Jones v. State

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a habitation. Punishment was assessed at life.

On original submission, the panel reversed appellant’s conviction after concluding that evidence of an extraneous offense should not have been admitted. Over objection, the State was allowed to prove during its case in chief that three days prior to the instant offense, appellant broke into the apartment of D_ D_ in Dallas. D-D_testified that once he was in her apartment, appellant raped her and took several items of personal property.

At trial, the State maintained that the extraneous offense was admissible on the issue of appellant’s intent to commit theft in the instant offense.

Appellant’s intent to commit theft was presumed after the complainant testified that appellant entered her locked apartment without her consent in the nighttime. See, Clark v. State, Tex.Cr.App., 543 S.W.2d 125; Finch v. State, Tex.Civ.App., 506 S.W.2d 749; Garcia v. State, Tex.Cr.App., 502 S.W.2d 718. Such intent being presumed from the act itself, the extraneous offense was not admissible on this issue. See, Riles v. State, Tex.Cr.App., 557 S.W.2d 95.

The State maintains that evidence of the extraneous offense was admissible to refute appellant’s alibi defense.

Terry Doyle positively identified appellant as the individual who had broken into her apartment and dragged her onto the balcony on the occasion in question. She testified that she struggled with appellant “maybe fifteen minutes, I guess” before a neighbor came to her aid and appellant escaped by jumping over the balcony. Doyle further related that the door to her apartment was locked and she did not know how appellant gained entry. A neighbor, Charles Pierce, testified that after hearing screams he went to Doyle’s apartment and struggled with appellant until he escaped. Neither witness’ testimony was impeached on cross-examination. The State then presented evidence of the extraneous burglary, theft, and rape of D_D__ At a point following the presentation of evidence of the extraneous offense appellant testified that he was asleep in his apartment at the time of the burglary and attack on Doyle.

It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Hines v. State, Tex.Cr.App., 571 S.W.2d 322; Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Haliburton v. State, Tex.Cr.App., 528 S.W.2d 216. One of the exceptions we have recognized to this general prohibition against the use of extraneous offenses is that such evidence is admissible to refute a defensive theory raised by the accused. Buckner v. State, Tex.Cr.App., 571 S.W.2d 519; Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. When the appellant raises the defensive theory of alibi, he places his identity in issue. Mitchell v. State, Tex.Cr.App., 503 S.W.2d 562. Once the issue of identity has been raised, evidence of an extraneous offense is admissible to prove identity only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Buckner v. State, supra; Ransom v. State, Tex.Cr.*120App., 503 S.W.2d 810. We have nevertheless held that an extraneous offense may be admissible before the defensive theory of alibi is raised if, identity has only been proven circumstantially, or, if the State’s only identifying witness is impeached on cross-examination as to a material detail of his identification of the accused. See, Jones v. State, Tex.Cr.App., 568 S.W.2d 847; Redd v. State, Tex.Cr.App., 522 S.W.2d 890.

In the instant case, it is clear that the State was premature in its effort to rebut appellant’s defense of alibi. The State had produced positive identification by two witnesses that appellant was the perpetrator of the offense in question. This testimony was unimpeached on cross-examination. The State nevertheless proceeded to introduce evidence of the extraneous burglary, theft, and rape of D_ D_ prior to the defensive theory of alibi being raised.

We have previously held that the erroneous premature receipt of evidence of an extraneous offense may be rendered harmless based upon the subsequent actions of the defendant at trial. See, Flores v. State, Tex.Cr.App., 209 S.W.2d 168; Shannon v. State, Tex.Cr.App., 59 S.W.2d 142; Gregory v. State, 92 Tex.Cr.R. 574, 244 S.W. 615. Thus, in Vessels v. State, Tex.Cr.App., 467 S.W.2d 259, we held that when no question of identity was presented, error, if any, in the introduction of two extraneous offenses, was rendered harmless when the defendant subsequently presented an alibi defense. Likewise, we conclude that in the instant case, appellant’s alibi defense rendered the extraneous offense involving D_ D_ both material and relevant to the question of identity. We find that error, if any, in the premature offer of the evidence was rendered harmless in light of appellant’s testimony of alibi.

We further conclude that there are distinguishing characteristics common to both the extraneous offense and the offense for which appellant was convicted. Both offenses took place in the Oak Cliff section of Dallas within three days of each other. In both cases, the 26-year-old victims were alone in their apartments at the time of the entry and assault. Both victims had various items of clothing removed by the assailant, and in both cases, the perpetrator attempted to conceal his identity by covering his face either with a scarf or stocking cap.

Both the instant offense and extraneous offense would be classified as a burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02(a)(1). In discussing Sec. 30.02, supra, the Practice Commentary notes:

“The central elements of the offense continue to be entry or concealment in a building with intent to commit a felony or theft.”

This Court will not indulge in speculation as to what appellant’s intent was at the time he attacked Doyle and disrobed her in her apartment. However, we cannot conclude that the fact that the instant offense was interrupted by Doyle’s neighbor rendered the uninterrupted offense involving D_ D_ inadmissible. We conclude that the extraneous offense was germane to the refutation of appellant’s alibi defense. The details of the extraneous offense were admissible to show the common characteristics of both offenses.

We find no reversible error in the admission of the extraneous offense.

Appellant also challenges the sufficiency of the evidence to support the conviction. This argument appears to be bottomed on the appellant’s theory that the State’s case would have been “much stronger had the indictment alleged an intent to commit the offense of rape.” In Clark v. State, supra, we said, “. . . it is well settled that the act of breaking and entering a building at nighttime raises the presumption that the act was done with the intent to commit theft [numerous citations omitted].” The fact that the victim’s robe was removed in the course of the struggle which ensued after appellant entered the victim’s apartment will not defeat this presumption. We find the evidence sufficient to support the conviction.

The State’s Motion for Rehearing is granted and the judgment is affirmed.

*121ROBERTS, PHILLIPS and DALLY, JJ., dissent for the reasons stated in the opinion on original submission. CLINTON, J., dissents.