Craddock v. State, 52027

• Decision Date: 25 May 1977
• Docket Number: No. 52027,52027
• Citation: 553 S.W.2d 765
• Parties: Edward Eugene CRADDOCK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 765

553 S.W.2d 765

Edward Eugene CRADDOCK, Appellant, v. The STATE of Texas, Appellee.

No. 52027.

Court of Criminal Appeals of Texas.

May 25, 1977.

John J. C. O'Shea, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty. and Charles C. Bailey, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ON APPELLANT'S MOTION FOR REHEARING

ROBERTS, Judge.

We granted appellant's motion for leave to file his motion for rehearing in order that we may revise the reasoning behind the disposition of his main contention on original submission.

By per curiam opinion, Tex.Cr.App., 552 S.W.2d 854, delivered November 10, 1976 (No. 52,027), we affirmed appellant's conviction for possession of marihuana. In so doing, we stated that:

"Appellant's main contention is that the trial court erred in overruling his motion to suppress the evidence because there was neither probable cause nor exigent circumstances justifying the warrantless search of appellant's vehicle. We find it unnecessary to determine the legality of the search.

"Appellant voluntarily testified and admitted possession of the marihuana and he was to receive a commission for its sale. His testimony rendered harmless any error in the admission of the evidence. The legality of a search need not be considered when appellant testifies to or otherwise produces evidence of the same facts, or if such facts are in the record without objection. Warren v. State, 514 S.W.2d 458 (Tex.Cr.App.1974); Stein v. State, 514 S.W.2d 927 (Tex.Cr.App.1974)."

Appellant had taken the stand in order to establish his defense of entrapment. He contends on rehearing that our disposition of his contention that the search and seizure were illegal ". . . fosters an impermissible and unconstitutional chill upon Appellant's rights to author and draft his own defense . . . ." We agree.

The general rule that the legality of a search need not be considered when the defendant testifies to or otherwise produces evidence of the same facts is correctly stated in the opinion on original submission. However, there is another rule which is applicable: The harmful effect of improperly admitted evidence is not cured by the fact that the accused sought to meet, destroy or explain it by the introduction of rebutting evidence. Nicholas v. State, 502 S.W.2d 169, 174 (Tex.Cr.App.1973, opinion on State's Motion for Rehearing).

In Nicholas, we distinguished the two rules:

". . . the improper admission of evidence over objection is rendered harmless by the unobjected-to admission of other evidence of substantially the same facts ; whereas, the introduction of evidence seeking to meet, destroy, or explain the erroneously admitted evidence does not render the error harmless. The rationale should be equally clear: if a fact be proven without objection, its erroneous proof over objection, although still error, is harmless error since the same facts have been proved without objection. On the other hand, presentation of other evidence which does not prove those facts erroneously admitted, but only tends to meet, destroy, or explain the erroneously admitted evidence, can hardly be considered to cure the error within the rationale of the first rule. Not falling within the harmless error rationale, if such rebuttal evidence is to be held to constitute a waiver of objection to the erroneously admitted evidence, some other reason must be advanced which would support such a new rule.

"The true meaning of such new rule would be that a defendant against whom evidence has been admitted over objection could not attempt to rebut such evidence without waiving that objection. The absurdity of such a rule, when so expressed as to reveal its ultimate effect, is manifest. That the scope of such a rule would extend so far is clear: use of admitted evidence, including exhibits, includes within its meaning use in a hypothetical form as a predicate to rebuttal. Mere use would necessarily include all such rebuttal, and if use waives objection, how can rebuttal be attempted and objection preserved? Independent admission of evidence of the same facts without objection, it will be observed, is a concept wholly distinct from use, in that it is independent of the erroneous admission of evidence, whereas the use is dependent upon the prior evidence, inasmuch as it is an attempt to rebut it." (Emphasis included). Id., at 174-175.

We feel appellant's admitted possession of the marihuana was a necessary predicate to his defense of entrapment, thus bringing his testimony within our reasoning in Nicholas. See also, Alvarez v. State, 511 S.W.2d 493, 498 (Tex.Cr.App.1973, Opinion on State's Second Motion for Rehearing). It is necessary to determine the legality of the search. We now do so.

Appellant contends that the warrantless search of his vehicle was without probable cause and absent exigent circumstances. As stated on original submission, the facts are:

"In June of 1974, Otis Ray Priestley and appellant were both employed at a Lubbock automobile dealership. Priestley, a paid informant of the Lubbock Drug Task Force, consisting of State and Federal officers, was told that appellant could arrange a sale of marihuana. They discussed such a sale several times. An agreement was reached on July 2.

Priestley arranged for Officers Hudgens and Douglas of the Drug Enforcement Agency to meet with appellant. Later the same afternoon Priestley and the two officers went to appellant's home. Negotiations were conducted there concerning the price of fifty to sixty pounds of marihuana. They agreed to conduct further negotiations at a local motel later that evening.

"Hudgens and appellant met at the motel at 9:00 p. m. ...