Hoffert v. State, s. 67307

• Decision Date: 28 October 1981
• Docket Number: No. 2,67308,Nos. 67307,s. 67307,2
• Citation: 623 S.W.2d 141
• Parties: Linda Yvonne HOFFERT and Linda Darnelle Jones, Appellants, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 141

623 S.W.2d 141

Linda Yvonne HOFFERT and Linda Darnelle Jones, Appellants, v. The STATE of Texas, Appellee.

Nos. 67307, 67308.

Court of Criminal Appeals of Texas, Panel No. 2.

Oct. 28, 1981.

Gary J. Cohen, Austin, for appellant.

Edward J. Walsh, Dist. Atty., and Edgar A. Nooning, III, Asst. Dist. Atty., Georgetown, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

These appeals are taken from convictions for the offense of delivery of methamphetamine to a police officer, James Wolsch, on May 22, 1979. Both appellants elected to enter pleas of guilty before a jury and have the jury jointly assess punishment. Consequently, on December 10, 1979 after a trial was held on the single issue of punishment, the jury rejected applications for probation and each appellant was assessed punishment at five years confinement.

In their first ground of error appellants contend that the trial court erred in permitting, over timely objection, the introduction of evidence of extraneous offenses. The extraneous offenses complained of occurred during the testimony of Officer Wolsch when he testified as follows:

"Q. Were the Defendants, Linda Jones and Linda Hoffert, doing anything unusual when you came into the house?

A: Yes.

MR. COHEN: Your Honor, just for the purpose of protecting the record, I would like to reflect that we object to the officer's testimony at this point for the grounds that were previously stated in the hearing before the Court.

THE COURT: All right. That objection is overruled.

Q: What were the Defendants doing unusual?

A: Smoking marijuana.

Q: Officer, was anybody else in that house at that time?

A: There were quite a few small children.

Q: How old were these children?

A: Two to three years.

Q: How many?

A: There were quite a few. She stated that she kept children. I would say there were six or so.

Q: She stated to you that she kept children?

A: Yes.

Q: Was this marijuana being smoked in their presence?

A: Yes.

Q: Officer Wolsch, did you purchase anything from these Defendants at that time?

A: Yes, I did.

Q: And what was that?

A: I purchased one gram of methamphetamine, or speed.

Q: Who told you it was one gram?

A: Ms. Hoffert."

In addition to his testimony that appellants were smoking marijuana in front of small children, Officer Wolsch also testified as follows:

A: Yes. I told them that I would be interested in purchasing some larger amounts of methamphetamine if they would be able to get it, and she stated yes, that the person they were getting it from always had plenty, and that she didn't know the price right offhand of a quarter ounce or an ounce, but that she would check on it, that I could get back with her later and find out the prices and find out how much it would be and how much they could get.

Q: You referred to 'she.' Which Defendant?

A: Linda Hoffert.

Q: At the time of this transaction was there any conversation as to marijuana?

A: Yes.

Q: What was the substance of that conversation?

A: Okay. Mrs. Hoffert stated that she did not have more of the Sinsemilla marijuana but that they had some low-grade Colombian and some commercial marijuana that they had access to pounds of and that she had picked up some of it and she had some lids over there."

The trial judge ruled the evidence admissible, and stated:

"THE COURT: Well, just on the punishment phase, though, the jury has to determine what the punishment is, and that's what I would be concerned with, all of the facts and circumstances surrounding the alleged offense, that they would be entitled to have that information presented to them in determining what punishment should be imposed.

THE COURT: Well, if all of this took place at the same time that the alleged offenses which are charged in the Indictment occurred, I feel that whatever took place there at that time is admissible in evidence."

What the officer saw as well as the conversations about obtaining additional controlled substances all occurred contemporaneously with the instant offense. It is well settled that where an offense is one continuous transaction, or another offense is part of the case on trial or closely interwoven or blended with the case on trial, proof of all facts relating to the transaction or other offense is proper as part of circumstances attending the offense. Jones v. State, 505 S.W.2d 909 (Tex.Cr.App.1974); Johnson v. State, 510 S.W.2d 944 (Tex.Cr.App.1974). Such an extraneous transaction is admissible to show the context in which the instant offense occurred under the reasoning that events do not occur in a vacuum and the jury has a right to hear what events immediately surrounded the criminal act charged so that they may realistically evaluate the evidence. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

Moreover, the alleged offer to sell additional methamphetamine and marijuana would have constituted an offense under § 4.03(a) of the Controlled Substances Act. ¹ In Rios v. State, 557 S.W.2d 87, 92 (Tex.Cr.App.1977) the Court considered a similar situation in which the defendant allegedly made an offer to sell heroin to a police officer during the commission of the offense for which he was charged, and the Court wrote:

"The alleged offer to sell, if indeed it was an offer to sell, would have constituted an offense under Sec. 4.03(a) of the Controlled Substances Act. We need not decide whether appellant committed an extraneous offense on March 24, 1974, as the appellant's activity is res gestae of the offense. Spencer v. State, 466 S.W.2d 749 (Tex.Cr.App.1971); Jones v. State, 505 S.W.2d 909 (Tex.Cr.App.1974)."

Appellants also argue that res gestae is not applicable when, as here, there is a plea of guilty entered, because guilt is not a material issue in dispute. It is true, as we wrote in Murphy v. State, 587 S.W.2d 718 722 (Tex.Cr.App.1979), that extraneous transactions may only become admissible upon a showing by the prosecution both that the extraneous offense is relevant to a material issue in the case, and the relevancy outweighs its inflammatory or prejudical potential.

However, appellants' argument must fail. At the outset we are met with the decision in York v. State, 566 S.W.2d 936, 938 (Tex.Cr.App.1978) where the Court wrote:

"A plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt; the introduction of testimony by the State is to enable the jury to intelligently exercise the discretion which the law vests in them to assess the penalty. Brown v. State, 487 S.W.2d 86 (Tex.Cr.App.1972); Alexander v. State, 479 S.W.2d 44 (Tex.Cr.App.1972). The State's right to introduce evidence is not restricted by the entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved; relevant facts admissible under a plea of not guilty are also admissible under a plea of guilty. Morgan v. State, 557 S.W.2d 512 (Tex.Cr.App.1977); Asay v. State, 456 S.W.2d 903 (Tex.Cr.App.1970)."

The material issue during the punishment phase is, obviously, what punishment to assess; this Court has held that the circumstances surrounding the instant offense are therefore material in order for the jury to intelligently perform this function. Rios v. State, supra. In this sense, therefore, the circumstances surrounding appellants' arrest are also relevant as to a material issue. As the Court most recently wrote in Archer v. State, 607 S.W.2d 539 (Tex.Cr.App.1980) when the defendant was tried for unlawful possession of a firearm by a felon, and the arresting officer testified that he found one hundred and fifty pills and capsules in his coat pocket:

"Such an extraneous offense is admissible to show the context in which the criminal act occurred; this has been termed the 'res gestae,' under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence."

Thus we are constrained to hold that these extraneous offenses were admissible to show the circumstances or context of the instant offense, and since a guilty plea does not restrict the State's right to introduce evidence during the punishment phase, the trial court did not err. Appellants' first ground of error is overruled.

The Court has also consistently held that it is not necessary to give a limiting instruction on an extraneous offense which is admitted as part of a transaction which includes the offense on trial. Archer v. State, supra, at 542, Luck v. State, 588 S.W.2d 371, 376 (Tex.Cr.App.1979), King v. State, 553 S.W.2d 105 (Tex.Cr.App.1977). Having previously concluded that the evidence concerning the smoking of marijuana, as well as the offers to sell additional marijuana and methamphetamine were properly admitted to demonstrate the context of the instant offense, we find that the trial court did not err in failing to give the requested limiting instruction as to these extraneous transactions. Appellants' fifth ground of error is overruled.

By their second ground of error appellants assert that the trial court erred in admitting, over timely objection, the unqualified reputation testimony of two police officers. Sergeant Beck of the Austin Police Department and Lieutenant Swofford of the Round Rock Police Department both testified that they knew appellants and knew that their general reputation in the community was bad. Appellants argue that Sergeant Beck's testimony should not have been admitted because on cross examination outside the presence of the jury he stated that he had only spoken with other police officers regarding appellant Jones' reputation, and that he was not certain where appellant Jones resided within Travis County. No complaint is made regarding his reputation testimony about appellant Hoffert. In front of the jury during cross examination the...