Eldridge v. State
Decision Date | 09 June 1976 |
Docket Number | No. 51559,51559 |
Parties | George Edward ELDRIDGE, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Andrew McCulloch, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Jr., Paul D. Macaluso and R. Gary Noble, Asst. Dist. Attys., Dallas, Jim D. Vollers, States Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
Appeal is taken from a conviction for aggravated rape. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty-five years.
A recitation of the facts is not necessary. The record reflects that the evidence was sufficient to show appellant's guilt for the offense charged. However, the judgment must be reversed because of the admission in evidence of an extraneous offense.
Over appellant's objection, the testimony of Mrs. G_ _ B_ _ was admitted into evidence. Mrs. G_ _ B_ _ identified appellant as the person who raped her on May 27, 1972 (the instant offense occurred on September 21, 1974) under circumstances very similar to those in the instant case. The two offenses occurred in the same area of the city and about the only significant difference in the circumstances surrounding the offenses was that appellant had a gun in the instant offense and a knife in the earlier case. The court instructed the jury that they could only consider the testimony of the extraneous offense in determining motive, intent, scheme or design of the appellant.
Appellant points to the fact that he did not testify, offered no evidence, and that the testimony of the prosecutrix was unimpeached.
The extraneous offense was not admissible under our holding in Albrecht v. State, 486 S.W.2d 97, wherein we said at page 100:
(Emphasis added.)
There was no such issue in the instant case, as the State in its brief concedes. Therefore, admitting evidence of the extraneous offense was clearly erroneous.
After conceding that admission of the extraneous offense was error, the State contends that the error was harmless in...
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