Tomlinson v. State, 40774
| Decision Date | 22 November 1967 |
| Docket Number | No. 40774,40774 |
| Citation | 422 S.W.2d 474 |
| Court | Texas Court of Criminal Appeals |
| Parties | Charles Clifton TOMLINSON, Appellant, v. The STATE of Texas, Appellee. |
Jones, Blakeslee, Minton, Burton & Fitzgerald, by Roy Q. Minton, Austin, for appellant.
Martin D. Eichelberger, Dist. Atty., George H. Allen, Asst. Dist. Atty., Waco, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is passing as true a forged instrument. The punishment is two years.
It is axiomatic that when extraneous offenses are admitted, the jury must be told that they cannot consider them unless the State proves that the accused committed such collateral crimes. Lankford v. State, 93 Tex.Cr.R. 442, 248 S.W. 389. This being so, no textraneous offense should be offered unless the State is prepared to prove that the accused committed the same.
While testifying in his own behalf, appellant denied that he signed or passed the check set forth in the indictment, which was a cashier's check dated 8/5/66, issued by Bellmead State Bank, Waco, Texas, in the sum of $225, and signed by Joe M. Beal, Cashier. It was endorsed on the back, 'John L. Walters' and on the front upper left hand corner appears this notation: 'Sl Serv 41--27--38--453.'
On cross examination the prosecutor first asked for appellant's selective service and and then said: Appellant admitted that they were the same. This was followed by other questions which clearly pointed out to the jury the exact similarity of the two checks. In fact photostatic copies of both checks are before this Court, and they are identical except that State's Exhibit No. 3 was signed J. M. Biel instead of Joe M. Beal, and the selective service number appears on the back of No. 3 and on the front upper left hand corner of No. 1.
The prosecutor then asked, 'Mr. Tomlinson, isn't it true that you Passed this check right here, State Exhibit No. 3 in Dallas, Texas, to Trans-Texas Airways prior to August 10, 1966?' Appellant's objection was overruled, and appellant replied that he had not signed the name John L. Walters to the back of State's Exhibit No. 3, and also denied that he had passed the same.
At the conclusion of the State's case when they had made no effort to prove that appellant had in fact passed State's Exhibit No. 3, the court sustained the appellant's motion to instruct the jury not to consider State's Exhibit No. 3, but declined to grant his motion for mistrial.
We need not pass upon the contention that the court erred in declining to grant the mistrial under the authority of Lucas v. State, Tex.Cr.App., 378 S.W.2d 340, advanced by appellant, or Carmean v....
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...and the evidence necessary to prove that the accused committed the crime for which he stands charged must be shown. In Tomlinson v. State, 422 S.W.2d 474 (Tex.Cr.App.1968), and again in Thompson v. State, 615 S.W.2d 760 (Tex.Cr.App.1981), the rule was explained clearly: even though evidence......
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Inthalangsy v. State
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