Cohen v. State, 44292
| Decision Date | 29 March 1972 |
| Docket Number | No. 44292,44292 |
| Citation | 479 S.W.2d 950 |
| Parties | A. M. COHEN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Presley E. Werlein, Jr., Charles A. Easterling, Houston, for appellant.
Carol A. Vance, Dist. Atty., James C. Brough and George Jacobs, Asst. Dist. attys., Houston, and Jim D. Vollers, State's Atty., austin, for the State.
Appellant was convicted of transporting fireworks into the city of Houston, Texas, in violation of an ordinance of that city. He was found guilty in the Corporation Court and fined $200.00 The case was appealed to County Criminal Court at Law No. 1 of Harris County where trial was held de novo before the court. Appellant was again found guilty and fined $200.00. From that conviction he appeals.
Appellant operated a fireworks stand in Harris County, Texas. The stand was located on one side of a road, the opposite side of which was within the limits of the city of Houston, although the stand was not in the city. On July 5, 1969, appellant went to the stand for the purpose of removing the fireworks, as the lawful season for selling fireworks had expired. Art. 1725, Sec. 5(D), Vernon's Ann.P.C. (Supp.1970). He loaded them into a truck and drove down the road, and into and through a portion of the city of Houston. He was then arrested for unlawfully transporting fireworks in the city.
Appellant raises eight grounds of error. In his first ground of error, he contends that the evidence was insufficient to prove one of the allegations of the complaint.
The complaint alleged, in part, 'A. M. Cohen . . . did then and there unlawfully transport fireworks into the City of Houston, Texas in the 12,300 block of Westheimer Road . . ..' Appellant maintains that there was no evidence that he transported fireworks in the '12,300 block of Westheimer Road,' and that the State was bound to offer evidence in support of the allegation. We agree.
An examination of the record reveals that there was no evidence that appellant was in the 12,300 block of Westheimer Road. There was testimony in regard to whether the 12,300 block was within the corporate limits of the city of Houston. There was also testimony which apparently concerned the accessibility of the 12,300 block to other roads. This latter testimony is relied upon by the State as being evidence that appellant was in the 12,300 block. The particular testimony is set out below:
'Q (By Mr. Easterling) Specifically, Mr. Wooten, I will ask you if the 12300 block of Westheimer, if there are any roads, streets, highways or any other routes available by which Mr. Cohen could have proceeded directly north to a point on the north limits of Harris County without traveling down Westheimer Road at the point where you stopped him?
We do not feel that this testimony establishes that appellant was in the 12,300 block. The testimony seems only to indicate that a road is located near the block.
The State also maintains that since evidence was offered that the 12,100 to 12,500 blocks of Westheimer Road are within the city limits, and since the earlier testimony indicated that appellant drove into and through a strip of the city of Houston on Westheimer, there is evidence that appellant was in the 12,300 block. We disagree. There was no evidence that the strip which appellant drove into was the 12,100 to 12,500 block strip.
We feel that the rule, as stated in 1 Branch's Ann. P.C., § 518 is the proper test for determining which allegations must be proved:
When a person, place or thing necessary to be mentioned in n an indictment is described with unnecessary particularity, all the circumstances of description must be proved and cannot be rejected as surplusage for they are thus made essential to the identity.' Therefore, the allegation as to the place where the transportation occurred being necessary, the unnecessary particularity must be proved. Hardy v. State, 162 Tex.Cr.R. 166, 283 S.W.2d 234 (1955); Dugan v. State, 264 S.W.2d 120 (Tex.Cr.App.1954); Franklin v. State, 157 Tex.Cr.R. 375, 247 S.W.2d 562 (1952); Royal v. State, 155...
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