author: DOUGLAS, Judge. ONION, Presiding Judge ROBERTS, Judge

text:
    Terry Lynn COLEMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 49790.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.
    Rehearing Denied Jan. 7, 1976.
    Harry Louis Zimmermann, Dallas, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm and Richard Worthy, Asst. Dist. At-tys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

Appellant was convicted for the offense of burglary with intent to commit theft under the former Code. His punishment was assessed at five years.

The brief in the present case was filed late and will not be considered under Article 40.09, V.A.C.C.P. See Vale v. State, 491 S.W.2d 671 (Tex.Cr.App.1973), and Stembridge v. State, 477 S.W.2d 615 (Tex.Cr.App.1972). In view of the dissenting opinion, his complaint will be discussed to show that error, if any, was harmless.

The record in this case reflects that at about one o’clock in the morning an officer who was some seventy-five yards from the burglarized building saw the appellant in front of the door with clothing over his shoulder and under his arm. When appellant saw the officer, he ran, hit a trash can, dropped the clothing and continued to run. An officer found him hiding under a car. He had some Hershey bars in his pockets. He also had hacksaw blades, one of which was taken from inside a sock that he was wearing. Hershey bars and hacksaw blades were stolen from the building.

To see if there is reversible error, let us look to other testimony in the case. The appellant testified that he was in front of the burglarized building at the time in question. When he saw the officer and noticed that the building had been broken into, he ran because he was out of the penitentiary on parole and did not want it revoked. He testified that he had been convicted for burglary in 1971 and was assessed punishment at three years, probated, and that the probation was revoked after he had been convicted for the possession of dangerous drugs. He was released on parole in October of 1973. The offense in the present case was committed December 10, 1973.

He related that he had Hershey bars and a hacksaw blade in his pockets when he was apprehended. He testified that he had been working for a construction company and he carried hacksaw blades with him. He testified that he saw someone else in the burglarized building. The officer who saw appellant run testified that no one else was at the building.

In Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971), the accused was found asleep in his car parked by the curb in front of a jewelry store with stolen jewelry. No one saw him enter the store. Someone had vomited in the broken glass on the sidewalk and there was vomit in the car. Vomit also led to the car. The Court held that the facts proved were in “such close juxtaposition, or in such close relation, to the breaking and entry as to be equivalent to direct evidence and a charge on circumstantial evidence was not required.”

In the present case appellant admitted that he was in front of the building with a broken glass and that he fled when he saw the officer. Flight is further evidence of guilt. It appears that the evidence in the present case is just as strong, if not stronger, than in the Riggins case. See that case for additional authorities.

All that a charge on circumstantial evidence does in effect is to inform the jury that the evidence must exclude every other reasonable hypothesis except the defendant’s guilt.

It was written in Riggins:
“It would be difficult to imagine that a jury would reach a different result under the facts of this case with or without a charge on circumstantial evidence.”

That statement is applicable to this case.

The judgment is affirmed.

ODOM, J., concurs in the result.

ONION, Presiding Judge

(dissenting).

I dissent to the affirmance of this conviction on the technical ground that appellant’s brief was filed one day late, and would reverse the case for the failure of the trial court to charge on the law of circumstantial evidence despite the timely request of the appellant. I agree with much of what Judge Roberts says in his dissenting opinion, but cannot agree with everything he says. Particularly, I cannot agree that this court should abolish the doctrine of close juxtaposition.

ROBERTS, Judge

(dissenting).

This case is affirmed because the appellant’s brief was filed one day late. Art. 40.09, Sec. 9, V.A.C.C.P. Appellant was represented by appointed counsel both at trial and on appeal. The lengths to which this Court will go for the sole purpose of affirming convictions sometimes astounds and embarrasses me. Resort is had to the minutest procedural technicalities. And even-handed justice under law is at best a fortuitous by-product.

To begin with, the majority reaches its decision in this case in blatant disregard of a statute specifically directed to this situation:

“APPELLANT’S FAILURE TO FILE HIS BRIEF IN THE TIME PRESCRIBED SHALL NOT AUTHORIZE A DISMISSAL OF THE APPEAL BY THE COURT OF CRIMINAL APPEALS, NOR SHALL THE COURT OF CRIMINAL APPEALS, FOR SUCH REASON, REFUSE TO CONSIDER APPELLANT’S CASE ON APPEAL.” Art. 44.-33, V.A.C.C.P.

A majority of this Court, constituting itself as a three-man legislature, repeal this statute without even the courtesy of an ac-knowledgement. Texas’ other Legislature has also provided us with the following statute:

“. . . NO AFFIRMANCE OR REVERSAL OF A CASE SHALL BE DETERMINED ON MERE TECHNICALITIES OR ON TECHNICAL ERRORS IN THE PREPARATION AND FILING OF THE RECORD ON APPEAL.” Art. 44.-23, V.A.C.C.P.

Briefs have been considered a part of the record on appeal. See fn. 1 in Zambrano v. State, 478 S.W.2d 500 (Tex.Cr.App.1972). The Court’s action today also flies in the face of the policies embodied in this provision. Cases such as Vale and Stembridge, relied upon by the majority, should never have become a part of the jurisprudence of this State.

Even if this Court were empowered to repeal the above-quoted statutes, I should feel constrained to add some thoughts on the subject of even-handed justice under law. Art. 40.09, Sec. 9 has a counterpart in Art. 40.09, Sec. 10 which contains a surprisingly similar requirement for the timeliness of briefs filed by the State. Is Sec. 9 to be enforced while Sec. 10 is ignored? “The State of Texas habitually files briefs late, but they are considered by this Court.” Gowans v. State, 522 S.W.2d 462, 463 (Tex.Cr.App.1975) (opinion concurring in part and dissenting in part). Is this even-handed justice under law? Some members of this Court have even requested during oral argument that the State’s Attorney furnish a brief, or a supplemental brief on a certain matter or matters long after the State’s 30 days have elapsed. Sec. 10 authorizes extensions of time to be granted by the trial court, but not by this Court. And such briefs are not even served on opposing counsel. Is this even-handed justice under law? If this Court is going to enforce Art. 40.09, Sec. 9 against appellants, it should construe the identical language in Art. 40.-09, Sec. 10 against the State.

The holding of this case is that the scales of justice are decidedly tipped in favor of the State. It means not only that identical statutory provisions will be construed differently to give every advantage to the State, but that this Court will sometimes even ignore statutes that constrain the State or benefit the appellant. Affirmance on this technicality is all the more unfortunate in view of the substantial likelihood that this case will be before us again in the form of an application for writ of habeas corpus alleging ineffectiveness of appointed counsel on appeal. Having stated my reasons for dissenting to such a view, I move now to a consideration of the merits of this appeal.

The facts are essentially as set out in the majority opinion. On appeal, appellant complains of the refusal of the trial court to submit a charge on circumstantial evidence. He contends that there was no direct evidence of the main fact to be proved — the breaking and entry — and the finding that he was guilty of such acts was based entirely upon inferences drawn from other facts in evidence. It is well established that, under such circumstances, a charge on circumstantial evidence should be given. 4 Branch’s 2d, Sec. 2049, p. 357.

The force of this rule has been mitigated to some extent in Texas by the unique doctrine of close juxtaposition. “If the facts proved are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony, a charge on cireumstancial evidence is not required.” 4 Branch’s 2d, Sec. 2050, p. 359. And see 31 Tex.Jur.2d, Instructions, Sec. 123, pp. 683-686. Other states either subscribe to a looser rule on the requirement of a charge on circumstantial evidence, substitute the charge on reasonable doubt for a charge on circumstantial evidence, or require the giving of one of several forms of the circumstantial evidence charge when the situation warrants it. Exhaustive research has revealed no other state which subscribes to the doctrine of close juxtaposition. I think the best course would be to align ourselves with the other jurisdictions which do not have the doctrine and to require strict adherence to the rule requiring the giving of a charge on circumstantial evidence.

The origins of the doctrine of close juxtaposition are shrouded in antiquity. No mention of it is made in the law reviews, the ALR Annotations, or the treatises. Some of the older cases cited in 4 Branch’s 2d, Instructions, Sec. 2050 and Cabrera v. State, 56 Tex.Cr.R. 141, 118 S.W. 1054 (1909) in support of the doctrine actually make no reference to it at all. Hardin v. State, 8 Tex.App. 653 (1880); Holt v. State, 9 Tex.App. 571 (1880). The first mention of the doctrine that I have found was in the case of Montgomery v. State, 20 S.W. 926 (Tex.Cr.App.1893), where the Court stated in dictum that it would no longer consider the omission of a charge on circumstantial evidence to be fundamental error, reviewable for the first time on appeal, because the facts could have been in such close juxtaposition as to render the error harmless. The Court went on to hold that Montgomery was not such a case and reversed the conviction. Two months later, the phrase appeared in the holding of Baldwin v. State, 31 Tex.Cr.R. 589, 21 S.W. 679 (1893), rather than in dictum. But it again was used in a harmless error sense, mitigating the harm in the trial court’s failure to give a charge on circumstantial evidence. Two months after Baldwin, close juxtaposition appeared in its present form, in a holding that a trial judge’s failure to charge on circumstantial evidence was not error at all since the incriminating facts were in such close juxtaposition as to constitute direct evidence. Bennett v. State, 32 Tex.Cr.R. 216, 22 S.W. 684 (1893).

It would appear, then, that close juxtaposition crept into the jurisprudence of the State of Texas as a harmless error rule, but has since been elevated to a rule of substantive evidence law. And it is a law which deprives a defendant of the very crucial right to an instruction to the jury on how to consider a case based on circumstantial evidence. This Court has stated many times in affirming such cases that the better practice would be to include an instruction on circumstantial evidence in the judge’s charge to the jury. I do not think that a rule to that effect would place too great a burden on the administration of criminal justice in Texas or create too much confusion in the minds of her jurors. And I prefer the steadfastness and predictability of such a rule to the vagaries of a case-by-case weighing of the evidence in close juxtaposition cases. As was stated by Judge Lattimore in Lockhart v. State, 124 Tex. Cr.R. 401, 63 S.W.2d 299 (1933):

“In other words, it seems to us better to lay down the rule that such failure should be held cause for reversal than for us to embark upon the somewhat dangerous course of saying that in this case, that case or the other, we will uphold the court’s action, or rather affirm the case upon the theory of the strength of the circumstances. Some sets of circumstances might be stronger than others, and this court would necessarily be called on to speculate more or less as to whether the failure to charge on circumstantial evidence could have resulted in injury to the accused.”

In the case at bar, the evidence of the factum probandum — the breaking and entering — was purely circumstantial. Witness Williams stated that a glass door to his shop had been broken out. Officer Peterson testified he saw appellant standing in front of the shop and then running away. No one saw anyone break the glass or enter the building. It cannot be denied that the circumstances here strongly indicate appellant’s guilt. The question, however, is whether the appellant was accorded fair procedures in the ascertaining of that guilt. As was said in dissent in Riggins v. State, 468 S.W.2d 841 (Tex.Cr.App.1971):

“There is a difference between facts being in such a juxtaposition to warrant an inference of guilt and facts being in such a juxtaposition as to be equivalent to direct testimony. The former, no matter how strong they are or how certain is the guilt of the accused, cannot justify a failure to charge on circumstantial evidence. The latter set of facts will occur only where the evidence is such that it is logically and practically the virtual same thing as direct evidence of the factum probandum.”

On the basis of the foregoing discussion, I would hold that the doctrine of close juxtaposition is no longer tenable in Texas.

In response to the plurality’s “discussion” of the merits of this particular ground of error, I would note that this case is distinguishable from Riggins v. State, supra. The evidence in that case that appellant did the breaking and entering was much more direct than that in the case at bar. In Riggins, supra, the appellant was connected to the factum probandum by a trail of vomit that led from the broken glass on the sidewalk into appellant’s car where he was found passed out in the front seat. Thus, the circumstances connecting Riggins with the breaking and entering were even stronger than those connecting appellant with the breaking in the instant case.

I would entertain appellant’s brief, especially in light of the errors committed at trial. For the refusal of the judge to give a charge on circumstantial evidence, I would reverse and remand.


source: Caselaw Access Project

author: DOUGLAS, Judge.

license: Public Domain

text:
    James D. SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 49884.
    Court of Criminal Appeals of Texas.
    Dec. 3, 1975.
    Rehearing Denied Jan. 9, 1976.

      Marion T. Carson, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Charles T. Cona-way, John L. Quinlan, III, and Douglas C. Young, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder with malice. Punishment was assessed by the court at twenty years.

Teddy DeHaven testified that appellant shot Walter Norman on September 15,1972. DeHaven also testified that he and appellant took Norman’s body to Canyon Lake in Comal County. Norman’s body was found floating in the lake by a fisherman. The sufficiency of the evidence is not challenged.

Appellant contends, among other things, that there was jury misconduct because of a discussion of his failure to testify; that he was denied a speedy trial; that evidence was obtained by illegal searches.

We reverse the judgment of conviction because of the jury misconduct.

Jury Misconduct

Appellant did not testify. Juror Hope Luhn testified about the jury’s deliberations at the hearing on appellant’s motion for new trial and the following occurred:

(Mr. Carson, Defense Counsel): Was there any discussion there concerning the defense not having — James Smith not taking the stand? Q.
“A. (Juror Luhn) Yes.
“Q. What was that discussion, please?
“A. Well, Linda Andrade, she was for James Smith until — when he didn’t take the stand, she said, ‘Well, that just does it.’
“Q. And what did she mean? Did she go any further?
“A. She meant that he was guilty because he didn’t take the stand.
“Q. Did anybody—
“MR. QUINLAN: I object to her testifying to what somebody else felt because she said something.
“THE COURT: I will sustain that.
“Q. Did she say anything else concerning the fact that James Smith did not take the stand?
“A. Well, several people said that that just proved he was guilty.”

Appellant also introduced the affidavit of juror Miriam Barney which recites:

“There was some mention that there was a question as to James Smith’s innocence due to the fact that he didn’t take the stand.”

The State introduced the affidavits of nine jurors. The affidavits describe generally the jury’s deliberations but they do not state whether the jury discussed appellant’s failure to testify. Each affidavit does contain a general statement that no jury misconduct occurred.

In Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971), this Court wrote:

“ ‘The trial court is clothed with discretion in determining whether a new trial shall be granted on the ground that the jurors discussed the failure of the accused to testify in his own behalf, and an order denying the motion ordinarily will not be disturbed if the court has determined, on conflicting evidence, that the alleged misconduct did not in fact occur, or that the statement was made casually or incidentally.’ 41 Tex.Jur.2d, New Trial, Sec. 44, p. 136.” (Emphasis Supplied)

The record contains no evidence which rebuts proof that the jury discussed and considered appellant’s failure to testify. We hold that the overruling of the motion for new trial was an abuse of discretion. See Davis v. State, 159 Tex.Cr.R. 640, 266 S.W.2d 174 (1953); Canales v. State, 152 Tex.Cr.R. 198, 211 S.W.2d 950 (1948). Cf. Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Brantley v. State, 522 S.W.2d 519 (Tex.Cr.App.1975); Broussard v. State, 505 S.W.2d 282 (Tex.Cr.App.1974); Powell v. State, 502 S.W.2d 705 (Tex.Cr.App.1973); Cleaver v. State, 498 S.W.2d 945 (Tex.Cr.App.1973); Garza v. State, 368 S.W.2d 213 (Tex.Cr.App.1963); Gauntt v. State, 335 S.W.2d 616 (Tex.Cr.App.1960); Cassell v. State, 507 S.W.2d 228 (Tex.Cr.App.1974).

We discuss and overrule some of the contentions which might be raised in the event of another trial.

Speedy Trial

The offense occurred on September 15, 1972. Appellant was arrested on October 4, 1972, and he was indicted on October 6, 1972. Appellant was released on bail on October 30, 1972. Appellant’s motion for continuance was granted on November 3, 1972, and the case was set for trial on January 8, 1973. On January 8, 1973, the State’s motion for continuance was granted, and the case was reset for March 12, 1973. On that date, the State requested a second continuance because of the absence of a witness, Vicki Phinney. At the hearing on the motion for continuance, Jack Stamps testified that Vicki Phinney was living in California. The trial court denied the State’s motion for continuance.

A new indictment for the same offense was returned August 15, 1973. Trial was set for November 26,1973, and the case was passed until December 10, 1973. On that date, just prior to jury selection, the State requested a conference with the trial court in chambers. After the conference, the jury panel was dismissed. The case was then transferred to another court. Defendant was tried on January 28, 1974.

In Davison v. State, 510 S.W.2d 316 (Tex.Cr.App.1974), this Court wrote:

“The test for ascertaining whether the right to speedy trial has been denied is a balancing test based upon at least four criteria: (1) the length of the delay; (2) the reason for the delay; (3) the accused’s assertion of his right; and (4) the prejudice to the accused. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Pete v. State, 501 S.W.2d 683 (Tex.Cr.App.1973); McKinney v. State, 491 S.W.2d 404 (Tex.Cr.App.1973). During its present term, the Supreme Court of the United States has emphasized that none of these four criteria have ‘talis-manic qualities,’ and, in particular, that a showing of prejudice is not sine qua non to demonstrating a denial of the right to speedy trial. Moore v. Arizona, 414 U.S. 25, 94 S.Ct. 188, 38 L.Ed.2d 183 (1973).”

Approximately two years and four months elapsed from the date of arrest to trial. Such a delay is not, per se, a deprivation of the right to speedy trial, although it is a fact which calls for further consideration of appellant’s claim. Archie v. State, 511 S.W.2d 942 (Tex.Cr.App.1974).

The reason for the delay was the absence of a material witness, Vicki Phin-ney. Jack Stamps, an investigator for the Bexar County District Attorney, testified at a hearing on March 13, 1973, that Vicki Phinney had moved to Oakland, California. Stamps also described his efforts to locate her. Stamps went to Oakland and interviewed her friends, relatives, employers and landlord. Her landlord told Stamps that she had gone to Italy and would not return for several months. After hearing this evidence the trial court denied the motion for continuance. The indictment was dismissed.

Although the record is not fully developed, it appears that the State was unable to locate Vicki Phinney on the next scheduled trial date, December 10, 1973. The case was then transferred to another court where appellant was tried on January 28, 1974.

Vicki Phinney testified at appellant’s trial that she heard gunshots and saw appellant shut the blinds to his house just after the shooting. She related that she saw appellant and a companion drive away from the house a few minutes after the shooting and saw appellant return a few hours later.

In Barker v. Wingo, supra, the Supreme Court of the United States wrote:

“. . . A valid reason, such as a missing witness, should serve to justify appropriate delay.”

The third factor to be considered is appellant’s assertion of his right to a speedy trial. Appellant filed a motion for continuance on November 3, 1972, and the case was set for trial on January 8, 1973. Appellant opposed two motions for continuance filed by the State on January 8, 1973 and March 13, 1973. The trial court denied the State’s second motion for continuance. Appellant’s first written motion for speedy trial was filed on December 18, 1973. Appellant was tried on January 28, 1974.

The final factor is the prejudice which resulted from the delay. Although proof of “actual prejudice” is not required, the burden is upon appellant to make some showing of prejudice caused by the delay. Archie v. State, supra; Arivette v. State, 513 S.W.2d 857 (Tex.Cr.App.1974); McCarty v. State, 498 S.W.2d 212 (Tex.Cr.App.1973); Harris v. State, 489 S.W.2d 303 (Tex.Cr.App.1973); Courtney v. State, 472 S.W.2d 151 (Tex.Cr.App.1971). The Supreme Court in Barker v. Wingo, supra, identified the interests of the defendant which could be prejudiced by a delay: (1) oppressive pretrial incarceration; (2) anxiety and concern to the accused pending trial; (3) impairment of the defense.

Appellant was released on bail on October 30,1972. Thus, he was not subjected to excessive pretrial incarceration. He alleges that he was unable to locate a witness, Robin Sue Scheibach. His attorney stated at a pretrial hearing that a subpoena had been issued for her to appear at the previous trial dates and that the last subpoena was returned unserved. At a pretrial hearing, appellant’s attorney read into the record Scheibach ⅛ statement. It recited that she was with James Smith and Teddy Ray DeHaven from 7:00 p. m. to 10:30 p. m. on September 15, 1972, and that James Smith did not “act strange or different.” Teddy Ray DeHaven testified that he and appellant picked up two girls at five o’clock on September 15,1972 and that they let him out at Westwood Park at 6:45 or 7:00 p. m. Vicki Phinney testified that she saw appellant return to his house at approximately 7:00 p. m., September 15, 1972. We conclude that appellant failed to establish that his defense was impaired by the trial delay.

We find no denial of appellant’s right to speedy trial.

Circumstantial Evidence Charge

Appellant contends that the trial court erred in failing to charge the jury on circumstantial evidence.

Teddy DeHaven testified that he saw appellant shoot Walter Norman. DeHaven was an accomplice witness. In Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974), this Court wrote:

“ . . . Where there is direct testimony, although it comes from an accomplice witness, a charge on circumstantial evidence is not required. Bradley v. State, Tex.Cr.App., 450 S.W.2d 847; Blankenship v. State, Tex.Cr.App., 448 S.W.2d 476; Byrd v. State, Tex.Cr.App., 435 S.W.2d 508; White v. State, Tex.Cr.App., 385 S.W.2d 397.”

This contention is overruled.

Evidence of Threats by Other People

Appellant also contends that the trial court erred in excluding testimony concerning other persons who had threatened to kill the deceased.

Randy Sundan testified outside the presence of the jury that Sandra Norman threatened to kill Walter Norman approximately two months prior to the murder. Martha Tanner, an attorney, also testified that Norman told her that Sandra Norman and Robert Powers had threatened him. Sandra Norman denied threatening to kill her husband. Powers also denied threatening to kill Norman, although he admitted that he told Norman that he would “mess him up” after Norman threatened him.

Appellant relies on James v. State, 86 Tex.Cr.R. 598, 219 S.W. 202 (1920). In James, this Court wrote:

“There are a number of bills of exception directed to the action of the court in the admission of evidence tending to show that other persons who were near at hand at the time of the homicide had a motive to destroy the life of the deceased. Some of this testimony was admitted in evidence, some of it was excluded, and some of it the court after excluding it changed his view and offered to admit it. Testimony of this character, in a case where the state relies upon circumstantial evidence, is regarded as appropriate testimony. . . .” (Emphasis supplied)

In James, there was no direct evidence of guilt. In the instant case, Teddy DeHaven was an eyewitness to the shooting. There was no evidence which connected Sandra Norman or Robert Powers with the killing. See Wells v. State, 134 Tex. Cr.R. 412, 115 S.W.2d 658 (1938). The trial court did not err in excluding the testimony.

Search of the Home and Automobile of Deceased

Officer McGrew testified that he searched a 1966 Chevelle automobile on September 27th. The car was parked at the house of Norman Powers at the time of the search. Sandra Norman testified that she asked Powers to move the car from the house appellant and the deceased rented to his house on September 18. McGrew found a four-way lug wrench in the trunk cf the car. The wrench was bloodstained and had human hair on it.

The State contends that appellant does not have standing to challenge the search of the car because he alleged no possessory interest in the automobile and was not present at the time of the search. Appellant was not charged with an offense which included the possession of the automobile as an essential element of the offense. See Jones v. United States, 357 U.S. 493, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958). Thus, appellant does not have standing to challenge the search of the car. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Hutchinson v. State, 509 S.W.2d 598 (Tex.Cr.App.1974); Martin v. State, 401 S.W.2d 831 (Tex.Cr.App.1966); Thomas v. State, 493 S.W .2d 957 (Tex.Cr.App.1973).

Officer McGrew testified that Sandra Norman, wife of the deceased, called and asked him to meet her and her father, Roy Smith, at a coffee shop on the evening of September 18, 1972. Smith, Norman and McGrew went to a house located at 430 Crestfield Avenue in San Antonio which had been rented by appellant and the deceased. Sandra Norman and Smith entered the house through a broken window. They then unlocked the front door for Officer McGrew. McGrew briefly searched the house but found nothing. McGrew testified that Sandra Norman consented to the search of the house.

On September 27 Officer McGrew returned to the house with Roy Smith. Smith gave a key to the house to McGrew. He searched the house again and took some bloodstained rags, a .38 caliber bullet and a gun box.

Sandra Norman testified that she and the deceased were separated on the date of the offense. She filed a suit for divorce approximately two and a half months prior to the offense. The divorce case was pending on the date of the offense.

The Supreme Court of the United States recently reaffirmed the constitutional validity of third-party consent searches in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974):

“. . . These cases at least make clear that when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected. .” (Emphasis supplied)

On the date of the search Sandra Norman was the community survivor. Therefore, she was entitled to possession and control of their community property in the house. Further, the deceased’s interest in the lease of the house was also vested in Sandra Norman. See Frazier v. Wynn, 472 S.W.2d 750 (Tex.1971). She, therefore, had a “sufficient relationship to the premises and effects” to consent to the search of the house. See also Burge v. State, 443 S.W.2d 720 (Tex.Cr.App.1969); Swinney v. State, 529 S.W.2d 70 (1975); United States v. Lawless, 465 F.2d 422 (4th Cir. 1972); McCravy v. Moore, 476 F.2d 281 (6th Cir. 1973). Her consent to search the house on September 18 carried with it the implicit consent to search again on the 27th. See Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1972), where this Court held that officers had a right to enter a house after the first entry for further investigation, and Corbett v. State, 493 S.W.2d 940 (Tex.Cr.App.1973). There was testimony that Sandra Norman left a key with her father who gave it to Officer McGrew. See Carlton v. State, 111 Fla. 777, 149 So. 767 (Fla.1933).

The State contends that appellant abandoned the house prior to the seizure of the gun box, rags and bullet.

“Abandonment is primarily a question of intent, and intent may be inferred from words spoken, acts done, and other objective facts. * * * All relevant circumstances existing at the time of the alleged abandonment should be considered. * * * The issue is not abandonment in the strict property-right sense, but whether the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search. . . .” United States v. Colbert, 474 F.2d 174 (5th Cir. 1973).

Officer McGrew testified that he met with appellant, appellant’s father and appellant’s lawyer a few days after the offense. During that meeting appellant told McGrew that he had moved out of the house on September 18. Alfonzo Lopez, the owner of the house, testified that appellant moved out of the house and was living with his parents. Sandra Norman testified that she had spent the night in the house with her husband on several occasions. She also testified that appellant’s property was not in his room on the date she consented to the search of the house.

We conclude that the trial court had sufficient evidence to conclude that appellant abandoned the house prior to the seizure of the gun box, rags and bullet. See also Cherry v. State, 488 S.W.2d 744 (Tex.Cr.App.1972), cert. denied, 411 U.S. 909, 93 S.Ct. 1538, 36 L.Ed.2d 199; Lucas v. State, 368 S.W.2d 605 (Tex.Cr.App.1963), cert. denied, 375 U.S. 925, 84 S.Ct. 271, 11 L.Ed.2d 167; Gaskin v. State, 365 S.W.2d 185 (Tex.Cr.App.1963); United States v. Kress, 446 F.2d 358 (9th Cir. 1971); United States v. Edwards, 441 F.2d 749 (5th Cir. 1971).

Because of the jury misconduct, the judgment is reversed and the cause is remanded.

      . Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969); Coolidge v. New Hampshire, 403 U.S. 443, 487-^90, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).


author: GREEN, Commissioner.

text:
    Lawrence C. THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 50610.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.

      Charles J. Hearn and Grady F. Thompson, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, and Andy Tobias, Asst. Dist. At-tys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of robbery by firearms. Punishment was assessed at sixty-five years.

The record reflects that on March 22, 1972, a robbery occurred at the South Park National Bank in Houston, in which several men participated. The evidence is undisputed that appellant was one of the robbers and that in the robbery he possessed and exhibited a gun. He was identified by five eyewitnesses, and photographs from cameras in the bank activated by an alarm show clearly his participation. Additionally, his written confession was introduced in evidence. During the robbers’ flight from the bank after the robbery, James Garbs, an official of the bank, and T. G. Morris, a police officer, were shot by Robert Payne, one of the robbers. Garbs died from his wound.

In his first ground of error, appellant contends that the court erred in overruling his motion to dismiss the indictment in this cause since he was denied the right to counsel from the date of his arrest on March 24, 1972 until January 11, 1974 when the court first appointed counsel to represent him in this case.

The record reflects that appellant was arrested on March 24, 1972. Eight indictments were returned against him on April 4,1972, charging, variously, murder, assault with intent to murder, and robbery by firearms, all from the events of the robbery of March 22, 1972. In the murder case appellant was represented by retained counsel. By mutual agreement between retained counsel in the murder case and the State, the trial of that case against appellant was on several occasions in 1972 postponed until after Robert Payne, the “trigger” man charged with the same murder, was tried. After the trial of Payne in February, 1973, appellant’s retained counsel in the murder case engaged for several months in negotiations with the State for disposition of the cases against appellant on pleas of guilty. When such negotiations failed, counsel was appointed for appellant in the robbery case on January 11, 1974. A new indictment for this robbery in lieu of the indictment presented on April 4, 1972, was returned against appellant on March 7, 1974, and the trial on said new indictment began March 28, 1974, with both parties announcing ready.

No claim is advanced that appellant did not have effective legal assistance at the trial or that such counsel was not sufficiently prepared to proceed to trial.

In Ellingsworth v. State, Tex.Cr.App., 487 S.W.2d 108, at p. 111, we said:

“No claim is advanced that appellant did not have effective legal assistance at the trial, only that counsel was not appointed when appellant first appeared before the Justice of the Peace. Belated appointment of counsel, standing alone, does not require reversal. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419.”
The first ground of error is overruled.

In his second ground, appellant contends that he was denied his Sixth Amendment right of a speedy trial.

The guidelines to be considered in determining whether a defendant has been denied his constitutional right of a speedy trial, as set out by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, have been frequently discussed and applied by this Court. See Archie v. State, Tex.Cr.App., 511 S.W.2d 942, and authorities there cited. See also Peak v. State, Tex.Cr.App., 522 S.W.2d 907; Varda v. State, Tex.Cr.App., 518 S.W.2d 826; Davison v. State, Tex.Cr.App., 510 S.W.2d 316; Courtney v. State, Tex.Cr.App., 472 S.W.2d 151.

In the instant case, the length of the delay under the circumstances heretofore related was not unreasonable. Archie v. State, supra; McCarty v. State, Tex.Cr. App., 498 S.W.2d 212; Courtney v. State, supra. The reasons for the delay in trying appellant for offenses relating to this robbery have been related in our disposition of his first ground of error. Appellant in his brief makes no showing of any harm or prejudice to him due to the delay in his trial. The strength of the State’s case, and the uncontested confession of appellant, precludes any showing that he was prejudiced thereby.

The record reflects no denial of any constitutional right of a speedy trial. The second ground of error is overruled.

In his third ground, appellant argues that the court erred in admitting evidence of an extraneous offense, to-wit, the shooting of the bank official Garbs.

Garbs was shot and killed by one of the robbers just in back of the bank building during their flight from the bank. As we stated in Johnson v. State, Tex.Cr.App., 510 S.W.2d 944, at p. 948:

“The evidence of the ‘shoot out’ with the police officers while fleeing the scene of the alleged offense was shown to be res gestae of the offense and admissible as such. It is well settled that ‘[WJhere the offense is one continuous transaction, or another offense is a part of the case on trial or blended or closely interwoven therewith, proof of all the facts is proper.’ 4 Branch’s Ann.P.C., 2d ed., Sec. 2255, p. 618; Taylor v. State, 420 S.W.2d 601, 605 (Tex.Cr.App.1967). See also 23 Tex.Jur.2d, Sec. 196, p. 302. Further in Cawley v. State, 166 Tex.Cr.R. 37, 310 S.W.2d 340 (1957), this court held that escape, flight and attempt to escape are always admissible as a circumstance from which an inference of guilt may be drawn. See also Ysasaga v. State, 444 S.W.2d 305 (Tex.Cr.App.1969). The fact that the circumstances of flight show the commission of another crime does not render the evidence inadmissible. Thames v. State, 453 S.W.2d 495, 501 (Tex.Cr.App.1970).”

The evidence of this “extraneous offense” was clearly admissible as res gestae of the robbery. The third ground of error is overruled.

In his fourth ground of error appellant complains of the admission during the punishment hearing of evidence of serious criminal accusations that had not resulted in final convictions.

During direct examination at the punishment hearing, appellant answered the following question:

“Q Is there anything else that you can think of that you might tell this jury that would give effect to this request for probation?
“A Yes. There is something I would like to add, that I’ve never been in any type of trouble like this. And its been a great mental strain on me for these past two years, for the simple reason that I have to live with myself constantly.”

On cross-examination the State examined the appellant concerning his prior criminal conduct and asked him if he knew he had been identified as having committed a robbery by assault on August 20, 1971, to which appellant replied in the affirmative.

Appellant, having denied prior criminal conduct similar to that in the instant case, opened the door to questioning and cannot complain of evidence that he invited. Gilmore v. State, Tex.Cr.App., 493 S.W.2d 163; Page v. State, Tex.Cr.App., 486 S.W.2d 300; Ochoa v. State, Tex.Cr.App., 481 S.W.2d 847; Hamilton v. State, Tex.Cr.App., 480 S.W.2d 685; Barnett v. State, Tex.Cr.App., 445 S.W.2d 205.

Additionally, on that same cross-examination, appellant was asked about seven other indictments pending against him arising out of the South Park National Bank robbery on March 22, 1972. Appellant claims prejudicial error in such evidence. There was no objection to the questions concerning the pending indictments. In the absence of an objection, reversible error is not presented Ex parte Bagley, Tex.Cr.App., 509 S.W.2d 332; Deary v. State, Tex.Cr.App., 510 S.W.2d 956.

Appellant’s fourth ground of error is overruled.

In his fifth ground, appellant complains of that portion of the court’s charge “negating the defense of duress when no evidence was offered by the State controverting that defense.” Appellant also contends that the paragraph complained of is a comment on the weight of the evidence.

In a confession placed in evidence by the State, appellant stated that he took part in the robbery because of threats to his life made by Robert Payne if he did not participate. In view of that evidence, the court, in his charge, explained the law of duress to the jury. See Art. 38, V.A.P.C.; Brown v. State, 150 Tex.Cr.R. 447, 203 S.W.2d 223; Harris v. State, 91 Tex.Cr.R. 446, 241 S.W. 175. Compare Jackson v. State, Tex.Cr.App., 504 S.W.2d 488. The court then applied the law to the evidence as follows:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the defendant did commit the offense of robbery by firearms as alleged in the indictment, but you further find that Payne had threatened to kill the defendant if he did not participate in the robbery, and that his acts and words were calculated to intimidate a person of ordinary firmness and that they did lead defendant to believe that Payne would take his life or do serious bodily injury if he did not participate in the robbery, and that so believing, he did, you will acquit the defendant, or if you have a reasonable doubt on such issue, you will say by your verdict ‘not guilty.’
“If, however, after viewing the facts from the defendant’s standpoint at the time, you believe from the evidence beyond a reasonable doubt that the defendant did not have a reasonable expectation or fear of death or of receiving serious bodily injury at the time he committed the robbery, if he did, you will find against him on his plea of duress.”

Appellant’s complaint is addressed to the second paragraph quoted above. He argues that it is on the weight of the evidence since the State did not controvert his defense of duress. We find the evidence of appellant’s actions and conduct during and after the robbery amply sufficient to rebut the statement of appellant in his confession. Appellant’s contentions are without merit, and are overruled.

In his sixth ground of error, appellant contends that the trial court committed reversible error by failing to include in its charge to the jury a definition of the term “actual presence,” thus failing to fully set forth the law of duress.

This contention is without merit as there was no issue of “actual presence” raised in the instant case.

Appellant’s sixth ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . However, courts should be very diligent in the appointment of counsel for indigents in custody charged with crime. As stated by the Supreme Court in Chambers v. Maroney, supra:
      “Unquestionably, the courts should make every effort to effect early appointment of counsel in all cases. But we are not disposed to develop a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . ”

      . For the present statute on duress, see V.T.C.A. Penal Code Sec. 8.05.


author: DAVIS, Commissioner.

text:
    Hamon SHAW, Jr., Appellant, v. The STATE of Texas, Appellee.
    Nos. 50662, 50663.
    Court of Criminal Appeals of Texas.
    Dec. 17, 1975.
    Rehearing Denied Jan. 21,1976.

      David F. Farris, Court appointed on appeal, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., William Cary Quillin, Roger W. Crampton, James G. Bennett and Jack V. Strickland, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeals are taken from convictions for murder in Causes 50,662 and 50,663, tried together by agreement of appellant. Punishment was enhanced in each cause under V.T.C.A. Penal Code, Sec. 12.42(c), and the jury in each case assessed punishment at life.

The indictment in Cause No. 50,662 alleges that appellant “on or about the 26th day of September 1974 did then and there intentionally and knowingly cause the death of an individual, Christine Marie Shaw, by shooting her with a gun.” Appellant waived indictment in Cause No. 50,663 and the information in such cause charges appellant with the murder of Lynna Kay Johnson on or about September 26, 1974. The record reflects that the two victims were each shot three times at appellant’s home with a .32 caliber gun on September 26, 1974. Appellant did not testify nor did he offer any evidence at either the punishment or guilt stage of the trial. The sufficiency of the evidence to support the convictions is not challenged.

Appellant contends the court erred in admitting evidence of extraneous matters over appellant’s objection.

The record reflects that the victim Shaw’s nine-year-old son, John Wesley Ow-ensby, testified over appellant’s objection to mistreatment of his mother by appellant. The young witness testified:

“Sometimes he would hit her.
“He threatened her with his fist.
“One time he was shooting at my mom.” V.T.C.A. Penal Code, Sec. 19.06 provides: “In all prosecutions for murder or voluntary manslaughter, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense. Amended by Acts 1973, 63rd Leg., p. 1123, ch. 426, art. 2, § 1, eff. Jan. 1,1974.”

We find that the complained-of testimony was admissible to show the condition of the mind of the accused at the time of the offense. See 2 Branch’s Ann.P.C., Sec. 2057 for numerous cases holding that such evidence is admissible to show the state of mind at the time of the offense and to establish a motive for its commission.

Appellant contends the waiver of indictment in Cause No. 50,663 is insufficient.

The waiver of indictment in said cause, omitting the formal parts, reads:

“Comes now the Defendant in the above styled and numbered cause, with his attorney, the Honorable Harry Williams, and, in open Court, having assured the Court that he has consulted with his attorney and has been fully advised of his rights and of the nature of the charges against him in said cause, to-wit: murder & rep., a felony less than capital, makes known to the Court his desire to waive his right to have said charges presented to a grand jury and to be tried in said cause upon an indictment and respectfully requests and consents that the trial may proceed upon an information.
/s/ HamonJShaw Jr.
DEFENDANT /s/ Harry L. Williams
ATTORNEY FOR DEFENDANT” (emphasis supplied)

The record reflects that the court admonished appellant that he had a right to be tried under an indictment returned by a grand jury, but that he understood appellant wanted to waive indictment in this cause in order that he might be tried in both causes at the same time. The court questioned appellant as to whether he had discussed same with his attorney and was assured by appellant that he had and it was his desire to waive indictment. The record contains an order reflecting approval of the waiver by the court which recites that appellant “in open Court with his attorney, personally, knowingly, and voluntarily waives his right to be tried in this cause upon an indictment.”

Appellant urges that the waiver does not clearly allege the offense against which the accused must defend himself in that it recites the nature of the charge as “murder & rep.”

In King v. State, 473 S.W.2d 43, this Court said:

“An indictment is still mandatory in absence of a valid waiver. For the waiver to be effective it must be intelligently, voluntarily and knowingly given by the accused while represented by counsel.”

The record reflects that an indictment had been returned on November 19, 1974, charging the instant offense, but, due to the misspelling of the name of the victim, the district attorney was seeking another indictment. In the court’s questioning of appellant regarding the waiver, it appears that appellant’s reason for desiring the waiver of indictment was that he was in jail and did not want to suffer any delay in going to trial in either case. No objection was voiced by appellant when the information was read at the guilt or at the punishment stage of the trial when he entered a plea of true to the paragraph of the information alleging a prior felony conviction.

While we cannot condone the use of an abbreviated word in describing the offense pending against an accused in a waiver of indictment, the circumstances of this case dictate the waiver of indictment by appellant was intelligently, voluntarily and knowingly given by appellant while he was represented by counsel and that the court’s findings are supported by the evidence.

Appellant contends the court erred in using the same prior felony conviction to enhance punishment in each cause.

The State recognizes that the general rule is that the same conviction cannot be twice used to enhance punishment. See Gooden v. State, 140 Tex.Cr.R. 351, 145 S.W.2d 179. The State suggests, however, that a different rule should apply where two causes are tried together. This Court, in the recent cases of Carvajal v. State, 529 S.W.2d 517 (1975), where two causes were tried together, held it was improper to use the same two prior felony convictions to enhance punishment under V.T.C.A. Penal Code, Sec. 12.42(d). We perceive no reason for a different rule where punishment is enhanced by one prior felony conviction under Sec. 12.42(c), supra. In Carvajal, this Court rejected an argument that the rule prohibiting the use of the same conviction to twice enhance punishment was not applicable under the new Penal Code. We cannot agree with the State’s suggestion that the failure of appellant to object waived such infirmity, nor can we agree that the error is not prejudicial in view of the fact that the record reflects that appellant had been previously convicted of a felony in Michigan and that a retrial “would result in a mere substitution” of the Michigan conviction.

The prior conviction was properly used to enhance punishment in Cause No. 50,662, but the same conviction should not have been used to enhance punishment in Cause No. 50,663.

Counsel for appellant calls our attention to a pro se objection voiced by appellant at sentencing which would appear to be in the nature of a complaint of ineffective representation by counsel in the trial court. The record clearly refutes such complaint.

The judgment in Cause No. 50,662 is affirmed.

The punishment in Cause No. 50,663 having been enhanced by the same prior conviction used for enhancement in Cause No. 50,662, and set at life by the jury, requires that the judgment of conviction be reversed and the cause remanded in Cause No. 50,-663.

It is so ordered.

Opinion approved by the Court.

      . V.T.C.A. Penal Code, Sec. 12.42(c) provides:
      “If it be shown on the trial of a first-degree felony that the defendant has been once before convicted of any felony, on conviction he shall be punished by confinement in the Texas Department of Corrections for life, or for any term of not more than 99 years or less than 15 years.”


author: DALLY, Commissioner. MORRISON, Judge DOUGLAS, Judge

text:
    John T. CAMERON, Appellant, v. The STATE of Texas, Appellee.
    No. 49972.
    Court of Criminal Appeals of Texas.
    Dec. 19, 1975.

      John T. Montford, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty., and Tommy J. Turner, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This appeal is taken from a conviction for robbery by firearms. Trial was before a jury that assessed the punishment of the appellant at imprisonment for fifteen years. The appellant asserts that evidence of extraneous offenses was erroneously admitted; this evidence was expressly admitted on the issue of identity to aid in determining whether the appellant was the person who committed this offense. We find there was reversible error.

We will first summarize the evidence offered to prove the offense for which the appellant was being tried in this case. On November 7, 1972, Iris Neyland was employed as head cashier of Southwestern Investment Company (SIC) in the City of Lubbock. On that date at 1:00 p. m. appellant entered the office and approached her desk. He pointed a pistol at her, dropped a yellow and white plastic bag on the counter, and directed her to “fill it up.” As she was emptying the currency out of the drawer, one of the other employees made a move to stand up. Appellant then cocked his gun, held it against Neyland’s forehead, and ordered her to open another drawer. When she told him that there was nothing in it, appellant told her that he “wasn’t kidding” and again demanded that she open the drawer. When she repeated that there was nothing but supplies in the drawer, appellant ordered yet another drawer opened. She told him that she was unable to open that drawer because the cashier who had the key was gone. Appellant then grabbed the plastic bag, which contained $867 in currency, and fled on foot. She recognized the appellant as he had been a customer at SIC for about one year before the robbery, and he had made a new loan two or three weeks before the robbery. She said the appellant was wearing a leather jacket, a wig, and large sunglasses.

Three other employees of SIC who were eyewitnesses to the robbery made in-court identifications of the appellant as being the person who committed the robbery; the appellant attempted to show that the offense was committed by another person; he testified and offered an alibi defense.

The appellant contends that the trial court erred in admitting, over objection, in the State’s case in chief, evidence that proved he and another person committed an armed robbery at the Holiday Inn in Pecos, on July 19, 1972. Nadine Watkins, the complainant in that robbery, was allowed to testify in detail concerning the facts of the offense, but the appellant testified in his own behalf, and on direct examination he admitted he committed, plead guilty to, and was convicted of that offense. The general rule here is “that an accused cannot complain of the admission of testimony when he later testifie[s] on direct examination to substantially the same facts.” Cook v. State, 409 S.W.2d 857 (Tex.Cr.App.1966). Put another way, inadmissible evidence erroneously admitted generally will not require reversal when the defendant testifies about the same facts and admits the truth of the testimony to which he originally objected. Moulton v. State, 486 S.W.2d 334 (Tex.Cr.App.1972); Nicholas v. State, 502 S.W.2d 169 (Tex.Cr.App.1973); Ivory v. State, 430 S.W.2d 498 (Tex.Cr.App.1968). In the instant case, appellant admitted his guilt in the robbery in Pecos after first objecting to the admission of any evidence of that offense. He did not attempt to explain or rebut the admitted evidence, as was the case in Nicholas v. State, supra; rather, he freely admitted to the truth of it. Therefore, the appellant is in no position to claim that he was harmed by a ruling of the court.

The appellant also contends that the court erred in admitting evidence of another offense of armed robbery, allegedly committed by the appellant on March 14, 1972, at the Ready-Mart Food Store in Lubbock. Richard Fillingim was allowed to testify, over objection, that on March 14, 1972, two black males entered the Ready-Mart Food Store, where he was employed as a clerk, and robbed him at gunpoint of approximately $300. He related that at 10:30 p. m. on the aforementioned date the appellant and a confederate entered the store and walked down an aisle near the cash register; they took one can of soup from the shelf, brought it back to the counter and asked where the crackers were. After the crackers were placed on the counter, Fillin-gim rang up the sale. When he turned to accept payment, the appellant had pulled out a pistol and pointed it at Fillingim. He was told to put all of the store’s money in a brown paper sack and to “hurry up.” The appellant then ordered him to go into the back room and lie down. Neither the appellant nor his confederate were disguised. The appellant was dressed “casually.”

Evidence of other unrelated offenses is not generally admissible since a defendant may not be tried for some collateral crime or for being a criminal generally. The reasons for the rule have been stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972):

“Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.” Albrecht v. State, supra.

However, where evidence is relevant to prove an issue, it is not necessarily rendered inadmissible because it tends to show the commission of an extraneous offense. As an exception to the general rule of inadmissibility, evidence of the commission of other offenses by the accused is admissible to establish the identity of the person or crime, intent, motive, system or as part of the res gestae. Albrecht v. State, supra. In the present case the State offered the evidence of the robbery at the Ready-Mart Food Store, in its case in chief, on the issue of identity and the jury was so instructed.

Evidence that would also prove a separate offense is admissible when offered on the issue of identity only (1) if identity is a controverted issue and (2) if there are distinguishing characteristics common to both the extraneous offense and the offense for which the defendant is on trial. E. g. Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Lee v. State, 496 S.W.2d 616 (Tex.Cr.App.1973); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). A defendant’s denial of the commission of the crime and his reliance on the defense of alibi makes identity a controverted issue. Lee v. State, supra; cf. Redd v. State, 522 S.W.2d 890 (Tex.Cr.App.1975); Franklin v. State, 488 S.W.2d 826 (Tex.Cr.App.1972). Since the appellant here denied that he committed the offense and offered an alibi defense, identity is a controverted issue. We must then determine whether there were distinguishing characteristics common to both the extraneous offense and the offense for which the appellant was on trial — in other words, would the evidence that also proved the robbery at the Ready-Mart Food Store aid in determining whether the appellant is the person who committed the offense at SIC?

In Ford v. State, supra, it was said the common distinguishing characteristic may be the proximity in time and place of the extraneous offense to the offense for which the accused is being tried, or the common element may be the mode of commission of the criminal offenses. In Ransom v. State, supra, it was said that both proximity in time and place and the common mode of the commission of the offense were present. There the robberies were committed within three days time and a confederate acted with the defendant in both robberies.

In this case although both robberies were committed in Lubbock, they were separated in time by eight months. The robbery of the grocery store was committed by two black men with a pistol. The robbery at SIC was committed by one black man with a pistol. (The State argues that a second person was the driver of the car in which the appellant escaped from the robbery at SIC.) We find no distinguishing characteristics common to both the extraneous offense and the offense for which the appellant is on trial. The admission of the evidence of the extraneous offense, the robbery at the Ready-Mart Food Store, cannot be characterized as harmless error; its admission in evidence was reversible error. Ford v. State, supra.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

MORRISON, Judge

(concurring).

I concur in the reversal of this cause. In my concurring opinion in Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491, at page 497, I said:

“Though not without difficulty, I have concluded that the above similarities are sufficient . . . ”

In that case the similarities were “a peculiar trait” of bringing a paper bag into a supermarket, where paper bags are readily available, and wearing a cap and sun glasses.

The only similarities between the primary offense and the extraneous offense in the instant case are those set forth in footnote one of the dissenting opinion.

Under our holding in Ford, supra, I cannot conclude that these similarities are sufficient.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because of the admission of an extraneous offense.

Evidence of extraneous offenses is admissible to prove identity. The issue of identity was raised by appellant’s cross-examination of the robbery victims and his reliance on an alibi defense. In Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974), this Court wrote:

“. . .In Ford v. State, supra [484 S.W.2d 727, Tex.Cr.App.1972], 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. . . ”

This Court also noted in Ransom that the exact “modus operandi” need not be repeated.

Appellant also testified that Shelly Townsend committed the robbery. Appellant also had an alibi.

“Evidence of extraneous offenses committed by the accused has been held admissible: * * * (6) To refute a defensive theory raised by the accused.” Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

In Halliburton v. State, 528 S.W.2d 216 (Tex.Cr.App.1975), the defendant testified that she shot the deceased in self-defense. A prosecution witness testified that Halliburton shot him five weeks after the primary offense. There was no “distinguishing characteristic” common to both the primary and extraneous offense.

This Court held that the extraneous offense was admissible to rebut appellant’s defensive theories.

“. . . The presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense. If the extraneous offense is relevant in tending to disprove the defensive theory, it should be admissible. . . . ” Halliburton v. State, supra, opinion on appellant’s motion for rehearing.

In the instant case the evidence of the prior robbery reasonably and logically tended to defeat appellant’s defenses and, therefore, was admissible.

No doubt to the bewilderment of trial judges and lawyers, this Court is inconsistent in its holdings on the same point. This Court has held that extraneous offenses to defeat a defensive theory are admissible under the guidelines of Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). The present case does not follow Albrecht.

Apparently the majority is disregarding the decision in Ransom which held that it did not make any difference how the offense was committed. Is the majority ignoring that decision and going back to the similarities or dissimilarities mentioned in Ford which pointed out that the accused in the case wore a purple shirt while committing one offense but did not wear a purple shirt while committing the extraneous offense?

The judgment should be affirmed.

ONION, P. J., joins in this dissent.

      .If similarities are important, the following were proved:
      1. Both offenses were committed in Lubbock.
      2. Both offenses were committed by black males.
      3. The robber used a pistol in both offenses.
      4. The robber ordered the clerk to place the money in a bag. Cf. Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491. See also Robinson v. State, 508 S.W.2d 630 (Tex.Cr.App.1974); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974).

      . In Henriksen the robber entered the supermarkets in both the primary and extraneous offenses and ordered the attendant to place the money in a paper bag. See concurring opinion by Judge Morrison.


author: McDONALD, Chief Justice.

text:
    Joe KINSEY, Appellant, v. HUBBY-REESE COMPANY, INC., Appellee.
    No. 5486.
    Court of Civil Appeals of Texas, Waco.
    Sept. 11, 1975.
    C. 0. McMillan, Stephenville, for appellant.
    Sheehy, Lovelace & Mayfield, Waco, for appellee.
   OPINION

McDONALD, Chief Justice.

This is an appeal by defendant Kinsey from judgment against him and in favor of plaintiff Hubby-Reese for $13,583.36.

Plaintiff is a wholesale grocer, and defendant purchased groceries from plaintiff for a long period of time. Defendant became delinquent on his open account, and on February 12, 1958, defendant executed a note payable to plaintiff for $24,000. in monthly installments of $200. The note further provided for 6% interest; and 10% attorney’s fees if the note be placed with an attorney for collection.

By 1971 defendant was again in arrears in his open account, and on December 29, 1971, owed plaintiff $3749.21. At defendant’s request plaintiff began a new ledger card on January 1, 1972, with a “zero” balance as of that date. At time of suit defendant owed $125. on the new open account.

On February 6, 1975, plaintiff sued defendant for balance of $20,300. due on the note (plus interest and attorney’s fees), and by amended pleading filed April 11, 1975, sued for the two open accounts.

Defendant plead the four-year statute of limitations to all amounts due more than four years on the note, and plead the two-year statute of limitations to the $3,749.21 open account.

Trial was before the court without a jury which rendered judgment for plaintiff for $13,583.36 ($7,664.14 being installments due on the note and less than four years old before suit was filed; plus the full amounts of the accounts sued for, plus $2000. attorney’s fees).

Defendant appeals on one point: “The trial court erred in granting judgment for any amount except the sum of $125. on the account sued for.”

Under this point defendant levels no complaint at the judgment for the $7,664.14 on the note (or $766.41 attorney’s fees attributable to the note); but asserts the two-year statute of limitations barred the $3,749.21 open account sued for; and that the award of $2000. attorney’s fees is excessive.

Suits on open accounts such as the instant case are governed by Section 2.725 of the Texas Business and Commerce Code YTCA, which sets the statute of limitations as four years on any contract of sale. Big D Service Company, Inc. v. Climatrol Industries, Inc., Tex.Civ.App., Er.Ref., 514 S.W.2d 148; Wilson v. Browning Arms Company, Tex. Civ.App., Er.Ref., 501 S.W.2d 705.

The evidence shows that as of December 29, 1971, defendant owed plaintiff $3,749.21 on open account; that on January 1, 1972 a new account was opened for defendant on plaintiff’s books; that thereafter defendant purchased goods and made payments; that payments by defendant were credited by plaintiff on the new account; and that on September 23, 1974, defendant owed $125.00 on the new account.

The evidence reflects that more than $8000.00 was charged to the original open account between April 11,1971, and December 29,1971, to bring the account balance to $3749.21. None of the foregoing was barred by the four-year statute of limitations.

There was no testimony as to any request by defendant for a method of crediting payments on the original open account, and the President of plaintiff testified there was no such request.

Plaintiff credited the new open account with all moneys paid by defendant after January 1, 1972, which left a balance of $125., of which defendant makes no complaint.

The rule is in the case of running accounts, where there are various items of debt on one side, and various items of credit on the other side, occurring at different times, and no direction of application of payment has been made by the debtor, payments on the account as a whole are applied by law to the oldest unpaid portion of the account. Aetna Cas. & Surety Co. v. Hawn Lbr., Co., 128 Tex. 296, 97 S.W.2d 460; 44 Tex.Jur.2d p. 693; Prowell v. Berry-Barnett Grocery Co., Tex.Civ.App. (Waco), Er.Ref., 462 S.W.2d 53.

The $2000. attorney’s fee is not excessive. Defendant’s point is overruled.

Affirmed.