Allen v. State, 43216

Decision Date09 December 1970
Docket NumberNo. 43216,43216
PartiesJoe Bailey ALLEN, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Bobby D. Allen, Lubbock, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

This is an appeal from a conviction for felony theft where the punishment was assessed at ten years' confinement in the Texas Department of Corrections.

Appellant asserts nine grounds of error.

J. O. Bass, Jr., testified that on February 24, 1968, a boat, motor and trailer of value far in excess of fifty dollars were taken without consent from his house in the city of Plainview while he was absent from home. His testimony was corroborated by a son-in-law who was living at the Bass home at the time. Months later Bass identified the boat and trailer returned from Oklahoma by law enforcement officers as the ones taken from him although the boat had undergone considerable alteration.

Wayne Dye testified while in Lubbock County jail late in 1967 he met a Curtis Whorton who told him if he wanted to 'score' when he got out of jail to contact Whorton's brother, Buddy. Dye did so and through Buddy Whorton met the appellant Allen and the threesome entered into an agreement or arrangement to commit burglaries and thefts and to share equally in the proceeds from the sale of such stolen property provided each party actually participate in the particular crime. Information as to where and when to commit crimes was given to Buddy Whorton by his wife who worked for a telephone company and knew when certain people would be leaving town or absent from their homes, and similar information was obtained from a woman who operated a children's nursery in Lubbock. He related the conspiracy was profitable and the threesome would steal anything they 'could get their hands on.'

Dye related that just prior to February 24, 1968, an order for a specific type of boat and trailer was received from Jerry Edgman in Oklahoma City, Oklahoma, who was a brother-in-law of one of their 'fences' in Lubbock. Unable to find the type of boat requested in Lubbock, Dye went to Plainview and located such a boat on a trailer in Bass' yard. Thereafter he and the appellant Allen returned to Plainview to scout the location, and later he, Buddy Whorton and the appellant made their plans to steal the boat and take it to Oklahoma City. On the appointed night Dye's wife would not permit him to depart with Whorton and the appellant and they left without him. When they returned from Oklahoma City they told Dye everything had gone all right with the theft of the boat and gave him some money he was due from another job.

Jerry Edgman testified that the appellant and Buddy Whorton appeared at his home at 7 a.m. on a Sunday morning with the boat, motor and trailer in question; that he then called Willie Arnett who operated a boat building service on a part time basis and that Arnett met them at approximately 8 a.m. and eventually agreed to purchase the equipment for $700 by paying $400 cash and agreeing to pay Edgman $300 at a later date. Edgman testified he had no knowledge of the theft, but 'assumed' the boat, etc., was stolen. He received $100 for his part in the transaction.

Willie Arnett testified he worked on the same freight dock with Edgman, and that when Edgman called he went to view the boat, etc. He related he agreed to pay $400 down and $300 later to Edgman and that he saw Edgman hand his $400 to Whorton and the appellant who had the boat and equipment in their possession at the time. He acknowledged the equipment probably had a market value of $1,500.00 and that he did not get a title even though he had previously declined to purchase another boat from Edgman because there was no title. He stated he did not know the boat was stolen and would not have purchased the same if he had so known. He admitted that over a period of months he had made numerous alterations on the boat. After the officers had been led to Edgman by information received from Dye, Edgman brought them to Arnett who readily admitted the transaction, put all the equipment together and delivered the same to the Oklahoma Bureau of Investigation for the return to Texas.

Initially, appellant contends the court erred in overruling his motion in limine to preclude the State from offering any evidence as to extraneous transactions. The motion was presented without evidence and authority. In overruling the same the trial judge stated: 'I will rule on the objections as the evidence comes in.'

It is appellant's position that his rights were 'brutalized' by the court's action in permitting the State to offer testimony as to extraneous transactions through the witness Dye. The alleged offense was shown to have been committed during the operation of the burglary and theft ring described by Dye and an examination of Dye's testimony reflects that any evidence of extraneous transactions was admitted on the issues of intent, identity, design, system, etc. In the court's charge such evidence was limited to the purpose for which it was admitted. We perceive no error.

Next, appellant claims error in the overruling of his objections to evidence of extraneous transactions 'since it showed the commission of crimes by another party not on trial.' This ground of error is apparently based on Dye's testimony that he and Buddy Whorton committed offenses in which the appellant played no part. The appellant does not direct our attention to any complained of action of the court, and it is doubtful if the ground of error complies with Article 40.09, Sec. 9, Vernon's Ann.C.C.P. We do not find where Dye testified he and Whorton got drunk and decided to steal everything in a certain house which resulted in their arrest in August, 1968. To this testimony there was no objection. Subsequently on cross-examination the appellant elicited the fact that Dye had committed numerous burglaries as well as thefts with Whorton. Under such circumstances appellant is in no position...

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