concurring and dissenting.
I agree wholeheartedly with the disposition that the majority opinion by Judge Clinton makes of the contention urged on behalf of Donald Ray Fitzgerald, henceforth appellant, that the trial judge erred in admitting into evidence at the punishment stage of the trial, for enhancement of punishment purposes, appellant’s conviction for aggravated robbery that was an essential element of the primary offense of escape, for which appellant was on trial. Therefore, I agree with that part of the majority opinion. Also see Mc Williams v. State, 782 S.W.2d 871 (Tex.Cr.App. delivered this date).
However, I find that I am unable to agree with the disposition that the majority opinion makes of appellant’s other contention, that the trial judge erred in admitting over objection certain extraneous offense testimony that related to criminal acts committed by appellant and another after he and his cohort had escaped from the Beto II Unit, and that the Tyler Court of Appeals did not err in overruling the trial judge’s ruling. See Fitzgerald v. State, 722 S.W.2d 817 (Tex.App.—Tyler 1987).
Although I am generally not in favor of admitting extraneous criminal offenses into evidence during the accused’s trial, see, for example, the dissenting opinion that I filed in Dickey v. State, 646 S.W.2d 232 (Tex.Cr. App.1983), in this instance, because appellant raised the defensive issue of just what his intent might have been when he escaped from one of the units of the Department of Corrections, which I find was a factual issue for the jury to resolve, and the jury was so instructed, I am unable to agree that the extraneous criminal offense testimony was inadmissible evidence.
*886The relevant facts are not in dispute. The record reflects that during its case in chief, the State tried a “clean” case. The State proved up in its case in chief the fact that early one morning appellant and another inmate escaped from the Beto II Unit of the Department of Corrections. For rebuttal purposes, and over objection, the State was permitted to introduce into evidence extraneous offenses which established that after appellant and his fellow inmate escaped from the unit, at a short distance from the unit, they attempted to break into a non-inmate’s residence and that appellant cut the non-inmate with a knife he was then armed with. The two then fled into nearby woods where they were soon apprehended.
The trial judge charged the jury at the guilt stage of the trial on the defense of necessity and further instructed the jury that they could consider the extraneous offense testimony only “in determining the intent of the defendant, if any, in connection with the offense, if any, alleged against him in the indictment in this case, and for no other purpose.”
It is obvious to me that the majority opinion, in rejecting the State’s contention that the extraneous offense testimony was admissible to refute or rebut appellant’s defense of necessity, focuses its attention on the admissibility of such evidence as it might relate to the crime of escape, and not as it might be rebuttal testimony. The majority opinion holds:
Just as the offense of escape is complete once he actually departs from custody, so it is too late to reconsider and amend that which he ‘reasonably believes’ made his leaving so necessary in the first place ... That an escapee later in time and place committed extraneous offenses or engaged in other misconduct has no bearing on whether at the threshold he reasonably believed it immediately necessary to leave custody in confinement to avoid imminent harm ... In short, it is not relevant to any material issue in the defense of necessity.
I disagree. Taken to its logical conclusion, in an escape case, where the defense of necessity is raised by the evidence, and the jury is instructed thereon, the majority opinion would prevent the State from showing after the defendant escaped he committed extraneous criminal offenses.
In Dickey, supra, the majority opinion pointed out that “An 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. ...”
Although I agree that testimony concerning what occurred beyond the penal institution’s boundaries would be irrelevant and immaterial to the charge of escape, and thus inadmissible during the State’s case in chief, I find that when the accused presents defensive testimony that his intent when he escaped was that of necessity, i.e., he escaped to avoid having serious bodily injury inflicted upon him by a prison guard, he placed into evidence his intent, and extraneous criminal offense testimony becomes admissible to negate that intent.
The defense of necessity to the crime of escape has been part of the law for almost 700 years, see Thiel v. State, 676 S.W.2d 593, 599 (Tex.Cr.App.1984) (Teague, J., dissenting opinion), when the English scholar Lord Plowden observed that a prisoner need not remain in prison when the prison is on fire and is justified in escaping from the prison for this reason, “for he is not to be hanged because he would not stay to be burnt.” Thus, the offense of escape is certainly not and should not be considered a strict liability crime.
Here, appellant gave a valid and reasonable reason why he escaped from the Beto II Unit.
I agree with the State’s argument, that “An ‘innocent’ escapee would want to avoid committing subsequent criminal acts in order to prevent future additional and prolonged confinement.” (Page 21 of State Prosecuting Attorney’s Petition.)
*887When appellant presented his defense of necessity, he “opened the door” to the State to rebut or refute that defense with evidence that would negate his intent to escape-because of fear that a guard was going to inflict serious bodily injury on him and he could not find any protection within “the walls” of the Unit. I find that the State was entitled to present evidence to show that appellant escaped for reasons other than to avoid imminent serious bodily injury at the hands of a prison guard.
Appellant presented evidence that he escaped from lawful custody to avoid having imminent serious bodily injury inflicted upon him by a prison guard, i.e., he escaped to be free from imminent danger from the guard and for no other reason. Although perhaps questionable, see Thiel v. State, supra, at 600 (Teague, J., dissenting opinion), the trial judge found this evidence sufficient to support a charge on the defense of necessity and so instructed the jury. In short, the trial judge found that the evidence was sufficient to show that appellant went “over the wall rather than remain and become a martyr.” See Branson v. State, 525 S.W.2d 187 (Tex.Cr.App.1975). From appellant’s perspective, at least by his defensive evidence, he was confronted with an imminent life threatening situation. Also see Acosta v. State, 660 S.W.2d 611 (Tex.App.—13 Dist.1983). The jury was instructed that if it believed appellant’s defensive testimony they should acquit appellant.
There are many reasons why an inmate might escape or attempt to escape from the Department of Corrections; some valid and reasonable and some not so valid and not so reasonable. From the State’s standpoint, the record reflects that appellant wanted to escape simply to escape from further confinement. There is no evidence in the record that might support the claim that after he escaped appellant sought or attempted to seek outside assistance about his problem with the prison guard. Thus, just what appellant’s “intent” might have been when he escaped from the Beto II Unit was certainly a relevant issue in the case for the jury to resolve, especially given the trial judge’s charge to the jury. There is no evidence in this record that after appellant escaped, when appellant attempted to break into the residence he was doing so only to obtain shelter or food and clothing. In fact, the record reflects that when appellant rang the doorbell to the non-inmate’s residence he was armed with a knife. After the owner of the residence answered the doorbell, appellant first attempted to assault the owner and thereafter succeeded in cutting the owner’s little finger and chest. Appellant and his cohort then fled that scene, rather than fleeing the scene when they first realized that the residence was not without occupants.
Therefore, I find that the extraneous offense testimony was admissible evidence as it was relevant to a material issue in the case, namely, appellant’s intent when he escaped from the Beto II Unit, and that its relevancy value on the issue outweighs its inflammatory or prejudicial potential. E.g., Williams v. State, 662 S.W.2d 344 (Tex.Cr.App.1984).
For the above and foregoing reasons, I respectfully dissent to the majority’s holding that the extraneous offense testimony was not admissible as rebuttal evidence.
CAMPBELL and BERCHELMAN, JJ., join.