Baxter v. State

• Decision Date: 20 December 2001
• Docket Number: No. 03-01-0061-CR.,No. 03-01-0062-CR.,03-01-0061-CR.,03-01-0062-CR.
• Citation: Baxter v. State, 66 S.W.3d 494 (Tex. App. 2001)
• Parties: Larry Dale BAXTER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

66 S.W.3d 494

Larry Dale BAXTER, Appellant, v.The STATE of Texas, Appellee.

No. 03-01-0061-CR.

No. 03-01-0062-CR.

Court of Appeals of Texas, Austin.

December 20, 2001.

Brian W. Wice, Houston, for appellant.

Idolina Garcia McCullough, Asst. Atty. Gen., William F. Lewis Jr., Austin, for appellee.

Before Chief Justice ABOUSSIE, Justices B.A. SMITH and DALLY.^*

CARL E.F. DALLY, Justice.

AppellantLarry Dale Baxter was convicted, in a jury trial, of the offenses of engaging in organized criminal activity and of gambling promotion.SeeTex. Pen. Code Ann. §§ 71.02(a)(2)(West Supp. 2002), 47.03(a)(1)(West 1994).The trial court assessed appellant's punishment for engaging in organized criminal activity at confinement in a state jail facility for a period of two years and a fine of $500; imposition of sentence was suspended and appellant was granted community supervision for two years and ordered to pay his fine and costs.The trial court assessed appellant's punishment for gambling promotion at confinement in the county jail for a period of one year and a fine of $500; imposition of sentence was suspended and appellant was granted community supervision for one year and ordered to pay his fine and costs.

Appellant asserts that the evidence is insufficient to support the jury's verdicts and that the trial court erred in admitting inadmissible evidence, in excluding admissible evidence, in improperly curtailing jury voir dire, in charging the jury, and in refusing to allow a sitting juror to be interrogated.The judgments will be affirmed.

SUFFICIENCY OF EVIDENCE

In his sixth and seventh points of error, appellant insists that the evidence is insufficient to support the jury's verdicts.In reviewing the legal sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia,443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979);Patrick v. State,906 S.W.2d 481, 486(Tex.Crim.App.1995);Aiken v. State,36 S.W.3d 131, 132(Tex. App.-Austin2000, pet. ref'd).The standard of review is the same whether the evidence is direct or circumstantial, or both.SeeKutzner v. State,994 S.W.2d 180, 184(Tex.Crim.App.1999);Banda v. State,890 S.W.2d 42, 50(Tex.Crim.App.1994).

A person commits the offense of engaging in organized criminal activity if, with the intent to establish, maintain, or participate in a combination or the profits of a combination, he commits or conspires to commit any gambling offense punishable as a Class A misdemeanor.Tex. Pen. Code. Ann. § 71.02(a)(2)(West Supp.2002)."Combination" means three or more persons who collaborate in carrying on criminal activities.Id.§ 71.01(a).A person commits the Class A misdemeanor offense of gambling promotion if he intentionally or knowingly operates or participates in the earnings of a gambling place.Id.§ 47.03(a)(1)(d)(West 1994)."Gambling Place" means any real estate, building, room, tent, vehicle, boat, or other property whatsoever, one of the uses of which is the making or settling of bets.Id.§ 47.01(3)."Bet" means any agreement to win or lose something of value solely or partially by chance.Id.§ 47.01(1)(West Supp.2001).

In appellate cause number 3-01-00061-CR, the indictment charged that on or about May 6, 1999, appellant

did then and there, with intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of LARRY DALE BAXTER, SHANNON CARPENTER, CINDY RICHARDS, AND JERRY DEAN CLEMENTS, who collaborated in carrying on the hereinafter described criminal activity, commit the offense of Gambling Promotion, to-wit: by operating and participating in the earnings of a gambling place, namely: a building located at 1601 Harrison, San Angelo, Texas, by then and there making and settling of bets.

A San Angelo Police SWAT team executed a search warrant and searched the house located at 1601 Harrison, in the city of San Angelo.When they entered the house, the officers found a craps table, dozens of dice, thousands of dollars in cash, and a notebook keeping account of debts.One of the windows was boarded up so the craps table could not be seen from outside the house.Signs posted inside the home declared "no checks, no credit, cash only."

Evidence shows that appellant assisted by Clements, Carpenter, and Richards conducted craps games in the building located at 1601 Harrison in San Angelo, where bets were made and settled.Appellant furnished free drinks and barbecue to those who participated in the dice games.Appellant used a dice table similar to those used in well known casinos.Many citizens in the community participated in the dice games conducted by appellant and the other alleged individuals.Large amounts of money—thousands of dollars—were bet and lost.To prove appellant guilty of the offense charged, it was not necessary to show that he profited from the games.However, there is ample evidence that he did.

The jury as the trier of fact could rationally find from the direct and circumstantial evidence, viewed in the light most favorable to the prosecution, that appellant was guilty, beyond a reasonable doubt, of intentionally participating in a combination with Clements, Carpenter, and Richards to commit the Class A misdemeanor gambling offense of gambling promotion by intentionally and knowingly using the place alleged where bets were made and settled.The evidence is sufficient to support the jury's verdict finding appellant guilty of engaging in organized criminal activity.Appellant's sixth point of error is overruled.

In appellate cause number 3-01-00062-CR, it was charged that on or about March 31, 1999, appellant,

did then and there, with intent to establish, maintain, or participate in a combination or in the profits of a combination, said combination consisting of LARRY DALE BAXTER, JERRY DEAN CLEMENTS, AND ROBERT FAIRCHILD, who collaborated in carrying on the hereinafter described criminal activity, commit the offense of GAMBLING PROMOTION, to-wit: by operating and participating in the earnings of a gambling place, namely: a building located at 1122 E. 22nd, San Angelo, Texas, by then and there making and settling of bets.

This case was tried jointly with cause number 3-01-00061-CR.The jury found appellant guilty of the lesser included offense of gambling promotion.The evidence is amply sufficient for the jury to rationally find beyond a reasonable doubt that appellant used a building located at 1122 E. 22nd in San Angelo to intentionally or knowingly operate a gambling place where bets were made and settled.Appellant's seventh point of error is overruled.

Admission of Affidavit for Search Warrant

In his first point of error, appellant asserts that the trial court erred in admitting in evidence, over his objection, an affidavit for a search warrant and the warrant.During the testimony of the State's first witness, San Angelo police officer Dick Brock, it was established that Brock had drafted and executed an affidavit and obtained from a magistrate a warrant to search the house at 1601 South Harrison in San Angelo.The State offered and the court admitted in evidence the affidavit and the warrant over appellant's timely hearsay objection.An objection that proffered evidence is "hearsay" is sufficiently specific to require appellate review.SeeTex.R. Evid. 103(a)(1);Tex.R.App. P. 33.1(a)(1)(A), (2)(A);Lankston v. State,827 S.W.2d 907, 910(Tex.Crim.App.1992).¹

Admitting in evidence an affidavit for a search warrant over objection has generally been considered error and often reversible error.²The Court of Criminal Appeals has observed that "[t]aking note of the number of instances in which this court has found it necessary to reverse judgments of conviction on account of the reception in evidence of the recital of facts embraced in the affidavit for the search warrant, the continued frequency with which the error is repeated is the subject of wonder."Hamilton v. State,120 Tex. Crim. 154, 48 S.W.2d 1005, 1006(1932).Many cases have found that the admission in evidence of affidavits for search warrants over objection constitutes error.SeeFigueroa v. State,473 S.W.2d 202, 204(Tex.Crim.App.1971);Tucker v. State,170 Tex.Crim. 113, 339 S.W.2d 64, 64(1960);Zorn v. State,167 Tex.Crim. 502, 321 S.W.2d 90, 90(1959);Hicks v. State,167 Tex.Crim. 115, 318 S.W.2d 652, 652(1958);Dillon v. State,108 Tex.Crim. 642, 2 S.W.2d 251, 251(1928);Pratt v. State,748 S.W.2d 483, 484(Tex.App.-Houston [1st Dist.]1988, pet. ref'd).The admission of the affidavit and warrant, over appellant's objection, was error.We must decide whether the error is reversible error.Cases decided before the adoption of the Rules of Appellate Procedure were said to turn on the facts of each particular case.SeeFigueroa,473 S.W.2d at 204;Hamilton,48 S.W.2d at 1005;seeTomas Torres v. State,552 S.W.2d 821, 824(Tex.Crim. App.1977);Doggett v. State,530 S.W.2d 552, 556-57(Tex.Crim.App.1975).

The Rules of Appellate Procedure now provide the rule for determining reversible error.SeeTex.R.App. P. 44.2.Other than constitutional error, any error must be disregarded unless it affects substantial rights of the defendant.Id.44.2(b).The violation of a rule of evidence in the admission of evidence, as in this case, is considered non-constitutional error.SeeJohnson v. State,967 S.W.2d 410, 417(Tex.Crim.App.1998);King v. State,953 S.W.2d 266, 271(Tex.Crim.App.1997);Tate v. State,988 S.W.2d 887, 890(Tex. App.-Austin1999, pet. ref'd).Similarly, the erroneous exclusion of defensive evidence is not constitutional error if the trial court's ruling merely offends the rules of evidence.SeeMiller v. State,42 S.W.3d 343, 346(Tex.App.-Austin 2001, no pet.).

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