James v. State

418 S.W.2d 513

Opinions

OPINION

MORRISON, Judge.

The offense is fondling; the punishment, 25 years.

Trial was had and notice of appeal given subsequent to January 1, 1966.

In his brief filed in the trial court appellant first contends that it was reversible error for the trial court to allow testimony of extraneous offenses committed by appellant against those other than the prosecuting witness.

Two sisters of the prosecuting witness testified that appellant committed acts of fondling on them in his home on the same occasion as the offense charged in the indictment. The separate acts were committed in the presence of the prosecuting witness and one or the other sister, though committed in a bedroom with the door closed while the others were in the living room. This testimony was admissible as part of the res gestae. Tennel v. State, 78 Tex.Cr.R. 400, 181 S.W. 458; Bowles v. State, 156 Tex.Cr.R. 548, 244 S.W.2d 811; Gephart v. State, 157 Tex.Cr.R. 414, 249 S.W.2d 612; Botello v. State, 161 Tex.Cr.R. 207, 275 S.W.2d 814; Bills v. State, 168 Tex.Cr.R. 369, 327 S.W.2d 751.

A sister of the prosecuting witness testified that appellant had committed acts of fondling her in his home, when the prosecuting witness and a brother were present, two days prior to the act charged in the indictment. Such testimony was admissible to show the probability of the charged act and the unnaturalness of the accused’s attitude toward the victims of his lust. Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147; Smith v. State, 170 Tex.Cr.R. 518, 342 S.W.2d 445.

Appellant contends that the charge to the jury with regard to the testimony of extraneous offenses was a comment on the weight of the evidence; the court charged the jury as follows:

“You are instructed as part of the law in this case, that the testimony of Brenna _ and Barbara - concerning acts other than the one for which the defendant is on trial was admitted into evidence.

You are instructed that you may consider this testimony and these other acts in determining whether or not the act charged in the indictment occurred. You are charged that you may consider these other acts to determine the unnaturalness and lascivious intent, if any, of the defendant Johnnie Thomas James, at the time and place charged in the indictment.”

The appellant objected to the quoted charge as follows:

“Comes now the defendant and further objects and excepts to the court’s charge with particular regard to that portion of the charge as to the testimony of Brenna _and Barbara_concerning the acts other than the one for which the said defendant is on trial, in that such portion of the court’s charge, encompassed in two paragraphs of said charge, in that the same constitutes a comment upon the weight of the evidence through the prejudice of the defendant.”

The quoted charge assumes that the appellant did in fact commit the acts which were of a like nature to the one charged, and constitutes a comment upon the weight of the evidence. There was an issue of whether the other acts did in fact occur because appellant in his testimony denied ever having committed such acts. The expression of opinion by the trial court on the weight of the evidence is prohibited by Article 36.14, Vernon’s Ann.C.C.P., and the objection on that ground was sufficient. Burrows v. State, 128 Tex.Cr.R. 349, 81 S.W.2d 523; Choice v. State, 164 Tex.Cr.R. 224, 298 S.W.2d 148; Erisman’s Manual of Reversible Errors, Sec. 713.

The judgment is reversed and the cause is remanded.