Ali v. State

• Decision Date: 25 November 1987
• Docket Number: No. 05-86-01311-CR,05-86-01311-CR
• Citation: 742 S.W.2d 749
• Parties: Hussien ALI, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 749

742 S.W.2d 749

Hussien ALI, Appellant, v. The STATE of Texas, Appellee.

No. 05-86-01311-CR.

Court of Appeals of Texas,

Dallas.

Nov. 25, 1987.

George Scharmen, San Antonio, for appellant.

Gary A. Moore, Dallas, for appellee.

Before STEPHENS, STEWART and THOMAS, JJ.

STEPHENS, Justice.

Hussien Ali appeals his jury conviction for theft of property of the value of $750 or more, but less than $20,000. The court assessed punishment at twenty years confinement and a $10,000 fine. Ali presents eleven points of error in which he contends that the trial court erred; we disagree and affirm the trial court's judgment.

At trial it was shown that an investigator with the Dallas County District Attorney's office, Murry Reese, accompanied a Kraft Food Services, Inc., driver to the address of Yukahama Sales and Service in Dallas for the purpose of delivering a truck load of goods. Reese and the driver were greeted by Ali and Rasoul Mahammad at that location. In exchange for the goods, Reese was given a $16,161.96 post-dated check. Reese insisted that the date on the check be corrected. After Mahammad corrected the date, the goods were unloaded and placed in another truck by Reese, the driver, and Mahammad. Once the goods were loaded, Mahammad returned to the office and Ali appeared to close up the truck. Ali stated that he would take responsibility for the goods and Reese and the driver left the scene to telephone the bank on which the check was drawn. Reese was told that insufficient funds were on deposit to pay the check. Ali and Mahammad were then arrested for theft of property of the value of at least $750, but less than $20,000.

In his first point of error, Ali claims that the court erred in overruling his motion to dismiss for violation of the Texas Speedy Trial Act.

The Texas Court of Criminal Appeals has declared the Texas Speedy Trial Act unconstitutional in Meshell v. State, 739 S.W.2d 246 (Tex.Crim.App., 1987). We overrule Ali's first point of error.

Ali's second point of error is two-fold, he first asserts that: (1) the court erred in admitting evidence of extraneous offenses or Ali's other acts of misconduct, thereby violating the court's order granting his motion in limine; and (2) the court erred in overruling his counsel's objection to the admission of evidence of the extraneous offense and other acts of misconduct.

Ali's motion in limine states:

WHEREFORE counsel prays that the court will instruct the State and its witnesses not to mention, allude to or offer any evidence before the jury concerning the [extraneous offenses or Ali's uncharged acts of misconduct] without first allowing a conference out of the presence of the jury to determine the purpose for offering said evidence and allowing counsel for Defendant to lodge objections out of the jury's presence without having to refer to the evidence objected to within the hearing of the jury.

The trial court granted the motion in limine and complied with it, by refusing to allow testimony from any witnesses concerning Ali's acts of misconduct until after a voir dire hearing had been conducted to allow proper objection. Ali's objections to the extraneous offenses were noted and overruled by the court. We find no error in the court's action and overrule the first part of Ali's point of error two.

As to the second part of his point of error, Michael Swan, a Kraft Food employee, testified that in January 1986 he talked to and met with Ali in San Antonio. Shortly thereafter, Ali placed an order for cheese and meat products. Upon delivery, the goods were paid for with a post-dated, registered check. Two more orders were placed on February 3 and 4. The orders were delivered on February 5 by Robert Asher, who testified that he watched Ali sign the post-dated check given in payment for the goods.

Swan testified that on February 11 when Ali placed his next order, one of the checks had been returned for insufficient funds. Nevertheless, Kraft Foods filled the order, delivered it to Ali and Mahammad's San Antonio company, but refused to unload it, demanding payment first for the insufficient funds check and the February 11 order. When demand for payment was made, Kraft Foods was informed that "they" had no money. When so informed, the order was not unloaded.

Victor Trevino, a delivery driver for Watkin's Motor Lines in San Antonio, testified that he delivered an order to Ali and was given two post-dated checks in payment. The next day, Trevino was informed by Watkin's that the checks were not acceptable because they were drawn on out-of-state banks. Trevino returned to Ali's office and confronted him about the unacceptable checks; Ali responded by tearing the checks in half, telling Trevino that he had sent someone to get cash for payment. However, after Ali spoke with Watkin's bookkeeper, Trevino was told to leave. Trevino returned with two policemen, but the merchandise he had delivered the previous day could not be located.

The admissibility of extraneous offenses is determined by a two-part test: (1) it must be relevant to a material issue in the case other than the defendant's character, and (2) its probative value must outweigh its inflammatory or prejudicial effect. Clark v. State, 726 S.W.2d 120, 124 (Tex.Crim.App.1986) (op. on reh'g). Extraneous offenses may be admitted in the State's case in chief to prove scienter when intent or guilty knowledge is an essential element of the State's case which cannot be inferred by the act itself. White v. State, 632 S.W.2d 752, 754 (Tex.App.--Dallas 1981, no pet.), quoting, Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972). Ali was on trial for theft which is defined in Texas Penal Code as: "A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of the property." TEX.PENAL CODE ANN. § 31.03(a) (Vernon Supp.1987). In the present case the indictment charges that:

[the appropriation of property] was without the effective consent in that the consent of the said owner was induced by deception, in that the said property was secured in exchange for [a] check ... and the said defendant created and confirmed the false impression of fact relied upon by the said owner that there were sufficient funds in and on deposit ... for the payment in full of said check and the representation was false and the said defendant knew the representation was false at the time it was made....

The Penal Code itself provides:

[E]vidence that the actor has previously participated in recent transactions other than, but similar to, that which the prosecution is based is admissible for the purpose of showing knowledge or intent and the issues of knowledge or intent are raised by the actor's plea of not guilty....

TEX.PENAL CODE ANN. § 31.03(c)(1) (Vernon Supp.1987). Ali's plea of not guilty placed the material question of intent at issue.

In weighing probative value against prejudicial effect, extraneous offenses may not be introduced if that element can readily be inferred from other uncontested evidence. Clark, 726 S.W.2d at 122. Where the State's need to prove intent is strong because of an otherwise innocent act, extraneous offenses are more likely to be probative than prejudicial. Hargraves v. State, 738 S.W.2d 743 (Tex.App.--Dallas 1987, no pet.); see Boutwell v. State, 719 S.W.2d 164, 174 (Tex.Crim.App.1985) (op. on reh'g). In the present case, intent cannot be inferred from the mere act of giving a check in payment for goods, or from other direct evidence. Upon reviewing the evidence of extraneous offenses, we conclude that the probative value outweighs its inflammatory or prejudicial effect. We overrule Ali's second point of error.

In point of error three, Ali complains that the court erred in admitting a videotape into evidence because the State failed to prove the proper predicate for its admission.

At the scene of the transfer of goods, the Dallas police department had an undercover van installed with a video camera. Investigator Reese wore a body microphone to record the conversation with the suspects. At trial, the court held a hearing on Ali's motion to suppress outside the presence of the jury to determine the admissibility of the videotape. Ali objected to the admission of the tape because the proper predicate had not been established.

Videotapes are a simultaneous audio and visual recording of events. Roy v. State, 608 S.W.2d 645, 649 (Tex.Crim.App.1980). In Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977), the Texas Court of Criminal Appeals has set forth a seven-pronged predicate for admission of sound recordings. The party offering the recording must show: (1) the recording device was capable of taking testimony, (2) the operator of the device was competent, (3) the establishment of the authenticity and correctness of the recording, (4) that changes, additions, or deletions have not been made, (5) the manner of the preservation of the recording, (6) identification of the speakers, and (7) that the testimony elicited was voluntarily made without any kind of inducement. Roy, 608 S.W.2d at 649, quoting Edwards, 551 S.W.2d at 733. The court announced in Roy that this same predicate applies to videotapes, but because videotapes are motion pictures as well as sound recordings, they convey a greater indicia of reliability than film or sound tapes alone. Roy, 608 S.W.2d at 649. Therefore, at least some of the Edwards elements may also be inferred from testimony. Id. The determination of whether the proponent has complied with the proper predicate is discretionary with the trial court, and an abuse of discretion must be shown before an appellate court can determine that the trial court erred in admitting the evidence. McEntyre v. State, 717 S.W.2d 140, 146 (Tex.App.--Houston [1st Dist.] 1986, no pet.); see Edwards, 551 S.W.2d at 733.

The operator of the video and audio surveillance equipment was thoroughly questioned about his experience with video and audio...