Ward v. State

581 S.W.2d 164, 1979 Tex. Crim. App. LEXIS 1501

• Court: Court of Criminal Appeals of Texas
• Decided: June 6, 1979
• Docket: 57762
• Status: Published

Opinions

OPINION

PHILLIPS, Judge.

This is an appeal from three convictions for credit card abuse. See V.T.C.A., Penal Code, Section 32.31(b)(1)(A). The punishment was assessed at 10 years’ imprisonment for each offense.

In two grounds of error appellant complains of the introduction of evidence concerning an extraneous offense and the State’s presentation of argument to the jury at the punishment stage based on the extraneous offense. Appellant’s complaint centers on the testimony of James Thomas and R. B. Mussey, the owners of the credit cards which were the subject of abuse. James Thomas testified that while staying in a motor hotel in El Paso on October 29, 1976, his room was burglarized and his clothes and billfold were taken. He testified that numerous credit cards in his billfold were missing. Nobody was identified as the burglar since the witness was sleeping during the course of the burglary. Thomas further testified that he had never seen the appellant before, never gave him permission to use his credit card on October 30, 1976, to buy shoes, and never gave anyone permission to use his credit card. Witness Mussey testified that he was staying in El Paso on the evening of October 29, 1976, when his room at the Royal Inn was burglarized and his billfold and wife’s purse were taken. He testified that he made no purchases with his credit card on October 30, 1976, and had never seen the appellant before. Both witnesses testified that signatures on credit card receipts for the purchase of goods were not theirs or that of any authorized signatory.

The appellant filed a motion in limine to prevent the above-referenced testimony from being introduced in the course of the trial, but said motion was overruled by the trial court during pretrial proceedings on the grounds that such evidence was “res gestae.” Appellant’s trial objection to the testimony of Thomas was overruled for the same reason. Appellant’s trial objection to the testimony of Mussey was overruled without reason. Appellant further filed a motion for mistrial based on the complained of testimony which was overruled.

Appellant correctly notes that the elements of credit card abuse were amply established without any need to present evidence of the two burglaries testified to. Upon a close reading of this Court’s decisions in Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.), and Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.), we must conclude that appellant’s contention is meritorious and presents reversible error. The cases cited above, as well as the authorities cited within them, set forth the proposition that evidence of extraneous offenses should not be introduced unless and until it is shown that the defendant was the perpetrator of such offenses. Even then, the evidence is inadmissible unless it falls within one of the exceptions noted in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.). The language of Albrecht, supra, strongly implies that the rules discussed therein concerning the admissibility of extraneous offenses rest on the premise that the evidence shows the accused to have committed the extraneous offense. However, the other cases discussed involve situations where the evidence of the extraneous offense was introduced, but there was no evidence connecting the defendant to the commission of the extraneous offense. In Landers, supra, the appellant’s conviction was reversed because of the admission of a check that was similar to the check which provided the basis for Landers’ prosecution for passing a forged instrument. In Eanes, supra, the defendant’s assault conviction was reversed because of the testimony of the victim’s brother concerning his return to the scene of the altercation and finding his brother’s damaged pickup truck. On cross-examination he admitted that he was not saying the defendant damaged the pickup truck.

The State contends that the testimony on the burglaries on the night prior to the offenses involved here was part of the res gestae of the offenses and was admissible under the authority of Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.). However, as stated in Simmons, when the evidence of an extraneous offense is “so interconnected with the commission of the instant offense [that it] cannot be separated, [it] is admissible as res gestae to show the context in which the murder occurred.” Id. at 473. Simmons refers back to Albrecht, supra, as authority for that proposition. In discussing the res gestae exception to the rule against the introduction of extraneous offenses, this Court said evidence of extraneous offenses was admissible

(1) To show the context in which the criminal act occurred — what has been termed the “res gestae” — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. [Footnote omitted] .

Id. at 100.

The evidence of the burglaries introduced in appellant’s prosecution did not possess the “immediacy” required under Albrecht to satisfy the “res gestae” exception.

The State further contends that the introduction of this evidence was necessary in order to explain how the appellant obtained possession of the credit cards and thereby avoid confusion to the jury. Unfortunately, it is the introduction of extraneous offenses that causes confusion. Further, how an individual attains access to credit cards he abuses under the terms of V.T.C.A., Penal Code, Section 32.31(b)(1)(A) is not an element of the offense. The evidence clearly established that the credit cards used by the appellant were not issued to him, but issued to James Thomas and R. B. Mussey.

The State further argues that the evidence of the extraneous offenses was relevant to the element of “effective consent” and the lack thereof. However, the direct testimony of both James Thomas and R. B. Mussey clearly established that the appellant never had their permission to use the credit cards. In addition, such a contention by the State seems to imply that it was their purpose to tie the appellant into the commission of the extraneous offenses since it was his use of the credit cards without the effective consent of the owner that was a necessary element of proof for the State.

Although the State did introduce a prior final felony conviction of the appellant at the punishment stage, we cannot conclude that the introduction of the evidence concerning extraneous offenses discussed above was harmless since the maximum permissible penalty was assessed on each offense.

For the foregoing reasons, the judgment of conviction is reversed and the cause remanded.

Before the Court en banc.