Williams v. State

ODOM, Judge

(concurring).

I concur in the result reached by Judge Dally, but for the reasons expressed herein.

The testimony of the fifteen year old girl was that she and a companion were walking down a street in San Antonio on the afternoon of June 18, 1969, when a white car pulled up beside them. The male occupant of the car asked them if they would like to earn some money. The man was nude and laughing at them. The girls memorized the license number and telephoned the police. It was shown that the license number of the automobile was GYW-916. An automobile with that license number was shown to have been registered in the name of appellant’s wife.

Although the girl was unable to identify appellant as the perpetrator of this offense, the state had a right to show that appellant’s automobile was in San Antonio on June 18 in order to impeach his witnesses and to rebut his defensive theory. The testimony concerning the extraneous offense was incidental to showing that the automobile was in San Antonio.

When evidence is offered for one purpose and satisfies all the requirements for *819admissibility applicable to that purpose it does not become inadmissible because it could not be admitted for some other purpose, or because a jury might consider it in the latter capacity. Stallings v. State, Tex.Cr.App., 476 S.W.2d 679 (1971) ; Haynes v. State, Tex.Cr.App., 475 S.W.2d 739 (1971); 1 Wigmore, Evidence, Sec. 13 (3d Ed.).

A witness should be permitted to testify concerning collateral facts that serve to fix in his memory a material fact to which he has testified. Brittain v. State, Tex.Cr.App., 40 S.W. 297; Bice v. State, 37 Tex.Cr.R. 38, 38 S.W. 803; 61 Tex.Jur.2d, Witnesses, Sec. 133. The reason for allowing such testimony is:

“The party offering a witness may desire to make plain the strength of the witness’ grounds of knowledge and the reasons for trusting his belief. This is a legitimate purpose. But, in pursuing it, the witness often will naturally state circumstances which may give indirectly some unfavorable impressions against the opposite party . . . Nevertheless, . the general rule is that the witness may on the direct examination state the particular circumstances which legitimately affected his knowledge or recollection, even though the fact would otherwise be inadmissible . . . ” 2 Wig-more, Evidence, Sec. 655 (3rd Ed.).

While there is some risk that the jury might improperly consider such testimony, the burden is on the opposing party to request a limiting instruction from the trial court; and the refusal to give such instruction may constitute reversible error.1 Coker v. State, 35 Tex.Cr.R. 57, 31 S.W. 655; 1 Wigmore, Evidence, Sec. 13 (3rd Ed.). Where the competence or logical relevance of this type of testimony is far outweighed by its prejudicial effect, a limiting instruction will be insufficient to alleviate the risk, and the testimony should not be admitted. Dyer v. State, 47 Tex.Cr.R. 258, 83 S.W. 192. However, the initial determination on the admissibility of evidence is within the discretion of the trial court; and this court will not reverse unless a clear abuse of discretion is shown. Lanham v. State, Tex.Cr.App., 474 S.W.2d 197.

The term “extraneous offense” has no magical qualities, and the evidentiary rules governing extraneous offenses when introduced for one purpose need not be invariably applied where the extraneous offense was introduced for some other purpose. In order to determine what principle of law should be applied to a given situation involving the introduction of evidence, it is necessary to determine the purpose for which the evidence was introduced. Having determined that the extraneous offense was not offered for the purpose of proving identity, intent, etc., but was offered for the purpose of showing why the witness remembered that appellant’s car was in San Antonio on the evening in question, the issue to be decided is whether the testimony concerning the extraneous offense was so inherently prejudicial that, even absent a request by appellant for a limiting instruction, the decision of the trial court should be overturned. Dyer v. State, supra ; Brittain v. State, supra; Bice v. State, supra.

Under the facts of the instant case, I can find no clear abuse of the trial court’s discretion in admitting the testimony concerning the extraneous offense.

I concur.

. In the instant case, appellant did not request a limiting instruction.