Jackson v. State

OPINION

ODOM, Judge.

Appellant was convicted of robbery by firearms under the former Penal Code.1 Punishment was assessed at life imprisonment after he elected to be punished under the new Penal Code pursuant to Sec. 6(c) of Acts 1973, 63rd Leg., ch. 399.

Since we must reverse, we will only consider one of the numerous grounds of error presented for our review. Appellant contends that the trial court committed reversible error by excluding the entire testimony of William Boyd. We agree, and shall give our reasons after a discussion of the nature of the case.

Appellant presented three interrelated defensive theories at trial. These included:

1. An alibi asserting he was in Austin or travelling between Austin and Dallas on the night of November 28,1971, at the time the offense occurred.
2. That another person committed the crime. This theory was supported by the *352confession of John Lewis to the offense appellant was charged with committing.
3. That complainant misidentified appellant.

The State was fully aware of these defensive theories.

To secure appellate review of his ground of error, appellant presented the testimony of William Boyd outside the presence of the jury. These statements reflect that Boyd had erroneously identified appellant as having committed a crime later discovered to have been committed by John Lewis. Boyd testified that on December 19,1971, he and his wife were abducted at gun point in Longview, driven into Harrison County and held for two and one-half hours. Boyd’s wife was raped during this period.

Later, Boyd went to Dallas to observe a police lineup. There, he identified appellant as the criminal. Subsequently he renounced that identification and accused John Lewis of the crime.

The trial court concluded this evidence was not material to any issue in the case. The court also excluded from evidence the card signed by Boyd after the lineup was held in February of 1972. It stated:

“I have identified No. 3 in the lineup.” The appellant was in the third position in the lineup. John Lewis was subsequently indicted for the offense against Mrs. Boyd.

Identification of the appellant was a crucial issue at the trial. Eyewitness testimony was introduced both to show appellant was the criminal actor and to prove that he was not in Dallas at the time of the offense. John Lewis, a person serving five life sentences, confessed in open court to the crime for which appellant had been indicted.

Boyd’s testimony would have been very valuable to the defense. Lewis could be impeached because he was already serving five life sentences. A conviction for another crime would pose no serious consequences for him. Boyd, on the other hand, had no motive for lying.

Clearly, the testimony that Boyd would have provided was germane and material to the issue of identification and to the defensive theory propounded by appellant. This evidence was highly relevant because it tended to prove not only that Jackson had been misidentified but that his identity had been previously confused with John Lewis, the person who confessed to the offense charged in the case at bar.

Our case is similar to the situation confronted by the Fifth Circuit in Holt v. U. S., 342 F.2d 163 (5th Cir. 1965).2 The court in that case reversed the district court’s decision to exclude evidence which tended to prove that the accused had been previously misidentified as the perpetrator of similar crimes. In its discussion, the Fifth Circuit stated:

“While we find no federal authority to this effect, there are two well reasoned state Supreme Court opinions on the subject which we find persuasive. In Commonwealth v. Murphy, 1933, 282 Mass. 593, 185 N.E. 486, the principle was recognized and applied that where the identity of a defendant is an important issue in a prosecution for a crime, evidence showing that another person similar in appearance to the defendant was committing similar crimes at about the same time, and that one person had mistakenly identified the defendant as such criminal is admissible. The court limited the admission of evidence of this character to instances where it was not too remote in time, nor too weak in probative quality, and where it was so connected with the act forming the issue on trial as to indicate a relevant relationship.”

The conclusions of the Massachusetts Supreme Court and the Fifth Circuit represent sound principles of the law of evidence and should be applied to the case at bar. The record reflects that:

*3531. John Lewis confessed to the crime appellant was charged with committing.
2. John Lewis was indicted for the offense against Mrs. Boyd.
3. The offense charged in the case at bar and the offense against Mrs. Boyd occurred within one month of each other.
4. Mr. Boyd identified the appellant at a lineup as the possible perpetrator of the criminal assault on Mrs. Boyd.
5. John Lewis’ action in other crimes was similar to those charged against appellant in the case at bar.
6. Appellant’s identity was the major issue at the trial.

We hold that the exclusion of Boyd’s testimony was error. The evidence was material to the central issue of the case and of substantial probative value to appellant.

The circumstances of the case at bar present a unique factual situation. To avoid an overbroad interpretation of our decision herein, we wish to emphasize that the exclusion of Boyd’s testimony was error because it was not too remote in time, nor too weak in probative quality, and it was so connected with the act forming the issue on trial as to indicate a relevant relationship.

The judgment is reversed and the cause remanded.

. Appellant was originally convicted of rape. He was subsequently charged with robbery after we reversed the rape conviction. Jackson v. State, Tex.Cr.App., 507 S.W.2d 231.

. Judge Morrison discussed the Holt decision in Florio v. State, Tex.Cr.App., 532 S.W.2d 614, where it was distinguished in footnote 1 because in Florio there had been no misidentification in the other offense, nor was the identity of the offender in the other offense established. The instant case is distinguishable from Florio on the same points, and is indistinguishable from Holt.