Plante v. State

• Citation: 674 S.W.2d 368
• Decision Date: 10 May 1984
• Docket Number: Nos. 05-82-01436-CR,s. 05-82-01436-CR
• Parties: Jeffrey D. PLANTE, Appellant, v. The STATE of Texas, Appellee. to 05-82-01438-CR.
• Court: Court of Appeals of Texas

Page 368

674 S.W.2d 368

Jeffrey D. PLANTE, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-82-01436-CR to 05-82-01438-CR.

Court of Appeals of Texas,

Dallas.

May 10, 1984.

Rehearing Denied June 8, 1984.

Frank Jackson, Bruce Anton, Dallas, for appellant.

Henry Wade, Dist. Atty., Kathi A. Drew, Asst. Dist. Atty., Dallas, for appellee.

Before STEPHENS, WHITHAM and STEWART, JJ.

STEPHENS, Justice.

Jeffrey D. Plante, appellant, was charged by indictment with theft of property of the value of $10,000 or more. He was found guilty and sentenced by a jury to ten years' confinement in the Texas Department of Corrections. On the same day, after the jury assessed punishment, the trial judge heard the State's motion to proceed to adjudication of guilt in two prior theft cases in which appellant had been given deferred adjudication. At the hearing, the court took judicial notice of the jury's verdict, revoked appellant's previous award of probation and proceeded to an adjudication of guilt in the two prior theft cases. The court found appellant guilty in the two prior theft cases and sentenced appellant in all three cases. Appellant appeals all three cases, presenting forty grounds of error in the principal case of theft of property over $10,000, and three grounds of error in each of the deferred adjudication cases.

We agree with appellant's contentions that the trial court committed reversible error by improperly admitting evidence of numerous extraneous debts, unrelated and dissimilar to the one for which he was being tried, and accordingly, we reverse the judgment of the trial court in the principal case, and remand the cause for a new trial. We affirm the judgment of the trial court in each of the deferred adjudication cases.

Principal Case

The theft charge brought against appellant, president of Trinicon, Inc., in the principal case, arose from his credit purchases of tile from a wholesale tile supply company for Trinicon. Appellant represented to the supplier that the tile was to be used on a construction job in Sherman, Texas. Of the forty grounds of error presented, thirty-five complain of the admission of evidence of extraneous debts; one complains of the denial of an evidentiary hearing on the admissibility of extraneous offenses; one complains of the admission of an extraneous offense, the conversion of a jeep; one complains of the admission of certain exhibits as business records; one complains that the evidence is insufficient to prove theft by deception; and finally, one complains that the court erred by admitting the testimony of a certain reputation witness.

During presentation of the State's case-in-chief, evidence was offered that on or about April 5, 1982, appellant made arrangements by telephone with Dal-Tile Corporation, a manufacturer of ceramic tile products, to purchase a large quantity of Mexican adobe tile. During the telephone conversation, appellant represented to Mr. Brittingham, the general sales manager of Dal-Tile, that he was the president of a corporation named Trinicon, Inc.; that Trinicon had a credit application on file with Dal-Tile; that he needed immediate delivery of six thousand square feet of Mexican adobe tile; that the total order, when completed, would amount to about thirty thousand square feet of tile; and that the tile was to be used on a construction project in Sherman, Texas, known as Castillian Plaza. Brittingham explained to appellant that their credit terms required payment within 30 days of the invoice date. During the telephone conversation the price of the tile was agreed upon, and Brittingham agreed to deliver it to a mini warehouse in North Dallas. Deliveries of tile were made between April 5, 1982, and June 29, 1982, aggregating a total charge in excess of $10,000.00. No payments were made on any of the invoices sent to Trinicon.

Attempts to collect for the tile were unsuccessful. On one occasion, appellant told Dal-Tile that he would send his accountant, Kathy Garcia, to Dal-Tile with the money. It was shown that Kathy Garcia had not worked for appellant for approximately one and one-half years when appellant made this representation. Brittingham asked appellant for Castillian Plaza's address, but he refused to give it. Brittingham testified that he and another Dal-Tile employee searched the building permit records of Sherman, Texas, and all surrounding communities, and were unable to locate a shopping area known as Castillian Plaza. Early in July, Brittingham became suspicious of appellant's actions, and because of a conversation with a third person, he purchased a newspaper, read the want ads, and found an ad offering Mexican adobe tile for sale that listed a telephone number which he recognized as appellant's. Brittingham had an employee of Dal-Tile call the number and inquire about the tile, while he listened in on the call. Brittingham recognized appellant's voice and heard appellant offer Mexican adobe tile for sale at a price lower than the price appellant had agreed to pay Dal-Tile.

The State offered thirty-five witnesses who testified over appellant's objection that appellant or his corporation owed various debts. The State argues that this evidence was admissible as additional evidence of appellant's guilt because it showed appellant's scheme and criminal intent. Some of these debts were admissible to show appellant's scheme and criminal intent, yet many were not.

It is axiomatic that an accused must be tried for the crime with which he stands charged, and that evidence of other unrelated crimes is inadmissible. "This court has consistently held that an accused is entitled to be tried on the accusation made in the state's pleading and that he should not be tried for being a criminal generally." Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Crim.App.1972). See Nance v. State, 647 S.W.2d 660 (Tex.Crim.App.1983); Hines v. State, 571 S.W.2d 322 (Tex.Crim.App.1978); Ford v. State, 484 S.W.2d 727 (Tex.Crim.App.1972). This rule exists because evidence of extraneous offenses is inherently prejudicial to the accused because it confuses the jury, and because its admission forces the accused to defend himself against charges of which he has not been notified. McCann v. State, 606 S.W.2d 897 (Tex.Crim.App.1980); Murphy v. State, 587 S.W.2d 718 (Tex.Crim.App.1979); Cameron v. State, 530 S.W.2d 841 (Tex.Crim.App.1975); Albrecht, 486 S.W.2d at 100. The Court of Criminal Appeals has stated in Albrecht and later in Ruiz v. State, 579 S.W.2d 206 (Tex.Crim.App.1979), that the threshold inquiry in determining the admissibility of any evidence is whether the probative value of the evidence outweighs its inflammatory aspects, if any.

To be admissible, evidence of the extraneous offense or transaction must be both relevant and material to a contested issue in the case. Nance, 647 S.W.2d at 662; McCann, 606 S.W.2d at 901; Murphy, 587 S.W.2d at 722; Albrecht, 486 S.W.2d at 100. In Albrecht, the Court of Criminal Appeals used the holding of Jones v. State, 481 S.W.2d 900 (Tex.Crim.App.1972), to illustrate its point. In Jones, the Court of Criminal Appeals held that where there was uncontroverted direct evidence of identity, and where guilty intent could be inferred from the act itself, evidence of extraneous offenses was inadmissible to prove these elements. Albrecht, 486 S.W.2d at 101; See Nance, 647 S.W.2d at 662. If the State can convict without the collateral evidence, the evidence is inadmissible. Furthermore, the extraneous offense cannot be offered into evidence until there is a "clear showing" that the accused participated in the extraneous offense. McCann, 606 S.W.2d at 899.

There are, however, exceptions to this general rule. If the State can prove that there are sufficient common distinguishing characteristics between the extraneous offense and the primary offense such that the probative value of the evidence outweighs its prejudicial value, then the court may admit the evidence to prove certain elements of the crime. See Hines, 571 S.W.2d at 325. Evidence of other crimes or transactions closely related in time, place, or the common mode of commission of the offenses may be admitted to show: (1) identity, Collins v. State, 577 S.W.2d 236 (Tex.Crim.App.1979); Buckner v. State, 571 S.W.2d 519 (Tex.Crim.App.1978) (on rehearing); Ransom v. State, 503 S.W.2d 810 (Tex.Crim.App.1974); (2) guilty knowledge, see Lasker v. State, 573 S.W.2d 539 (Tex.Crim.App.1978); Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972); (3) intent, Sewell v. State, 629 S.W.2d 42 (Tex.Crim.App.1982); see Christiansen v. State, 575 S.W.2d 42 (Tex.Crim.App.1979); Lasker v. State, 573 S.W.2d 539 (Tex.Crim.App.1978); Crawley v. State, 513 S.W.2d 62 (Tex.Crim.App.1974); Hammonds v. State, 500 S.W.2d 831 (Tex.Crim.App.1973); Grayson v. State, 481 S.W.2d 859 (Tex.Crim.App.1972); Hampton v. State, 402 S.W.2d 748 (Tex.Crim.App.1966); Stewart v. State, 398 S.W.2d 136 (Tex.Crim.App.1966); O'Brien v. State, 376 S.W.2d 833 (Tex.Crim.App.1964); or (4) a common scheme, plan, design, or system of criminal activity of which the crime charged is a part, see Rogers v. State, 598 S.W.2d 258 (Tex.Crim.App.1980); Lasker v. State, 573 S.W.2d 539 (Tex.Crim.App.1978); Hammonds v. State, 500 S.W.2d 831 (Tex.Crim.App.1973); Grayson v. State, 481 S.W.2d 859 (Tex.Crim.App.1972).

These exceptions are very narrow. Evidence of extraneous offenses or transactions can only be admitted on the issue of identity where there are distinguishing characteristics common to both offenses such that the accused's acts are earmarked as his handiwork, or figuratively, marked with his "signature." Collazo v. State, 623 S.W.2d 647, 648 (Tex.Crim.App.1981). Such evidence can only be admitted on the issue of intent or guilty knowledge where intent cannot be inferred from the act itself. Albrecht, 486 S.W.2d at 100. Hines, 571 S.W.2d at 325. Such evidence can be admitted to show a common plan or scheme only if the offenses...