conversation with appellant, and he referred them to a prospective customer in an upstairs apartment. The two men did not see appellant again until a few minutes later when he returned, armed with a rifle, and robbed them. The robbery occurred in open daylight and was witnessed by some twenty-five or thirty persons.

Appellant did not take the witness stand, but various members of his family testified. One of them asserted that appellant was in the house asleep during the time of the robbery. Others testified that appellant's hair was straight at the time of the alleged robbery, whereas one of the victims had testified that the robber's hair was a curly natural. Over defense objection, the trial judge allowed the State to present evidence of a subsequent robbery which, according to the State's witness, had also been committed by appellant.

Appellant contends that evidence of the extraneous offense was improper for three reasons. First it is argued that the defense witness who raised the defense of alibi was impeached to the extent that his testimony was unbelievable, and the defense of alibi was rendered so weak as to amount to no defense at all, thus making evidence of an extraneous offense improper. The contention is overruled. Even if the claim of alibi were effectively destroyed, the issue of identity was clearly raised by the defense witnesses who testified that appellant's physical appearance on the date of the robbery was different from that of the person identified by the victims as the robber. When identity is an issue, evidence of other offenses committed by the accused is admissible against him, provided the other offenses have similar distinguishing characteristics to those of the offense for which he is being tried. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). Only when such distinguishing characteristics are present is the extraneous offense relevant, because then there may be drawn an inference that the...