Johnson v. State, 241-93
| Citation | 853 S.W.2d 574 |
| Decision Date | 12 May 1993 |
| Docket Number | No. 241-93,241-93 |
| Parties | Maxie Clinton JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Charles Freeman, Houston, for appellant.
John B. Holmes, Jr., Dist. Atty., and Rikke Burke and Craig Goodhart, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
A jury convicted appellant of delivery of a controlled substance and assessed punishment at confinement for six years, probated. The conviction was affirmed. Johnson v. State, 846 S.W.2d 373 (Tex.App.--Houston [14th], 1992). Appellant has filed a petition for discretionary review contending, inter alia, that the Court of Appeals erred in not considering all of the evidence in assaying the harm attendant to the introduction of evidence seized as a result of an illegal search. We agree.
The Court of Appeals held that the search was illegal and that certain evidence, consisting of crack cocaine, a ten dollar bill used to purchase the cocaine and some weapons, should not have been admitted for that reason. However, the court went on to hold that the admission was harmless after stating, "In this case, we must determine whether the jury found the appellant guilty because of evidence that a shotgun, pistol and cocaine were found at the scene of the arrest." Id. at 378. Since the testimony concerning the weapons and seized cocaine was not tied to the delivery but only to the arrest, the court found such admission to be harmless especially since the proof of the delivery was overwhelming. However, the ten dollar bill was tied to the delivery since it was used to buy the crack cocaine and was given to the accomplice witness by the undercover narcotics officer in exchange for the cocaine. After the illegal search that ten dollar bill was found in appellant's pocket. Consideration of the admission of the ten dollar bill should have been a part of the Court of Appeals' analysis.
In Esteves v. State, 849 S.W.2d 822 (Tex.Cr.App.1993), we held that when a court of appeals fails to consider all of the evidence relating to an appellant's challenge the cause will be remanded to that court for consideration of all of the relevant evidence. In the instant case the Court of Appeals did not mention the ten dollar bill in its analysis when such may well have made a difference. In such a situation the cause will be remanded...
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...as a practical matter, be produced. Johnson v. State, 846 S.W.2d 373 (Tex.App.— Houston [14th Dist.] 1992), rev ’ d on other grounds , 853 S.W.2d 574 (Tex. Crim. App. 1993). Where the duplicate sought to be admitted is identified as a fair and accurate copy, and the loss of the original was......
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...as a practical matter, be produced. Johnson v. State, 846 S.W.2d 373 (Tex.App.—Houston [14th Dist.] 1992), rev ’ d on other grounds , 853 S.W.2d 574 (Tex. Crim. App. 1993). Where the duplicate sought to be admitted is identified as a fair and accurate copy, and the loss of the original was ......
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Evidence
...as a practical matter, be produced. Johnson v. State, 846 S.W.2d 373 (Tex.App.—Houston [14th Dist.] 1992), rev ’ d on other grounds , 853 S.W.2d 574 (Tex. Crim. App. 1993). Where the duplicate sought to be admitted is identified as a fair and accurate copy, and the loss of the original was ......
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...as a practical matter, be produced. Johnson v. State, 846 S.W.2d 373 (Tex.App.—Houston [14th Dist.] 1992), rev ’ d on other grounds , 853 S.W.2d 574 (Tex. Crim. App. 1993). Where the duplicate sought to be admitted is identified as a fair and accurate copy, and the loss of the original was ......