Ford v. State

• Decision Date: 07 June 1972
• Docket Number: No. 44375,44375
• Citation: 484 S.W.2d 727
• Parties: Guy FORD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 727

484 S.W.2d 727

Guy FORD, Appellant, v. The STATE of Texas, Appellee.

No. 44375.

Court of Criminal Appeals of Texas.

June 7, 1972.

Rehearing Denied Oct. 11, 1972.

Cutler & Epps by John Cutler, Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and F. M. Stover, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice. Trial was before a jury which assessed the death penalty.

In his brief, appellant asserts five grounds of error. We shall consider his fourth ground first. In his fourth ground of error, appellant contends that the trial court erred in admitting evidence of an extraneous offense. A brief summary of the evidence is needed before this ground can be discussed on its merits.

Charles P. Glasse, Jr., testified that on May 26, 1969, he was employed with his father, K. P. Glasse, in a family owned chemical business in the city of Houston. He testified that on that date he went to the place of business early in the morning, following his usual practice. As he approached the building, he observed the appellant seated on the steps of a building located across the street from the chemical business. He parked his car and went inside, where he performed the routine tasks connected with opening the business. Shortly thereafter, he saw appellant talking with his father in the front part of the building. His father introduced appellant to him as 'Charles White,' and asked if he had work for appellant. Charles replied that he did, and told appellant to wait until he finished sweeping the floor, at which time he would show appellant the work which was to be done. Charles testified that shortly thereafter, he turned around to find appellant pointing a pistol at him. Appellant held the pistol at his head, and forced him to walk to the front office where K. P. Glasse was seated at a desk. Appellant told K. P. to give him his money. Charles testified that he then moved toward appellant, who then pointed the pistol at him. At that time, K. P. lunged toward appellant. Appellant turned and fired the pistol, the bullet striking K. P. in the hip. K. P. fell to the floor, and appellant fired again, striking K. P. in the back. Appellant took K. P.'s wallet. A brief struggle ensued between Charles Glasse and appellant, after which appellant fled from the building. He ran across an adjacent parking lot, tripping over a cable. Charles followed, shouting for someone to stop appellant. However, Charles did not continue the chase, but returned to his father. Charles was unequivocal in his identification of appellant as the perpetrator of the crime, and did not qualify his testimony on cross-examination.

Two other witnesses testified that they were in the adjacent parking lot at the time, and that they saw appellant run from the building and cross the lot, and heard shouting. One of the two stated that he first heard a 'bang,' and saw appellant carrying an object which appeared to be a wallet. The other witness did not hear a noise nor did he see the wallet, but he did hear the shouting and see appellant run. Both witnesses were unequivocal in their identification of appellant.

The State then called two witnesses who testified, over appellant's objection, that on July 25, 1969, they were employed at a supermarket in Houston where a robbery occurred on that date. They testified that the robbery was committed by four Negro males, one of whom was the appellant. One witness testified that she saw appellant fire his pistol four times. She stated that he wore a purple knit-type shirt. She testified that she gave money from the cash register to one of the robbers but did not know which one. The other witness testified that appellant hit him and shot him during the course of the robbery. He was unable to describe appellant's dress at the time of the robbery. There was testimony as to the location of the supermarket, but there was no testimony as to its location in relation to the chemical company. Appellant's fourth ground of error concerns the admission of evidence concerning this second robbery.

Appellant testified in his own behalf, claiming to have been working at another place on the day of murder. His employer at the job corroborated his testimony.

It is axiomatic that evidence of other offenses is not generally admissible as evidence of guilt. However, evidence which is relevant to a fact in issue is not rendered inadmissible merely because it shows the commission of other offenses. Some of the exceptions to the general rule of inadmissibility are that evidence of other crimes is admissible when relevant to the issues of motive, identity, refutation of alibi, and intent. In the present case, the State offered the evidence on the issue of flight and on the issue of identity.

Evidence of another crime is admissible to prove identity, when identity is in issue, only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. See, Lancaster v. State, 82 Tex.Cr.R. 473, 200 S.W. 167 (1918); Nunn v. State, 60 Tex.Cr.R. 86, 131 S.W. 320 (1910); Warren v. State,178 Tenn. 157, 156 S.W.2d 416 (1941); Hergenrother v. State, 215 Ind. 89, 18 N.E.2d 784 (1939); Whiteman v. State, 119 Ohio St. 285, 164 N.E. 51 (1928); Dorsey v. State, 25 Ariz. 139, 213 P. 1011 (1923); Miller v. State, 13 Okl.Cr. 176, 163 P. 131 (1917). See generally, Anno. 42 A.L.R.2d 854. The evidence of the other crime must be relevant on some theory other than the general proposition that one who commits one crime is prone to commit another. State v. Montgomery, 170 La. 203, 127 So. 601 (1930); Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847 (1953). The evidence of the other crime is offered as circumstantial evidence of the identity of the accused as the perpetrator of the principal case. That is, if it is established that the accused committed an extraneous offense, and that there is some distinguishing characteristic common both to it and the offense for which the accused is on trial, then an inference may be drawn that the accused was the person who committed the primary offense. On the other hand, if there is no common distinguishing characteristic, then the evidence is offered only to show that the accused has once committed a crime, and is therefore likely to have committed the principal offense. This is not permitted.

The common distinguishing characteristic may be the proximity in time and place of the extraneous offense to the offense for which the accused is being tried. Or, the common...