Odum v. State , 533 S.W.2d 1 ( 1975 )

OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder with malice. Punishment was assessed at 99 years.

Viewing the evidence in the light most favorable to the judgment, the record reflects that in the evening of November 15, 1973, appellant and Frank Fales, uncle of appellant, acting together, assaulted Clem Pope, robbed him and killed him by stabbing him with a knife.

Appellant complains of the admission, over objection, of evidence of extraneous offenses in the cross-examination of his wife. This contention is being considered in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P.

The record reflects that after the commission of the offense appellant went to his residence. About 10:00 o’clock p. m., he and his wife, Helen Odum,¹ went to a lounge, where they sat at a table with Frank Fales and his girl friend, Mary Marshall.

During the direct examination of Helen Odum, a defense witness, she testified as follows at the guilt stage:

“Q All right. When you got out to the Outsider Lounge, did you notice anything that was unusual in the attitude of your husband?

“A He acted scared.

“Q Well, could you describe that to the jury, please?

“A Well, just real white all over and kind of scared to open his mouth.

“Q How does he act around his uncle and around other people?

“A Definitely not that way.

“MR. CURTIS [State]: I’m sorry, I didn’t hear?

“MR. KOLIUS [Defense]: You are going to have to speak louder.

“A Definitely not that way.

“Q (By Mr. Kolius): How does he act?

“A Just normal.

“Q Could you tell the jury what normal is, perhaps?

“A He would kid around and pretty good natured, and he wouldn’t let anyone say anything he thought was wrong in front of me.

“Q All right, and was his conduct then, that afternoon, unusual?

“A Very unusual.”

Thereafter, on cross-examination the record reflects the following questions asked, answers given, objections of the appellant, and rulings of the court:

“Q Now, in your testimony to Mr. Kolius, if I understand it correctly, he asked you how Frankie acted around you and others, whether he was good-natured, cranky or what, and you answered to him he was a good-natured sort of a fellow that always tried to get along with others and good-natured around other people; isn’t that what you said on direct?

“A Yes.

“Q Are you telling us, that jury, that that is true?

“A Yes.

“Q Isn’t it true that you were with your husband back on December the 1st, 1972, out here at McDonald’s at Fillmore and Northeast Eighth when he tried to cut a kid’s throat?

“A Yes sir.

“MR. KOLIUS: May it please the Court, the District Attorney has attempted to, and has, in fact, introduced before the jury an extraneous evidence without the proper predicate, therefore, being laid and not only, Your Honor, has he attempted to do so, but, he has asked the question in such a manner that the mere asking of the question has met with a direct assertion on his part that the matters inquired about it, in fact, true. And for that reason, Your Honor, we ask at this time that the Court grant a mistrial for the sim-pie reason that any instructions that the Court might give this jury would be completely useless and could not remove from the jury’s mind the impact of such evidence.

“THE COURT: Overruled.

“MR. KOLIUS: Note our exception.

“Q (By Mr. Curtis): You were there, weren’t you?

“A Yes sir.

“Q Now have you heard that up in Minot, South- — North Dakota, early in 1972 when you were not around there he cut another kid’s throat?

“MR. KOLIUS: Same objection, Your Honor.

“THE COURT: Overruled.

“A I hadn’t heard it.

“Q (By Mr. Curtis): You had not heard anything about that?

“A No sir.

“Q Had you heard that there was a warrant issued for his arrest for assault with a knife from Minot, South Dakota from early in 1972?

“A No sir.

“Q You know he was up there in Minot, South Dakota along about April, 1972, don’t you?

“A I don’t know where he was.

* * * ⅜ ⅜ ⅜

“Q Do you want to tell this jury again that he was always good-natured and even tempered around others?

“A To me.

“Q How about around others?

“A Around others he was.

“Q He was. You are going to stand by that statement?

“A Yes sir.

“Q Even though you were out there at McDonald’s when he cut that kid’s throat?

“A I didn’t see it.

“Q It wasn’t just one kid that got cut, according to what you heard out there, either, was it?

“A I don’t know what happened out there, I was there, but I didn’t see it.”

Appellant contends that this cross-examination of his wife constituted reversible error, arguing (1) that Helen Odum was not a character witness, and his reputation had not been placed in issue; (2) if Helen Odum had testified as a character witness on direct examination, the questions of the State inquired of the witness’ knowledge of an extraneous offense, and did not inquire as to what she had heard; and (3) that the evidence concerning the extraneous offenses was inadmissible and prejudicial, since it did not tend to prove a material fact issue.

In 23 Tex.Jur.2d, Evidence, Section 194, page 294, it is stated:

“As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible.” See Wilbourn v. State, Tex.Cr.App., 524 S.W.2d 306; Powers v. State, Tex.Cr.App., 508 S.W.2d 377; Hafti v. State, Tex.Cr.App., 416 S.W.2d 824.

There are, of course, exceptions to the general rule. In Albrecht v. State, 486 S.W.2d 97, at p. 100, this Court wrote:

“Evidence of extraneous offenses committed by the accused has been held 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. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element of the state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.

“These exceptions to the general rule excluding evidence of the accused’s prior criminal conduct are not mutually exclusive. . . . ”

In the instant case, appellant did not testify, and offered no evidence tending to prove an alibi or mistaken identity. His defense appears to be that although present when the offense was committed by Fales he took no part in the assault upon deceased or in the killing and robbery. We find no exception to the general rule stated above to be present in the instant case. The State should not have been permitted to cross-examine appellant’s wife concerning the “cutting of a kid’s throat” at McDonald’s or at Minot, North Dakota.

Appellant correctly contends that the testimony of Helen Odum on direct examination did not constitute her a character witness so as to permit her to be cross-examined with “have you heard” questions. Her testimony was not geared toward a showing of good, lawful character or reputation, but was directed at proof of appellant’s conduct and appearance at a particular time. See Els v. State, Tex.Cr.App., 525 S.W.2d 11, and authorities there cited. Cf. Childs v. State, Tex.Cr.App., 491 S.W.2d 907; Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Hurd v. State, Tex.Cr.App., 513 S.W.2d 936, 945; Aldreghetti v. State, Tex.Cr.App., 507 S.W.2d 770; Salazar v. State, Tex.Cr.App., 494 S.W.2d 548.

However, even if her testimony on direct examination be construed as making her a character witness for appellant, the State may not ask whether the witness has personal knowledge of the act, nor may its questions be so framed as to imply that the act has actually been committed. Brown v. State, Tex.Cr.App., 477 S.W.2d 617; Webber v. State, Tex.Cr.App., 472 S.W.2d 136. Objection was overruled to the inquiry: “Isn’t it true that you were with your husband on December the 1st, 1972, out here at McDonald’s at Fillmore and Northeast Eighth when he tried to cut a kid’s throat” which question was answered as shown in the quote, supra. Thereafter, the State proceeded further to imply that “It wasn’t just one kid that got cut, according to what you heard out there, was it?”

We conclude that prejudicial reversible error was committed during the cross-examination of Helen Odum.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

1 . There is no evidence in the record connecting Helen Odum with the commission of ' the offense.