Fitzgerald v. State

• Decision Date: 17 January 1990
• Docket Number: No. 246-87,246-87
• Citation: 782 S.W.2d 876
• Parties: Donald Ray FITZGERALD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 876

782 S.W.2d 876

Donald Ray FITZGERALD, Appellant, v. The STATE of Texas, Appellee.

No. 246-87.

Court of Criminal Appeals of Texas En Banc.

Jan. 17, 1990.

Bobby L. Freeman, Palestine, for appellant.

David P. Weeks, Travis L. McDonald, Jr., Sp. Prosecutors, Huntsville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW

CLINTON, Judge.

The offense is felony escape as proscribed by V.T.C.A. Penal Code, § 38.07(a) and (c)(1) and (2) (Acts 1973, 63rd Leg., Ch. 399, p. 883, at 950. ¹ The indictment here alleges that on or about the 1st day of February 1983, in Anderson County, appellant did then and there:

intentionally and knowingly escape from his confinement in the Beto II Unit of the Texas Department of Corrections where he was in the custody of [named warden] when he ... had been convicted of the offense of Aggravated Robbery, a felony[.]" ²

The indictment further alleged for enhancement two prior convictions, the most recent of which described the conviction for aggravated robbery under the sentence for which appellant was then and there confined in Beto Unit II.

The facts of the case and germane evidence adduced are summarized in the opinion below, Fitzgerald v. State, 722 S.W.2d 817 (Tex.App.--Tyler 1987), and in somewhat altered form we reproduce them in the margin. ³ Appellant and the State agreed the testimony of Dimsdle raised the defense of necessity, and the trial court instructed the jury accordingly. ⁴ On the theory that it refuted appellant's claim of necessity ("this again goes to their defense of necessity--that this was not an act of necessity but an act with intent to commit further felonies, which they did," the court admitted Mayo's testimony of an attempted intrusion into his home. ⁵ As to extraneous offenses, charged by the State as burglary and attempted murder, the trial court gave the jury an instruction in the usual form that restricted the jury to "consider[ing] the same in determining the intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose."

The jury returned a general verdict of guilty, thereafter found enhancement allegations "true" and assessed punishment at fifty years confinement. The judgment orders the sentence in this cause to begin when the sentence in the aggravated robbery cause ceases to operate.

On appeal the Tyler Court of Appeals reversed the judgment upon sustaining two points of error. For reasons stated in its opinion, the Tyler Court found reversible error during trial on guilt in admitting rebuttal testimony of Mayo describing two extraneous offenses, and during punishment in that the conviction for aggravated robbery alleged to enhance punishment was not available for that purpose because it was an essential element of the charged offense of escape. Fitzgerald v. State, supra, at 819-820 and 821.

We granted kindred grounds for review presented in State's petitions (one by the special prosecutor, another by State Prosecuting Attorney) to review reasons given by the Tyler Court for sustaining the points of error and reversing the conviction.

The first ground asserts the Tyler Court erred in that evidence of the extraneous offenses were admissible as part of "same criminal episode," analogizing Weaver v. State, 657 S.W.2d 148 (Tex.Cr.App.1983), and claiming conflict with Moreno v. State, 721 S.W.2d 295 (Tex.Cr.App.1986); to show "flight," relying on Thompson v. State, 652 S.W.2d 770 (Tex.Cr.App.1981); to rebut defensive theory of necessity.

The second ground urges error in that the holding of the Tyler Court that the aggravated robbery conviction could not also be used for enhancement is in "direct conflict" with McWilliams v. State, 719 S.W.2d 380 (Tex.App.--Houston [1st] 1986) PDR granted and docketed as our Cause No. 129-87. Having this day held the State was barred from using to enhance punishment the same prior felony conviction alleged as an essential element of the primary offense of escape, 782 S.W.2d 871, and reversed the judgment of the Houston [1st] Court in McWilliams, consequently we overrule this ground for review. With that, we return to the first ground for review.

Under the statute as applicable here, the core element of escape within the contemplation of § 38.07(a) was (and still is) an "unauthorized departure from custody," by a person convicted of an offense; that the unauthorized departure is from confinement in a penal institution is a circumstance that makes an escape a felony of the third degree. ⁶

Thus Appellant with his cohorts committed the felony offense of escape by moving beyond bounds of Beto II Unit without authority, and his offense was complete at that point. Scott v. State, 672 S.W.2d 465 (Tex.Cr.App.1984); see Casey v. State, 681 S.W.2d 178 (Tex.App.--Houston [14th] 1984), PDR refused, and Eickenhorst v. State, 662 S.W.2d 622, at 625 (Tex.App.--Houston [14th] 1983), PDR refused. And assuming without deciding that a culpable mental state of "intentionally" or "knowingly" is nevertheless required pursuant to V.T.C.A. Penal Code, § 6.02(c), at that point appellant satisfied his desire or achieved his conscious objective and was aware of the nature of his conduct. In every statutory sense, then, the moment he was outside confines of the penitentiary his escape was a fait accompli. Scott v. State, supra; Webb v. State, 533 S.W.2d 780, at 788 (Tex.Cr.App.1976) (under former article 353b, P.C. 1925, circumstantial evidence sufficient to show intent to commit escape where accused fell or leaped from sixth floor window onto fourth floor roof).

In and after the seminal opinion in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), this Court has stated, restated and iterated rules for excluding or admitting evidence of an extraneous offense. As explained there and elsewhere the rule of thumb is that "before evidence of collateral crimes is admissible, a relationship between such evidence and the evidence necessary to prove that the accused committed the [charged] crime must be shown;" the pivotal inquiry is whether such evidence is relevant to a material issue in the case and, if so, then whether its probative value outweighs its inflammatory aspects or potential. Id., at 99-100, and, e.g., Williams v. State, 662 S.W.2d 344, at 346; Elkins v. State, 647 S.W.2d 663, at 665 (Tex.Cr.App.1983); McCann v. State, 606 S.W.2d 897, at 899-900, 901 (Tex.Cr.App.1980); cf. Tex.R.Cr.Evid. Rules 401 and 403. And since Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980) (Concurring opinion, at 502-503, 505-506), we have come to understand that the six socalled "exceptions" listed in Albrecht at 100-101 are neither exceptions to general rules nor tests for admissibility of an extraneous offense. Morgan v. State, 692 S.W.2d 877, at 879 (Tex.Cr.App.1985); Williams v. State, supra, at 346; Elkins v. State, supra, at 665-666; but see Morgan, supra, n. 9.

Throughout course of trial, the matter of permitting the jury to become aware of the two extraneous offense begged for a rationale. ⁷ Although the trial judge indicated he was admitting testimony of Mayo concerning the two extraneous offenses to refute appellant's claim of necessity, the court instructed the jury to consider them only in determining "the intent of defendant" in connection with the offense alleged against him, "and for no other purpose." ⁸ However, the fact that appellant did escape was uncontested, and even if a germane element of the offense of escape, his conscious objective and desire to depart from custody without authority was not only selfevident but is undisputed. Indeed, the nature of his defense concedes his act and culpable mental state. Therefore, evidence of extraneous offense committed twelve hours later was not admissible on the matter of intent to escape. The special prosecutor did not contend otherwise in the Court of Appeals, Fitzgerald v. State, supra, at 819-820, nor does he or the State Prosecuting Attorney claim it was admissible for that purpose before this Court.

Here the State presents essentially three bases for admitting the extraneous offenses. We are confident that none makes the extraneous offenses relevant to proving the offense of escape and, even if relevant, the probative value is outweighed by danger of unfair prejudice, confusion of issues, and misleading jurors; they should have been excluded. We will examine them seratim.

First, the special prosecutor urges the extraneous offenses were admissible to show "context" of the act of escape or what the State Prosecuting Attorney calls "part of the same criminal episode as the escape." Both are alluding to the first discredited "exception" described in Albrecht, supra, at 100. See ante at 880. Given the unique nature of the offense of escape committed by appellant, we find it is inapplicable here. ⁹

As alleged and proved by the State in its case in chief, appellant's unauthorized departure from custody in confinement in Beto Unit II began when he "broke out" of the dormitory and ended when he went through a hole cut in the fenced boundary of the unit. Paraphrasing Scott, supra, once he violated this boundary appellant was no longer in the custody of the warden. Scott, at 466. Thus the criminal "episode" of escape terminated before seven o'clock that morning. Scott and Webb, supra. That thereafter he was an escapee at large in the "free world" does not extend the criminal episode for purposes of admitting extraneous offenses that have no relationship whatever to "the evidence necessary to prove that accused committed the crime for which he stands charged," Albrecht, at 100. That is to say, evidence that appellant engaged in criminal misconduct some twelve hours after his escape was completed does not have any tendency to make the fact that he departed from custody without authority more probable than it...