Foy v. State, 58218

• Decision Date: 06 February 1980
• Docket Number: No. 2,No. 58218,58218,2
• Citation: 593 S.W.2d 707
• Parties: Aslone FOY, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 707

593 S.W.2d 707

Aslone FOY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 58218.

Court of Criminal Appeals of Texas Panel No. 2.

Feb. 6, 1980.

John Mustachio, Houston, for appellant.

Carol S. Vance, Dist. Atty., Susan W. Crump, and Ira L. Jones, II, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, TOM G. DAVIS and CLINTON, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for arson. After a jury found appellant guilty the trial court assessed punishment at three years.

In his sole ground of error appellant contends reversible error was committed when the trial court allowed the State to introduce evidence of extraneous offenses that were not admissible under any exception to the general rule excluding such evidence.

The record reflects that on the night of November 15, 1976, Mrs. Mearleon Dugar and her daughter saw appellant, their neighbor, throw a burning object through a bedroom window of the Dugar home and then run back into his house. Fire officials who were called to put out the resulting fire discovered fragments of a "Molotov cocktail" in the Dugar bedroom as well as an unused firebomb just inside appellant's yard.

Over objection, the State was allowed to elicit testimony from Mrs. Dugar and her husband that on October 27, 1976, approximately three weeks prior to the date of the offense in question, appellant pointed a pistol at the couple and threatened them as they were leaving a shopping area. Mrs. Dugar also testified that in the early part of November appellant came to the front door of her home threatening her and her son with a pistol he was pointing at them. In the court's charge the jury was instructed to consider evidence of extraneous offenses for the sole purpose of determining appellant's ill will toward Mrs. Dugar, the complainant.

We hold that evidence of appellant's prior misconduct toward the victims of the offense charged was admissible as circumstantial evidence of a motive on his part for committing the offense charged. It is, of course, settled that an accused may not be tried for some collateral crime or for being a criminal generally. See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, 100. In the same opinion the Court stated:

"Evidence of extraneous offenses committed by the accused has been held admissible; . . . (5) (t)o show the accused's motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. . . . " (footnote omitted)

And in Rodriguez v. State, 486 S.W.2d 355, we stated that:

"The prosecution may always offer evidence, if it is known to exist, to show motive for the commission of an offense because it is relevant as a circumstance tending to prove the commission of an offense. (footnote omitted)

"However, 'the proposed testimony, to be admissible as proof of motive, must fairly tend to raise an inference in favor of the existence of a motive on the part of the accused to commit the alleged offense for which he is on trial.' " (citations omitted)

In the instant case the State argues that the evidence of prior assaultive acts committed by appellant against the victims of the offense charged was admissible to show "a continuing motive on the part of the Appellant" for committing the offense charged. We...