Halliburton v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

It has been suggested that reliance upon Lolmaugh v. State, Tex.Cr.App., 514 S.W.2d 758, was misplaced. Even if this is correct, we remain convinced that the proper result was reached.

The ultimate question is whether the extraneous offense tends to disprove the appellant’s explanation of the primary offense. 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. Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. See People v. Morehouse, 328 Mich. 689, 44 N.W.2d 830, 34 A.L.R.2d 676.

In the case at bar it should be borne in mind that the State’s case showed an unprovoked killing; the appellant stated that she had acted in self defense. Then, in order to refute or disprove this defense which she had injected in the case, it became relevant to prove that on another occasion she shot another man under circumstances which clearly showed that she had not acted in self defense. Once appellant raised the issue, the State could bring forward evidence, not otherwise admissible, that refuted her explanation of the shooting.

Having concluded that evidence of the second shooting was admissible, the appellant’s motion for rehearing is overruled.