Gardner v. State

• Decision Date: 02 October 1985
• Docket Number: No. 536-83,536-83
• Parties: Robert Charles GARDNER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 831

699 S.W.2d 831

Robert Charles GARDNER, Appellant, v. The STATE of Texas, Appellee.

No. 536-83.

Court of Criminal Appeals of Texas En Banc.

Oct. 2, 1985.

Charles E. Perry, Court appointed on appeal, Wichita Falls, for appellant.

Timothy D. Eyssen, Dist. Atty., Wichita Falls, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING

CAMPBELL, Judge.

Our prior opinion is withdrawn. Appellant was convicted of the third degree felony offense of possession of a firearm by a convicted felon. V.T.C.A., Penal Code § 46.05. The jury found him to be an habitual offender by reason of two prior felony convictions and his punishment was set at confinement for life in the Texas Department of Corrections. See V.T.C.A. Penal Code § 12.42(d) prior to amendment. The Fort Worth Court of Appeals reversed his conviction, finding the evidence insufficient, and ordered entry of a judgment of acquittal in an unpublished opinion. Gardner v. State, (Tex.App.--Fort Worth, No. 2-81-231-CR, delivered May 4, 1983).

We granted the State's Petition for Discretionary Review to determine whether the court of appeals erred in ordering an acquittal rather than remanding the case for a new trial in accordance with our holdings in Collins v. State, 602 S.W.2d 537 (Tex.Cr.App.1980), and Ex parte Duran, 581 S.W.2d 683 (Tex.Cr.App.1979). On original submission we agreed with the State's Prosecuting Attorney and reformed the judgment of the court of appeals. We now grant appellant's motion for rehearing and affirm the judgment of the court of appeals.

The elements of the offense of possession of a firearm by a convicted felon are:

(1) a person

(2) who has been convicted of a felony

(3) involving an act of violence or threatened violence to a person or property. ¹

(4) who possesses a firearm

(5) away from the premises where he lives.

Ex parte Eldridge, 572 S.W.2d 716 (Tex.Cr.App.1978). The court of appeals found the evidence insufficient to prove the third element. To satisfy the third element of the primary offense, the indictment alleged a 1967 burglary conviction. Since burglary is not a crime of violence per se, it was incumbent upon the State to prove that the 1967 burglary offense involved an act of violence or threatened violence to property as alleged. Schutz v. State, 646 S.W.2d 224 (Tex.Cr.App.1983); Tew v. State, 551 S.W.2d 375 (Tex.Cr.App.1977).

In order to prove that the 1967 burglary offense involved violence or threatened violence to property, the State called an Assistant District Attorney, Boyd Richie, as a witness. Mr. Richie testified that he had examined the original files in the District Attorney's office involving the 1967 burglary; that it was an offense of burglary of a private residence at night, and was an offense involving actual violence to property. ²

The appellant called, as a witness, Ms. Connell, whose premises were the site of the 1967 burglary. She testified that the burglary occurred while she and her husband were at church; that when they left for church all the windows and doors of their home were closed; that no damage was done to the windows or doors; that whoever committed the burglary would have had to open a window or door to gain entry and close the same upon leaving, and that she did not know entry had been made until the following morning when she noticed that "everything was gone from under the Christmas tree."

Appellant testified in his own behalf, admitting he had committed the 1967 burglary. He further testified that he gained entry to the home through the back door, which was "open," and that he did not break or destroy anything during the commission of the offense.

On rebuttal, Assistant District Attorney Richie was recalled as a witness by the State and testified ³ that, under the Penal Code of Texas in effect in 1967, the opening of an unlocked door or the raising of an unlocked window was sufficient to constitute the force and violence necessary to sustain the burden of proof for conviction of burglary of a private residence at night. Richie further testified that in 1967 it was not necessary to show the use of violence in kicking in the door or using a hatchet or leaving pry marks, and that the slightest entry against the will of the person in control of the premises was sufficient.

The court of appeals correctly recognized that Richie's testimony, during the State's case-in-chief, was rank hearsay. Mr. Richie played no part in the trial of the 1967 burglary offense and his knowledge of that case derived solely from what he read in the files from that case. Lumpkin v. State, 524 S.W.2d 302, 304-05 (Tex.Cr.App.1975). The court of appeals then applied our well established rule ⁴ that:

"Hearsay is without probative value, even if admitted without objection. Mendoza v. State, Tex.Cr.App., 522 S.W.2d 898 [1975]; Reynolds v. State, Tex.Cr.App., 489 S.W.2d 866 [1972]. It constitutes no evidence, and will not be considered in determining the sufficiency of the evidence. Payne v. State, Tex.Cr.App., 480 S.W.2d 732 [1972]; Cherb v. State, Tex.Cr.App., 472 S.W.2d 273 [1971]; Rogers v. State, Tex.Cr.App., 368 S.W.2d 772 [1963]; O'Beirne v. State, Tex.Cr.App., 365 S.W.2d 787 [1963]."

Lumpkin v. State, supra at 305-06. Consequently the court of appeals refused to consider Richie's hearsay testimony in determining the sufficiency of the evidence. That court then concluded that the other evidence in the case was insufficient to establish that the 1967 burglary involved violence or the threat of violence to property and ordered an acquittal.

The State's Prosecuting Attorney asserts in his petition for discretionary review that the error in this cause was occasioned by the trial court erroneously admitting Richie's hearsay testimony. He further contends that this trial error is the cause of the "insufficiency" finding by the court of appeals. He argues that we must consider all the evidence, properly or erroneously before the jury, in determining sufficiency questions. He cites as authority for his position, inter alia, our opinion in Collins v. State, supra.

Collins, supra, is best understood when we examine our opinion in Porier v. State, 662 S.W.2d 602 (Tex.Cr.App.1984), viz:

"In Collins v. State, [citation omitted] the defendant successfully complained of hearsay testimony and maintained that the evidence remaining after the hearsay was excluded was insufficient. We refused to consider the sufficiency of the evidence under such circumstances and reversed and remanded. See also, Adams v. State, 639 S.W.2d 942 (Tex.Cr.App.1982); and Fearance v. State, 620 S.W.2d 577 (Tex.Cr.App.1980).

"The concurrence noted, however, that the holding in Collins only applied to, 'the special case of an appellant like Collins who tries to bootstrap himself into an acquittal by arguing first that a piece of evidence was admitted erroneously, and then that the erroneously admitted evidence must be discounted in considering the sufficiency of the evidence.' 602 S.W.2d at 539.

"The concurrence also noted that the holding did, 'not affect our general rule that, even though we have found reversible trial error, we still must consider a claim that all the evidence (proper and improper) was insufficient.' 602 S.W.2d at 540." 662 S.W.2d at 606.

It appears to us that an analytical flaw exists in our opinion in Collins due to its failure to mention, let alone discuss, the interplay between the Lumpkin line of cases and the Porier line of cases. On the one hand, Lumpkin holds that unobjected-to hearsay has no probative value and cannot be considered in determining the sufficiency of the evidence. Conversely, the line of cases relied upon in Porier, hold that in determining the sufficiency of the evidence, the reviewing court must consider all the evidence, properly or improperly admitted. Unless Collins overrules the Lumpkin line of cases sub silentio, ⁵ it appears as though Collins was erroneously decided because it fails to recognize the distinction between the admissibility of evidence and the probative value of evidence.

While it is true that, in determining sufficiency of the evidence, we consider all the evidence, admissible and inadmissible, we have never held that all evidence, admissible and inadmissible, has probative value and is capable of supporting a judgment. In fact, inadmissible hearsay is the only form of evidence that lacks probative value. Since such evidence lacks probative value, it is discounted when determining sufficiency questions. Whether we do not consider inadmissible hearsay in determining sufficiency questions or whether we consider it and then treat it as "no evidence" is a semantic distinction without a difference. The point is that the hearsay rule can co-exist with the "consider all the evidence" rule when sufficiency questions are addressed if we consider the hearsay, but consider it as no evidence. As stated by appellant in his motion for rehearing: "Without the State's evidence we have no evidence and with the State's evidence we have no evidence."

We need not decide the fate of Collins and Porier, nor of our rule concerning unobjected-to inadmissible hearsay in this case, however, because we find the evidence to be insufficient even if we assume that the unobjected-to hearsay testimony of Assistant District Attorney Richie possesses probative value. Mr. Richie's assertion that appellant's 1967 burglary conviction involved actual violence to property was a conclusion on his part. He testified concerning the basis for his conclusion on rebuttal: that in his legal opinion, the amount of force necessary to establish illegal entry under the burglary statute in effect in 1967 was also sufficient to establish violence to property under V.T.C.A., Penal Code § 46.05. Mr. Richie never controverted any of the factual circumstances concerning the burglary that were testified to by the appellant and Ms....