Hoover v. State

• Court: Texas Court of Appeals
• Writing for the Court: Before J. CURTISS BROWN; J. CURTISS BROWN; SEARS
• Citation: Hoover v. State, 707 S.W.2d 144 (Tex. App. 1986)
• Decision Date: 13 February 1986
• Docket Number: No. A14-84-456-CR,A14-84-456-CR
• Parties: Sam HOOVER, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)

Page 144

707 S.W.2d 144

Sam HOOVER, Appellant, v. The STATE of Texas, Appellee.

No. A14-84-456-CR.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 13, 1986.

Rehearing Denied Feb. 27, 1986.

Windi Akins, Houston, for appellant.

Calvin A. Hartman, Winston E. Cochran Jr., Charles A. Rosenthal, Asst. Dist. Atty., Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

J. CURTISS BROWN, Chief Justice.

The appellant was found guilty by the court of the offense of theft by receiving. The court assessed punishment at fifteen years in the Texas Department of Public Corrections. Appellant brings some twelve grounds of error on appeal. We reverse.

On or about January 11, 1983, the apartment of Grace Taylor Robertson was robbed. The property taken in the robbery included a fur coat, hat and diamond rings. On January 15, 1983, Grace Taylor Robertson (hereinafter referred to as Robertson or Milligan) married Dr. W.O. Milligan. In February of 1983 Tracy Allen Farrell contacted appellant in connection with some paintings and a statue stolen from appellant's home. Farrell represented himself as a private investigator who was in the business of assisting people who had lost property. He would assist in the recovery of lost property for payment of a reward or finder's fee. Farrell and appellant entered into a contract for the recovery of appellant's stolen property.

During the course of business between Farrell and appellant the stolen fur coat of Robertson's became a topic of discussion. Appellant talked to Farrell about recovering the coat, and then attempted to locate the coat or someone who might have information concerning its whereabouts. Soon thereafter, Farrell was persuaded to aid the police in recovering Milligan's property.

On March 2, 1983, the police began to tape record the conversations between appellant and Farrell. It was during these conversations that Farrell told appellant that he had signed a contract with Dr. Milligan for the recovery of the coat which provided $7,500 as payment for the return of the coat.

On March 3, 1983, appellant brought the coat to Farrell's office. The exchange of money for the coat between appellant and Farrell was videotaped by the police. Appellant was arrested when he left Farrell's office with the reward money.

The indictment returned against appellant alleges that the complaining witness is GRACE MILLIGAN. Appellant argues that there is a fatal variance in the indictment since the evidence testified to at trial shows that on January 11, 1983, the complainant was known only as GRACE TAYLOR ROBERTSON. Thus, as appellant contends, the State has failed to show ownership in the coat by GRACE MILLIGAN. Where there is evidence to substantiate the reason for a variance then such variance is not material or fatal. Herrera v. State, 623 S.W.2d 940 (Tex.Crim.App.1981); Murphy v. State, 424 S.W.2d 231 (Tex.Crim.App.1968). The evidence presented at trial showed that Grace Taylor Robertson married Dr. Milligan four days after the theft, thus, showing that Grace Taylor Robertson and Grace Milligan were one and the same. This ground of error is overruled.

In his seventh and eighth ground of error appellant argues that the court erred in admitting evidence of an extraneous offense and then improperly allowed the state to bolster this unimpeached testimony. The State offered the testimony of John Minter who had purchased a diamond ring from appellant one day after the robbery of Grace Taylor Robertson. The State argues that this evidence was proper impeachment evidence since appellant denied having any dealings with Minter. The instant case involved the theft of a fur coat and not a diamond ring. This evidence was not needed by the State to establish theft by receiving. It has been consistently held that an accused is entitled to be tried on the accusation made in the State's pleading and that he should not be tried for some collateral crime or for being a criminal. Albrecht v. State, 486 S.W.2d 97 (Tex.Crim.App.1972). Nor, is it proper for the State to impeach a witness on a collateral matter. Flannery v. State, 676 S.W.2d 369 (Tex.Crim.App.1984). The trial court was in error when it overruled the objection of appellant to the testimony of John Minter. After Minter testified, the State bolstered his testimony by having Deborah Nance testify as to purchasing the same ring from Minter. Bolstering occurs when one item of evidence is improperly used by a party to add credence or weight to some earlier unimpeached piece of evidence offered by the same party. Lyons v. State, 388 S.W.2d 950 (Tex.Crim.App.1965); Pless v. State, 576 S.W.2d 83 (Tex.Crim.App.1978). The testimony complained of falls within this rule. Nance was put on the stand to bolster the testimony of Minter. The appellant did not attempt to cross-examine Minter or present any evidence tending to impeach his testimony. Nance's testimony was unnecessary to rebut any statement by appellant or support any of the testimony of Minter since Minter's testimony was unimpeached. Farris v. State, 643 S.W.2d 694 (Tex.Crim.App.1982).

The State's argument that the appellant failed to preserve error since he failed to object is wholly without merit. At trial, the trial counsel objected to the testimony of Nance in that her testimony would only serve to enhance their case. The state argues that the word enhance is not specific enough to focus on the question of bolstering. The word enhance as defined in Webster's Third New International Dictionary is as follows: "raise, lift, to increase the worth or value of; advance, augment, elevate, highten or increase." We fail to see how the trial judge was not aware that the appellant's objection was to the bolstering effect of Minter's testimony.

Although we find that the court was in error in admitting the testimony of Minter and Nance we find such error to be harmless, since this was a trial before the court, it is presumed the trial court disregarded any inadmissible evidence. Kimithi v. State, 546 S.W.2d 323 (Tex.Crim.App.1977); Komurke v. State, 562 S.W.2d 230, 235 (Tex.Crim.App.1978). Appellant's seventh and eighth grounds of error are overruled.

In his ninth ground of error the appellant argues that the evidence was insufficient to support a conviction for theft by receiving since the State failed to prove that defendant knew the coat was stolen from Grace Milligan. While the possession of stolen property is not sufficient to show that the accused knew the property was stolen, it is a circumstance to be considered along with other relevant circumstances in drawing an inference that an accused knew that which he possessed was property stolen by another. Hynson v. State, 656 S.W.2d 460 (Tex.Crim.App.1983); Ehrman v. State, 580 S.W.2d 581 (Tex.Crim.App.1979). Further, knowledge that goods have been stolen may be established by circumstantial evidence. Ehrman v. State, 580 S.W.2d at 583; Musgrave v. State, 608 S.W.2d 184, 187 (Tex.Crim.App.1980).

The evidence reveals that Farrell and appellant had discussions concerning the return of the fur coat to Dr. Milligan. Although appellant stated that he was not sure if this was Dr. Milligan's coat he did express some reluctance when Dr. Milligan requested a professional furrier to identify the coat. The appellant then questioned Farrell about the recovery of the stolen jewelry. He later agreed with Farrell that when the furrier was satisfied that this was the correct coat the money would pass. From this evidence, the judge as fact finder, could find that the appellant had knowledge the coat was stolen from Grace Milligan. See Houston v. State, 663 S.W.2d 455 (Tex.Crim.App.1984). Appellant's ninth ground of error is overruled.

In his twelfth ground of error appellant asserts that if we exclude the audio tape, videotapes and all other inadmissable evidence, that there is not sufficient evidence to convict the appellant. A review of Farrell's testimony indicates the trier of fact had sufficient evidence to support his conclusion of guilt. Houston v. State, supra; see Komurke v. State, supra. Appellant's twelfth ground of error is overruled.

During the trial of appellant the State offered three altered tape recorded conversations between appellant and Farrell. Appellant argues in his fifth ground of error, that the State has failed to comply with five of the seven proper predicate requirements for the admission of a sound recording as set forth in Edwards v. State, 551 S.W.2d 731 (Tex.Crim.App.1977). The predicate established in Edwards is as follows: (1) a showing that the recording device was capable of taking testimony, (2) a showing that the operator of the device was competent, (3) establishment of the authenticity and correctness of the recording, (4) a showing that changes, additions, or deletions have not been made, (5) a showing of the manner of the preservation of the recording, (6) identification of the speakers, and (7) a showing that the testimony elicited was voluntarily made without any kind of inducement. Id. at 733. Appellant argues that the State failed to satisfy requirements one through five.

It should be noted that some of the requirements can be inferred from the testimony and need not be shown with the same particularity required for the admission of other mechanically acquired evidence. By having a person who was in a position to hear the conversation testify that he made a tape recording of that conversation and that he listened to the tape recording and found it to coincide with what he heard the parties to say, then one can find the recording device was "capable of taking testimony" and the "operator of the device was competent." Edwards v. State, 551 S.W.2d at 733. Farrell testified that he recorded the conversations between appellant and himself, that he listened to the tapes and that such tapes were an accurate reproduction of their conversations. Requirements, one, two and...