Phillips v. State

• Decision Date: 14 September 1983
• Docket Number: 68,242,Nos. 67,562,s. 67,562
• Citation: 659 S.W.2d 415
• Parties: Leslie Wayne PHILLIPS v. The STATE of Texas. Fred Allen HINKLE v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

Page 415

659 S.W.2d 415

Leslie Wayne PHILLIPS v. The STATE of Texas.

Fred Allen HINKLE v. The STATE of Texas.

Nos. 67,562, 68,242.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1983.

Rehearing Denied Nov. 16, 1983.

J.T. Mora, Jr., (Court-appointed), LaMarque, for Phillips.

Anthony P. Griffin, Galveston, for Hinkle.

James F. Hury, Jr., Dist. Atty. and E.D. McKinney, Jr., Asst. Dist. Atty., Galveston, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CAMPBELL, Judge.

These are appeals from convictions for aggravated robbery, V.T.C.A. Penal Code Sec. 29.03. Punishment was assessed by the jury against each appellant at forty years confinement in the Texas Department of Corrections. ¹ The appellants contend: that the State failed to provide them with a speedy trial as guaranteed by the Sixth Amendment to the United States Constitution, Art. I, Sec. 10 of the Texas Constitution, and by Art. 32A.02, V.A.C.C.P.; that the State failed to provide appellants with a speedy trial in compliance with the trial priorities prescribed by Art. 32A.01; that the trial court erred in admitting certain evidence which was irrelevant, collateral to, and wholly disassociated with the offense charged; that the trial court erred in admitting hearsay evidence; that the trial court erred in denying appellants the right to cross-examine the complaining witness; that the trial court erred in admitting a photograph into evidence because it was not identified, it was not relevant or material to any of the issues on trial, and it was offered solely to inflame the minds of the jury; and that the trial court erred in allowing the prosecutor to argue outside the record during his closing argument.

Charlie Sebesta, an acquaintance of the appellants, testified that both appellants arrived at his residence at approximately 7:30 p.m. on October 12, 1979, stayed for about an hour, and left. According to Sebesta, the appellants returned at approximately 10:00 or 10:30 p.m. that same evening, and during the course of that second visit Phillips confronted Sebesta with a steak knife and demanded the $800 or $900 Phillips said Sebesta owed him. Hinkle, acting in concert with Phillips, proceeded to search the residence, taking care to wipe off fingerprints on items he touched with a dish cloth. Sebesta further related that he was threatened by the appellants not to call the police. When the appellants left the apartment, Sebesta called the police. A description of the appellants and their names were given to the police, and the appellants were arrested on October 13, 1979.

Over defense counsel's objection Sebesta was allowed to testify that on the following day, October 14, 1979, he returned to his home and found that his door had been spray-painted red and that a can of insect repellant had been left on his porch. The printed words "kills," and "dead," and "children" on the can had been circled and arrows had been drawn to connect the words. The State was allowed to introduce exhibits Nos. 7 and 8, photographs of the spray-painted door, and No. 9, the can of insect repellent, over the appellant's objections. Sebesta, and later state's witness Officer Richard Armstrong, were allowed to testify that on that same afternoon Sebesta received a telephone call from an unidentified female who threatened him in connection with the charges he had filed. The appellants argue that the introduction of this extraneous matter and the accompanying exhibits was error. We agree and reverse and remand.

Before the extraneous matters were established before the jury, the prosecutor, defense attorney, and trial judge discussed the issue at length. The state, arguing for admission, made the following statement:

THE STATE: The Defense has indicated all through the course of the proceedings that their contention is that there was not a robbery and that the State's witnesses are lying. Mr. Sebesta will testify that whenever he returned to his apartment the following morning that there was sprayed on his door casing red paint, which we have a photograph of, and there was beside his door a can, empty can, of Raid bug spray in which there had been certain lines drawn and things encircled so that it would say, "Raid kills children." Furthermore, that same day he received a threatening phone call from a female asking whether or not he had gotten the message telling him that he had better go down and drop the charges. This would show--

THE STATE: This would tend to show that this is not a fabricated thing, that there was, in fact, a robbery which the Defendants are alleging never took place. Your Honor, for that reason we feel it's admissible.

Defense counsel voiced strenuous objections to the court's ruling that the evidence was admissible, arguing that the State's only purpose for offering the evidence was to prejudice the appellants. Defense counsel also objected on the grounds that the extraneous matters were not shown to be relevant to the charge of aggravated robbery, that the State was attempting to try the appellants on an accusation of harassment which was not in the indictment, and that the state was therefore attempting to try the appellants as criminals in general.

The State asserts in its brief on appeal only that it "will not engage in 'audacious advocacy' by quoting cases out of context" and that "it was the prosecutor's intent to show the totality of the circumstances, and by doing so, to show the culpability of the Appellant." No cases are cited in support of the State's assertion. That section of the brief ends: "Appellee would urge the Court to reconsider the line of cases cited by Appellant and give latitude to the State in the protection of victims."

It is an established rule of evidence that proof of extraneous transactions committed by a party is inadmissible except for certain specified exceptions. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). For example, such evidence may be admissible to refute a defensive theory raised; however, it will be admitted only if it is shown to be material and relevant to a contested issue and if its relevance to the issue is not outweighed by its prejudicial effect. Gipson v. State, 619 S.W.2d 169 (Tex.Cr.App.1981). Even though an extraneous offense may come within an exception to the general rule of exclusion, it may not be received into evidence unless and until there is a clear showing that the evidence is material, that the accused...