Owens v. State

• Decision Date: 10 December 1969
• Docket Number: No. 42421,42421
• Citation: 450 S.W.2d 324
• Parties: Francis OWENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 324

450 S.W.2d 324

Francis OWENS, Appellant, v. The STATE of Texas, Appellee.

No. 42421.

Court of Criminal Appeals of Texas.

Dec. 10, 1969.

Rehearing Denied March 4, 1970.

John E. cahoon, Sr., J., Charles Whitfied, Houston, for appellant.

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

OPINION

ONION, Judge.

The offense is robbery by assault; the punishment 20 years' confinement in the Texas Department of Corrections.

The record reflects that on October 14, 1967, about 1:15 p.m. appellant entered the Pilgrim's Cleaners located at 5231 South Park Boulevard in the city of Houston and by exhibiting a pistol placed Henrietta Davis, age 61, an employee of the store who was alone, in fear of her life and took $85 from her possession and control.

On cross-examination the appellant sought to shake Mrs. Davis' identification of him as her assailant by questioning her description of his skin color and her ability to observe with her bifocal glasses.

Testifying in his own behalf, appellant related that at the time in question he was in Palestine, Texas. He called three additional witnesses to support his claim of alibi.

In rebuttal the State offered the testimony of five mature or elderly women, all employees of Pilgrim's Cleaners in the city of Houston, who testified that while alone in various branch offices of such business located in different sections of Harris County they were each robbed at gunpoint by the appellant during the month of October, 1967; that such robberies occurred in the afternoon and, like Mrs. Davis, they were forced to go to the rear of the store while the appellant took money from the cash register.

Prior to permitting some testimony to be offered in rebuttal before the jury, the careful trial judge first heard such testimony in the absence of the jury and determined its admissibility.

Appellant vigorously contends the court erred in admitting into evidence these extraneous offenses. He advances the theory that the State's proof as to the robbery charged was positive and the admission of evidence of the other robberies was not justified under any of the exceptions to the general rule of inadmissibility of evidence of extraneous crimes, was prejudicial and calls for reversal. He relies upon Hafti v. State, Tex.Cr.App., 416 S.W.2d 824. See also Bennett v. State, Tex.Cr.App., 422 S.W.2d 438; Chandler v. State, Tex.Cr.App., 417 S.W.2d 68; 23 Tex.Jur.2d Evidence, Sec. 197, p. 306.

In 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294, it is stated:

'As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows that he is guilty of the offense charged. Consequently, evidence that he had committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible. * * *'

There are exceptions to the general rule.

In 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300, it is written:

'Evidence of the commission of other crimes by the accused is admissible as part of the res gestae or to show identity of person or crime, intent, motive, scienter, system, and malice. Evidence of other crimes is also admissible to discredit the accused when he testifies in his own behalf, or to show his failure to have reformed, or to controvert a defensive theory advanced by him. These exceptions to the general rule prohibiting evidence of other crimes are discussed in greater detail immediately hereinafter. It must be remembered, however, that even though evidence of another crime may be relevant to the instant proceeding, such evidence should not be admitted unless the commission of the other crime is clearly proved and the accused is shown to have been its perpetrator.'

There are occasions, though, when the exceptions are not applicable.

In Hafti v. State, supra, Judge Belcher wrote:

'The rule appears to be consistent that if the testimony of the state leaves no question as to intent or identity of the defendant, proof of an independent crime is not admissible. Also, where there is positive testimony to support the state's case, proof of other independent offenses is not admissible. 1 Branch 2d. 200, Sec. 188; 5 Branch 2d 31, Sec. 2601; 23 Tex.Jur.2d 306, Sec. 197; Story v. State, 107 Tex.Cr.R. 266, 296 S.W. 296; Taylor v. State, 138 Tex.Cr.R. 161, 134 S.W.2d 277; 42 A.L.R.2d 854.'

This case is not Hafti and is not controlled by it.

It must be remembered that the exceptions to the general rule do come into play authorizing the admission of evidence of other similar offenses against one on trial for robbery whenever it is shown to be relevant to a contested issue in the case. 42 A.L.R.2d 854. The fact that material or relevant evidence shows the commission of a separate offense will not suffice to reject it. Adams v. State, 95 Tex.Cr.R. 226, 252 S.W. 797; Wiggins v. State, 109 Tex.Cr.R. 195, 3 S.W.2d 811.

It clearly appears that the issue of identity was raised in the case at bar by cross-examination as occurred in Ferrell v. State, Tex.Cr.App., 429 S.W.2d 901. Certainly by offering evidence as to alibi appellant called into question Mrs. Davis' identification of him as the man who robbed her, thus authorizing the admission of the extraneous offenses. See Parks v. State, Tex.Cr.App., 437 S.W.2d 554.

Further, testimony as to other robberies committed a short while before or after the robbery charged within the same vicinity and by a person identified as the accused is admissible in refutation of a defense of alibi. ¹ 42 A.L.R.2d 854, 876.

Appellant contends the extraneous offenses were not admissible to rebut his defensive theory of alibi since such none of such offenses occurred on October 14, 1967. While such testimony may not have directly...