Arnott v. State, No. 44824
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
| Writing for the Court | DOUGLAS; ROBERTS; ROBERTS; DOUGLAS; MORRISON |
| Citation | 498 S.W.2d 166 |
| Docket Number | No. 44824 |
| Decision Date | 28 February 1973 |
| Parties | Ronald William ARNOTT, Appellant, v. The STATE of Texas, Appellee. |
Page 166
v.
The STATE of Texas, Appellee.
On Rehearing July 17, 1973.
Rehearing Denied Sept. 7, 1973.
Phillip C. Friday, Jr., Sam Houston Clinton, Jr., Austin, for appellant.
Robert O. Smith, Dist. Atty., Phillip A. Nelson, Michael J. McCormick, Asst. Dist. Attys., Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
DOUGLAS, Judge.
This is an appeal from a conviction for the offense of possession of heroin. The jury assessed punishment at twenty-five (25) years' imprisonment.
Christie Lou Faubian, Arnold Neal, Jr., and Ronald William Arnott, the appellant, were jointly charged as acting together in a three-count indictment for the possession of heroin, marihuana and narcotic paraphernalia. Only the charge for the possession of heroin was submitted to the jury. Christie Lou Faubian and Arnott, the appellant, were tried jointly. 1 Miss Faubian was also convicted, and her case on appeal is reported at Tex.Cr.App., 480 S.W.2d 194.
The main contentions of the appellant are that the evidence is insufficient to support the conviction and that the court erred in admitting into evidence the narcotics and notebooks found as the result of a search under a warrant.
Page 168
The record reflects that on September 3, 1970, Miss Faubian, the co-defendant, using the name of Orbitt, made arrangements for the lease of the apartment where the contraband was later found. The next day, the appellant, also using the name of Orbitt, signed a lease for the apartment. Some twelve days later officers of the Austin Police Department went to the apartment where they arrested Neal, Miss Faubian and the appellant and made a search under a search warrant. Capsules of heroin were found on the table where the appellant was seated. Neal, who was apparently asleep, was in another room. The appellant and Miss Faubian had needle marks on their arms, some of which were red, indicating that they were fresh.
The officers testified to finding a large amount of heroin, marihuana, other drugs and narcotic paraphernalia.
It is shown by the testimony of the Department of Public Safety chemist who analyzed the material found in the apartment and submitted to him that State's Exhibit No. 2 found on the table where the appellant and Miss Faubian were seated contained thirty-nine capsules or 1.61 grams of 20.5 percent heroin.
State's Exhibit No. 5 consisted of four balloons which contained a total of 3.69 grams of 20.5 percent heroin. These were found in a closet near where Arnold Neal was found asleep. This would amount to enough heroin to make over 86 capsules, and added with the heroin found at the table, the officers found enough for a total of over 125 capsules of 20.5 percent heroin in the apartment.
In State's Exhibits Nos. 7 and 23, traces of heroin were found in envelopes in the apartment. State's Exhibit No. 14 contained fourteen capsules of lysergic acid diethylamide (LSD).
A small foil package containing opiate was found. The chemist described the opiate as a sort of base for heroin.
Some mescaline was also found in the apartment. Much of the contraband was found in a large duffle bag in a closet in the room where the appellant was arrested. Several other containers of contraband were in the bag. The notebooks in question were also found there.
In what was described as a large army haversack, the officers found 844.87 grams of marihuana. Other marihuana found is set out below:
A paper bag in the duffle bag contained 329.98 grams.
Thirteen 'lids' or small bags contained 277.92 grams.
Two smaller bags contained 91.40 grams. Another container had 54 grams.
Two peanut cans found in another closet contained 59.72 grams.
The contents of eleven plastic baggies were 3,635 grams.
Two paper bags contained 665.30 grams.
An envelope contained 70 grams.
The chemist testified that the average marihuana cigarette contained .2 of a gram. Based on his testimony, there was enough marihuana found to make more than 29,500 cigarettes.
Also introduced as found in the duffle bag and its containers were apparently a large number of empty plastic capsules. These were described by an officer as being No. 5 capsules, the kind used for heroin and the same kind as found on the table in front of the appellant and Miss Faubian.
One page of State's Exhibit No. 16, a spiral notebook photocopied for the record, bears the date of August 27, 1970. It contains a column headed 'Money out.' Some of the entries under this column are:
"Sam-Ft.Hood 20.00
Rooster 30.00
Clyde 100.00
Dave 380.00
Some of the entries under the other column, designated 'Personal debts Money I owe,' are:
"Hemphills 55.00
Uncle Vans 13.00
(Paid) "
Page 169
The next page of Exhibit No. 16 under 'money out' shows (pd)' and directly below that appears 'Billy Earl $30.00' as well as other names and amounts.
The next column under 'Money I owe' includes: 'Arnold 130.00.' Further in the spiral notebook, the following page is found:
"Negotiable
Date k object Assets Not Spent
------------------
Aug. 27 No. Cash Value
----------
lds. 53 $530.00
----
Ggs. Hsh 26 130.00
--- Money
CASH On Hand N/A 57.00
------------------------------------------
Aug 30 Sunday
------------------------------------------
Ggs Hsh 16 $ 85.00
Cash 150.00
----
Aug 31st
lds 47 $470.00
Cash -- 190.00
TK 5 25.00
Grams Hsh 16 80.00
---------
As of Sept. 3
Cash -- 435.00
lds 20 200.00
Hsh 18 90.00"
Then another page is as follows:
"ARNOLD'S MONEY
--------------------------------------------
"* * *
ith
Started W = 31
15
Pills left 13 = $65.00
------
Sold-- 18 = $90.00
Chigger owes for 3 pills $15.00
Cash on hand $75.00
Started with 31
Pills left 4 = $ 20.00
Sold 27 = 135.00
----------
Chigger owes $ 15.00
Cash $120.00"
----------
Another page lists 'P2P Methalene.'
A following page lists:
"Sales Cash Profits
Aug. 26 2 lds 40.00
Aug. 28 60 lds 600.00
Aug. 29 7 lds 70.00
Aug. 30 7 grms Hsh 35.00
Aug. 31 9 lds 120.00
lds 50.00
Total
Sept. 1 3 Combined 635.00"
State's Exhibit 17 starts with August 29, 1970. Apparently dated September 3, the following notation is found: 'find a house for rent.' (This is the date the co-defendant Miss Faubian negotiated for the lease, and the day before it was signed by appellant.)
The entry under debts September 3, 1970, shows 'Mark T.' apparently another name, and 'HSH $50.00' and '55 4 cps.' It also shows a telephone number and 'Mr. King.' (The record shows that Miss Faubian first negotiated the lease and put up the deposit on September 3 with Mr. King.)
Another page is as follows:
"3rd Sept.
Deposit $50.00
1 yr 40.00
Arnold 30.00
" 35.00
N.S.C. 20.00
A following page reflects the following entry: 'I owe Arnold $80.00.'
State's Exhibit 18 contained bookkeeping entries similar to those in the other two exhibits.
State's Exhibits 21, 21A, 21B, 21C and 21D, which were found in the front bedroom near where Neal was found, were all introduced.
The first of these exhibits was correspondence addressed to Arnold James Neal
Page 170
at 607 E Baylor in Austin. The next exhibit was a change of address card bearing the signature 'Arnold Neal,' 607 E Baylor St. from 807 E 30 St., both in Austin. (This latter address was shown to have been the one where Miss Faubian had clothes and evidence was offered through her stepfather and that apartment owner in an effort to show she did not live at Baylor Street.)State's Exhibit 21C, apparently from a larger spiral notebook, is a photocopy of a page appearing in the record and is as follows:
$ $155
"Ron $105 $ 15
----
$
$100
Gene $5
Rick $5
Mark $2
$"
The second page is as follows:
"Gene $5
* *
* *
Rick $5
Mark $2
Ron $105
" 9/8/70
1. 4 G $160
2. $140 My Money 9/8/70
3. first G 23 pills $115 = $75 profit
4. 3 G at $50 = $30 profit
5. second G 20 pill = $100 = $60 profit
6. third G 2l pill $105 = $65
7. four G 20 pill $100 60
Ron = $30 for rug $75
$25 for speed $30 paying the $30 dollar for Tom
---
$15 for food $105
---
$40 $15 dollars payment on 3 pills that
were lost
$10 for G $15 for three pills 9/11/70
--- ----
$50 total $135
$25 worth of pill 2 pills $10 9/11/70
---
$75 2 pills $10 9/11/70"
The exhibits in the 21 series were admitted without objection. The name Ron appears also in the 21 series of exhibits. (The appellant's first name is Ronald.)
One of the officers testified that the term 'hash' or HSH referred to hashish and that the term 'lid' meant a one-ounce package of marihuana, and that 'G' referred to a gram of either heroin or marihuana.
The evidence shows all three of of the coindictees were acting together as principals and is sufficient to support the conviction of the appellant.
Admissibility of Notebooks
The appellant contends that the admission of the notebooks, State's Exhibits 16, 17 and 18, was reversible error.
The case was tried on the theory of principals. The three were indicted as principals. It is not necessary for those acting together as principals to be indicted as such before evidence of acts and conversations
Page 171
of each participant be admissible as to conspirators. Phelps v. State, Tex.Cr.App., 462 S.W.2d 310; Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49 (1959). The theory of principals necessarily involves conspiracy and in most cases such is shown by circumstantial evidence. Each statement or act of a co-conspirator up until the time the object of the conspiracy is completed is admissible. Phelps v. State, supra.Even if the entries in the notebook were made by Neal, Faubian, the appellant, or someone else connected with the offense, they would be admissible as an act of the conspiracy. The fact that Neal had been tried and convicted does not prevent his part in the crime from being admissible. See Parnell v. State, supra. Acts and declarations of one co-conspirator during the furtherance of...
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King v. State, 900-93
...charged in the indictment. As is true in most cases, "knowing possession" must usually be shown circumstantially, e.g., Arnott v. State, 498 S.W.2d 166, 177 (Tex.Cr.App.1973), and here all the facts and circumstances outlined in the various opinions are sufficient to permit a rational factf......
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Gilmore v. State, No. 07-81-0267-CR
...It follows, of course, that the statement is not hearsay if it is offered for some purpose other than for its truth. Arnott v. State, 498 S.W.2d 166 (Tex.Cr.App.1973). We conclude that the newspaper articles in question in this case were not admitted for the truth of the matter asserted and......
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Pinkston v. State, 2-83-223-CR
...the discretion of the trial judge. Jackson v. State, supra. Further, as stated by the Court of Criminal Appeals in Arnott v. State, 498 S.W.2d 166, 178 (Tex.Crim.App.1973) (on Motion for "[e]vidence of tangible objects found during the course of a search is often admitted as 'res gestae' as......
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Pinson v. State, No. 08-02-00327-CR (TX 7/29/2004), 08-02-00327-CR
...could be shown through circumstantial evidence. The magazine provided that circumstantial evidence. Id. at 620, citing Arnott v. State, 498 S.W.2d 166, 177 (Tex.Crim.App. Here, Appellant has not been prosecuted for possession of contraband and the State did not have to affirmatively link Ap......
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King v. State, No. 900-93
...charged in the indictment. As is true in most cases, "knowing possession" must usually be shown circumstantially, e.g., Arnott v. State, 498 S.W.2d 166, 177 (Tex.Cr.App.1973), and here all the facts and circumstances outlined in the various opinions are sufficient to permit a rational factf......
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Gilmore v. State, No. 07-81-0267-CR
...It follows, of course, that the statement is not hearsay if it is offered for some purpose other than for its truth. Arnott v. State, 498 S.W.2d 166 (Tex.Cr.App.1973). We conclude that the newspaper articles in question in this case were not admitted for the truth of the matter asserted and......
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Pinkston v. State, No. 2-83-223-CR
...the discretion of the trial judge. Jackson v. State, supra. Further, as stated by the Court of Criminal Appeals in Arnott v. State, 498 S.W.2d 166, 178 (Tex.Crim.App.1973) (on Motion for "[e]vidence of tangible objects found during the course of a search is often admitted as 'res gestae' as......
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Pinson v. State, No. 08-02-00327-CR (TX 7/29/2004), No. 08-02-00327-CR
...could be shown through circumstantial evidence. The magazine provided that circumstantial evidence. Id. at 620, citing Arnott v. State, 498 S.W.2d 166, 177 (Tex.Crim.App. Here, Appellant has not been prosecuted for possession of contraband and the State did not have to affirmatively link Ap......