Gilbert v. State

781 S.W.2d 296, 1988 Tex. App. LEXIS 3440, 1989 WL 153802
CourtCourt of Appeals of Texas
DecidedDecember 14, 1988
DocketNo. 2-87-250-CR
StatusPublished
Cited by8 cases

This text of 781 S.W.2d 296 (Gilbert v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilbert v. State, 781 S.W.2d 296, 1988 Tex. App. LEXIS 3440, 1989 WL 153802 (Tex. Ct. App. 1988).

Opinions

OPINION

FENDER, Chief Justice.

Appellant, Johnny Andrew Gilbert, was convicted by a jury of the offense of aggravated robbery with a deadly weapon. See TEX.PENAL CODE ANN. sec. 29.03 (Vernon 1974). The jury assessed punishment at fifty years’ confinement in the Texas Department of Corrections.

We reverse and remand.

On February 27, 1985, at 9:00 a.m., a teller at the Southwest National Bank in Fort Worth was robbed. The assailant pointed a gun at a teller and escaped with $3,000. Two months later the teller saw a picture of a man in the paper. She told police that this was the man who robbed her. His picture was in the paper in connection with a bank robbery and attempted capital murder in Arlington, Texas. A gun was recovered in connection with that crime that the Fort Worth bank teller later identified at trial as the weapon used in the February 27 hold up.

Appellant argues three points of error. Our ruling on point two disposes of the need to rule on the.other two points. In point two, appellant asserts the trial court erred in allowing the State to introduce [297]*297evidence of extraneous offenses in rebuttal to appellant’s attempt to correct the false impression created by the State. We agree.

At a hearing on pretrial motions, the State agreed to a motion in limine regarding mention of the extraneous robbery and attempted murder during the guilt or innocence phase of the trial. During the State’s case in chief, the prosecutor elicited from a police officer on direct examination that appellant had led them to the gun and said, “That’s it,” “That’s the one,” or words to that effect. On cross-examination defense counsel asked the following questions of the officer:

[BY MR. BURNS:] Now, Officer Brown, in regards to your arrest of Johnny Andrew Gilbert back on April 20th, 1985, and subsequent questioning of him, you were assisted in that by another officer were you not, a Ruben Puente?
A. Yes.
Q. And you were talking to him regarding an incident involving another individual as well, Mr. Kenneth Dryden; is that correct?
A. Yes.
Q. And that — your questioning and talk at that time did not involve — it was not directed toward the robbery case of February the 27th, 1985, involving a Ms. Jamie Trantham, was it?
A. No.
Q. And at the time that y’all went out to the field to find the gun, again, you were not being taken out there or talking to Johnny Andrew Gilbert regarding the February 27th, 1985, robbery of Jamie Trantham, were you?
A. No.
Q. And the statement allegedly made by Johnny Andrew Gilbert out there in the field regarding “That’s the gun,” or “That’s the one,” something to that effect, was not talking about the armed robbery of February 27th, 1985, of Jamie Trantham, was it?
A. No.
Q. And in regards to the statement that you have gone into about being led out to the gun and Johnny Andrew Gilbert knowing where the gun was, that is in — in regards to a statement that he made that another individual had thrown the gun out there in the field, was it not, specifically, Kenneth Dryden?
A. If I could check my notes, I'm not sure which party was—
THE WITNESS: Okay. Would you ask the question again?
BY MR. BURNS:
Q. The statement that Johnny Gilbert made that led you to the gun was in regards to a statement that he made that the gun had been dropped in that field by Mr. Kenneth Dryden; is that correct?
A. That’s correct.

The record reveals on redirect that the following exchange took place:

BY MR. PARRISH:
Q. Tell the jury who Kenneth Wayne Dryden is.
MR. BURNS: Your Honor, at this time, we will object to collateral and extraneous matters being brought up in front of the jury. They are not connected to this case. That was not opened by cross-examination as regards to this individual and for that reason, Your Honor, we had to go into these things to prove up — because of the admission by this court of this gun to show that this gun is in no way connected to the case before us now. Johnny Andrew Gilbert never said it was or indicated it was and for that reason, Your Honor, we object to now bootstrapping of the prosecution in getting into the identity and extraneous cases on Kenneth Dryden.
THE COURT: Okay. Your objection is overruled.
MR. BURNS: Note our exception, Your Honor.
BY MR. PARRISH:
Q. Tell this jury who Kenneth Wayne Dryden is.
A. He shot Arlington Police Officer John Bell after a bank robbery in Arlington two and a half years ago.
[298]*298MR. BURNS: We renew our objection.
THE COURT: Objection overruled.
MR. BURNS: Note our exception.
BY MR. PARRISH:
Q. Was that on or about April the 19th of 1985?
A. Yes, it was.
Q. And what type of institution was robbed?
A. A Gibraltar Savings and Loan on Highway 303.
Q. To the best of your knowledge, is this Defendant, Johnny Andrew Gilbert, also charged in that offense?
MR. BURNS: Your Honor, objection to the extraneous and collateral matters and going into extraneous offenses at this time before this jury.
THE COURT: Objection overruled.
MR. BURNS: Note our exception.
THE WITNESS: Yes.
BY MR. PARRISH:
Q. Is he, in fact, indicated as a co-defendant in that bank robbery with Kenneth Wayne Dryden?
A. Yes.
MR. BURNS: We object again to extraneous and collateral.
THE COURT: Overruled.
BY MR. PARRISH:
Q. Is he also charged with attempted capital murder of Arlington Police Officer John Bell?
MR. BURNS: We object to extrane.ous and collateral offense being injected in this case.
THE COURT: All right. Your objection is overruled.
THE WITNESS: Yes, he is.
MR. BURNS: Note our exception.
BY MR. PARRISH:
Q. I believe, as the Defense counsel asked you about on cross-examination, was Arlington Police Officer John Bell shot?
A. Yes, he was.
Q. Do you know what caliber he was shot with?
A. A .22 magnum.

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Bluebook (online)
781 S.W.2d 296, 1988 Tex. App. LEXIS 3440, 1989 WL 153802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilbert-v-state-texapp-1988.