Etchieson v. State

• Decision Date: 07 November 1962
• Docket Number: No. 35139,35139
• Citation: 361 S.W.2d 711,172 Tex.Crim. 606
• Parties: Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 711

361 S.W.2d 711

172 Tex.Crim. 606

Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee.

No. 35139.

Court of Criminal Appeals of Texas.

Nov. 7, 1962.

[172 TEXCRIM 606]

J. J. Fagan, Dike & Melton, Dallas, for appellant.

Henry Wade, Dist. Atty., George Milner, Steve Guittard and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

The offense is the unlawful possession of a narcotic drug, marijuana; the punishment, twenty-five years in the penitentiary.

The evidence shows that Dallas police officers, pursuant to a search warrant, entered an apartment in which appellant was present as a guest; that the apartment was rented by two girls, Billie Yvonne Coleman and Donnie Ray Stringfellow Ogle. We shall not here relate further details other than to state that the officers did retrieve a vial from appellant containing what was later chemically established to be marijuana of sufficient quantity to make one large or two small cigarettes.

[172 TEXCRIM 607] Appellant has brought forward for our consideration nine (9) formal bills of exception. The first four pertain to the validity of the search warrant and to evidence obtained from such search and seizure at the apartment. Since the appellant was definitely shown by the evidence, including his own testimony, to be a guest or visitor and not a resident of the apartment, he has no standing to question the validity of the search and seizure or the evidence obtained from such search and seizure. This is a privilege to be exercised only by the one in lawful possession of the premises searched. Rubens v. State, 166 Tex.Cr.R. 71, 311 S.W.2d 242; Paige v. State, 161 Tex.Cr.R. 571, 279 S.W.2d 344. These four contentions are without merit and are overruled.

Appellant's bills of exception 5, 6, 7, and 8 complain of the action of the trial court in admitting certain judgments showing appellant and defense witness, Billie Yvonne Coleman, to have been previously convicted in several causes in two justice of the peace courts in Dallas County of the offense of vagrancy. Appellant's principal objection to the admissibility of these judgments was that the state failed to establish the identity of the appellant and the witness Coleman as being the same persons as set forth in these judgments. The state has ably briefed the question and has pointed out many authorities to sustain its position that these judgments were admissible. We have diligently reviewed the record. We shall set forth all of the evidence adduced by both the state and the appellant with reference to these prior convictions.

The following testimony was adduced by the state upon cross-examination of the witness, Billie Yvonne Coleman:

'Q Yvonne, I will ask you whether or not you are the same Billie Yvonne Coleman that was convicted in Cause No. 2268, in Judge Glen Byrd's Court, on June 23, 1959, for the offense of vagrancy, to-wit, then and there being a common prostitute? * * * A No, I have never been in Glen Byrd's Court.'

The question was restated, as follows:

'Q Were you convicted in Cause No. 2268 on June 23rd of 1959, of being then and there a common prostitute, for the offense of vagrancy?

The witness replied: 'No.'

The record reflects several objections by appellant's counsel at this juncture, among them being that it was not a proper question[172 TEXCRIM 608] and that this was not the best evidence. The court overruled the objections and then inquiry was made of this witness about another offense. The state asked:

'Q All right. Are you the same Billie Yvonne Coleman that in Cause No. 2274 in Judge Glen Byrd's Court, was convicted of the offense of vagrancy, to-wit, being then and there a common prostitute?'

Objection was then taken in the form of a general objection, with the statement by appellant's counsel:

'Shall we just have a full bill to this, so that we won't have to object to each question?'

The Court responded: 'Yes.'

This line of questioning continued as to several other offenses of vagrancy, the witness responding that she had not been convicted and had never pleaded guilty.

The appellant, while a witness in his own behalf, was then asked upon cross-examination if he had pleaded guilty of the offense of vagrancy, to-wit, associating with and receiving aid from known prostitutes, on several occasions in two different J. P. courts. Objections were taken, overruled, and the witness denied the prior convictions.

The state then adduced testimony from the witness George Hamilton, the clerk of Justice of the Peace McBride's court, over objections by the appellant. The question was asked:

'Q All right, the judgment shows a conviction for what offense?'

The answer was: 'Vagrancy.'

Further, the state inquired:

'Q All right, does it show there which subsection of the vagrancy statutes Virgil John Etchieson was filed on for?' A Not here, no sir.'

'Q Does that show on this pink complaint here? A Yes.' (Emphasis supplied.)

[172 TEXCRIM 609] The state then inquired about another prior conviction for the offense of vagrancy, and the witness Hamilton replied that the judgment reflected that the defendant's name was Virgil John Etchieson and that he pleaded guilty to the offense of vagrancy. The state then inquired of the witness Hamilton about several offenses of vagrancy involving a person by the name of Billie Yvonne Coleman. It is shown from the record that the question asked by the state was, in effect, if the judgment reflected that she was convicted of the offense of vagrancy, and the witness replied: 'Yes, sir.' This witness testified that he had never seen the appellant and that he did not know Billie Yvonne Coleman.

Evidence was then adduced by the state from the witness Mrs. Evelyn Smith, shown to be the clerk of Judge Glen Byrd's court. Mrs. Smith was first asked about a judgement showing a conviction against a defendant by the name of Virgil John Etchieson, the question asked being: 'And the offense?' to which question she replied: 'Vagrancy.' The state then inquired:

'Q All right, by looking at that can you tell what section of the vagrancy statute the case was filed under? A No, sir.'

'Q You would have to look in the jacket, is that correct? A 'Yes, sir.'

The state then apparently attempted to introduce a slip or something to more specifically show the subsection of the vagrancy statute, for the state's counsel stated: 'We wish to offer this to show the subsection.' Objection was then taken by appellant and sustained by the court. This witness was then asked about another judgment:

'Q All right. How about 7131? A Billie Yvonne Coleman.'

'Q Does the judgment show a conviction on her? A Yes, it does.'

'Q And the offense please? A Vagrancy.'

The state then made inquiry about two other judgments showing convictions for the offense of vagrancy, involving a defendant by the name of Billie Yvonne Coleman, and the witness responded that the judgment records disclosed convictions for the offense of vagrancy. This witness also testified that she did not know either the appellant or Billie Yvonne Coleman.

[172 TEXCRIM 610] The appellant then developed testimony showing that there were two Virgil John Etchiesons in Dallas County.

While there may be merit in viewing this case from the standpoint of the admissibility or inadmissibility of the evidence relating to the prior convictions, as briefed by the appellant and the state, on the question of whether or not it was necessary to identify the appellant and the witness, we think that, properly, these prior convictions for the offense of vagrancy should be viewed and tested by the rules of admissibility of evidence showing prior convictions for offenses involving moral turpitude. The closest the state came to showing any subsection of the vagrancy statute was the...