Young v. State, 07-91-0157-CR
| Decision Date | 20 July 1992 |
| Docket Number | No. 07-91-0157-CR,07-91-0157-CR |
| Citation | 837 S.W.2d 185 |
| Parties | Homer YOUNG, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
William L. Rivers, Amarillo, for appellant.
Randall L. Sherrod, Criminal Dist. Atty., John L. Davis, Asst. Dist. Atty., Canyon, for appellee.
Before REYNOLDS, C.J., and BOYD and POFF, JJ.
Appellant Homer Young was convicted by a jury of burglary of a building. Upon finding the enhanced portions of the indictment true, the jury sentenced appellant to 99 years confinement in the Texas Department of Corrections. 1 In his first three points of error, appellant complains of the admission of unadjudicated extraneous offenses during both the guilt-innocence and punishment phases of the trial. In his fourth point, appellant complains of the application paragraph of the court's charge on guilt or innocence. We will overrule all points of error and affirm the judgment of the trial court.
Appellant's girlfriend and accomplice, Ethel Wandell McEwen, testified that on August 5, 1990, she and appellant went to an Atex Oil Company gas station where she was previously employed. When they arrived at the station, McEwen was driving and appellant was in the backseat. McEwen pulled to the front of the building and appellant leaned out of the car and knocked out the glass of the front door with a hammer. McEwen and appellant then left the station and drove around. They were checking to ascertain if the police were going to respond to the breaking of the glass.
Upon returning to the station, appellant, who was driving the car, parked by the restrooms and air pumps and pretended to put air in the tires. Meanwhile, McEwen entered the station, opened the safe and took $225. Appellant and McEwen then retired to the Tip Top Club where they bought crack cocaine. Appellant and McEwen left the club and smoked the crack cocaine. Appellant and McEwen then returned to the Tip Top Club for more crack cocaine. Most of the money obtained in the burglary was spent on crack cocaine.
McEwen also testified at the punishment phase of the trial that she and appellant had committed an armed robbery in Dodge City, Kansas subsequent to the Atex burglary.
Ron Christopher Roddy testified that on the day following the burglary appellant had related to him that he had in fact committed the burglary with McEwen. McEwen lived with Roddy and his girlfriend at this time. This conversation took place after Roddy noticed that McEwen had a lot of money in her purse. Roddy testified that appellant told him:
That they just went to the place where she worked, because she knew the combination, threw something through the window and drove around to make sure that, you know, there wasn't no police or no alarms go off, and it didn't.
So he pulled back up where the air is and got out like he was putting air in the tires while she went in and got the money.
When asked what appellant and McEwen did with the money, Roddy replied that they purchased and then "smoked a rock."
In his first point of error, appellant complains of the court's abuse of discretion in overruling his objection to evidence that he purchased rock cocaine with the proceeds from the burglary. The State contends the proof of the extraneous offense is admissible under Texas Rule of Criminal Evidence 404(b) for it establishes motive and because it was part of the context of the criminal act. Stoker v. State, 788 S.W.2d 1 (Tex.Crim.App.1989), cert. denied, 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 333 (1990); Montgomery v. State, 810 S.W.2d 372, 387 (Tex.Crim.App.1990); Craig v. State, 783 S.W.2d 620 (Tex.App.--El Paso 1989, pet. granted); Johnson v. State, 651 S.W.2d 303 (Tex.App.--San Antonio 1983, no pet.); Archer v. State, 607 S.W.2d 539 (Tex.Crim.App.1980), cert. denied, 452 U.S. 908, 101 S.Ct. 3037, 69 L.Ed.2d 410 (1981); White v. State, 625 S.W.2d 835 (Tex.App.--Houston [14th Dist.] 1981, no pet.); Lara v. State, 740 S.W.2d 823 (Tex.App.--Houston [1st Dist.] 1987, pet. ref'd); Carey v. State, 677 S.W.2d 821 (Tex.App.--Fort Worth 1984, no pet.)
The admission of extraneous offenses or transactions is governed by Article IV of the Texas Rules of Criminal Evidence. 2 Evidence of other crimes, wrongs, or acts may be admissible if it has relevance apart from its tendency to prove the character of a person in order to show that he acted in conformity therewith. Montgomery v. State, 810 S.W.2d at 387. Montgomery further notes that evidence of motive is one of the permissible purposes for which extraneous conduct may be admitted. Motive for the commission of an offense is relevant as a circumstance tending to prove the commission of the offense. Stoker v. State, 788 S.W.2d at 13. However, the proposed testimony to be admissible as proof of motive must fairly tend to raise an inference in favor of the existence of a motive on the part of the accused to commit the alleged offense for which he is on trial. Valdez v. State, 776 S.W.2d 162 (Tex.Crim.App.1989); Rodriguez v. State, 486 S.W.2d 355 (Tex.Crim.App.1972).
We do not find that appellant's purchase of crack cocaine soon after a burglary makes it more probable that he committed the burglary. It is not a fair inference that purchasers of cocaine are more likely to have just committed a burglary. Under the facts in this case, the purchase and use of cocaine had no relevance apart from its tendency to prove appellant's criminal character.
The State also argues the evidence of the "cocaine buy" was admissible for it was "part of the context of the criminal activity"; i.e., "res gestae" of the burglary.
Where an offense is one continuous transaction, or another offense is part of the case on trial or blended or closely interwoven, proof of all such facts is proper. [Citations omitted.] Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the "res gestae," under the reasoning that events do not occur in a vacuum and that the jury has the right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence.
Archer v. State, 607 S.W.2d at 542. The State also cites White v. State, 625 S.W.2d 835 (Tex.App.--Houston [14th Dist.] 1981, no pet.) and Carey v. State, 677 S.W.2d 821 (Tex.App.--Fort Worth 1984, no pet.) for the premise that "what a defendant does with the proceeds of a crime is admissible context evidence if accomplished soon after the crime." In both White and Carey, the State was permitted to show that the defendants had forged or passed checks stolen in the robbery and burglary for which the defendants were on trial.
In order for the extraneous conduct to be a part of the case on trial or blended or closely interwoven therewith, the conduct must be directly connected with, contemporaneous to and inseparable from the offense charged. Johnson v. State, 784 S.W.2d 75 (Tex.App.--Dallas 1989, pet. ref'd). Additionally, a relationship must exist between the evidence of the extraneous transaction and the evidence necessary to prove that the accused committed the crime for which he stands charged. Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989); Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972).
While we agree that a subsequent illegal use of checks stolen in a burglary is directly connected with and has a relationship with the burglary, we do not agree with the State's conclusion that "what a defendant does with the proceeds of a crime is admissible context evidence."
We do not find appellant's use of the proceeds from the burglary to buy "cocaine" to be so interwoven with and directly connected to the burglary to be admissible. Therefore, the trial court erred in allowing the introduction of the "cocaine buy."
We must therefore determine whether the introduction of the extraneous offense resulted in reversible error under Rule 81(b)(2) of the Texas Rules of Appellate Procedure. The error being present, reversal is mandated unless the appellate court concludes beyond a reasonable doubt that the error did not contribute to the conviction or the punishment assessed.
In the context of our harmless error analysis, we will examine the entire record in a neutral, impartial and even-handed manner. We will not, however, determine the harmfulness of the error simply by examining whether there exists overwhelming evidence to support appellant's guilt; but rather we will calculate the probable impact of the error on the jury in light of all the evidence. Harris v. State, 790 S.W.2d 568 (Tex.Crim.App.1989). In appellant's case, it cannot be said that the error might possibly have prejudiced the jury's decision making. Applying these standards to appellant's case, we find beyond a reasonable doubt that the introduction of the extraneous offense, albeit erroneous, did not contribute to appellant's conviction or punishment.
The jury had before it the physical evidence indicating the burglary took place; when and where it was alleged. Additionally, the State offered the testimony of the accomplice witness who connected appellant to the burglary. Finally and most important, the State offered a friend of appellant's who alleged that appellant admitted participating in the burglary.
Additionally, we note that the "cocaine buy," being unrelated to and occurring after the burglary, made it less likely the jury would have considered the latter offense of buying cocaine as persuasive evidence appellant committed the burglary. The probable impact of this evidence in light of the entire record was minimal. Therefore, point of error one is overruled.
In point of error two, appellant complains of the court's overruling of his objection to the State's offer of the "cocaine buy" during the punishment phase of the trial. Similarly in point of error three, appellant complains that at the punishment phase of the...
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