Redd v. State, 49097

• Citation: 522 S.W.2d 890
• Decision Date: 12 March 1975
• Docket Number: No. 49097,49097
• Parties: Charles Anthony REDD, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 890

522 S.W.2d 890

Charles Anthony REDD, Appellant, v. The STATE of Texas, Appellee.

No. 49097.

Court of Criminal Appeals of Texas.

March 12, 1975.

Rehearing Denied May 21, 1975.

C. David Evans, Arthur A. Estefan and Allan Craig, San Antonio, for appellant.

Ted Butler, Dist. Atty., Gordon V. Armstrong and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

The conviction is for robbery by assault; the punishment, life imprisonment.

The indictment alleges that on November 18, 1972 appellant robbed one Keith McCrary, manager of the Gibson's Discount Center, by holding members of his family hostage. Appellant was positively identified by the complaining witness and three additional witnesses. Mrs. McCrary was called as a witness for the State and testified in detail about the period she was held hostage. During cross-examination, she was questioned by the defense about her misidentification of the appellant at an earlier lineup. She was uncertain as to her identification of appellant at trial.

Over strenuous objection, the State was allowed to introduce evidence of two extraneous offenses during their case in chief. The first one involved an April 29, 1972 robbery at a Handy Andy supermarket wherein the family of the manager was held hostage in order to effectuate the crime. The second extraneous offense was a robbery at an H.E.B. food store on June 6, 1972. It likewise involved the same scheme and design of holding the manager's family hostage.

The appellant offered no evidence; rested and closed with the State.

In his first ground of error, appellant urges that this case should be reversed because the State was permitted to introduce evidence of two extraneous offenses. Appellant argues that since the defense rested with the State, put on no evidence, and raised no defensive theories, the admission of these extraneous offenses during the State's Direct case was error. We agree.

The State contends that the issue of identity was raised by appellant's cross-examination of Mrs. McCrary. On cross-examination, she was asked:

'Q Of course, I guess what everybody is interested in hearing right now is whether or not this is the man that was at your house?

'A Well, I can't be just positively sure.

'Q Okay. You certainly weren't positively sure on the 13th of December when you picked another man out of a line-up, were you?

'A No, I wasn't.

'Q Did you pick another man out?

'A Yes, I did.'

Subsequently, in her cross-examination, she testified that she did not want to take a chance and say definitely that appellant was the man in her house because he may not have been the one. From these circumstances, the State maintains that Mrs. McCrary was vigorously cross-examined and the identity of appellant was raised, thereby opening the door for the admission of collateral crimes.

The issue presented is whether the cross-examination of Mrs. McCrary raised the issue of identity such as to permit the admission of two extraneous offenses. We can only conclude that it did not. The decision of this Court in Hickombottom v. State, 486 S.W.2d 951 (Tex.Cr.App.1972) is dispositive. It involved a similar situation wherein co-defendants closed with the State and did not put on any evidence nor offer any defensive theories. Two policemen identified the defendants as they were leaving the scene of the crime with guns in their hands. The co-defendants were further identified by the store manager and three other employees of the store. The State urged that the identity of co-defendant Carter was raised by vigorous cross-examination of the store manager where he testified his identification was based on a very brief glance; however, the witness remained positive in his identification. As to co-defendant Hickombottom, the State contended identity was raised while during cross-examination one witness testified that the defendant 'resembled' one of the persons committing the robbery. On direct, the witness had testified that Hickombottom was one of the robbers. This Court held that since at least two other witnesses made positive identifications of both defendants and they offered no evidence in their behalf, the issue of identity was not raised.

Clearly, the aforementioned case controls the one at bar. Here, there are at least four other positive identifications which remained unimpeached after cross-examination. See Okra v. State, 507 S.W.2d 220 (Tex.Cr.App.1974); Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App.1972); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Rogers v. State, 484 S.W.2d 708 (Tex.Cr.App.1972); compare Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972). Three witnesses identified appellant as the man at the Gibson's store and one, Mrs. McCrary's daughter, positively identified appellant as the man in her home. Mrs. McCrary on direct examination testified she believed appellant was one of the robbers. ¹ As in Hickombottom v. State, supra, the effectiveness of the State's direct evidence was not seriously affected by Mrs. McCrary's uncertain identification. Albrecht v. State, supra. The effect of the questions propounded on cross-examination was inconsequential in relation to the strength of the State's case.

A statement in Caldwell v. State, supra, is applicable to the instant case:

'To hold that the cross-examination of this prosecutrix would permit the introduction of an extraneous offense would be tantamount to holding that such testimony would be admissible in any case where a defendant's counsel exercises the constitutional right of cross-examination. This is not and should not be the law.' See also Rogers v. State, supra.

The State relies on Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973); Gillon v. State, 492 S.W.2d 948 (Tex.Cr.App.1973). These cases are clearly distinguishable from the case at bar. In Mitchell v. State, supra, extraneous offenses were admitted after both defendants testified on their own behalf, denied committing the crime, and relied on the defense of alibi. Although there was an extensive, searching and forceful cross-examination of each witness who identified the defendants, the issue of identity in that case was raised not only by a vigorous cross-examination but also because of the defendants' denial of the commission of the crime ² and their reliance on the defense of alibi. ³ There can be no doubt in Mitchell v. State, supra, but that the issue of identity was raised. It is particularly noteworthy that in the instant case the defense rested with the State. In Cobb v. State, supra, the defendant testified that he did not commit the crime and raised the defense of alibi. The State relied on the defense of alibi to introduce the collateral offenses.

The situation in Gillon v. State, supra, involved the successful impeachment of the complaining witness on cross-examination because of his misidentification of appellant before the grand jury. In such a case where the State's only identifying witness is impeached as to a material detail of his identification, extraneous offenses are properly admissible to circumstantially prove identity. See Hickombottom v. State, supra; Simmons v. State, 457 S.W.2d 570 (Tex.Cr.App.1970); Ferrell v. State, 429 S.W.2d 901 (Tex.Cr.App.1968); Olivio v. State, 422 S.W.2d 182 (Tex.Cr.App.1967); compare Lusk v. State, 511 S.W.2d 279 (Tex.Cr.App.1974). The common distinguishing feature to each of the above mentioned cases is that the effectiveness of the State's direct evidence, i.e., sole identifying witness, is undermined by defense cross-examination; whereas, the case at bar has Four unimpeached identifying witnesses and the State's case is not seriously impaired. Albrecht v. State, supra, citing the aforementioned cases.

Another decision of this Court which relied on vigorous cross-examination as a basis for admitting extraneous offenses in order to prove identity was Parks v. State, 437 S.W.2d 554 (Tex.Cr.App.1969). In that case, there were two witnesses who made positive identifications on direct examination. The defendant did not testify but did call a policeman as a defense witness who was unable to match the defendant's fingerprints with those taken at the scene of the crime. During cross-examination, the first identifying witness was impeached by his statement to the police immediately after the crime in which he stated he was unable to identify the murderer because he did not see the man clearly. Defendant's counsel vigorously cross-examined the second identifying witness and attempted to impeach him with his prior statement to the police. It is apparent that identity was a sharply controverted issue and the effectiveness of the State's direct evidence on identification was seriously jeopardized. The defendant presented a defense and the State sought to rebut this defensive theory ⁴ by use of extraneous offenses to establish the hotly contested issue of identity.

We find none of the foregoing cases applicable to the instant case. The State's case was not substantially affected when one witness could not positively identify the appellant in the face of overwhelming direct evidence to that issue. Cross-examination of Mrs. McCrary was not such as to raise the issue of identity. We conclude that it was error to admit the extraneous offenses under such circumstances. See Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972); Hafti v. State, 416 S.W.2d 824 (Tex.Cr.App.1967).

For the reasons stated, the judgment is reversed and the cause remanded.

OPINION ON STATE'S MOTION FOR REHEARING

ODOM, Judge.

On original submission this cause was reversed because the trial court erroneously admitted evidence of two extraneous offenses. We held the cross-examination of Mrs. McCrary, one of the State's witnesses, did not raise the issue of identity.

In its brief supporting its Motion...