Fentis v. State, s. 49833

• Decision Date: 08 October 1975
• Docket Number: Nos. 49833,49834,s. 49833
• Citation: 528 S.W.2d 590
• Parties: Marvin Joel FENTIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 590

528 S.W.2d 590

Marvin Joel FENTIS, Appellant, v. The STATE of Texas, Appellee.

Nos. 49833, 49834.

Court of Criminal Appeals of Texas.

Oct. 8, 1975.

Rehearing Denied Nov. 5, 1975.

Robert M. Jones, Court-appointed, Lewis R. Sifford, Court-appointed, Melvyn Carson Bruder, Court-appointed, Dallas, for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

These are appeals from convictions under Art. 1160a, V.A.P.C., for assault with intent to murder a peace officer. Trial was before a jury and the jury assessed punishment at life imprisonment in each case. Both the offenses and the trials took place before January 1, 1974, the effective date of the new Penal Code.

The evidence showed that Garland police officers Don M. Ashlock and James Bunch were making a routine investigation around the neighborhood of Laredo Lane and Robin Road in Garland around midnight of March 3--4, 1973. Encountering appellant walking on the side of the road, the officers stopped their vehicle. Appellant turned and advanced on the automobile whereupon the officers alighted from their car and ordered appellant to remove his hands from his pockets. He produced a .45 caliber pistol and a shoot-out ensued. ¹ Appellant fled on foot but was apprehended a short time later.

At the trial, appellant's main defenses were self-defense and the fact that he could not tell that Ashlock and Bunch were police officers when they got out of their car. He admitted convictions for assault, petty theft and transporting a stolen vehicle across state lines. On cross-examination, the State attempted to introduce an extraneous offense. Outside the presence of the jury, appellant denied having anything to do with the death of a Houston police officer named Spruill on October 26, 1972. Despite counsel's objections, the court ruled that the question could be asked. When the jury had returned, the prosecutor put the following question to appellant:

'Now, aren't you the same Marvin Joel Fentis who is under indictment in Houston, Texas, for killing a police officer?'

Counsel's objection to the form of this question was sustained and the jury instructed to disregard it. Mistrial was denied. The prosecutor then asked if appellant was the one who had killed a Houston police officer named Spruill on March 26, 1972. Counsel re-urged the objections he had made outside the presence of the jury and they were again overruled. Appellant then answered the question in the negative. No further attempt was made by the State to connect appellant with the commission of this extraneous offense.

In related grounds of error, appellant urges (1) that admission of the extraneous offense was error because it was not admissible on the issue of intent, (2) that admission of the extraneous offense was also error because it was not shown to be connected to appellant, and (3) that the reference to an indictment pending against appellant was prohibited by Art. 38.29, V.A.C.C.P. ²

With regard to the admissibility of the extraneous offense, it is true that a specific intent to kill can be presumed from appellant's use of a deadly weapon, and thus intent to kill was not really in issue. Rodriguez v. State, 486 S.W.2d 355, 359 (Tex.Cr.App.1972). However, extraneous offenses are also admissible on the element of scienter, or, in this case, appellant's ability to recognize a policeman in uniform at night, or knowledge that he was such. The extraneous offense would be admissible on the question of appellant's knowledge that the victims were police officers, a specific intent element of Art. 1160a, V.A.P.C. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

It is elementary that an accused's connection with an extraneous offense must be shown with some degree of certainty before evidence of that offense can come in, assuming it is relevant. Carmean v. State, 163 Tex.Cr.R. 218, 290 S.W.2d 240 (1956); Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968); 23 Tex.Jur.2d Evidence, Sec. 195, p. 302. In Tomlinson, the jury was finally instructed to disregard the evidence of the extraneous offense because of this infirmity, but reversal was still required. In the case at bar, the jury was not told that it could not consider this extraneous offense, but the judge included in his charge the standard instruction that no extraneous offense could be considered unless the appellant were shown to be sufficiently connected with the commission of the offense. This charge cannot cure the error in this case.

The State's response to this ground of error is that appellant's objection at trial ³ was too general to preserve this question for review. In Mission Petroleum Carriers, Inc. v. State, 518 S.W.2d 833 (Tex.Cr.App.1975) a much less specific objection was held sufficient to preserve the identical point on appeal. The rule that an accused must be shown to be connected to an alleged extraneous offense is a requirement for properly bringing in such an offense and appellant's objections thereto were sufficient to preserve this question for review.

The harmfulness of this error needs little discussion. Appellant was on trial for assaulting a peace officer with intent to kill. He admitted three relatively minor offenses and then the State suggested that he had murdered a Houston police officer four months before. The error was compounded by the State's suggestion that a grand jury had already indicted appellant for this extraneous offense. The prejudice thus planted in the minds of the jurors can hardly be doubted.

In the event of a retrial of this case, we deem it appropriate to discuss the related matter of the reference to appellant's indictment for the Houston offense.

The only item of proof remotely connecting appellant with the murder of the Houston police officer was the prosecutor's inquiry concerning the indictment pending against appellant in that case. The State contends that evidence of a pending indictment is admissible to show bias, prejudice, and motive, citing Luna v. Beto, 395 F.2d 35 (5th Cir. 1968), cert. den., 394 U.S. 966, 89 S.Ct. 1310, 22 L.Ed.2d 568, and Blake v. State, 365 S.W.2d 795 (Tex.Cr.App.1963). These cases deal with the admissibility of charges pending against prosecution witnesses to show bias or interest and have nothing to do with a defendant who is testifying. Art. 38.29 controls in such situations and explicitly prohibits evidence of pending indictments to be used for impeachment purposes as was done here. Ridler v. State, 375 S.W.2d 447 (Tex.Cr.App.1964).

Further with respect to the question concerning the indictment, the State points out that it was never answered and that the jury was instructed to disregard the question. In Salazar v. State, 432 S.W.2d 957 (Tex...