Espinoza v. State

McCORMICK, Judge,

dissenting.

Appellants were tried together before a jury for the offense of aggravated robbery. Y.T.C.A., Penal Code, Section 29.03. They were found guilty and sentenced to twenty years’ confinement and fined ten thousand dollars each. Appellants appealed to the Fourteenth Court of Appeals which reversed the convictions after finding that the trial court erroneously admitted evidence of an extraneous offense. Espinoza v. State, 662 S.W.2d 745 (Tex.App.—Houston (14th), 1983). We granted the State’s petition for discretionary review. The majority now erroneously determines that such action was improvident.

The sole question before this Court was to determine if evidence of an extraneous offense was properly introduced against the appellants at trial. Appellants were accused of entering the Harris County home of the complaining witnesses and robbing them at gunpoint. Appellants offered in their defense alibis which indicated they were in the company of friends on the night in question. The State then introduced evidence that appellants had committed a very similar robbery in Tarrant County some thirty-nine days previously. This was done by introducing a victim of the Tarrant County robbery and eliciting testimony from her which identified the appellants as the persons who robbed her. The witness’ testimony showed that, though she never saw the faces of the robbers, she had positively identified the appellants by their voices at a lineup held previous to the trial.

On original appeal, appellants maintained that the evidence of the extraneous offense was inadmissible because there were not enough similarities between the two offenses to justify admission of the evidence. Appellants particularly argued that there was not a close enough proximity in time and place to justify admitting this evidence. Appellants further argued that the evidence was far more prejudicial than it was probative and that the trial court committed reversible error in allowing it to be used by the State. See Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1983); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). Appellants furthermore argued that before an extraneous offense is admissible it must be clearly proven that the accused was the perpetrator of the extraneous offense. Appellants contended that it was not clearly proven that they were the persons who committed the extraneous offense and that the witness from Tarrant County only identified the appellants by voice and build.

The appellants’ point of view prevailed on appeal. The Court of Appeals decided that there were too many dissimilarities between the two crimes and too few similarities to permit this evidence to be introduced. The court held that the evidence was far more prejudicial than probative.

The State, in its petition for discretionary review, argued that the similarities in the two offenses were sufficient to constitute a “signature” of the offenders and thus refuted the appellants’ alibi. The State argued that the extraneous offense in question was thus far more probative than the appellants admit and its value to the trier of fact far outweighed whatever prejudice it caused the appellants.

Unlike the majority of this Court and the Court of Appeals, I find the State’s argument meritorious. It is a well established and fundamental principle in our system of justice that an accused person must be tried only for the offense charged and not for being a criminal (or a bad person) generally. Williams v. State, supra; Albrecht v. State, supra; Rubio v. State, 607 S.W.2d 498 (Tex.Cr.App.1980). It is for this reason that Anglo-American jurisprudence has always shown a marked reluctance to admit evidence of extraneous offenses or prior misconduct. Such evidence carries with it the danger that a defendant in a criminal action may be convicted of an implied charge of having a propensity to commit crimes generally rather than the specific offense for which he is on trial. Williams v. State, supra; Elkins v. State, 647 S.W.2d 663 (Tex.Cr.App.1983); Bates v. State, 643 S.W.2d 939 (Tex.Cr.App.1982).

There is, however, an equally well established corollary to the general rule which prohibits evidence of prior misconduct from being admitted at trial. In some cases circumstances exist which justify the admission of such evidence in spite of its inherent dangers. For this reason, several exceptions to the general rule prohibiting the admission of this form of evidence have evolved. Albrecht v. State, supra.

One such exception to the rule that an accused may not be tried for a collateral crime is that evidence of an extraneous offense may be admissible to refute a defensive theory raised by the accused. Dickey v. State, 646 S.W.2d 232 (Tex.Cr.App.1983); Albrecht v. State, supra. When an accused offers the defense of alibi he places his identity in issue. Dickey v. State, supra; Wintters v. State, 616 S.W.2d 197 (Tex.Cr.App.1981). Of course, it is true that evidence of an extraneous offense is admissible only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Wintters v. State, supra. The rationale for this in a case in which the State is seeking to establish identity is to permit the trier of fact to draw an inference that the identified perpetrators of the extraneous offense are also the guilty parties in the case at trial. Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979). In the case before us the common characteristics of the two offenses are as follows:

(1) Both robberies occurred in the late evening, at approximately 10 p.m.

(2) Both homes involved were expensive and located in affluent if not wealthy neighborhoods.

(3) Both sets of victims were watching television at the time of the robbery.

(4) Both offenses were committed by two men of apparently Hispanic descent, speaking with “Spanish” accents.

(5) On both occasions the intruders covered their faces with hoods or bandanas.

(6) On both occasions the offenders were dressed in dark long sleeve shirts and wore dark blue pants and wore gloves.

(7) On both occasions each intruder clasped his gun in both hands.

(8) On both occasions the intruders ordered the victims of the robberies to lie on the floor and tied their hands with neckties belonging to the male member of the households.

(9) The intruders covered the heads of both sets of victims with cloth material.

(10) The property taken on both occasions was very similar — cash and authentic jewelry — and on both occasions a substantial amount of money or valuable property was stolen.

(11) On both occasions the intruders ignored other valuables such as costume jewelry, silverware or art objects.

I believe these are very similar characteristics which indicate a technique and modis operandi which constitute an identifying “signature” of the offenses in question. Clearly the trial court did not err in giving the trier of fact the opportunity to hear the evidence and then draw whatever inferences the trier of fact felt was mandated. Furthermore, I remind the majority that the jury was properly instructed that before they could even consider the evidence they had to believe beyond a reasonable doubt that the appellants committed the offense. They were also instructed that even if they believed the testimony from the victim of the Tarrant County robbery, they were only to consider it for the purpose of proving identity. I believe that the jury as trier of fact properly had the evidence before them.

Because I believe that the decision of the Court of Appeals was erroneous and that this Court properly granted the State’s petition for discretionary review, I must dissent to the majority stamp of “improvidently granted.”

ONION, P.J., and DAVIS and WHITE, JJ., join this dissent.