Cameron v. State , 1975 Tex. Crim. App. LEXIS 1208 ( 1975 )

DOUGLAS, Judge

(dissenting).

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

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

“. . .In Ford v. State, supra [484 S.W.2d 727, Tex.Cr.App.1972], it was pointed out the common distinguishing characteristic may be the proximity in time and place or the common mode of the commission of the offenses. . . ”

This Court also noted in Ransom that the exact “modus operandi” need not be repeated.¹

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

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

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

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

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

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

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

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

The judgment should be affirmed.

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

1 .If similarities are important, the following were proved:

1. Both offenses were committed in Lubbock.

2. Both offenses were committed by black males.

3. The robber used a pistol in both offenses.

4. The robber ordered the clerk to place the money in a bag. Cf. Henriksen v. State, Tex.Cr.App., 500 S.W.2d 491.² See also Robinson v. State, 508 S.W.2d 630 (Tex.Cr.App.1974); McDonald v. State, 513 S.W.2d 44 (Tex.Cr.App.1974).

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