Bates v. State

• Decision Date: 10 January 1979
• Docket Number: No. 58338,58338
• Parties: Garth BATES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 121

587 S.W.2d 121

Garth BATES, Appellant, v. The STATE of Texas, Appellee.

No. 58338.

Court of Criminal Appeals of Texas, En Banc.

Jan. 10, 1979.

Rehearing Denied Sept. 19, 1979.

Second Motion for Rehearing Denied Oct. 17, 1979.

Marvin O. Teague, Houston, for appellant.

Carol S. Vance, Dist. Atty., Michael Kuhn, William W. Burge and John B. Holmes, Jr., Asst. Dist. Attys., Houston, for the State.

Robert Huttash, State's Atty., Austin, on rehearing, for the State.

Before the court en banc.

OPINION

W. C. DAVIS, Judge.

This is an appeal from a conviction for the offense of bribery; punishment, which was assessed by the court, is imprisonment for eight years.

Appellant contends that: (1) the statute under which he was prosecuted is unconstitutional; (2) the indictment is defective; (3) the evidence is insufficient to sustain the verdict; (4) certain items which were admitted in evidence were the result of an unlawful search and seizure; (5) certain tape recordings were erroneously admitted in evidence because the proper predicate was not established; (6) the court erred in overruling appellant's motion to examine the original tape recordings; (7) certain acts and statements of a co-party to the offense were erroneously admitted; (8) the court erred in allowing three of the State's witnesses to testify; (9) evidence proffered by appellant to rebut testimony of the State's chief witness was erroneously excluded (10) the court erroneously failed to charge the jury on the law of circumstantial evidence, and erroneously refused thirteen other special instructions which were requested by appellant; and (11) the prosecutor engaged in improper argument.

It was established that appellant was elected judge of the 174th Judicial District of this state on November 7, 1972. Appellant took the oath of office on December 28, 1972, and was commissioned on January 5, 1973. He was removed from office on January 11, 1977. See In re Bates, 555 S.W.2d 420 (Tex.1977).

Nukie "Frenchy" Fontenot was the principal witness for the State. He testified that he was indicted on September 21, 1975, in the 174th District Court for the offenses of robbery and concealing stolen goods, both of which arose out of an incident which we shall refer to as the Mize robbery. In the latter part of December, 1975, Fontenot was introduced to Ed Riklin, who said "he had been talking to somebody higher up" and indicated that he could help Fontenot secure a probated sentence in exchange for $30,000. In subsequent conversations with Fontenot, Riklin stated that he was a "real close friend" of appellant, with whom he had had previous "dealings." Riklin never specifically mentioned to whom the money was to be paid, referring only to the "big man" and somebody "higher up." Fontenot testified that he understood from his conversations with Riklin that the money was to be paid to appellant. Before paying the money to Riklin, Fontenot wanted assurances that he would receive probation, but Riklin stated that the judge would not meet or talk with Fontenot, and that Fontenot would just have to trust Riklin.

In March, 1976, Fontenot was arrested for aggravated assault, an offense not connected to the pending robbery charge. When Fontenot was released from jail on March 4, he had a conversation with Houston police detectives Sam Nuchia and Earl Musick. Later that same evening, Fontenot and his attorney met with several law enforcement officers and representatives of the special crimes division of the district attorney's office. At this meeting, Fontenot agreed to work with the police and record any future conversations he might have with anyone concerning his payment of money in exchange for a lighter sentence. During the next few months, from March through July 16, Fontenot recorded numerous conversations with Riklin. In these taped conversations, Riklin never specifically stated that the money was to be paid to appellant in exchange for a probated sentence. However, on numerous occasions Riklin would refer to someone else as "the party," "my friend and your friend," and "the big boy," which Fontenot indicated was the appellant. On two of the tape recordings, appellant's voice is cognizable, indicating his presence in Riklin's apartment.

After these conversations, it finally was agreed that Fontenot would give the money for the probation, the price of which had been raised to $60,000, to Riklin on July 16, 1976. It was arranged that Riklin would meet Fontenot at the Northwest National Bank at 9:00 a. m. at which time Fontenot would give Riklin the $60,000. At 8:20 a. m., July 16, Fontenot met Bob Bennett of the district attorney's office and they placed $59,000 in $100 bills in Fontenot's safe deposit box at the bank. ¹ Fontenot met Riklin at 9:00 a. m. and handed the money to him. Appellant was near the bank at the time and was situated so that he could observe the exchange. Immediately after the exchange at the bank, the appellant and Riklin met at the office of James H. Brown, appellant's accountant. At that meeting, Riklin handed Brown two packets of money amounting to $10,000 and stated, "This is the down payment on the apartment at the Beaconsfield." Brown testified that the Beaconsfield apartments were a leasehold property the appellant had been interested in purchasing. The $10,000 from Riklin was a down payment on an apartment Riklin intended to buy once appellant had acquired the property. Brown was instructed by appellant to take the $10,000 and get a cashier's check to be used as earnest money in the purchase of the property. After appellant and Riklin left, Brown acquired the cashier's check and delivered it to the escrow holder.

After he left the bank, Fontenot went to the district attorney's office, where he learned that he had delivered only $59,000 instead of the intended $60,000. Upon learning of this shortage, Fontenot telephoned the appellant and Riklin.

After the exchange at the Northwest National Bank, law enforcement officers lost contact with appellant and Riklin, following which they established surveillance at the appellant's house and at Riklin's apartment. Appellant arrived at his home at approximately 10:30 a. m. and was under surveillance until approximately 1:30 p. m., at which time the officers again lost contact with him. Riklin arrived at his apartment at approximately 2:15 p. m., and as he entered his apartment law enforcement officers saw him carrying a shotgun they believed to be of illegal length. The officers tried to obtain a search warrant for the prohibited weapon, but before they could do so Riklin emerged from the apartment with the shotgun at 2:40 p. m. At that time, Riklin was placed under arrest. Riklin subsequently consented to the search of his apartment and $30,000 of the original $59,000 was recovered. After Riklin's arrest, appellant arrived at the scene and also was placed under arrest. The officers recovered $2,900 of the original $59,000 from appellant's coat pocket.

The State introduced other evidence which tended to show the appellant had a close relationship with Riklin. Testimony also was introduced which tended to show the appellant had certain financial difficulties with the purchase of two ranch properties in 1976 and certain banking transactions in 1975. The defense sought to rebut this testimony and introduced evidence to show the appellant was not in any financial difficulty and could amply afford to purchase both the ranch properties and the Beaconsfield apartments.

Appellant testified in his own behalf that while he was a friend of Riklin, Riklin never indicated that Fontenot was paying money on an understanding that he would give Fontenot a probated sentence. Appellant explained that Riklin had approached the appellant and stated that Fontenot was his friend and he wanted to get an attorney appointed to represent Fontenot. Appellant outlined to Riklin the requisites for appointing an attorney to represent an indigent defendant and said he would help Fontenot by seeing that an attorney was appointed. Appellant did not know Riklin was receiving money from Fontenot or that Riklin was leading Fontenot to believe that appellant would receive the money in exchange for a probated sentence. Concerning the actual exchange, appellant testified that he was told by Riklin that Riklin was going to receive some money from a friend on an old debt. Riklin asked appellant to accompany him in order to take care of the money and so he could give appellant the down payment on Riklin's apartment. When Riklin gave the $10,000 to Brown, it never was indicated that the money belonged to appellant, nor was there any discussion concerning Fontenot.

In regard to the money found in his possession, the appellant stated that Rinklin had given him $4,000, which was intended to be $5,000, that Riklin owed appellant for an automobile appellant had sold Riklin and for a small gambling debt. After depositing $1,100 in a bank account, appellant had the $2,900 found by the officers at the time of his arrest.

In rebuttal, the State introduced the testimony of Irwin Howard, who testified that he had been under indictment for theft by false pretense in appellant's court. After Howard had been contacted by Riklin, he had spoken to appellant and stated, "Mr. Riklin has told me for somewhere in the neighborhood of $10,000 that this case that's pending against me in your courtroom can be taken care of," to which the appellant replied, "Myself and Mr. Riklin are looking into the matter and Mr. Riklin will be handling it with you from this point on. Don't worry about it."

On defense rebuttal, appellant denied he spoke to Howard, and Howard's attorney testified that Howard never mentioned talking to appellant. Further, it was established that Howard had been offered probation in a plea bargaining agreement worked out between Howard's attorney and the State.

Appellant's second ground of error complains of the trial...