Bennett v. State

422 S.W.2d 438 (1967)

Billy Jack BENNETT and Joe Bob Bennett, Appellants, v. The STATE of Texas, Appellee.

No. 40828.

Court of Criminal Appeals of Texas.

December 6, 1967.

Rehearing Denied January 17, 1968.

McCown & Sheehan, Louis T. Dubuque, Dumas (on appeal only), for appellants.

William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is burglary; both appellants received an eight year sentence.

Their common ground of error No. 3 is that the court erred in admitting evidence of an extraneous offense.

Officer Hudson, when testifying about his investigation of the burglary of the cafe owned by the injured party named in the indictment, stated that he first went to a nearby filling station. Appellants immediately objected and asked that the jury be retired. This being done, Mr. Bynum, owner of the nearby filling station was called and testified that on the day of the cafe burglary, a tire tool and a screw driver were missing from his filling station. Appellants' objection was overruled. In the jury's presence he then testified to the same thing and volunteered that when the tire tool was returned to him he did not see on it any red paint that "Could (have) come off my coke box. * * * I think they (the perpetrators of the crime) used (the tire tool) to take $20.00 out of that coke box. * * *" Though the court instructed the jury not to consider the volunteered testimony, the prosecutor immediately asked him if some machine in his place was damaged that day. Appellants' objection was again sustained. It was further shown that tire tools similar to the one in question were offered for sale to the general public and that no identifying marks were placed on the tools by the manufacturer differentiating one from another.

In his argument to the jury, the prosecutor pointed out the fact that appellants' possession of the tire tool allegedly taken from Mr. Bynum's service station at the time they were arrested was evidence that they had committed the burglary *439 charged in the indictment. There was no evidence that the tire tool found in appellants' possession was the one taken from Mr. Bynum's service station, and there was no evidence that the tire tool was used in the commission of the offense charged. The introduction of this testimony and the tire tool was evidence of an offense not shown to have been committed by the appellants and unrelated to the offense charged, and therefore was not available to show the commission of the offense charged. Hafti v. State, Tex.Cr.App., 416 S.W.2d 824.

The pertinent rule of law as stated in 10 Tex.Jur.2d, Sec. 100, p. 267, citing Hawkins v. State, 122 Tex.Cr.R. 84, 53 S.W.2d 780, is: "it is improper to show that certain articles in the defendant's possession were fruits of former crimes, there being nothing to show that the fact has a bearing on the case being tried."

In Miller v. State, 140 Tex.Cr.R. 479, 145 S.W.2d 870, another burglary case, it was held reversible error for the state to prove that other places of business in the town of Liberty Hill were burglarized on the night of the burglary charged in the indictment.

In Coston v. State, 160 Tex.Cr.R. 159, 268 S.W.2d 180, this Court held it reversible error for the state to prove by an accomplice witness that on the same night as that charged in the indictment, he and appellant had committed another burglary in the same city.

In Garcia v. State, 165 Tex.Cr.R. 134, 305 S.W.2d 605, this Court held it error to prove in development of the state's case in chief, as was done in the case at bar, that the accused had engaged in shoplifting for some ten years prior to the occasion charged in the indictment.

Still later in Carroll v. State, Tex.Cr. App., 365 S.W.2d 786, this Court held it error for the State to prove another unrelated offense.

As in Hafti v. State, supra, the proof here clearly conveyed to the jury evidence that appellants had committed another unrelated offense and that such proof constituted reversible error.

Accordingly, the judgment is reversed, and the cause is remanded.