Bermen v. State

• Decision Date: 26 July 1990
• Docket Number: No. 01-89-00752-CR,01-89-00752-CR
• Citation: 798 S.W.2d 8
• Parties: Johnny BERMEN a.k.a. Johnny Hendricks, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 8

798 S.W.2d 8

Johnny BERMEN a.k.a. Johnny Hendricks, Appellant, v. The STATE of Texas, Appellee.

No. 01-89-00752-CR.

Court of Appeals of Texas Houston (1st Dist.).

July 26, 1990.

Rehearing Denied Sept. 6, 1990.

Discretionary Review Granted

Dec. 19, 1990.

C. Kent Hargis, Houston, for appellant.

John B. Holmes, Jr., Harris Co. Dist. Atty., Calvin Hartman and Kari Sckerl, Asst. Dist. Attys., for appellee.

Before SAM BASS, HUGHES and O'CONNOR, JJ.

OPINION

SAM BASS, Justice.

Appellant, Hendricks, was convicted of escape, enhanced by two prior felony convictions. The trial judge sentenced appellant to 30 years confinement.

We reverse and order an acquittal.

In his first point of error, appellant argues that the proof did not show that he was "charged" with the offense of theft at the time he allegedly escaped.

The indictment alleged that appellant did:

[I]ntentionally and knowingly escape from the custody of S.A. MORROW, employed by the Houston Police Department, after the Defendant was charged with the offense of Theft, a felony while confined in a penal institution.

(Emphasis added.)

Officer Rivera testified that on February 11, 1989, he: (1) was dispatched to a Rice grocery store on a shoplifting call; (2) spoke to the store manager and security guard; and (3) called the District Attorney's office. The State attempted to show that appellant then became charged with the offense by questions posed to Rivera:

Q. And when you contacted them were charges accepted against Mr. Hendricks?

A. Yes, they were.

Q. At the time that the charges were accepted is that when Mr. Hendricks was charged with the offense?

A. Yes.

Rivera arrested appellant, took him to jail, and placed him in the custody of jail personnel.

State's exhibit 2A, an arrest blotter, shows that appellant was arrested on February 11, 1989, by "GA RIVERA." Appellant's time of arrest was 11:15 a.m., and he was booked at 1:00 p.m. Interpreting State's exhibit 2, Sergeant Warren testified that the time a prisoner enters the city jail is stamped on the blotter, which was 12:32 p.m. in this case.

At approximately 1:30 that afternoon, Officer Lacy conducted a roll call, and appellant did not answer. Officers immediately searched for appellant, but could not find him. State's exhibit 6, the complaint charging appellant with felony theft, was filed in the district clerk's office later that day, at 4:07 p.m.

Officer Caronna testified that, on February 18, 1989, he arrested appellant at a Rice grocery store and took him to the city jail.

In reviewing a sufficiency of the evidence challenge in a criminal case, the standard of review is whether, viewing all the evidence in the light most favorable to the verdict or judgment, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984). In reviewing cases based on circumstantial evidence, the conviction " 'cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the defendant.' " Humason v. State, 728 S.W.2d 363, 366 (Tex.Crim.App.1987) (quoting Moore v. State, 640 S.W.2d 300, 302 (Tex.Crim.App.1982)).

Section 38.07 of the Texas Penal Code defines the offense of escape:

(a) A person commits an offense if he escapes from custody when he is:

(1) under arrest for, charged with, or convicted of an offense; or

(2) in custody pursuant to a lawful order of a court.

....

(c) An offense under this section is a felony of the third degree if the actor:

(1) is under arrest for, charged with, or convicted of a felony; or

(2) is confined in a penal institution....

Tex. Penal Code Ann. § 38.07 (Vernon 1989). The elements of escape are that a person: (1) escape; (2) from custody; (3) after having been arrested for, charged with, or convicted of an offense. Henderson v. State, 600 S.W.2d 788, 789 (Tex.Crim.App. [Panel Op.] 1979); Garcia v. State, 537 S.W.2d 930, 932 (Tex.Crim.App.1976). An essential element of any escape offense is that the defendant must be arrested for, charged with, or convicted of an offense. McWilliams v. State, 782 S.W.2d 871, 874 (Tex.Crim.App.1990).

Because being charged with an offense is an element of escape, the State was required to prove, as alleged, that appellant had been charged with the offense of theft at the time he escaped. The State attempts, by the testimony of Officer Rivera, to show that charges were "accepted" against appellant for theft, and that appellant was, therefore, charged with the offense of theft at the time he was arrested. The term "charged" is not defined in the Texas Penal Code. In Burnett v. State, 514 S.W.2d 939, 942 n. 6 (Tex.Crim.App.1974), the Court of Criminal Appeals held that the defendant was formally charged with the offense for which he was being detained at the time of his escape from the jail, and that he remained formally charged with the offense after he was convicted at trial, at least until the Court of Criminal Appeals issued a mandate affirming his conviction. The court quoted with approval a definition of the term "charged":

It is frequently used in a limited sense, as referring to a formal complaint, information, or indictment ... and in common parlance it signifies the formal commencement of a criminal proceeding by the filing or returning of the accusatory paper in the regular course of judicial proceedings.... In a fuller and more accurate sense the expression may include also the responsibility for the crime itself, and may be applicable to one who has been convicted and is serving a sentence....

Id. at 941.

Although the current version of section 38.07 does not require that the accused be "formally" charged, like the statute interpreted in Burnett, it is particularly significant that the legislature included the phrases "under arrest for" as well as "charged with" in describing persons who can commit an escape. Tex. Penal Code Ann. § 38.07. The Court of Criminal Appeals has noted that the terms are mutually exclusive:

Of course, the terms "under arrest for", "charged with", and "convicted of any offense" are mutually exclusive; otherwise, it stands to reason that the Legislature would have simply used the legal term "arrest", as defined in Art. 15.22, V.A.C.C.P., rather than to use multiple terms. Therefore, for purposes of the escape statute, "charged with" commences where "under arrest for committing some offense" ends, and "charged with" ends where "conviction of any offense" commences.

McWilliams, 782 S.W.2d at 874.

An examination of other provisions in the Texas Code of Criminal Procedure also sheds light on the distinction between the terms "under arrest for" and "charged with." Article 15.04 defines the term "complaint" as the affidavit made before the magistrate or district or county attorney if it charges the commission of an offense. Tex.Code Crim.P.Ann. art. 15.04 (Vernon 1977). An "indictment," defined as a written statement of a grand jury accusing a person with committing an offense, Tex.Code Crim.P.Ann. art. 21.01 (Vernon 1989), is deemed sufficient when it charges the commission of an offense in plain and concise language: (1) to afford notice to the accused; and (2) to enable the court to pronounce proper judgment upon conviction. Tex.Code Crim.P.Ann. art. 21.11 (Vernon 1989). An "information" is a written statement filed by a district attorney charging the defendant with an offense. Tex.Code Crim.P.Ann. art. 21.20 (Vernon 1989). Further, Tex.Code Crim.P.Ann. art. 15.22 (Vernon 1977), provides that a person is "arrested" when he has been placed under restraint or taken into custody by a peace officer or person executing an arrest warrant, or by a peace officer or person effecting a warrantless arrest. Therefore, a person is not charged with an offense until the filing of a complaint or the return of an indictment by a grand jury.

In our case, the indictment alleged that appellant was charged with the felony offense of theft. The record reflects that appellant was missing at approximately 1:30 p.m., but the complaint charging appellant with the felony offense of theft was not filed until 4:07 p.m. Appellant had not been charged with theft at the time of escape, as alleged in the indictment, but rather had only been arrested. We find that there was a fatal variance between the pleading and the proof, because the State did not prove, as alleged, an element essential to committing the offense of escape.

Appellant's first point of error is sustained.

In his second point of error, appellant asserts that the trial court erred in permitting the introduction of hearsay testimony which proved ultimate issues in the case. Appellant objects to the following statements contained within exhibits 2A, 3A, and 4A, which were substituted for exhibits 2, 3, and 4, respectively: (1) "Subject Escaped after being processed into Jail Theft (3rd Offender), Filed in 337 D.C. Cas # 522322 and Escaped Cause # 522431....", appearing in State's exhibit 2A, dated February 11, 1989; (2) "Excaped PRISIONER [sic]," appearing in State's exhibit 3A, dated February 11, 1989; and (3) " *ESCAPE RISK*," appearing in State's exhibit 4A, dated February 18, 1989.

Counsel objected to the introduction of State's exhibits 2 and 3 because the objectionable language was hearsay, and it stated legal conclusions going to the resolution of ultimate issues in the case. Counsel also objected to the introduction and subsequent admission of State's exhibit 4 on the basis that it was a "hearsay conclusion." Based on the foregoing events, we find that appellant timely objected and preserved his second point of error for appellate review. Tex.R.App.P. 52(a).

The State argues that these objectionable items appearing within exhibits 2A, 3A, and 4A are admissible because the entire document in each instance was admissible as a business record under Tex.R.Crim.Evid. 803(6). ¹ Neither of the...