author: DAUGHTREY, Judge.

text:
    Lester HACKNEY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 7, 1977.
    Certiorari Denied by Supreme Court March 21, 1977.

      Max E. Wilson and 0. H. Wilson, Mountain City, for appellant.
    Brooks McLemore, Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, David E. Crockett, Asst. Dist. Atty. Gen., Elizabeth-ton, for appellee.
   DAUGHTREY, Judge.

OPINION

The prosecution in this case came about as the result of the death of Louise Mathe-son on June 14, 1975. Her body was found in the remains of her rural Johnson County home, which was completely destroyed by fire. Matheson’s paramour, Lester Hackney was indicted for first degree murder and subsequently convicted of voluntary manslaughter. The jury assessed a sentence of four to ten years imprisonment.

The defendant raises multiple assignments of error on appeal, the most serious of which attack the sufficiency of the convicting evidence. He also claims (1) that the trial judge erred in admitting the testimony of a doctor whom the defendant insists was not a qualified expert in his field, (2) that the defendant’s statement to the police was introduced in violation of his Miranda rights, and (3) that evidence developed post-trial proves that the defendant was incompetent to stand trial at the time he was convicted. We have reviewed the last three assignments and find that they are not supported by the record. Further, we conclude that the evidence on appeal is sufficient to support the verdict of the jury and we therefore must uphold the defendant’s conviction.

Evidence concerning the cause of death was presented by a licensed physician who had completed a four year residency in pathology, had two years experience as a hospital staff pathologist, and had conducted 250 autopsies. The trial court’s determination that this witness was a qualified expert in the field of pathology, despite the fact that he had not yet been certified by the National American Board of Pathologists, did not constitute an abuse of discretion as claimed by the defendant. There is no rule that a physician must be board certified in order to qualify as an expert in a given medical field.

The Miranda complaint is based on the fact that the defendant refused to execute a written waiver of his rights after being given the obligatory warnings. The trial judge conducted a jury-out hearing and determined that no Miranda violation had occurred. The record supports his finding. The law recognizes that a written waiver is not the exclusive means of manifesting a valid waiver of Miranda rights, Bush v. State, 530 S.W.2d 95 (Tenn.Cr.App. 1975), and a refusal to sign a written waiver does not render a subsequent statement inadmissible when the evidence demonstrates that the statement was voluntarily made following adequate warnings.

At a hearing on a supplemental motion for a new trial, the defendant introduced the deposition of a physician who had been treating him during a two year period prior to trial for a brain “abnormality.” The doctor had testified that calcification, perhaps caused by a brain tumor, had caused damage to a certain area of the defendant’s brain and that “people with brain damage are more likely to be emotionally, easily emotionally upset and show poor judgment at times when their conduct is not well controlled.” The doctor said that in his opinion the defendant would not respond normally in a trial situation because “a man like that under stress would not handle himself well.” But. the doctor did not testify that the defendant was then or had ever been incompetent to stand trial,

1. e., that he was unable to understand the nature of the proceedings or to advise counsel.

The defendant’s attorney insists that Hackney’s performance as a witness demonstrates his incompetency. The record fails to support this contention. The defendant experienced no difficulty in testifying until he was subjected to rigid cross-examination by the prosecutor. Up to this point he showed a remarkable facility for detail and clarity as to the events transpiring during the thirty-six hours prior to Matheson’s death. It was only when he was asked on cross-examination for a logical explanation of his illogical conduct and inconsistent statements following the crime that he experienced difficulty on the stand. It seems apparent that if Hackney’s testimony became unsatisfactory at any point, it was due not to any incompetency on his part, but rather to the formidable task of attempting to explain away evidence of his guilt. The trial court committed no error in refusing to set aside the verdict based on the alleged incompetency of the defendant.

There remains the question of the sufficiency of the convicting evidence. The proof at trial was wholly circumstantial in nature. Hackney and Matheson had been dating for more than a year, and there was evidence that their relationship was somewhat stormy. They had spent the night before the homicide together at a Johnson city motel, visiting various saloons the next day. They arrived back in the rural area where Matheson lived at 9:00 or 9:30 P.M. on June 13th and went to the small house that she occupied by herself. By the defendant’s own admission they had been arguing throughout the day.

Fire broke out at the house just before midnight. It was discovered by neighbors and reported to the local volunteer fire department. The house was completely consumed by flames, although the firemen were able to wet down one corner of the structure long enough to allow recovery of Matheson’s body. She was found lying face down in the corner of a room between a bed and a wall. The space between measured approximately three and one-half feet. The body had suffered third and fourth degree burns.

An autopsy revealed three fractures of the skull. Two were zig-zag fractures caused by the heat of the fire. The third was a depressed fracture of the top right of the skull, measuring one by one and one-half centimeters. A small tack hammer was found on the floor some two feet from the body. The pathologist was unable to state positively that the blow causing the fracture had come from the hammer. He was likewise unable to tell if it had been inflicted before or after death. He thought the trauma was likely non-fatal, although the blow could have rendered the victim unconscious. The cause of death was an extremely high carbon monoxide level in the bloodstream, caused by smoke inhalation.

An arson investigator called in on the case was unable to determine where or why the fire started, and he therefore characterized it as “suspicious” in its origin. There was no electric power in the house at the time. He found several holes in the floor of the house, a common indication that an accelerant had been used. He determined that all the holes but one could be explained by the fact that firefighters on the scene had broken through the floor. The single exception was a hole in the floor located at the foot of the bed next to which the deceased’s body was found. The arson investigator could not explain how it was caused. (No direct evidence of an accelerant was present after the fire was put out. A consent search of the defendant’s car produced a plastic container that had an odor of fuel, but which was bone dry.)

The arson investigator testified that he found no debris on or near the body which might have caused the trauma to the deceased’s head. Indeed, he concluded that because of its position between the bed and the wall, the body would have been shielded from falling debris.

The first neighbor to reach the scene found the entire house engulfed by flames and the defendant’s car sitting in the yard. He called out but received no response from the car. He left to summon help and when he returned the defendant’s automobile was gone. Another neighbor arrived to find that the roof had fallen in. Knowing of the relationship between Hackney and Mathe-son, he went to the defendant’s family home. There he found the defendant on his way from his car to the house. The neighbor asked if Hackney knew where Mathe-son was, to which Hackney replied in the negative, saying that he had been asleep in the car. The neighbor told him Matheson’s house was afire and asked if it were possible that she was still inside. The defendant answered “I’d say she could be,” and went into the house, presumably to bed. Although the neighbor then returned to the scene of the fire, Hackney did not.

The defendant was questioned on the morning of the 14th by local police officials and the fire marshall. He told them that he and the victim had been together the previous two days, that they had gone to her house, that they had argued over his attention to another woman, and that she had asked him to leave. He said he had gone out to the car and had there fallen asleep. He told the police he awoke later and left the scene, and that there was “nothing wrong” when he left in his car. At the trial he told substantially the same story, except that he testified that when he awoke the house was completely engaged in flames and, seeing that there was no way to help Matheson, he left and drove home. He denied hitting the victim with anything.

The defendant’s explanation of his conduct was severely impeached on cross-examination. Furthermore, two witnesses corroborated his testimony that he was with the victim shortly before her death. One of these witnesses had overheard Hackney make a phone call a day or two before, following which he announced, “Somebody is going to get killed.”

The defendant’s contention below was that evidence introduced by the State was not strong enough to meet the test required in a case involving wholly circumstantial evidence, i. e. that the proof did not exclude every other reasonable hypothesis except that of guilt. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958). The defendant concedes that on appeal he has the burden of showing that the evidence preponderates against the verdict and in favor of his innocence. See generally, Farmer v. State, 208 Tenn. 75, 343 S.W.2d 895 (1961); Patterson v. State, 4 Tenn.Cr.App. 657, 475 S.W.2d 201, 203 (1971); Williams v. State, 520 S.W.2d 371 (Tenn.Cr.App.1974).

Considered in its totality, the evidence in the record does not preponderate against the jury’s verdict. The proof demonstrates that the defendant and the deceased had been involved in an ongoing argument, which may be taken as a motive for Hackney’s behavior. Furthermore, he was present at the scene immediately before and at the time of Matheson’s demise, giving him an opportunity to cause her death. His flight from the scene, his inconsistent statements following the event, and his apparent unconcern and lack of surprise or shock at the desperate plight of his lover all indicate a consciousness of guilt from which the jury could infer unlawful conduct on his part toward the deceased.

We are aware that none of these circumstances, when taken alone, would support a finding of guilt. But as this Court has observed in Hicks v. State, 490 S.W.2d 174, 178 (Tenn.Cr.App.1972):

In circumstantial evidence cases single facts of themselves may account each for little weight, but when all of the facts and circumstances are put together, they may unerringly point the finger of guilt to the defendant to the exclusion of all others beyond a reasonable doubt.

The jury heard the evidence in this case. They were in a far better position than we to weigh the credibility of the witnesses, especially the credibility of the defendant when he testified in his own behalf. We cannot say that the evidence before us preponderates against their final determination of the facts.

The judgment of the trial court is affirmed.

RUSSELL, Panel P. J., and GAL-BREATH, J., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The question of the defendant’s competency to stand trial had not been raised prior to trial. However, the State did not contest the defendant’s right to raise the issue after trial. In fact, the prosecutor very commendably set the machinery in motion to secure the doctor’s post-trial deposition. Based on the content of that deposition, he later resisted the defendant’s motion for a new trial on the basis of incompetency.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LOWER COLORADO RIVER AUTHORITY, Petitioner, v. COASTAL STATES GAS PRODUCING COMPANY and Lo-Vaca Gathering Company, Respondents.
    No. B-6531.
    Supreme Court of Texas.
    May 4, 1977.
    Rehearing Denied June 22, 1977.
    Crain, Winters, Deaton, James & Briggs, James C. Winters, Michael J. Wood, David L. Griffis and David A. Kocian, Houston, William T. Moore, Bryan, Mac Umstatted, Austin, for petitioner.
    Tracy N. Dubose, Houston, William R. Vance, Bryan, Fulbright & Jaworski, J. D. Giller, M. W. Parse, Jr., Russell H. McMains, Robert B. Dillon and Daniel K. Hedges, ' Houston, Lawrence, Thornton, Payne & Watson, John M. Lawrence, III, Bryan, Bracewell & Patterson, Joseph Ja-worski and John H. Buck, Houston, for respondents.
   PER CURIAM.

In this breach of contract action Lower Colorado River Authority has sought a refund from Coastal States Gas Producing Company of money paid, over and above the amount due under the terms of their contract, for natural gas delivered by Coastal to LCRA between September 1973 and May 1975. Payments at the increased rate were made in compliance with a September 27, 1973 interlocutory order of the Texas Railroad Commission in Gas Utilities Docket No. 500. Coastal filed a counterclaim, and Lo-Vaca Gathering Company intervened as a party defendant. The trial court rendered judgment for LCRA in the sum of $25,218,060.67 which represented the difference between the amount due under the contract and the amount actually paid by LCRA in accordance with the interlocutory order of the Railroad Commission ($26,741,701.67), less the amount due Coastal under its counterclaim ($1,523,641.00). The Court of Civil Appeals reversed, and rendered a take-nothing judgment against LCRA while affirming the award of $1,523,641.00 to Coastal. 544 S.W.2d 733. LCRA has filed an application for writ of error.

We refuse the writ, no reversible error. In so doing, we deem it appropriate to note that the Railroad Commission, in its interlocutory order, has specifically provided that the final disposition of Docket No. 500 will depend upon the Commission's determination of whether the higher rates without refund have been, and are, required by the public interest. The Railroad Commission entered a final order on April 12, 1976, but withdrew that order on July 10, 1976. It is the duty of the Commission now to proceed to enter its final order, which order will then be subject to review by the courts; and our disposition in the present case does not preclude the parties from asserting any contention, otherwise proper, that may be made on appeal from that order. See High Plains Natural Gas Co. v. Railroad Commission, 467 S.W.2d 532 (Tex.Civ.App.1971, writ ref’d n.r.e.); International Paper Co. v. Federal Power Com’n, 476 F.2d 121 (5th Cir. 1973).


text:
    TEXAS ELECTRIC SERVICE COMPANY, Petitioner, v. V. D. WHEELER et al., Respondents.
    No. B-6201.
    Supreme Court of Texas.
    May 11, 1977.
    Rehearing Denied May 25, 1977.
    Cantey, Hanger, Gooch, Munn & Collins, Jack C. Wessler and S. G. Johndroe, III, Fort Worth, Joseph A. Chandler, Stephen-ville, for petitioner.
    McMillan & Lewellen, C. 0. McMillan, Stephenville, Dixon & Petrovich, Jimmy C. Dixon, Granbury, for respondents.
   PER CURIAM.

ON MOTION FOR REHEARING

Texas Electric Service Company (TESCO) is currently constructing a nuclear-powered steam electric generating plant near Glen Rose, Texas. The project includes acquisition of rights-of-way for power lines to and from the plant. This case involves the acquisition of such a right-of-way across V. D. Wheeler’s land, a 315 acre tract three miles from the plant. The right-of-way covers 17 acres, upon which eight electrical towers are to be placed. The jury has found that the 17 acres burdened by the right-of-way diminished in value from $1100 per acre before taking to $50 per acre after taking, and that the remainder of Mr. Wheeler’s tract diminished $450 per acre by reason of the right-of-way. Judgment awarding damages for diminution of value has been entered on the verdict, and the court of civil appeals has affirmed in an unpublished opinion. The only issue as the case reaches this Court is whether there is any evidence which will support the jury’s finding of diminished value of the remainder.

Vernon Thomas, a real estate broker and appraiser, testified as expert witness for Mr. Wheeler. Using a “comparative approach,” he determined that the land before taking was worth $1,000 per acre, the approximate average of five “comparable” sales. Regarding after-taking value, Mr. Thomas testified that power lines’ presence converted the highest and best use of the acreage from residential subdivision to peanut farming, rendering a per acre value of $400 per acre. However, while his opinion of pre-taking value was supported by market data, Mr. Thomas admittedly knew of no “comparable” instance in which the presence of electrical towers had in fact caused a change in highest and best use or in fact had precipitated any decrease in market value of property in any amount. TESCO claims that, because he employed the “comparative approach” to value, it was mandatory for Mr. Thomas to have knowledge of actual, comparative market data to support his opinion of value. Without such market data, it is contended that the value opinion does not constitute evidence of probative force which will support a jury finding, being no more than an unfounded conclusion.

Wheeler responds that his expert, Mr. Thomas, was competent to testify as to change in highest and best use without basing his opinion upon actual market data; and it is asserted that as a land value expert Mr. Thomas was competent to attach his own monetary value factors to the presence of the right-of-way.

Both parties rely upon Tennessee Gas & Transmission Co. v. Zirjacks, 244 S.W.2d 837 (Tex.Civ.App. — San Antonio 1951, writ dism’d). Zirjacks was similar to the present case in that the court was concerned with evidence of damages to the remainder of a tract burdened by an easement. The court reversed an award of damages to the remainder because there was no showing that the easement affected all the remainder to the same degree, stating:

One claiming damages to land must show the nature of the damage, the effect upon various portions of the tract and the relationship of the same to market value.

244 S.W.2d at 838. The court of civil appeals in the present case has held that the Zirjacks rule applies to a party claiming damages but not to the testimony of expert value witnesses. Other courts of civil appeals have made the identical construction of Zirjacks. Southwestern Bell Tel. Co. v. Ramsey, 542 S.W.2d 466 (Tex.Civ.App.— Tyler 1976, writ ref’d n. r. e.); Texas Electric Service Co. v. Yater, 494 S.W.2d 271 (Tex.Civ.App. — El Paso 1973, writ ref’d n. r. e.); Texas Power & Light Co. v. Trinity Valley Ranch Co., 395 S.W.2d 866 (Tex.Civ.App. — Dallas 1965, no writ); Texas Electric Co. v. Etheredge, 324 S.W.2d 322 (Tex.Civ.App. — Eastland 1959, no writ). In each of these cases, the issue was legal sufficiency of evidence to support awards of damages to remainders of tracts adjacent to easements, and in each case the expert did not testify as to any actual market data supportive of his diminution testimony.

On the other hand, two courts of civil appeals have reached an opposite conclusion on the meaning of Zirjacks. In Natural Gas Pipeline Co. of America v. Mitchell, 440 S.W.2d 415 (Tex.Civ.App. — Beaumont 1969, writ ref’d n. r. e.), the court, after citing several cases interpreting Zirjacks, stated:

We have concluded the underlined portions of the statement found in each of these opinions as follows:
“A mere conclusion as to market value is insufficient for such purpose. But, this refers to the party claiming dam-
age, not his value witness.”
is not the law in this State.

440 S.W.2d at 419. Accordingly, the Mitchell court applied Zirjacks to hold expert testimony legally insufficient to support a verdict of diminished value where such testimony amounted to a conclusion without foundation in actual market data. To the same effect is City of Cedar Hill v. Wheeler, 326 S.W.2d 236 (Tex.Civ.App. — Dallas 1959, writ ref’d n. r. e.).

We resolve the conflict in favor of the opinion of the court of civil appeals in the present case. Vernon Thomas, qualified as an expert witness, properly reached professional conclusions pertaining to the value of Mr. Wheeler’s land. While lack of supportive market data would tend to diminish the reliability of expert testimony, such goes to the weight and not the propriety of evidence. That such is a proper rule of law becomes particularly apparent in a case such as the present one, where property has been taken by TESCO pursuant to a construction plan of a nature which has never before concerned Texas land. TES-CO was free to challenge the testimony of Mr. Thomas by critical cross examination as it did in this case, and Thomas’ competency was open to challenge. But the effect of the testimony elicited was for the jury to determine; we cannot say it negated all probative force of Mr. Thomas’ value testimony elicited on direct examination.

The opinion of the court of civil appeals was ordered not published by that court. Due to the importance of legal issues raised, that court is directed to order publication of the opinion.

There being no error in the judgment of the court of civil appeals, the motion for rehearing of application for writ of error is overruled.


text:
    Burtram C. HOPKINS, II, Petitioner, v. FIRST NATIONAL BANK AT BROWNSVILLE, Texas, Respondent.
    No. B-6646.
    Supreme Court of Texas.
    May 18, 1977.
    Rehearing Denied June 22, 1977.

      Carrington, Coleman, Sloman, Johnson & Blumenthal, Danny Miller, Dallas, for petitioner.
    C. Fount Ray, Brownsville, for respondent.
   PER CURIAM.

This is a venue case. The court of civil appeals affirmed the trial court order overruling Hopkins’ plea of privilege on the ground that venue was sustainable in the county of suit under Article 1995 subdivision 5(a). 546 S.W.2d 84. We refuse the application for writ of error, no reversible error.

We shall briefly recite the facts in order to bring into focus the question presented. A more complete statement of the facts may be found in the opinion of the court of civil appeals.

Alleging that a note held by it was past due and had not been paid, the First National Bank at Brownsville sued the corporate maker for payment. The bank also sued Hopkins and others on their contract of guaranty. The note sued on had been executed in renewal and extension of the balance due on a note made approximately nine months previously. The guaranty had been executed at the same time as the previous note, and provided that the guarantors unconditionally guaranteed the payment of the note and of all other obligations of the debtor to the bank then or thereafter existing. The guaranty permitted the bank to alter, exchange, or renew any of the obligations guaranteed; and it stated that it was “a continuing, absolute and unconditional guaranty.”

The bank’s suit against Hopkins and the others was brought in Cameron County, Texas, the county where the note expressly was made payable. Hopkins duly filed his plea of privilege to be sued in the county of his domicile. The bank alleged Article 1995 subdivision 5(a) as a proper basis for venue in Cameron County. That subdivision provides:

5. Contract in writing. — (a) Subject to the provisions of Subsection (b), if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. [Emphasis supplied].

Hopkins argued before the court of civil appeals that this subdivision did not apply because the guaranty contract did not expressly name Cameron County as the place of performance. The court rejected his argument, however, and held that subdivision applicable. 546 S.W.2d 84. In so holding, the court relied on Laukhuf v. Associates Discount Corp., 443 S.W.2d 725 (Tex.Civ.App.1969, no writ); Carter v. Texas State Bank of Jacksonville, 189 S.W.2d 782 (Tex.Civ.App.1945, no writ); and Cullum v. Commercial Credit Co., 134 S.W.2d 822 (Tex.Civ.App.1939, no writ). Those cases reason that because an absolute and unconditional guaranty of a note binds the guarantor upon all the terms of the note, the guaranty contract includes the venue provisions of the note for subdivision 5 purposes.

Hopkins alleges this Court has jurisdiction under Article 1728 subdivision 2 because the holding of the court of civil appeals here conflicts with the decision in Smith v. First National Bank in Groveton, 146 S.W.2d 270 (Tex.Civ.App.1940, no writ). We believe the Smith case and this one are “so far upon the same state of facts that the decision of one case is necessarily conclusive of the decision in the other.” Garitty v. Rainey, 112 Tex. 369, 374, 247 S.W. 825, 827 (1923). Further, the decisions of the courts of civil appeals here and in Smith do conflict. The Smith court held that the notes and the guaranty sued upon were separate and distinct undertakings; therefore, the notes’ provisions for performance in a certain county could not be used to establish venue in that county under subdivision 5 in the suit against the guarantor. The Smith holding is such that if it were made by the court of civil appeals that decided this case, it would operate to overrule the decision below. John Farrell Lumber Co. v. Wood, 400 S.W .2d 307 (Tex.1966). We therefore have jurisdiction to consider the merits of Hopkins’ application for writ of error.

We have considered the merits and have concluded that the judgment of the court of civil appeals below was correct. It is true that a note and a guaranty of payment are separate undertakings in the sense that the guarantor may be sued apart from the maker. This is true because a guarantor of payment is primarily liable; he waives any requirement that the holder of the note take action against the maker as a condition precedent to his liability on the guaranty. Universal Metals & Machinery, Inc. v. Bohart, 539 S.W.2d 874 (Tex.1976). Contra, Cook v. Citizens National Bank of Beaumont, 538 S.W.2d 460 (Tex.Civ.App.1976, no writ). Indeed, the guarantor is liable on his guaranty of payment even though the maker’s signature is a forgery. Universal Metals & Machinery, Inc. v. Bo-hart, supra. However, a note and its absolute guaranty cannot be considered to be “separate and distinct” when determining the extent of the guarantor’s liability. The terms of the note must be examined to ascertain the guarantor’s obligations under his unconditional guaranty, for by that guaranty he agrees to pay the instrument according to its terms if it is not paid when due. Texas Business & Commerce Code, Section 3.416(a); Universal Metals & Machinery, Inc. v. Bohart, supra. The guarantor’s contract thus includes all of the note’s terms when the guaranty is absolute and unconditional. If the note expressly states that it is payable in a certain place, then the contract of guaranty must also be said to provide expressly for the place of its performance. The holding to the contrary in Smith v. First National Bank in Grove-ton, supra, is disapproved.

Because the note in this case stated it was payable to the bank “at its banking house in Brownsville, Cameron County, Texas,” Hopkins’ contract of guaranty expressly named that county as the place of performance. Therefore, venue was sustainable in the suit against Hopkins in Cameron County under Article 1995 subdivision 5(a). The application for writ of error is refused, no reversible error.

      . All statutory references are to Vernon’s Annotated Texas Statutes unless otherwise indicated.

      . Vernon’s Texas Codes Annotated, Business & Commerce, § 3.416(a).


author: ROBERTS, Judge.

text:
    Eugene Motley OLIVER, Appellant, v. The STATE of Texas, Appellee.
    No. 49868.
    Court of Criminal Appeals of Texas.
    Feb. 16, 1977.
    Rehearing Denied June 8, 1977.

      Fred M. Bruner, Dallas, Frank Maloney and Philip A. Nelson, Jr., on appeal, Austin, for appellant.
    Henry Wade, Dist. Atty., John Hagler, Russell J. Ormesher and Jim Burnham, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is a companion case to Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974). In a single indictment Jackson was charged with the murder of Billie C. Barnes and the appellant was charged with advising and encouraging Jackson in the commission of the offense. Art. 70, Vernon’s Ann.P.C. (1925).

Jackson was tried first and convicted; his conviction was affirmed by this Court. Jackson v. State, supra. Before the determination of Jackson’s appeal a jury found appellant guilty as charged and assessed his punishment at fifty years’ imprisonment.

The State’s case tended to show that the appellant hired Jackson to kill Barnes, and that the killing took place at the office of the Memorex Corporation where the accomplice Overton had recently worked. The State’s evidence also showed that appellant was president of Lectron Industries and the owner of ninety percent of its stock; Barnes had previously been an executive and stockholder of Lectron and was still covered by a Lectron “key man” life insurance policy at the time of his death.

According to the State’s evidence, Barnes had been threatening and harassing the appellant. The evidence also showed that Lectron and its president, the appellant, were both in deep financial difficulty and that the appellant thought that he might be able to relieve this difficulty with the proceeds from the “key man” insurance policy. It was the State’s theory that the combination of these factors motivated appellant to search for someone to kill Barnes, a search which, according to the State’s evidence, led eventually to Jackson.

Appellant complains in three grounds of error that the trial court erred in admitting hearsay in evidence. This hearsay was in the form of a pleading in a civil action, the judgment of the court in that action, and a check payable to Lectron and appellant’s attorneys, which was a product of that judgment. We agree with appellant’s contentions and reverse.

The principal business of Lectron was developing and marketing an electronic device related to the game of golf. Originally, the deceased, Barnes, had owned forty-five percent of Lectron’s stock and had been vice-president of the company. During his tenure as officer and stockholder of the company, Barnes was covered by a $100,000 “key man” life insurance policy; in addition, the policy contained a $100,000 accidental death provision. This policy was properly admitted in evidence to show appellant’s motive, Jones v. State, 156 Tex. Cr.R. 475, 243 S.W.2d 848 (1951), and appellant does not complain on appeal of its admission.

However, the State also offered, and the court admitted, three other documents for the ostensible purpose of proving appellant’s motive. These were:

(1) The answer of Lectron Industries as third party defendant in case number 71-10951-G, an interpleader action filed in the 134th District Court of Dallas County by the Connecticut Mutual Life Insurance Company. This terse answer claims that Lectron is entitled to all $200,000 of the proceeds of the “key man” insurance policy on Barnes. The answer, State’s Exhibit 12, is signed by Jerry Lastelick on behalf of Daugherty, Bruner, Lastelick & Anderson, “Attorneys for Third Party Defendant, Lectron Industries, Inc.”
(2) The judgment in case number 71-10951-G, which recites that Connecticut Mutual paid $203,002.24 into the registry of the court, this being the proceeds (plus interest) from the Barnes policy. The judgment also recites that Connecticut Mutual has been only a disinterested stakeholder in the lawsuit, that Connecticut Mutual has fulfilled all its obligations under the policy, and that it is dismissed from the suit. The judgment then recites how the proceeds of the policy are to be divided: approximately half to the named children of Barnes and their attorneys and the remainder ($100,000) to Lec-tron “and their attorneys Bruner and Lastelick.” The signatures of appellant and Jerry Lastelick, among others, are affixed to the judgment. The judgment is numbered State’s Exhibit 13.
(3) State’s Exhibit 14, which is a certified copy of a check for $100,500, made payable to Lectron Industries, Inc. and Bruner and Lastelick, and signed by Bill Shaw, District Clerk of Dallas County.

The admission of these exhibits was error, since each was admitted to show the truth of the statements contained in the exhibit and each was incapable of being cross-examined. See 1 McCormick & Ray, Texas Law of Evidence, Secs. 781-782, pp. 559-561 (2d Ed. 1956). Accordingly, this Court has consistently held that the pleadings and judgments from other cases are inadmissible as hearsay. Acker v. State, 421 S.W .2d 398 (Tex.Cr.App.1967); Yates v. State, 489 S.W.2d 620 (Tex.Cr.App.1973); Brooks v. State, 475 S.W.2d 268 (Tex.Cr.App.1972); Busby v. State, 51 Tex.Cr.R. 289, 103 S.W. 638 (1907) (case 3, on motion for rehearing); Pannell v. State, 477 S.W.2d 586 (Tex.Cr.App.1972).

Nor can we conclude that the error was harmless. The exhibits have a strong tendency to show that Lectron settled for less of the life insurance proceeds that it was entitled to, and less than it originally claimed in its third party pleading; from this the jury was likely to infer that the exhibits, taken together, amounted to an implied confession of culpability on the part of the appellant, who the jury knew was Lectron’s president and the owner of ninety percent of its stock. The exhibits also tend to leave with the jury the impression that, as a result of the civil suit, “blood money” was placed in the hands of appellant’s defense counsel Bruner; this struck at appellant over his counsel’s shoulders. Compare Crutcher v. State, 481 S.W.2d 113 (Tex.Cr.App.1972); Cook v. State, 537 S.W.2d 258 (Tex.Cr.App.1976).

This case is similar to Pannell v. State, 477 S.W .2d 586 (Tex.Cr.App.1972), where the defendant was charged with unlawfully possessing unstamped cigarettes for the purpose of transportation and distribution. In that case the State was allowed to introduce a sheriff’s bill of sale arising out of a civil action against Pannell, one Joe Bowman, 567 cases of cigarettes, and a truck and semi-trailer. The bill of sale reflected that the State had recovered judgment in the civil suit, and that the truck and semitrailer matched the truck and semi-trailer in which the unstamped cigarettes were found. Over the State’s argument that this evidence was necessary to prove that the vehicles were registered to Bowman, this Court reversed, holding that “the introduction of the contents of the sheriff’s bill of sale arising out of another law suit and reflecting the findings of the court was inadmissible as hearsay and clearly prejudicial.” Id., at 589. See also Busby v. State, supra.

The State argues that the exhibits were admissible under the provisions of Art. 3731a, V.A.C.S. However, Section 1 of that statute imposes a threshold requirement of relevance, which these exhibits clearly do not meet.

The State also contends that the jury already knew of the litigation over the insurance proceeds as a result of a letter attached to the insurance policy which was properly admitted into evidence. We cannot agree, since this letter only referred to the litigation and did not disclose any of the prejudicial facts contained in Exhibits 12, 13, and 14.

Finally, in its supplemental brief the State argues that the error was cured by the court’s instruction to the jury which advised the jury that Exhibits 12,13, and 14 were admitted solely for the purpose of aiding the jury in “determining the disposition of the proceeds.” Again, we cannot agree. This charge did not cure the error; instead, it emphasized the prejudicial aspects of the exhibits and may well have added to the harm.

We conclude that the introduction of the prejudicial hearsay calls for reversal. Pannell v. State, supra; Busby v. State, supra. However, because of the possibility of another trial, we will also discuss two of appellant’s other contentions.

Appellant’s first contention is that the trial court erred in failing to instruct the jury that the State’s witness Enright was an accomplice as a matter of law. According to Enright, he introduced the appellant and Jackson after appellant asked him for help in finding someone to kill Barnes. En-right stated that he consented to do so only to gain time to persuade the appellant not to go through with the crime.

In Jackson v. State, supra, this precise ground of error was raised and rejected. To the extent that the evidence in this case is, in its material aspects, like that in the earlier case, we are bound by our previous holding, absent a showing that that holding is clearly wrong and harmful; this is the “law of the case” doctrine. Warren v. State, 523 S.W.2d 237 (Tex.Cr.App.1975); Porter v. State, 154 Tex.Cr.R. 540, 229 S.W.2d 68 (1950).

We have carefully compared the record in this case with the record in Jackson and find only one factual difference between the two cases insofar as Enright’s role in the crime is concerned. In Jackson, En-right testified that the first affidavits he gave to the police after the offense were incomplete because he was on probation and was afraid that he might be implicated in the crime. At the trial of this case Enright gave an additional reason for his incomplete statements: “I was trying to protect my friends, Mr. Oliver and Mr. Jackson.”

The issue is whether this additional testimony, combined with the other evidence connecting Enright with the offense, was sufficient to make Enright an accomplice as a matter of law. Appellant urges that the testimony tends to show that En-right was an accessory. See Art. 77, V.A. P.C. Of course, under our former Code, an accessory who testified was an accomplice witness. Hernandez v. State, 169 Tex.Cr.R. 418, 334 S.W.2d 299 (1960); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1973); Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976).

For one to be an accessory (under our former Code) a felony must have been committed, and the alleged accessory must know that the defendant is guilty; moreover, the accessory must to some degree shelter the defendant from pursuit. Jones v. State, 137 Tex.Cr.R. 146, 128 S.W.2d 803 (1939); Clark v. State, 159 Tex.Cr.R. 187, 261 S.W.2d 339 (1953), cert. den. 346 U.S. 855, 74 S.Ct. 69, 98 L.Ed. 369 (1953); Easter v. State, supra.

In this case, Enright repeatedly stated that, at the time he made the affidavits, he did not — could not — believe that Oliver was capable of committing the offense. In addition, there is some evidence in the record that these affidavits were helpful to the State in its slow and sometimes uncertain development of the case against appellant.

Clearly, then, Enright’s statement that he intended to “protect” appellant did not of itself make Enright an accessory as a matter of law; instead, it merely raised a fact question for the jury. See Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969); Alva v. State, 166 Tex.Cr.R. 450, 314 S.W.2d 843 (1958).

The case of Alva v. State, supra, is especially in point. In Alva, a murder case, the two witnesses alleged to be accessories were present when the murder occurred; they knew the defendant and knew that he fired the fatal shot. Shortly after the shooting, however, they denied knowing who killed the deceased. Later they admitted what they knew. On the stand both admitted a desire to see the defendant escape detection. In affirming, this Court held that the witnesses were not accomplices as a matter of law. In that case, as in the one before us, the court submitted the accomplice issue as a fact question. This was held to be sufficient in Alva, and accordingly we hold that the “protection” testimony in this case, when added to the other evidence presented here (and in Jackson) was not such as to require an instruction that Enright was an accomplice as a matter of law. Alva v. State, supra; Gonzales v. State, supra; see also Dillard v. State, 479 S.W.2d 304 (Tex.Cr.App.1972); Franks v. State, 130 Tex. Cr.R. 577, 95 S.W.2d 128 (1936); Tipton v. State, 126 Tex.Cr.R. 439, 72 S.W.2d 290 (1934); Clark v. State, supra; Findley v. State, 378 S.W.2d 850 (Tex.Cr.App.1964).

Thus, since the trial court submitted to the jury the fact issue of whether En-right was an accomplice, we are bound by the law of the case doctrine and hence by the holding in Jackson v. State, supra. Warren v. State, supra; Porter v. State, supra.

Appellant’s first contention is overruled.

Appellant also contends that the court erred in failing to charge on circumstantial evidence. Appellant’s timely objection to this failure was overruled.

The difference between direct evidence and circumstantial evidence is that direct evidence applies directly to the ultimate fact to be proved, while circumstantial evidence is the direct proof of a minor fact which, by logical inference, demonstrates the fact to be proved. Ramos v. State, 478 S.W.2d 102 (Tex.Cr.App.1972).

The main fact to be proved in this case, as both the State and appellant agree, is whether appellant willfully advised and encouraged Jackson to kill Barnes, as alleged in the indictment. The appellant contends that the evidence of this fact is purely circumstantial; the State by implication agrees when it states, first, that the testimony “amounts to” direct evidence and, second, that even if it does not, the facts are in such “close juxtaposition” that no circumstantial evidence charge was required.

We have carefully searched the record with special attention to the testimony emphasized by the State. Although not without probative force, the evidence was purely circumstantial. A circumstantial evidence charge should have been given.

We need not discuss appellant’s remaining contentions; however, we trust that in the event of another trial the prosecutor will refrain from sidebar attacks on opposing counsel.

The judgment is reversed and the cause remanded.

DOUGLAS and ODOM, JJ., concur in the result.

      . For a detailed summary of the remaining facts, see Jackson v. State, supra, 516 S.W.2d at 169-170.

      . And see generally Anno., 28 A.L.R.2d 857 (1953).

      . Although it bears a superficial resemblance to this case, the case of Wade v. State, 367 S.W.2d 337 (Tex.Cr.App.1963), is distinguishable. In Wade, the record makes it obvious, as does the opinion, that the witness knew the appellant was guilty. The witness was also effective in helping the appellant to avoid apprehension, “even though such aid was effective for only a short period of time.” Wade, supra, 367 S.W.2d, at 336-339.
      The case of McGoodwin v. State, 134 Tex. Cr.R. 231, 115 S.W.2d 634 (1938), is also distinguishable. There this Court specifically found that the statement of the witness shortly after the offense was clearly “made for the purpose of aiding . . . the appellant to evade arrest or trial.” McGoodwin, supra, at 233, 115 S.W.2d, at 635. No such finding could be made in the case now before us. See Jones v. State, supra; Clark v. State, supra.


author: ODOM, Judge. DOUGLAS, Judge, ONION, P. J., DOUGLAS, Judge.

text:
    Willard Bishop JACKSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51919.

    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Dissenting Opinion On Motion for Rehearing Denied June 8, 1977.
    James P. Pinstrom, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, J. Russell Ormesher, Steve Tokoly and Les Eubanks, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

Appellant was convicted of robbery by firearms under the former Penal Code. Punishment was assessed at life imprisonment after he elected to be punished under the new Penal Code pursuant to Sec. 6(c) of Acts 1973, 63rd Leg., ch. 399.

Since we must reverse, we will only consider one of the numerous grounds of error presented for our review. Appellant contends that the trial court committed reversible error by excluding the entire testimony of William Boyd. We agree, and shall give our reasons after a discussion of the nature of the case.

Appellant presented three interrelated defensive theories at trial. These included:

1. An alibi asserting he was in Austin or travelling between Austin and Dallas on the night of November 28,1971, at the time the offense occurred.
2. That another person committed the crime. This theory was supported by the confession of John Lewis to the offense appellant was charged with committing.
3. That complainant misidentified appellant.

The State was fully aware of these defensive theories.

To secure appellate review of his ground of error, appellant presented the testimony of William Boyd outside the presence of the jury. These statements reflect that Boyd had erroneously identified appellant as having committed a crime later discovered to have been committed by John Lewis. Boyd testified that on December 19,1971, he and his wife were abducted at gun point in Longview, driven into Harrison County and held for two and one-half hours. Boyd’s wife was raped during this period.

Later, Boyd went to Dallas to observe a police lineup. There, he identified appellant as the criminal. Subsequently he renounced that identification and accused John Lewis of the crime.

The trial court concluded this evidence was not material to any issue in the case. The court also excluded from evidence the card signed by Boyd after the lineup was held in February of 1972. It stated:

“I have identified No. 3 in the lineup.” The appellant was in the third position in the lineup. John Lewis was subsequently indicted for the offense against Mrs. Boyd.

Identification of the appellant was a crucial issue at the trial. Eyewitness testimony was introduced both to show appellant was the criminal actor and to prove that he was not in Dallas at the time of the offense. John Lewis, a person serving five life sentences, confessed in open court to the crime for which appellant had been indicted.

Boyd’s testimony would have been very valuable to the defense. Lewis could be impeached because he was already serving five life sentences. A conviction for another crime would pose no serious consequences for him. Boyd, on the other hand, had no motive for lying.

Clearly, the testimony that Boyd would have provided was germane and material to the issue of identification and to the defensive theory propounded by appellant. This evidence was highly relevant because it tended to prove not only that Jackson had been misidentified but that his identity had been previously confused with John Lewis, the person who confessed to the offense charged in the case at bar.

Our case is similar to the situation confronted by the Fifth Circuit in Holt v. U. S., 342 F.2d 163 (5th Cir. 1965). The court in that case reversed the district court’s decision to exclude evidence which tended to prove that the accused had been previously misidentified as the perpetrator of similar crimes. In its discussion, the Fifth Circuit stated:

“While we find no federal authority to this effect, there are two well reasoned state Supreme Court opinions on the subject which we find persuasive. In Commonwealth v. Murphy, 1933, 282 Mass. 593, 185 N.E. 486, the principle was recognized and applied that where the identity of a defendant is an important issue in a prosecution for a crime, evidence showing that another person similar in appearance to the defendant was committing similar crimes at about the same time, and that one person had mistakenly identified the defendant as such criminal is admissible. The court limited the admission of evidence of this character to instances where it was not too remote in time, nor too weak in probative quality, and where it was so connected with the act forming the issue on trial as to indicate a relevant relationship.”

The conclusions of the Massachusetts Supreme Court and the Fifth Circuit represent sound principles of the law of evidence and should be applied to the case at bar. The record reflects that:

1. John Lewis confessed to the crime appellant was charged with committing.
2. John Lewis was indicted for the offense against Mrs. Boyd.
3. The offense charged in the case at bar and the offense against Mrs. Boyd occurred within one month of each other.
4. Mr. Boyd identified the appellant at a lineup as the possible perpetrator of the criminal assault on Mrs. Boyd.
5. John Lewis’ action in other crimes was similar to those charged against appellant in the case at bar.
6. Appellant’s identity was the major issue at the trial.

We hold that the exclusion of Boyd’s testimony was error. The evidence was material to the central issue of the case and of substantial probative value to appellant.

The circumstances of the case at bar present a unique factual situation. To avoid an overbroad interpretation of our decision herein, we wish to emphasize that the exclusion of Boyd’s testimony was error because it was not too remote in time, nor too weak in probative quality, and it was so connected with the act forming the issue on trial as to indicate a relevant relationship.

The judgment is reversed and the cause remanded.

DOUGLAS, Judge,

dissenting.

The majority reverses this conviction because the court would not admit testimony of Boyd that appellant was identified by him as a “possible” assailant in an unrelated offense which occurred in Marshall, some 150 miles from Dallas where the present offense was committed. A full summary of the evidence is set out below to show that no error was committed.

J_, the injured party, testified that at approximately 11:00 p. m. on the evening of November 28, 1971, she drove up to her apartment in Dallas, parked her car, walked up the stairs and unlocked the door. When she discovered that the chain lock was in place, she called her roommate, Marilyn Talley, through the partially opened door. While she was waiting for Marilyn, she heard somebody behind her. As she turned around a man asked her if she knew the location of a certain apartment number and she replied that she did not. He then asked her the location of the Blue Chip Club and she pointed it out to him. In the meantime her roommate came to the door.

Marilyn Talley testified that around 11:00 p. m. she heard a knock and got up, turned the lights on in the bedroom and living room and went to the door. After she found out it was her roommate she unlocked the chain and returned to her room. She had left all of the lights on when she returned to her bedroom.

J_testified that she then went'in and put her things on the coffee table and the floor, and when she returned to the door this individual was still standing there. He asked her if he could use the telephone. She told him no but offered to make the call for him. She was a legal secretary and was accustomed to placing calls. Because she did not have pencil and paper handy, she had him repeat the number three or four times. She stated: “ . . . the first five digits were 745 and 82 and I am not sure if it was 31 or 13; I do not remember for sure what the last two numbers, their order. I know what the numbers were, but I do not remember their sequence of number.” Thus, it was established that appellant had used the RI exchange and the numbers 582 along with two other numbers, the order of which is uncertain. The record reflects that appellant’s license plate number was “582,” a number with which he was familiar. She then shut the door but did not lock it. She didn’t feel any mistrust for him because the breezeway was well lighted and she had got a good look at him because he was only a foot or so away when she was talking to him. His speech “ . . . did not have any accent, it was very clear, plain and distinct. His grammar, the using of the English language was very good, . . There was no accent in it that if you turned around you would not know that it was a black person that was talking.” “He was immaculately dressed; his hair was perfect, his coat was very neat and everything about him gave the appearance that, you know, he was a nice man. He was very nice looking, very mannerly, he said please, he said thank you, there was no reason for me to think that he was anything else beside a very well respected man.” She then identified appellant as the individual who had come to her apartment.

She related that just after she had lifted the receiver and punched approximately the first three numbers, she heard the door open and a second later he appeared in the door with a glove on one hand and tugging on the second for a better fit. He had a gun in the gloved hand and said, “This gun is cocked and I don’t want to use it, but I will if you don’t cooperate with me,” so she hung up the telephone. The gun “ . had a cylinder or a barrel that goes around,” and she identified State’s Exhibit No. 9 as the weapon similar to the one used. State’s Exhibit No. 9 was a .22 caliber revolver found during the search of appellant’s home shortly after his arrest in January, 1972. He told her to tell her roommate he was there. When she went to Marilyn’s bedroom, he followed her down the hallway. Talley testified that very soon after she had let J_in the apartment she appeared in her bedroom door and said, “Marilyn, we have a visitor.” Her face was white and she appeared to be frightened. When she stepped forward she saw a man who said, “Tell her why I’m here.” She said that he had on black gloves and had a pistol in his hand.

J_said that he spun the cylinder of the gun and said, “See, this gun has bullets in it,” and then demanded their money. When J_said, “Well, my purse is in the living room,” appellant replied, “I want your money, let's go into the living room and get your money.” He then marched both of them back into the living room and had J_dump her purse on the floor and remove the money ($50.00) from the billfold while Talley emptied the coin purse. Appellant took the money and had the girls return to Marilyn’s bedroom where he got her purse from the closet and took two or three dollars. He then threw a nickel on the bed and said, “Here is a nickel for bubblegum.” Talley described his demean- or as “ . . . just kind of arrogant, like he was in absolute control, he just looked scary. ... He had a very evil expression on his face, very sadistic.” Appellant then told J_ to take off her clothes and that “ . . . if we cooperated with him, he would not hurt us and I was in fear that if I did not cooperate that he would shoot us.” Marilyn was clad in a navy blue nightgown with white trim and housecoat. J_ stated that she was wearing a matching pants and coat set, “ . . .it was kind of a tweed material, it was orange and little bits of brown and beige and the pants matched the coat, it was a long coat,” with a white sweater, brown boots, and a gold necklace. Marilyn said that appellant became impatient and told J_, “Hurry up because I want some p_y.” While Marilyn was still in her robe standing next to the side of the bed, appellant had J_sit on the very end of the bed with her feet hanging over the side. He unzipped his pants and penetrated her; she stated that it hurt, he had positioned himself so that “he was standing on his feet, his knees were a little bent and I was right on the corner of the bed so he didn’t have to lay down and the only thing he did was unzip his pants and rape me.” After ten or fifteen seconds he withdrew his male organ and “ . . . told me to finish it and he put it in my mouth.” After he reached a climax, he pointed the gun at her head and told her to swallow it. Marilyn, who was made to stand by and watch, testified in the same manner and further stated that during the acts “ . . .he seemed to be in absolute control the whole time, . . he sort of leaned over her, but he never did like lie on the bed or anything like that,” he seemed to be able to watch her every move. Talley stated that he then made her undress, which she did except for her surgical garment, an elastic vest which covered the bandages that were about her chest and breast area.

According to J-, he then had both of them get into bed, he was standing by the side of the bed and with the gun pointed at the floor clicked it two or three times and said, “See, you girls didn’t have anything to worry about, bang, bang,” and then almost immediately shot them, hitting her in the face.

Marilyn testified that:
“He told us both to lie down in the bed. He was standing right by the side of the bed by the closet and he sort of laughed and he clicked the gun a couple of times and he said, ‘See, you girls didn’t have anything to worry about anyway,’ just sort of, it was just completely sadistic, and at that point I said, ‘Please leave us alone, we won’t call the police or anything if you will leave,’ and at that point he shot both of us. I just heard two shots, very close together and I could smell the gunpowder and everything and I looked over at J- and she had blood running out of her nose and I looked down and I saw blood on the sheet and all I could think about to do at the time was to get help or something. The phone was on the bedside table on my side, so I picked up the receiver and just as I picked it up I heard J-say, ‘No, Marilyn, don’t do that,’ and at the same time he came running back into the room.”

J_stated that she could see appellant just standing outside the door when he left the room, and knew that Talley could not, so when Marilyn reached for the telephone she said, “Please don’t do that.” She said that appellant returned to the room and said, “So I see we are trying to be a smart bitch.” J_pleaded with him to just yank the telephone from the wall and leave. He grabbed the phone and yanked on it while J_ just "... laid back down and started praying because I figured he was going to kill me this time.” She saw him bend over Marilyn but could not tell what he was doing.

Talley stated that after he grabbed the telephone and either ripped or cut it out from the wall he stabbed her; she couldn’t remember how many times, “I don’t remember. I just saw his hand, I saw the knife flashing around my neck. I found out later that he had stabbed me four times.” A minute or two later, J_heard the front door close and said to Talley, “Marilyn, he’s gone now.” She then went into her room to call police. The telephone in the kitchen had also been pulled from the wall. When she returned she saw that Marilyn “ . . . was completely white.” She gave her mouth-to-mouth resuscitation at intervals until the police and ambulance arrived about five or ten minutes later.

J_then gave the following description of their assailant to the officers who arrived on the scene:

“He was about five ten, he weighed between 150 and 160 lbs. He was a black male, he had a short, it wasn’t really an Afro, it was a well-rounded hairstyle. He had on a sport jacket that was dark green with a dark, I believe it was a black shirt, and dark pants and he had a black patent leather belt and he had black shoes, black shoes that had silver buckles. They buckled in the center, then they had bands that connected to the edge of the shoes on top. They were a loafer type shoe.”

Both girls were hospitalized. The bullets could not be removed.

The evidence also showed that appellant was a frequent bowler and that he had bowled several nights at the Cotton Bowling Palace both in league play and “pot” bowling. In fact, appellant testified that on the night of his arrest he was on his way to the Cotton Bowling Palace to participate in a “pot” match. He stated that “pot” bowling was a game in which all bowlers put money in a “pot” and the winner would take all.

Investigators had found Negroid head hairs and pubic hairs in the girls' apartment. The Negroid hairs found in the apartment were compared to sample hairs taken from Jackson through neutron activation and the result showed that the hairs were indistinguishable and that only one in one and a half million people would have the same observable characteristics. Dr. John Randall of the Nuclear Science Center at Texas A&M University testified that the hairs were found to be “similar in all observable characteristics” and “indistinguishable” and that there was “no method by activation analysis that you could tell one from the other. . . . ” He further stated that “ . . . the number of people you would have to examine to find this particular distribution is one in one and a half million you would have to sample, and examine one and a half million people with the probability of finding one single person with this distribution.” State’s Exhibit No. 37, a 1970 census population report of Texas was admitted wherein it showed that there were not one million five hundred thousand Negro males in the entire State of Texas, let alone Dallas County.

Jackson had also presented an alibi de- , fense. He testified and attempted to prove through several witnesses that he and his wife were together at her parents’ home in Austin until 9:30 p. m. the evening of the offense. Not only was Jackson’s testimony impeached by the State, but the testimony of his alibi witnesses was discredited by testimony as well as documentary evidence. His alibi testimony and that of his witnesses was replete with inconsistencies.

John L. Lewis, was called as a witness. Before he was allowed to testify in the presence of the jury he testified before the court. On direct examination, Lewis testified that he was the person who had raped and shot J_

According to his version of the sequence of events, he was hiding behind a car outside some apartments on Cedar Springs at approximately 11:00 p. m. the evening of November 28, 1971, when he noticed a lady coming from the direction of a nearby night club and start up the stairs toward her apartment. He followed her and asked her if he could use her telephone, she refused and offered to make a call for him. He stated that she went in the apartment, closed the door but did not lock it. “I walked in and pulled my pistol on her, asked her who was there and she said no one but her roommate. So I told her to take me to where the roommate was.” He said the pistol was a .22 caliber he had obtained from Calvin Bentson, a partner of his in a robbery, now serving a life sentence, and that when he obtained the gun it didn’t have any “bullets” but he got two from his house. Once they were in the roommate’s bedroom he took a watch from J-, along with $54.00 and some change, “ . . . then I forced her [J-] to have intercourse with me, then I forced her to have, perform a sodomy on me.”

He then stated that before he shot the two girls “I pointed it [the gun] at them, told them they didn’t have anything to worry about, they just wanted to do it,” then snapped the gun four times after which he stated that he shot J-and then Talley. Lewis said that he remembered Talley having bandages on her chest and that when Talley reached for the telephone, “I stabbed her and snatched it away from the wall.” Defense counsel also asked him if he had ever had any conversations with Detective Poe, to which he replied, “Yes, sir.”

On cross-examination the prosecutor established that while Lewis had testified on direct that he had completed the ninth grade and spoke fairly good English, he in fact had made C’s and D’s and did “poor” in English.

Lewis also stated that he had murdered a George W. Filmore and a Miss Beharnds on separate occasions and again reiterated his testimony given on direct that he had on two occasions denied to Detective Poe ever having been to an apartment on Cedar Springs, the place where this offense occurred. But he then said that at his initial conference with Poe he had denied any knowledge of this offense but later confessed to the entire offense.

Lewis said that following his indictment for the murder of Filmore and his receipt of notice that the State would seek the death penalty he confessed in general terms to having committed this offense to Deputy Jesse Earls, the jailer, in March of 1972. In June he was given a sanity hearing in connection with the murder of Filmore.

He also testified that he admitted committing several other murders to Investigator Johnny Webb of the Dallas County Sheriff’s Office. However, he denied saying to Webb, “Okay, Mr. Webb, I did not commit the crimes that I have told you I committed,” including this offense when Webb confronted him with a number of errors he had made in stating the manner of commission of this and other offenses. Lewis also denied Webb asking him, “Then why are you trying to cop out to something you didn’t do?”, to which he responded, “Some of the people in the cell with me told me if I would admit to all of these killings I could go the crazy route on my own case.” But he did recall Webb’s statement, “Well, what they are trying to get you to do is to admit to their crimes so they go free”; however, he denied responding, “Well, what does it matter, I am going to the pen anyway.” When questioned about his knowledge of the purported facts of this case he admitted to reading articles in the newspapers and having listened to the radio at the time the girls were shot and when Jackson was arrested. He denied any knowledge of the examining trial but stated that he was in the same hold-over cell with appellant for about fifteen minutes a day or two before this trial.

Webb testified that he had interviewed Lewis as a result of a call from Jailer Earls. He said that Lewis had told Earls that he and not Jackson had committed the instant offense. At the time Webb was working on approximately twenty-two unsolved female killings. Lewis admitted that he had committed a rape and some homicides. When he asked Lewis which rape, Lewis said it was the one that Jackson, the school teacher, was in jail for. Since Webb was working primarily with homicides he told Lewis that he “. . . would have to get somebody else to talk to him about that offense, . ” Webb did, however, talk to Lewis about the homicides at Lewis’ request. Webb testified that Lewis confessed to several homicides in “generalities” but could not give “specifics.” Webb cited as an example of Lewis’ inability to provide “specifics” the homicide of a young school teacher, Linda Phillips, to which Lewis had confessed. Lewis had stated that he had shot Phillips with a pistol and he could not remember whether or not she was nude or fully clothed when he left her. Phillips was not shot, she had been cut with a knife and left lying beside a road nude. When Webb asked Lewis why he was trying to confess to crimes he had not committed, Lewis replied, “Well, I am going to the penitentiary anyway.”

When Lewis was questioned about bowling, he denied ever having bowled and stated that he had only been to the Cotton Bowling Palace on one occasion and that was to take Calvin Bentson there. Marion Roberts testified that she had married Lewis on January 25, 1972, after having met him the early part of December, 1971. She said that Lewis was a bowler and that they had bowled together on several occasions at the Cotton Bowling Palace. There were also times when he would go bowling without her. He denied having been there during the months of November or December.

Next, Lewis was questioned concerning an interview he had on September 11, 1974, with Investigators Davis and Westbrook of the district attorney’s office. He stated that he had told them that he had committed this offense of “either the 27th or 28th,” and denied saying that he could specifically remember the date but could not recall what day it was but did “. . . recall saying that I remembered it was along the end of November, 27th or 28th. He said which, and I said the 27th, then. He said, ‘Was it on a week-end or was it up in the week, Wednesday, Monday or what?’ I said it was close to the week-end.” As to the time of occurrence, he said Davis and West-brook had suggested between 12:00 and 12:15 a. m., and he agreed with them.

His testimony already discredited in several instances mushrooms into an unlikely tale as to how he had committed the offense. On cross-examination the State posed direct questions pointed at exposing inconsistencies and verifying his version of how he committed this crime for which Jackson was being tried. First of all, Lewis vehemently denied giving J- a number to call for him: “I am telling you that I did not give a phone number.” He then said that J_was clad in a red coat and white trousers.

After it was established that he had in fact told Davis and Westbrook that he robbed the women first and then committed the rape and subsequently told them that he committed the rape and then the robbery, he was requested to give his version of how the rape was committed. First, he said that both women were lying on their backs in the bed, and “I had Miss J-to come down along the edge of the bed and I had intercourse with her and then after that had her sit up on the edge of the bed and perform a sodomy act on me.” When queried further as to how he had intercourse with J_he replied, “On top of her, I screwed her.” To insure that there was no uncertainty the prosecutor asked him if, using his own words, he got on top of her, physically climbed on top of her and screwed her, and he said yes. Lewis said that he reached two climaxes, one during intercourse and one during the sodomy act. He said the act of intercourse lasted thirty-five or forty-five minutes, but then said, “It was long enough to reach two climaxes; I wouldn’t want to give a time on it, but if I have to give a time, I would say it could have been two or three minutes.” He reiterated that he reached a climax during each act.

Dr. John Jeffers, a specialist in obstetrics and gynecology, testified that he had examined J_ when she was brought into Parkland Hospital the night of November 28, 1971. His examination revealed that she had had recent intercourse and that there were signs of forced penetration by a male organ. He also testified that he did not find any spermatoza in the vagina area but did find sperm on a swab taken from her throat.

Lewis was questioned by the prosecutor on his direct testimony wherein he had said that he had snatched the telephone from the wall. He interrupted counsel for the State on one occasion to say that he snatched it from Talley. He did admit to having told Investigators Davis and West-brook during one interview that he never saw a telephone in either the living room or the bedroom, and in a subsequent interview, said that he never saw a telephone because he wasn’t looking for one.

At the final part of cross-examination, Lewis was asked to describe his dress on the evening in question. “I had some black leather gloves on, black quarter-length coat, leather coat matching the gloves, black trousers and black pair of patent leather shoes with gold buckles across the top of them, and a belt.” The leather coat was of a length down to the knees. Marion Roberts testified that Lewis owned a pair of black patent leather shoes with silver ornaments on them and he also owned a three-quarter length leather coat. She also said that he had never owned a green tweed coat and that he frequently wore the leather coat.

Defense counsel read into the record the prior testimony of Deputy Jesse Earls as proof of a prior consistent statement by Lewis. Earls had testified that Lewis had told him he had raped J-only because Talley was crying and had bandages on her chest. He had also told Earls that he had started to leave after the rape of J_ but heard someone pick up a telephone so he returned because he thought they might call the police and at that time shot one girl in the face and stabbed the other. The testimony of Earls showed inconsistency, not consistency.

During recross-examination, Lewis was asked to describe the bandages he had seen on Talley. He said that they were two bandages about four and a half-inches in size, yet he also admitted that he had previously told investigators that Talley was nude except for one square bandage about six inches across. Lewis also said that the front door of the victims’ apartment faced out to Cedar Springs and you could see the traffic passing by. The evidence showed that the front door faced out to a wall and the apartments were on Hudnall Street not Cedar Springs. When asked to describe the manner in which he robbed J-, he said that after they were in Talley’s bedroom he sent J_back to the living room to get her purse while he remained in the bedroom with Talley. J_ was let out of his sight to go back in the living room where the front door was located. He said that J_came back into the bedroom with the money and he could only assume she dumped her purse out on the floor in the living room because he did not see her do so.

It is apparent that Lewis’ testimony is replete with inconsistencies. In fact, his credibility had been impeached to such an extent that even defense counsel in final argument stated: “Now, as to whether Lewis did it or not I do not know. He was a witness I had to call.” He went on to say, “Under the evidence, I suggest to you that Lewis knows where the watch came from. Probably he was the wheel man waiting downstairs in a car while some unknown black male friend of his went up, did all of this, robbed that girl, committed these sadistic unnatural acts, came down, divided the property and away they go. He knows and is protecting somebody that did this crime, but not this man.” First, it was shown that he has given several versions of the sequence and manner of the robbery and rape, all of which differed from that given by the victims. His description of J_⅛ clothing on the night of the offense was not even close. His statement that he reached two climaxes differed from the testimony of J-and proved false by medical testimony. The inconsistencies equate to the errors in his attempt to confess to other crimes he did not commit when he was interviewed by Lt. Webb. It would only lengthen an already lengthy opinion to elaborate further on the numerous variations in Lewis’ version of how he allegedly committed this offense and the other evidence in this case.

In the words of Dr. Grigson, called as a rebuttal witness by the State, “Mr. Lewis has what is called a severe sociopathic disorder. This isn’t an illness or sickness, this is a descriptive term to describe certain characteristic personalities.” He said:

“These are individuals that have no conscience. Most of us at an early age develop a conscience, whenever we do something wrong or bad, we feel the guilt or shame or embarrassed by it, but some people, and we don’t know why, apparently don’t develop this feeling of guilt or shame or embarrassment and such is the case with Mr. Lewis. He has no conscience.
“Another characteristic of this disorder, they attempt to manipulate, since they are not dealing with a conscience, they are able to manipulate people quite easily, as long as it’s to their benefit. They are after what they want; consequently, they frequently run afoul of the law, or for that matter, the family, church, spouses, it doesn’t bother them whenever they do this, they simply go ahead and do what they want to do.”

Grigson said that one of the characteristics of such a person is that the individual is a liar and that such characteristic was present in Lewis.

We should discuss the identification evidence presented in this case. J_and Talley remained firm and consistent in their identification. The evidence heretofore presented shows that both girls had ample opportunity to observe their assailant at very close distances under well lighted conditions. No one else was ever identified by either of them as their assailant, or even as a “possible” suspect. They unequivocally stated that Lewis was not the person who had robbed and assaulted them.

A hearing outside the presence of the jury was held wherein Boyd, whose testimony was kept from the jury and the cause of the reversal by the majority, testified that on December 19, 1971, he, his wife, and another couple were abducted at gunpoint from the X’s Club in Marshall, 150 miles from Dallas, by a black man and held for two and one-half hours during which time both women were raped. Boyd stated that they were brought to Dallas on February 1, 1972, to a lineup at the Dallas County Jail. In response to questions by appellant’s counsel, Boyd testified that at this lineup he tentatively identified Jackson as the perpetrator of the assault committed on him, his wife, and the other couple. Specifically he said, “. . . as a possible, I thought it looked like him.” (Emphasis supplied). He then identified appellant as the person he saw at the lineup. Boyd further testified that subsequent to that lineup he had observed John Lee Lewis and identified him as the individual who had abducted them. On cross-examination he stated that at the time he selected appellant from the lineup, “I said I could not have been definite then (emphasis supplied),” and that he later identified Lewis as their assailant. He also testified that neither his wife nor the couple abducted with them had so identified appellant at the lineup on February 1,1972, but each of them identified Lewis at his trial.

J_testified that she had had ample time to observe appellant and that his “high cheekbones” were the most prominent thing she remembered about his physical characteristics. She had given a very complete and thorough description to officers when they arrived. On the evening of January 15, 1972, the night appellant was arrested, J_ was standing in the Sports Page Club talking to some people when Jackson walked in the front door. When she saw him she became visibly upset and when John Clark, one of the persons to whom she was talking, asked her what was wrong she replied, “Yes, sir, that’s the man that shot me.” She further stated that as appellant started up the stairs he turned and stared at her, walked up a couple more steps and again turned and stared at her.

John Clark testified that “as I was standing here there was a colored man standing here looking back over my shoulder at her and of course I wasn’t sure that he was looking at her or anything; I turned around and looked, then I turned around and he had gone up here and turned around, looking again; I turned around and she had gone all to pieces at this time and I asked the other girl what was wrong. . . .” The police were called and Jackson was arrested. J- then was taken to the police station to witness a lineup following his arrest. She identified appellant as her assailant not only by his appearance, but his voice, “. . .it was clear and concise. It was void of any accent, it was the same as I had remembered it to be.” When asked if there was any doubt in her mind as to the identity of Jackson, she replied, “There is absolutely no doubt, no doubt whatsoever.”

Talley’s identification of appellant was equally positive. As has previously been shown, Talley was forced to stand next to the bed and watch appellant rape her roommate. The evidence also shows that Talley had been an art major in college, specializing in life drawings. Following the night on which the incident had occurred, a police artist had drawn a composite from the description given by the girls. J_ and Talley then re-worked the composite to a greater likeness of their attacker. Talley testified in detail as to appellant’s physical characteristics that aided her in redrawing the composite. She stated that she never saw his teeth but he had “very, very full lips” with a nose that was especially broad. His face was slender with high cheekbones. With respect to his eyes in the police drawing and her own drawing, she said, “Well, I didn’t feel like the eyes were quite right. I think it was because of the impression in his eyes when I seen him, you just can’t capture that in the drawing, but it was as close as we could come.” During her month stay in the hospital, Talley was shown some thirty or so photographs of suspects. She did not identify a single photograph as that of the assailant or even as a “possible.”

On January 18, 1972, Talley was brought from her parents’ home in Kerrville to Dallas to witness a lineup. At a hearing outside the presence of the jury and then in the presence of the jury she testified that the man in the number one position immediately drew her attention. His voice also sounded like that of the assailant. She tried to get a closer look but because of construction in progress in the lineup room she was unable to get closer and the lighting “was kind of strange,” all of which made it difficult to “really get a good look at him.” She wanted to view his face and eyes from a closer distance. Talley requested officers to have the persons in the lineup speak again and she knew that the voice sounded right. She said to the officer with her, “That looks like him and talks like him, but I am not a hundred percent sure that’s the man, but there is something missing.” She testified that “he just looked totally docile and looked — he was standing pigeon-toed and he just looked nice and there was just something missing in his face, the features were right and the voice was right, but there was something missing.” Talley went on to say that she had marked the identification card “NONE” because she was only 99 percent sure and she had been instructed that she must be 100 percent certain before marking an individual number. But she felt that it did not reflect her true feeling about the man in the number one position and she felt that she was “absolutely incorrect” in marking “NONE.” So, “I told the policeman that I wanted another opportunity to see him in a light where I could actually get a good look at him, where I could stand in front of him and see him. I said, T want to see him again because this isn’t right. I want an opportunity to decide whether or not I am a hundred percent sure or whether I don’t feel like it’s the right person. I want an opportunity to see him again.’” So she asked to see photographs and a stack of approximately six were brought to her and she started through them and “. . .1 came to, I think it was the third one, I came to a picture of him sitting in a chair all by himself and I just got a complete chill up my spine. I said, ‘My God, that’s him.’ He had the same expression on him and I knew at that moment that was the right man.” She explained the difference that standing in the lineup he appeared quite docile but in the photograph he had the exact same expression as the night of the offense. The record of the Jackson lineup was admitted as Defense Exhibit No. 7 and the number one position [Jackson] was identified as a colored male, 29 years old, six feet tall, weight of 166 pounds.

Even if Holt v. United States, 342 F.2d 163 (5th Cir. 1965), relied upon by the majority, would be binding on this Court, it is distinguished on the facts. The facts are so different that the case should not be even persuasive in this Court. The majority reverses this conviction because of the trial court’s refusal to admit the proffered testimony of William R. Boyd because one of appellant’s defensive theories was mistaken identification. The defense in Holt was based on mistaken identification.

In Holt the trial court had excluded the proffered evidence of an agent of the Federal Bureau of Investigation to the effect that Holt had positively been identified as the Earl Albert Boyd who was using stolen automobile title certificates to sell stolen automobiles in two different states on two different occasions and that such charges were later dismissed for “insufficient evidence.”

In the instant case the evidence offered by appellant was to the effect that one of four victims of a crime which had occurred in Harrison County had identified him at a lineup as the “possible” perpetrator of that crime.

To show the difference in the instant case from the Holt case, the facts from the Holt opinion are as follows:

“The critical question in the case was the identification of appellant Holt. The evidence showed that ninety six title certificate blanks had been stolen in February 1962 in Idabel, Oklahoma. On July 18,1962, a person representing himself to be Earl Albert Boyd sold a 1960 Chevrolet which had been stolen in Dallas to Adams Motors in Atlanta. Boyd obtained a 1955 Ford and a check in the amount of $1,082.15 in exchange therefor. The check was endorsed by Boyd and the proceeds paid to him. He established ownership of the Chevrolet with a title certificate which was one of the group stolen in Idabel. The proprietor of the motor company in Atlanta and his salesman both identified appellant Holt as the man with whom they had dealt. The Ford received in exchange was sold in Dallas on August 11, 1962 by a man calling himself Boyd. Again ownership was established with one of the Idabel title certificates. The purchaser in Dallas also identified appellant Holt as the seller.
“The defense was based on mistaken identity. An Oklahoma City contractor testified that during part of July 17, 18 and 19, 1962 he had been with appellant in Oklahoma City working on plans to construct an apartment building on land owned by appellant. Documentary evidence tending to corroborate this testimony was introduced, and it was also corroborated by the testimony of Mrs. Holt. Moreover, Mrs. Holt also testified that appellant was bedridden in Oklahoma City on August 11, the day it was claimed he sold the Ford in Dallas, as a result of an automobile accident in Oklahoma City on August 8, 1962.
“Appellant attempted to introduce evidence showing that he had twice before been identified as the person involved in similar sales wherein the name Earl Albert Boyd was used by the seller of the stolen automobile, and wherein certificates of the group stolen from Idabel were used. In particular, appellant proffered the testimony of an agent of the Federal Bureau of Investigation who had worked on the series of stolen automobile sales involving the use of the Idabel certificates. His testimony, taken outside the presence of the jury, was to the effect that appellant had been positively identified as the Earl Albert Boyd who sold a stolen automobile in Phoenix using one of the Idabel certificates, and that thereafter the charge was dismissed for ‘insufficient evidence.’ He stated that he was present at a removal hearing in the United States Commissioner’s office in Oklahoma City on December 6, 1962 involving the Phoenix charge, and that the positive identification took place there.
He thus knew of his own knowledge of the identification of appellant as Boyd and of the use of the certificate. His file demonstrated that the charge was later dismissed for ‘insufficient evidence.’ The testimony of this agent went further to show that his files indicated that one of the certificates had been used by a person identified as appellant in the sale of a stolen automobile in California. However, this occurrence in California took place on December 6, 1962, the very day that appellant was with the agent at the hearing in the United States Commissioner’s office in Oklahoma City on the Phoenix charge, and thus the agent knew of the impossibility of appellant having been involved in California. The California charge was a state prosecution but the agent offered to testify that the charge was dismissed.”

Summarizing the facts set out above, the materiality and necessity of the proffered testimony to Holt’s defense becomes readily apparent. He had been identified as an individual who called himself “Earl Albert Boyd” and had sold a stolen automobile to Adams Motors in Atlanta using a stolen vehicle title certificate, one of ninety-six such certificates stolen in Idabel, Oklahoma. He had been positively identified, indicted, and was being tried for that offense. The proffered testimony which the district court refused to admit would have shown that on two other occasions he had been positively identified and charged with the commission of a similar offense in two different states, California and Arizona, to-wit: as an individual calling himself “Earl Albert Boyd” using vehicle title certificates stolen from Idabel, Oklahoma, to sell stolen vehicles. The testimony would have also shown that both the California and Arizona charges had been dismissed for “insufficient evidence.” In fact, not only was Holt so identified, but on the day he allegedly committed the crime in California he was in custody of federal officials and present at a proceeding before the United States Commissioner in Oklahoma City.

In the words of Judge Bell:

“The proffered testimony went beyond a mere showing that appellant had twice previously been charged with similar crimes and that the charges had been dismissed. It tended to show, or at least was sufficient to permit the jury to draw an inference, that appellant had been the victim of mistaken identity in the Arizona and California cases, and that the cases had been dismissed for that reason. Witnesses in both states had positively identified appellant as the guilty party. In both sales, ownership of the stolen automobiles had been established by using stolen Idabel, Oklahoma, title certificates, and in Arizona, the name Earl Albert Boyd had been used. [Footnote: The record is unclear on whether this name was also used in California.] In each case, prosecution was discontinued. The jury might have inferred that this was because of insufficient evidence as to identity.” Holt, at 166 (Emphasis supplied)

In the instant case, Jackson was never positively identified as the perpetrator of the assault upon the Boyds and accompanying couple in Marshall. As has already been shown, Boyd only testified that Jackson “. . . looked like him (meaning their assailant),” while none of the other three even identified him as a “possible suspect.” But all four subsequently identified Lewis at his trial as their assailant. Jackson was never charged with that offense; Lewis was the only person charged, indicted and tried. We are not faced with a fact situation wherein an individual has been positively identified and charged, the charges having been subsequently dismissed, on two previous occasions as an individual who was selling stolen automobiles in several states using title certificates stolen from the same small town in Oklahoma.

The only similarity in the instant case and the offense for which Lewis was tried and convicted is that a rape of a white woman was committed by a black man while holding her at gunpoint. Jackson was not charged with the offense committed by Lewis, nor was he positively identified by anyone as the perpetrator of that offense. He was only identified “. as a possible. . . . ” The only evidence given by Boyd was that they were abducted at gunpoint by a black man and their wives subsequently raped. There was no testimony from Boyd nor was there any other evidence that a robbery, shooting or stabbing occurred during the commission of Lewis’ offense. Nor was any such evidence elicited from Lewis. In fact, Lewis was not questioned by appellant’s counsel in the presence of the jury concerning the offense related to by Boyd.

Furthermore, even if it could be said that Holt is persuasive, the error, if any, was harmless. Such a question was considered and dismissed in Holt because the question of his identity was so close and because, not only was identification made through photographs some thirteen months after the transaction for which he was being tried, but also because his alibi testimony was supported by the testimony of his wife and an Oklahoma contractor whom he had been with and was supported by documentary evidence.

The question of identification in the instant case is not close. Only a review of the victims’ testimony and the “incredible” testimony of John L. Lewis, as well as the identification testimony of the victims, is all that is necessary to show that appellant was not harmed. If there was any similarity in appearance between Lewis and Jackson, the jury would have observed it as both men testified before the jury. The jury heard Lewis testify that he and not appellant committed the attack on J_and Talley. Both victims made positive identification of appellant, both denied that Lewis was their attacker. It was shown that Lewis had nothing to lose by confessing to the commission of the offense. He was already serving five life sentences, one of which had been commuted from death.

Viewing the “totality of the evidence”, the inescapable conclusion which must be reached is that Jackson was not prejudiced by the trial court’s refusal to admit Boyd’s testimony.

This case presents a similar situation to that in Florio v. State, 532 S.W.2d 614 (Tex.Cr.App.1976), although the majority attempts to distinguish Florio, saying that “there had been no misidentification in the other offense, nor was the identity of the offender in the other offense established.” In the instant case there was no positive misidentification, only one of four victims in another unrelated incident saying appellant was “. . .a possible. . . .”

The judgment should affirmed.

ONION, P. J.,

joins in this dissent because the failure to admit Boyd’s testimony was harmless error.

DISSENTING OPINION ON MOTION FOR REHEARING

DOUGLAS, Judge.

The majority denies leave to file the State’s motion for rehearing without written opinion. It holds that the refusal to admit the proffered testimony of Boyd concerning an unrelated offense at a remote time and at a different place is reversible error. It does so apparently on the question of identity or mistaken identity of appellant by the prosecutrix even though Boyd did not testify in the present case.

Boyd was present at a lineup in Dallas and the substance of his testimony would have been that Jackson, appellant, was possibly the man who committed a robbery and rape near Marshall. Lewis, in his trial at Marshall, could have cross-examined Boyd about this on the question of mistaken identity. But what relevance does it have in the present case as to whether the prosecu-trix and her roommate could identify Jackson as the rapist? The majority is allowing the admission of evidence concerning an extraneous offense of another defendant in a separate case.

In admitting extraneous offenses offered by the State on the question of identity to rebut the defense of alibi, the majority requires that there must be similarities as to how the offenses were committed and that they were committed by the defendant before they are admitted. The similarities are not present in the case at hand.

Would the majority hold on the question of identification where alibi has been raised as it has been in this case that the evidence that an offense was committed some 150 miles away by someone who possibly looked like an accused to be admissible? A good rule of evidence works both ways. What would be the relevancy of such evidence in the example given? It would be just as relevant as the proffered testimony the majority uses to reverse this case.

What happens in another case against another defendant is not admissible. There is no showing why it should be admissible in this case.

The motion for rehearing should be granted and the judgment should be affirmed.

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

      . Appellant was originally convicted of rape. He was subsequently charged with robbery after we reversed the rape conviction. Jackson v. State, Tex.Cr.App., 507 S.W.2d 231.

      . Judge Morrison discussed the Holt decision in Florio v. State, Tex.Cr.App., 532 S.W.2d 614, where it was distinguished in footnote 1 because in Florio there had been no misidentification in the other offense, nor was the identity of the offender in the other offense established. The instant case is distinguishable from Florio on the same points, and is indistinguishable from Holt.

      . When he testified outside the presence of the jury, Lewis said: “I pointed the gun at Miss Talley, pulled the trigger and shot and I did not know if I hit her, so I took my knife out and stabbed her up around here.”