Ivey v. State , 152 Tex. Crim. 206 ( 1948 )

ON MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

In his motion for rehearing, appellant seriously contends that we erred in our original opinion in holding the evidence complained of in Bill of Exception No. 4 admissible over his objection that it showed an extraneous offense; that it was irrelevant, immaterial, and not admissible for any purpose. In our original opinion, we not only set forth the evidence complained of, the objection urged thereto, the court’s qualification of the bill, but also our reasons for holding that the evidence became admissible when he proved that he was discharged from the Navy because he was subject to epileptic fits; that he was not physically strong, thereby seeking to strengthen his defensive theory that he did not strike Hargrave because he was physically incapable of inflicting such wounds as Hargraves received at the time and place in question. The state, for the purpose of showing the improbability of his defensive theory, introduced the evidence complained of. Under such a state of facts, the evidence became admissible notwithstanding it tended to show an extraneous offense. Of course, the evidence was not admissible for the purpose of impeachment, or showing intent, identity, etc. We did not base our opinion holding it admissible upon any such theory. One of the best-known exceptions to the rule against proving extraneous crimes is that any competent evidence which tends to defeat the defense urged is admissible though it tends to show another offense.

Being convinced that the question was properely disposed of in our original disposition of the case, the motion for rehearing is overruled.