Jamerson v. State

550 S.W.2d 287, 1977 Tex. Crim. App. LEXIS 1105

• Court: Court of Criminal Appeals of Texas
• Decided: May 3, 1977
• Docket: 52063
• Status: Published

Opinions

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code. The jury assessed punishment at death. On February 15, 1974, the Honorable Dolph Briscoe, Governor of Texas, commuted the punishment to life. Appellant was sentenced on April 15, 1974 and then gave notice of appeal.

The sufficiency of the evidence is not challenged. The record reflects that Lottie Irene Waddle co-managed a service station in Irving. She was robbed and murdered at the station on February 4, 1970. A customer discovered her body shortly after 1 p. m. She had been shot four times in the back.

On February 6, 1970, appellant was arrested in Grand Prairie for public intoxication. He confessed to the murder of Mrs. Waddle. At that time he also confessed to participation in three other offenses: a murder on January 20, 1970 m Pantego; Ja robbery on February 3,1970 in Grand Prairie; and a murder on February 4, 1970 in Grand Prairie.

By his first ground of error, the appellant contends that the court erred in admitting over objection the appellant’s confessions to the extraneous offenses along with other evidence of these crimes. The State urges that the evidence of the extraneous offenses was properly admitted to rebut the appellant’s defensive theory. Albrecht v. State, 486 S.W.2d 97,101 (Tex.Cr.App.1972).

The appellant attempted to raise the defense of insanity by showing that he was suffering from a mental disease or defect caused by chronic alcoholism. He introduced lay testimony to support this defensive theory. The only expert testimony adduced showed that appellant was sane at the time of the offense. The trial court charged on the issue of insanity as a defensive theory.

We must concern ourselves with whether the extraneous offenses had probative value in disproving appellant’s defensive theory because if the extraneous offenses tend to disprove a defensive theory, they should be admissible. Albrecht, supra.

There may be some defensive theories which are incapable of being logically rebutted by the proof of an extraneous offense. For example, the fact that one woman was raped has no tendency to prove that another woman did not consent. Caldwell v. State, 477 S.W.2d 877 (Tex.Cr.App.1972); Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974). It follows that the fact that two women were murdered while the appellant was apparently sane does not tend to prove that the third was murdered while he was not insane.

Furthermore, we stated in Alvarez v. State, 511 S.W.2d 493 (Tex.Cr.App.1973) that:

“. . proof of an extraneous offense is in no way probative of appellant’s state of mind at the time of the killing in the instant case.” Id., at 495. [Citing, Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972); Rodriguez v. State, 486 S.W.2d 355 (Tex.Cr.App.1972).]

We must sustain appellant’s contention and reverse. None of the exceptions to the rule against the admission of extraneous offenses apply, including rebuttal of a defensive theory. Albrecht, supra.1

The judgment of the trial court is reversed and the cause is remanded.

1 . Although not in force at the time of the instant offense, the new Penal Code provision which defines the defense of insanity supports the above reasoning. V.T.C.A., Penal Code, Section 8.01 provides:

“(a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated.

“(b) The term ‘mental disease or defect’ does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

Under Subsection (b) of the above-quoted statute, the Legislature has provided that a defendant may not establish the defense of insanity by showing that he is a criminal generally. Consequently, we should not allow the State to rebut the defense of insanity by showing that the defendant is a criminal generally.