Ransom v. State

• Decision Date: 16 January 1974
• Docket Number: No. 47054,47054
• Citation: 503 S.W.2d 810
• Parties: Robert Earl RANSOM, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 810

503 S.W.2d 810

Robert Earl RANSOM, Appellant, v. The STATE of Texas, Appellee.

No. 47054.

Court of Criminal Appeals of Texas.

Jan. 16, 1974.

Rehearing Denied Feb. 6, 1974.

Charles Giddens (counsel on appeal only) Dallas, for appellant.

Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal is taken from a conviction for robbery by assault. The punishment was assessed at life.

Appellant's sole contention on appeal is that the trial court erred in admitting evidence of an extraneous offense.

Prior to trial appellant's counsel, obviously aware of the extraneous offense and the possibility of its admission into evidence, filed a motion in limine to instruct the prosecution not to offer evidence of extraneous offenses until such time as the court had been notified of the State's intention and had determined the admissibility of such evidence. Said motion was granted by the court.

Roy J. Hayden testified that he left the Satellite Club in Dallas at approximately 11:30 p.m. on January 28, 1972. As he got to his car on the parking lot, the appellant approached him and asked if he would take the appellant and his wife home. Hayden refused. Appellant then offered to pay and Hayden consented. Appellant called to a woman and the two got in Hayden's car and directed Hayden to a house on Frank Street. After the vehicle stopped, the appellant said, 'Let me pay you' and produced an automatic pistol and stated he meant 'business.' After Hayden got out of the car, the appellant searched him taking his wallet containing $6.00, a watch, credit cards and personal papers. The cartrunk trunk was opened and searched and the appellant's woman companion searched the glove compartment and took some cigarettes.

The complaining witness was the only witness to identify the appellant. On cross-examination appellant's counsel attempted to show that the witness had never before seen the man who approached him on the parking lot of the Satellite Club and asked for a ride home, established that there were no parking lot lights and that the light in the 3500 block of Frank Street where the robbery subsequently occurred was poor, and that the witness' best observations occurred when the robber got in and out of the car and the dome light was on. Counsel also developed before the jury that the witness had been shown photographs by the police and attempted to imply suggestiveness on the part of the police in securing the witness' identification of the appellant.

After the State rested its case in chief, the appellant offered a number of alibi witnesses who swore the appellant, driving his own Oldsmobile, left Dallas with others for Forreston on the Friday evening of January 28, 1972, prior to the time of the robbery and did not return to Dallas until the following Sunday. Appellant's sister, Patricia Ann Ransom, in addition to supporting the alibi testimony, testified on redirect examination that on Tuesday, January 25, 1972, she, the appellant and others had gone to visit a relative in the county jail. The State objected to such testimony on the ground the appellant was impeaching his own witness since she had earlier testified the appellant worked every day that week except for half a day on Friday, January 28. The objection was overruled and the witness, contradicting her earlier testimony, related appellant had not worked on Tuesday, January 25, but had gone to the county jail instead.

Thereafter, much of the defense testimony elicited concerned the events of January 25, it being established that while appellant and his family were at the county jail from 11 a.m. to about 4 p.m., his automobile, an Oldsmobile, was stolen and that it was later learned it was at the police pound, the vehicle having been used in a robbery.

In rebuttal, over objection, the State called James, Daniels, who testified that about 12:30 p.m. on Tuesday, January 25, he was robbed at gunpoint in his tire shop in Dallas by appellant and another man who fled in an Oldsmobile. He gave chase and gave signal to a policeman. Officer Maselli testified he pursued the Oldsmobile only to find it abandoned a few blocks away.

The strategy of appellant's counsel in injecting the events of January 25th is not clear, but it appears to have been done to lessen the impact of the anticipated introduction of the extraneous offense by attempting to show the automobile used in the extraneous offense was stolen from the appellant and perhaps to strengthen his alibi testimony by showing that appellant frequently went to various places together with other members of his family.

The court gave a limiting instruction at the guilt stage of the trial limiting the use of testimony regarding the extraneous offense to the issues of identity and intent. There were no objections to such charge or any special requested issues.

Putting aside and not determining the question of whether the cross-examination of the complaining witness was such as to authorize the admission of the extraneous offense ¹, it is clear the extraneous offense was admissible on the issue of identity and as it tended to defeat or discredit the defensive theory of alibi.

First, the complaining witness was the sole witness to place the appellant at the scene of the alleged robbery. To counter this the appellant offered numerous alibi witnesses whose testimony placed him miles away at the time. The issue of identity was thus hotly disputed and clearly raised.

This court has had occasion in the past to note that evidence of an extraneous offense is admissible to prove identity, when identity is an 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 Ford v. State, 484 S.W.2d 727, 729 (Tex.Cr.App.1972).

'. . . 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. . . .' (emphasis supplied)

In the instant case both offenses were robberies committed at gunpoint in Dallas three days apart, while appellant, identified as the perpetrator of both, was aided by a confederate. In Ford v. State, supra, it was pointed out the common distinguishing characteristic may be the proximity in time and place Or the common mode of the commission of the offenses. It would appear that both are present here.

Surely it can be argued that in the primary offense appellant's confederate was a woman and in the extraneous offense the confederate was a man. The important thing here is that he acted in both instances with a confederate, even though it was not the same confederate. Suppose the confederate in each case had been a man, but obviously different men. Would this make a difference as to admissibility of the extraneous offense? We think not.

Further, it surely cannot be logically argued that if the primary offense shows a robbery at gunpoint on a residential street after the accused, acting with a woman confederate, asked the victim to take him home, a series of armed robberies in the same county committed by the accused, acting with a man confederate, at various retail stores, nightclubs, etc., within a short time span, are inadmissible because the Exact modus operandi of the primary offense was not repeated.

It could be argued that at the time of the primary offense the appellant was shown to have been wearing a broad brimmed that, while at the time of the extraneous offense he was described as wearing a steel helmet. While mode of dress, hair style, facial hair, etc., may play an important part from time to time in determining the admissibility of extraneous offenses, we feel it has been given far too important a role in recent decisions of this court based in part on some of the language in Ford v. State, supra. See, e.g., Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App., 1973). ² Some of the reasoning in these cases apparently overlooks the well established requirement that before any extraneous offense is admissible the offenses must be clearly proven and the accused shown to have been its perpetrator. See 23 Tex.Jur.2d, Evidence, Sec. 195, p. 300.

If the accused is clearly identified and shown to be the perpetrator of the extraneous offense, the mere fact that he was wearing a green sweater and blue jeans and a mustache during the primary offense and a red sweater and black slacks and had no mustache during the subsequent extraneous offense cannot be all that important standing alone.

A few illustrations may better demonstrate the point.

Suppose X is charged with the offense of indecently fondling a young boy and the proof shows that while dressed in a maroon suit with matching tie and hat, wearing a mustache with...