Ingham v. State

654 S.W.2d 516, 1983 Tex. App. LEXIS 4499
CourtCourt of Appeals of Texas
DecidedMay 19, 1983
DocketNos. 13-81-159-CR, 13-81-170-CR
StatusPublished
Cited by3 cases

This text of 654 S.W.2d 516 (Ingham 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
Ingham v. State, 654 S.W.2d 516, 1983 Tex. App. LEXIS 4499 (Tex. Ct. App. 1983).

Opinion

OPINION

NYE, Chief Justice.

In separate Cameron County indictments, the appellant was charged with murder in the March, 1980, slayings of Brett Michael Butler and appellant’s wife, Elsie Rosa Ing-ham. By agreement, the cases were consolidated for trial. Appellant was convicted of murder in the Butler case, and of voluntary manslaughter in the Ingham killing. The jury assessed punishment at life imprisonment for the murder, and eighteen years’ confinement for the voluntary manslaughter.

The heart of this appeal consists of appellant’s claims of ineffective assistance of counsel at his trial and the denial of a fair and impartial trial. Appellant was represented by Jon R. Wood, appointed counsel. The State was represented by Vance Jones, Assistant District Attorney for Cameron County. These two grounds of error have been described as “complements to one another, reflecting opposite sides of the same coin, ...” Cade v. State, 588 S.W.2d 895, 897 (Tex.Cr.App.1979). See also Ruth v. State, 522 S.W.2d 517 (Tex.Cr.App.1975). As basis for his claim that he was denied a fair trial, appellant assigns a number of errors wherein inadmissible and prejudicial evidence was offered by the State’s attorney and received. As the basis of his ineffective assistance claim, appellant cites his trial counsel’s failure to object to any of [518]*518these matters. We must reverse because of both reasons.

The first category of inadmissible evidence of which the appellant complains is that of extraneous offenses or misconduct that is not relevant to any issue in the trial. The Court of Criminal Appeals has consistently held that an accused is entitled to be tried on the accusation made in the State’s pleading and that he is not to be tried for some collateral crime or for being a criminal generally. Nance v. State, 647 S.W.2d 660 (Tex.Cr.App.1983); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). For this reason, evidence of other crimes or misconduct committed by the accused is generally inadmissible. An exception is where such evidence is shown to be both material and relevant to a contested issue in the case. Nance v. State, supra; Albrecht v. State, supra.

State’s witness Sandra Curtis testified to a number of extraneous incidents involving the appellant. She testified that, in January of 1980, the appellant had “busted a hole through the front door” of an apartment occupied by her and appellant’s brother-in-law, Ralph Shanabarger. Curtis also described an occasion during a period of legal separation between appellant’s wife, Elsie Ingham, and the appellant, in which Curtis, Elsie and others went to the house formerly occupied by Elsie and the appellant and discovered that someone had turned on the gas valves, flooding the house with natural gas. (Similar testimony of this same event was given by State’s witness Philip Rucker.) Curtis testified additionally that, at some time prior to the killings in question, appellant had threatened her at a bar one night when she refused to dance with him. (This testimony was actually solicited by appellant’s own trial counsel on cross-examination.)

Appellant’s brother-in-law, Shanabarger, testified at length regarding his own legal and personal problems with the appellant which arose out of an injury he received while working with the appellant on a construction job.

At another time during the trial, the appellant was cross-examined concerning an encounter he had with employees of a restaurant in Harlingen. One of those individuals, Emarita Sanchez, testified that, in November of 1979, the appellant became angry over the service at the restaurant and threatened the cook. Not a single objection was interposed by appellant’s counsel to all of these matters.

The State’s first response is the claim that no error is preserved because there was no objection at trial. Then the State invokes Tex.Penal Code Ann. § 19.06 (Vernon 1974), which makes admissible testimony as to relevant facts and circumstances surrounding a killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

With regard to the alleged acts of misconduct against Curtis and Shanabar-ger, section 19.06 of the Penal Code is not applicable, because the facts related were not relevant to the killing nor were they relevant to the previous relationship that existed between the appellant and either of the victims. Jernigan v. State, 585 S.W.2d 701, 704 (Tex.Cr.App.1979); Jackson v. State, 552 S.W.2d 798, 803 (Tex.Cr.App.1977). Concerning the episode of the home being filled with natural gas, an important element was missing. The appellant was never identified as the perpetrator of such misconduct. Absent a clear showing that the accused was responsible for turning on the gas, this evidence of extraneous misconduct should not have been introduced or admitted. McCann v. State, 606 S.W.2d 897, 901 (Tex.Cr.App.1980); Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.1977); Tippins v. State, 530 S.W.2d 110 (Tex.Cr.App.1975); Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1975).

The State’s argument for admissibility is that the testimony was proper rebuttal to appellant’s assertion (also on cross-examination) that he was a man of “ordinary temper.” However, testimony of specific [519]*519acts of misconduct are not admissible to show his reputation. Ward v. State, 591 S.W.2d 810, 818 (Tex.Cr.App.1979) (opinion on rehearing); Jones v. State, 479 S.W.2d 307, 308 (Tex.Cr.App.1972).

Appellant also complains that hearsay testimony was erroneously received against him. Curtis was allowed to testify that she was told by Rucker that the reason that appellant and Elsie had reconciled after a period of separation was because appellant had threatened Elsie with a shotgun. Shanabarger testified that the appellant had a “violent nature” and that, because of appellant’s propensity for violence, Elsie Ingham was afraid to go home. The State again relies on section 19.06.

Hearsay is evidence of statements made out of court which are offered for the purpose of proving the truth of the matter asserted. Girard v. State, 631 S.W.2d 162 (Tex.Cr.App.1982). Hearsay evidence, even when admitted without objection, constitutes no evidence and is without probative force. Alexander v. State, 587 S.W.2d 729 (Tex.Cr.App.1979). Although Sec.

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Related

Ingham v. State
695 S.W.2d 236 (Court of Appeals of Texas, 1985)
Ingham v. State
679 S.W.2d 503 (Court of Criminal Appeals of Texas, 1984)

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654 S.W.2d 516, 1983 Tex. App. LEXIS 4499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ingham-v-state-texapp-1983.