Tarin v. State

DAVIDSON, Judge,

dissenting.

The corroboration of the accomplice witness Castillo and, therefore, the guilt of this appellant depend upon the testimony of an expert handwriting witness who, upon comparing the alleged forged check with a specimen of the handwriting of appellant, testified that the appellant wrote the forged check. The expert witness did not stop with expressing his opinion that appellant wrote the forged check but went further and testified that in doing so he attempted to disguise his handwriting and to cover up his identity by writing the forged check with his left hand.

The legislature of this state recognized that it was competent for an expert to give his opinion upon a comparison of handwriting (Art. 731, C.C.P.). An express limitation, however, was placed upon the probative value of such evidence by the provision in that statute that proof by comparison, alone, would not be sufficient to establish the handwriting of a witness who denies his signature under oath.

Speaking of that statute and the subject of expert testimony, this court, in De Vere v. State, 100 Texas Cr. Rep. 61, 271 S.W. 912, said:

“* * * our Legislature was not unmindful of the fact that expert testimony on handwriting is very uncertain and unreliable, and at most a question in which there could be wide room for much difference, and, in view of such information, passed the above statute for the purpose of covering just such cases as we have under consideration.”

*193This court appears, there, to have been voicing again what had been said earlier by its predecessor in Jones v. State, 7 Texas App. 457 and Heacock v. State, 13 Texas App. 97.

To my mind, those expressions have a fitting application here. In the instant case the expert witness appeared to have had no difficulty in determining that the forged check was written with the left hand, as the accomplice testified. Just how he was able to make that deduction I am unable to understand, but I am not an expert on handwriting. So the accomplice witness who testified that the forged check was written by the appellant with his left hand is supported in that particular by the expert witness, if such testimony can support or corroborate the accomplice — which question will be discussed later on.

Apparently, no comparison of handwriting was necessary for the expert witness to arrive at the conclusion that the forged check was in the handwriting of a person writing left-handed. This conclusion of the expert witness appears to have been reached solely from an examination of the writing on the check.

The question next arises: Was appellant the left-handed writer of the forged checks ?

The state was in possession of an authentic specimen of appellant’s handwriting, written with his right hand.

Upon the expert witness’ comparison of the right-hand writing with the left-hand writing on the check, it was his expressed opinion that appellant was the forger of the check and that, in so forging the check, appellant disguised his handwriting and was attempting thereby to cover up his identity.

I am at a loss, as I have said, to understand how the left-hand writing of a person can be identified by his right-hand writing, but I am not an expert on handwriting. Neither can I understand why the expert witness was authorized to express his opinion as to the motive and intent of the appellant in using his left hand in writing the forged checks.

With these observations, I come to a discussion of the proposition of law involved:

As pointed out, Art. 731, C.C.P., authorizes an expert to express his opinion by a comparison of handwriting but makes an express limitation of the probative value of the expert opinion *194based upon a comparison of handwriting by the provision that “proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”

Here, the appellant denied under oath that he signed or wrote the alleged forged check. The quoted provision of the statute was thereby made applicable, and a conviction could not be sustained unless corroborated by other testimony. De Vere, supra.

So then, a conviction could not be had, here, upon the testimony of the expert handwriting witness unless corroborated by other evidence.

The only evidence, here, that could be utilized to corroborate the testimony of the expert witness was that of the accomplice witness, or, stated another way, the only evidence which could be used to corroborate the accomplice witness was that of the expert witness.

The question of law, then, is this: May these two witnesses corroborate each other?

The reason a conviction cannot be had upon the uncorroborated testimony of an accomplice is that the statute says so. Art. 718, C.C.P. The testimony of an accomplice, uncorroborated, therefore establishes no fact.

The testimony of Castillo, then, that appellant forged the check cannot, alone, show that he did do so.

Art. 731, C.C.P., says that when the accused denies his signature under oath, the uncorroborated testimony of the expert witness to the contrary is not sufficient to establish the handwriting of the accused.

The unsupported testimony of the expert witness, here, would not authorize a finding that appellant signed the forged check.

Appellant’s guilt, then, could not be shown solely by the testimony of either the accomplice or the expert witness. Such being true, neither one could corroborate the other, for to do so would give to the testimony of either the effect of establishing as a fact that appellant forged the check.

One accomplice cannot corroborate another. 18 Texas Jur., *195Sec. 169, p. 280. Such is true for the reason that the testimony of neither one establishes, of and within itself, any fact.

While the expert witness is not an accomplice to the crime, yet the testimony of the expert witness in the instant case was necessary to be corroborated the same as an accomplice, before a conviction would be authorized thereon.

It follows that, in so far as establishing as a fact that appellant signed the forged check, the unsupported testimony of the expert witness did not do so here. The testimony of the expert witness, then stands in the same legal category as if he were an accomplice witness. To accept the testimony of the expert witness as corroborating the accomplice would be to give to that testimony probative value which the statute expressly forbids — which is that the unsupported testimony of the expert witness is not sufficient, under the facts here presented, to establish the handwriting of the accused.

By the same reasoning, the testimony of the accomplice— being, itself, without probative value — could not be used to corroborate the expert witness in stating that appellant did forge the check.

The evidence being insufficient to show that appellant forged the check as charged, the judgment ought to be reversed and the cause remanded.

I have been unable to find any case in point, nor have I been able to reach a conclusion, upon the question of whether handwriting with the right hand may be the basis for comparing handwriting claimed to have been done with the left hand. Or, stated another way, when it is determined that the forged instrument was made by writing with the left hand, must not the writing used as the basis for comparison be also made with the left hand? For the reasons mentioned, that question is not here discussed.

I respectfully dissent to the affirmance of this case.