(dissenting on State’s motion for rehearing).
The majority overrules the State’s motion for rehearing. In the original opinion it attempts to distinguish this case from Vandall v. State, 438 S.W.2d 578 (Tex.Cr.App.1969), as follows: “ . . . but that case is distinguished from this case in that it appears that the checks there had been identified by a witness as having been passed and presented for payment at about the time the check specified in the indictment had been passed.” The opinion overruling the motion for rehearing recognizes that thi.s statement is incorrect.
It was Vandall’s contention that the checks were not admissible because there was no proof that he passed the other checks. He was correct that there was no proof that he passed the other checks, but the Court held that there was sufficient evidence to connect Vandall with the three other checks. This Court wrote:
“Appellant had possession of and passed one of the checks taken from the company, and it may be inferred that he took all twenty-one checks.2 The sequence of the numbers on the checks, the number of appellant’s ‘driver’s license’ appearing on two of the checks, the same endorsement and address appearing on all of the checks, plus the fact that appellant did not report for work after April 15 are sufficient facts to connect appellant with the three checks. The *123court properly admitted the checks into evidence. Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364.
“Footnote 2: In Mason v. State, 167 Tex.Cr.R. 516, 321 S.W.2d 591, this court stated that the rule is well-settled that [from] possession of an accused of a part of the stolen property theft of the whole may be inferred.”
The fact that Dorothy Hill, the bookkeeper and office manager of the company where the checks were stolen by Vandall, testified that someone at a bank told her that some of the checks had been presented for payment did not prove that the defendant in that case presented them. There was no indication in Vandall where the three checks came from or who had them.
In the present case Martin Morachnick testified that he was president of the company from which the checkbooks were stolen during a burglary March 19, 1972, and that he got calls from thirty to forty stores including four from Sears stores concerning the forgeries.
The majority opinion in the present case holds that the one unexplained check was not relevant. The three checks in Vandall were, unexplained, except for the fact that they were stolen at the same time and had Vandall’s name, address and his driver’s license number on them. Each had the same date and was otherwise identical except for the amounts.
In the present case the check alleged in the indictment was proved to have been passed by appellant. Another check taken from the stolen book of checks was attempted to be passed and appellant was apprehended and detained by a security guard at a Sears store. The check alleged in the indictment is State’s Exhibit No. 1. It, with the endorsement, is as follows:
*124Appellant admitted that on March 24, 1972, he attempted to pass State’s Exhibit No. 2 which, with its endorsement, is as follows :
*125
A more detailed statement of the facts will be set out.
Martin Morachnick testified that he was president of the company'doing business as Carpet Mart. On March 19, 1972, his company building on Greenville Avenue was burglarized. After being called by the police, he went to the store and found several items to be missing. These included two checkbooks, one from Lakewood Bank and Trust on which the account had been closed. A check writer which imprinted irregularly was missing. It would imprint rather heavily some letters in red and others lightly in blue.
He testified that the account for which that checkbook was made had been closed when his business was incorporated some two years before. His employees were not writing checks on that account and he was the only one authorized to sign checks. He related that State’s Exhibits 1 and 2 were taken during the burglary. All of the checks stolen in the checkbook were in consecutive order. The amounts imprinted on the two checks (Exhibits 1 and 2) were irregular and he was of the opinion that they were placed there by his stolen check protector. He stated that no one by the name of Dan E. Butler (the purported signer of the checks) had ever worked for him.
He testified that he was called on March 24, 1972 (some five days after the burglary) and went to a Sears and Roebuck Store at Preston Road and LBJ, which is called Sears Valley View, where he saw appellant, who was being detained, putting his belongings back into his pockets.
F. L. Collins testified that at the time in question he was a cashier at the Sears store near Valley View. At approximately 6:30 o’clock in the evening of March 24, appellant presented him a check, State’s Exhibit No. 2, and asked him to cash it. When asked for identification, appellant presented a social security card and his driver’s license. Appellant endorsed the check and Collins then told him that he would try to get the check “okayed” for him. Collins found the telephone number of the Carpet Mart and called it. After talking to Morachnick, the security officer of the store was summoned. Collins gave the security officer the check and the driver’s license of appellant.
Don Neece testified that on March 23, 1972, he was working for Sears in Mesquite when appellant passed the check dated March 23, 1972, State’s Exhibit No. 1 (the check alleged in the indictment). Appellant endorsed the check and presented his driver’s license. Neece wrote the number of the license and the social security number on the back of the check.
The appellant testified that on March 24, 1972, he went to the Sears store near Preston Road and LBJ to pass his payroll *126check which he identified as State’s Exhibit No. 2 and that he was given the check late that evening of March 24. He was arrested. He was asked if his wife was arrested and he answered, “Yes, my common-law wife was arrested with me.” He testified that he was not in the Sears store in Mesquite where Don Neece testified about March 23 and that he did not fill out or sign the check, State’s Exhibit No. 1.
On cross-examination when asked what kind of work he had done in March he stated that he had done odd jobs under a phony name so that his social security check would not be stopped. He was asked about the address -where he worked before getting what he called his payroll check. The following occurred:
“Q. (Mr. Eubanks, prosecutor) Okay. At any rate we don’t know what address this was where all of this carpet work was done, is that right ?
“A. Well, I didn’t have a car or any way' of getting around when I made bond. I was only out two days until they had me back in jail on another charge.”
The prosecutor asked what the other charge was. Appellant’s counsel objected that this was an extraneous offense. Appellant stated, “I don’t mind telling it.” He then testified that the charge was assault to murder. He explained that a woman brought a stolen pickup to his house and tried to get him to “pass it” for her but he would not do it. Subsequently, she took ten dollars out of his wife’s purse and laughed about it. He then “flew off the handle” and hit her with a sawed-off shotgun, for which he had pled guilty to a misdemeanor and was given 60 days in jail.
He testified that he signed the check dated March 24 but that he had never seen State’s Exhibit No. 1. He was asked about the signatures on both checks: “Q. They look an awful lot alike”, and he answered, “Yes, sir, they do.”
He admitted that his description and driver’s license number were placed on the March 24 check by the clerk. He also admitted that on the March 23 check, State’s Exhibit No. 1, “ . . . the part that gives my license number, my description and everything except the address is on my driver’s license, sir.” He then tried to explain that someone might have taken his billfold out of his pocket on March 23 and had gone to the other Sears store.
The record reflects that the prosecutor had State’s Exhibit 3 in his hand and questioned appellant about the address on Reiger Street, apparently taken from the license. Appellant testified that he had lived there. The following occurred:
“Q. (Prosecutor) Of course, 4939 looks like 4931, doesn’t it, but this is your description here as to your birth-date and your social security number and all?
“A. Yes, sir.
“Q. So I guess someone the day before you were arrested, someone was out at two different Sears stores with your billfold — ”
Appellant’s counsel objected that the prosecutor Mr. Eubanks was testifying. The objection was overruled.
“Q. (Mr. Eubanks) Well, we know there was one Sears store on March 23 where evidently a man passed a check using your identification and where a man identified you as the man that passed that check; you heard that, didn’t you?
“A. I did not pass that check. I don’t care who says I did.
“Q. I guess the man is mistaken.
“A. He must be.
“Q. I guess this other clerk, the one that turned in State’s Exhibit 3—
“MR. HALSEY: I have to object to any other clerk or extraneous — ”
*127The objection was overruled.
“Q. (Mr. Eubanks) I guess the clerk that turned in State’s Exhibit 3 is also mistaken?
“ * * *
“MR. EUBANKS: Your Honor, we’ll offer State’s Exhibit No. 3, the check containing the defendant’s social security number and description taken off of the billfold into evidence at this time, or for whatever weight the jury wishes to give it.”
Appellant’s counsel objected that the proper predicate had not been laid and “that no identification has been made that that was the check passed to anyone at any Sears store; . . .”
The evidence in this, like in the Vandall, case does not specifically show that appellant by direct evidence attempted to pass the third check. The evidence is much stronger in the present case to connect appellant with the last check than the evidence was in the Vandall case.
Apparently the majority is of the opinion that one must attempt to pass as true a forged instrument before an extraneous offense or transaction is shown.
Article 998, Vernon’s Ann.P.C. (1925), provides:
“If any person shall knowingly have in his possession any instrument of writing, the making of which is by law an offense, with intent to use or pass the same as true, he shall be confined in the penitentiary not less than two nor more than five years.”
Possession of a forged instrument with intent to use or pass with intent to defraud is an offense. It was sufficiently established that appellant by his own testimony and eyewitness testimony possessed one of the checks in the series which was stolen, that he possessed the others under the authority of Vandall, supra, and Mason v. State, 167 Tex.Cr.R. 516, 321 S.W.2d 591. See also Anderson v. State, Tex.Cr.App., 454 S.W.2d 740; Yonko v. State, Tex.Cr.App., 444 S.W.2d 933, and 5 Branch’s Ann.P.C.2d 98, Section 2650. Since the proof shows that he passed and defrauded with one of the other checks and attempted to pass another one of the checks with intent to defraud, it shows his intent to defraud with the third check.
Before the third check was admitted appellant had testified that he did not pass the check that was alleged in the indictment and that someone must have taken his billfold without his knowledge or consent and used his identification to cash the check. The appellant’s connection with the check was established by all of the circumstances in the case and was admissible.
Was the third check relevant? See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. Albrecht was convicted for passing as true a forged instrument. The office manager of a store testified that Albrecht passed a check to her. It was later shown to be a forgery. A fingerprint examiner testified that he had examined three other checks (which were identical to the check alleged in the indictment, all of which were shown to be forgeries). His examination revealed a latent fingerprint on each check which matched those of Al-brecht. The checks were admitted over objection. There was nothing mentioned that Albrecht passed or attempted to pass the other three checks. This Court held the three other forged checks were relevant to prove intent. The Vandall case was cited in Albrecht in Footnote 5 as an example for the admissibility of other offenses “to show the accused’s motive, particularly where the commission of the offense at bar . . . is a part of a continuing plan or scheme of which the crime on trial is also a part.”
The check in the present case was admissible under Albrecht and other cases for the purpose of rebutting the defensive theory that someone must have taken his billfold and used his driver’s license to cash the check alleged in the indictment. *128It should be noted that the fingerprints in the Albrecht case connected him with the other three checks. There was no proof that he passed or attempted to pass the other three checks. The fingerprints of Albrecht on the three checks merely showed that Albrecht had possessed them. Like the Albrecht case, State’s Exhibit No. 3 was processed through a bank, the First National Bank in Dallas.
In the present case appellant admitted possessing one of the stolen checks. The proof showed that he passed another. The presumption from possession of part of stolen goods taken at one time is that he stole all of the items. This shows appellant had possession of State’s Exhibit No. 3 which was for the same amount as State’s Exhibit No. 1 and being identical —except for the serial numbers (1148 and 1151). That with the endorsements on the checks and other circumstances shown make the present case much stronger than either the Vandall or the Albrecht case.
The check was relevant.
The majority now states that the State must prove an extraneous offense and that the accused was the perpetrator. In doing so, it overlooks the well reasoned and well written opinion in the latest case on the subject, Crawley v. State, 513 S.W.2d 62 (Tex.Cr.App.1974), where it is written:
"The appellant also asserts in Ground No. 1 that the extraneous acts were not admissible because they did not constitute criminal offenses under the penal laws of our State. There is no merit to this contention. That the acts relied upon to prove intent, or scheme or design, did not themselves constitute criminal offenses or result in prosecution, does not render them inadmissible. Williams v. State, 161 Tex.Cr.R. 500, 279 S.W.2d 348; Bedford v. State, 75 Tex.Cr.R. 309, 170 S.W. 727; McArthur v. State, 132 Tex.Cr.R. 447, 105 S.W.2d 227. In fact, acts not amounting to crimes would appear to be less prejudicial to the accused than those constituting criminal offenses. Ground of error No. 1 is overruled.”
In any event, it is submitted that there is sufficient proof to show that appellant committed the burglary to get the checks; that he passed the check alleged in the indictment in addition to the proof and his admission that he passed State’s Exhibit No. 2, another of the stolen checks. From all of this it shows he possessed the third check with intent to pass and defraud. This extraneous offense was proved.
How could the fact that the State did not prove that he attempted to pass the third check harm him? The proof made him guilty on an offense with the third check which made him guilty of a felony which carried the same penalty as passing as true a forged instrument. See Articles 996 and 998, V.A.P.C., supra (1925). The Legislature apparently thought one crime was just as serious as the other.
In Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), the holding is applicable. It is as follows:
“While the presence of appellant’s fingerprints, standing alone, would be insufficient to show that he had passed them, such evidence is sufficient to show that he possessed them. The fact that he possessed them demonstrates that he had knowledge of their existence. Therefore, the presence of appellant’s fingerprints on forged checks which were substantially identical to the one he was charged with passing demonstrates that he passed the instrument in question knowing it to be a forgery. See Vandall v. State, Tex.Cr.App., 438 S.W.2d 578. We hold that the evidence was sufficiently linked to appellant to be admissible on the issue of knowledge.”
What does the majority do with Al-brecht? Is it overruled or is it left dangling without being explained or overruled to the bewilderment of trial judges, lawyers and researchers?
*129Now the majority is apparently holding that the jury may not look to the handwriting on the checks for comparison purposes. Article 38.27, V.A.C.C.P., provides:
“It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”
There was no denial under oath that either of the signatures was his. In fact the appellant testified to the similarity of the signatures. The Legislature, by the above statute, authorized the jury to look at the signatures. Apparently the majority “repeals” Article 38.27, supra.
Cain v. State, 468 S.W.2d 856 (Tex.Cr.App.1971), cited by the majority, is not in point. That case holds that the introduction of a signature on records showing prior convictions will not suffice to show an accused as the person previously convicted.
The majority does not discuss the other facts about the appellant’s address, his date of birth, his social security number, the use of the same check protector on the checks. Nor does it consider that appellant admitted possessing one of the stolen checks when they were all taken in the burglary.
Along with the “repeal” of Article 38.27, supra, the majority now overrules the Van-dall case which has been the rule for six years.
Trial judges and citizens are entitled to some predictability in the law. Jurisprudence is not served by a different decision on substantially the same fact situation each time it is before the same appellate court. In the present case Vandall is overruled; Albrecht is not mentioned and it is weaker than the present case. At least judges and lawyers after this decision will have a case on each side of the question.
This case may leave the readers to con-elude as Justice Roberts of the' Supreme Court of the United States did years ago when he wrote that the Court’s decision:
“ . . . tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. . . . ”
Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987, 1000 (1944).
If there ever was harmless error from all the facts, it is in this case. The State proved and appellant admitted the second check, an extraneous offense. The State proved he possessed the third check. The proof showed many checks were stolen in the burglary. Appellant volunteered that he defrauded the government to get social security checks and that he was convicted for assaulting a woman with a “sawed-off” shotgun.
Harmless error is just as applicable to this case as it was in Madeley v. State, 488 S.W.2d 416 (Tex.Cr.App.1973). The language of the concurring opinion in McComb v. State, 488 S.W.2d 105, 110 (Tex.Cr.App.1973), is applicable and is:
“ . . . If he was improperly impeached by a void conviction, it could not have influenced the outcome of the guilt stage of the trial in light of the evidence described in the majority opinion and the other six valid prior convictions with which he was also impeached. . . ."
and
“ . . . Next, any error in introduction of a wholly unconstitutional prior conviction at the penalty stage would have been harmless error in view of the circumstances of the offense and other parts of the appellant’s ‘prior criminal record’ validly received into evidence and the penalty itself. See Harrington *130v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.”
No reversible error has been shown. The motion for rehearing should be granted and the judgment affirmed.
MORRISON, J., joins in this dissent.