Lacy v. State, 40821

• Decision Date: 29 November 1967
• Docket Number: No. 40821,40821
• Citation: 424 S.W.2d 929
• Parties: Albert LACY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 929

424 S.W.2d 929

Albert LACY, Appellant, v. The STATE of Texas, Appellee.

No. 40821.

Court of Criminal Appeals of Texas.

Nov. 29, 1967.

Rehearing Denied Feb. 14, 1968.

Second Rehearing Denied March 27, 1968.

Weldon Holcomb, Tyler, for appellant.

Hunter B. Brush, Dist. Atty., William H. Power, Asst. Dist. Atty., Tyler, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

The conviction is for the unlawful possession of wine for the purpose of sale in a dry area; the punishment, two years in jail and a fine of $3,000.

Five prior convictions for offenses of like character were alleged for enhancement of the punishment.

The issue of appellant's guilt or innocence was first submitted to the jury. After return of the jury's verdict of guilty, appellant requested that the jury assess the punishment.

At the hearing on punishment, proof was offered by the state of four of the five prior convictions alleged for enhancement (the state having been permitted to withdraw from the information the allegation, in paragraph 6, of one of the prior convictions). Proof was also offered by the state showing other convictions of appellant for liquor law violations besides those alleged for enhancement.

Upon the trial on the issue of guilt or innocence, state liquor board inspector Gibson L. Hadaway testified that on the morning of March 9, 1966, after having received information that a load of whisky was going to be hauled, he went to a certain location in the northern part of the city of Tyler and stationed himself underneath a vacant house. Soon he observed appellant walk across the street and enter his cafe. Appellant then walked back across the street and the officer saw a Buick automobile being driven in behind a house at 923 West Field Street. People were then observed rushing back and forth from the car into the house at 923 West Field Street. Appellant was observed making a trip to his house and coming back to the house on Field Street with what appeared to be a case of beer. Appellant was then seen to go behind the house where the car was parked and then come out of the house with two sacks, one under each arm. The officer then seized the two sacks and found that each sack contained six four-fifths quarts of Gypsy Rose wine.

In his first ground of error, appellant insists that the court erred in admitting hearsay testimony over his objection when Officer Hadaway, upon being asked on direct examination why he was underneath the vacant house on the occasion in question, testified:

'I had received information that a load of whisky was going to be hauled and I called Lieutenant Elliott, of the Police Department and had him drop me off, out there.'

Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615, McCormick v. State, 166 Tex.Cr.R. 484, 316 S.W.2d 736, Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34, Hodge v. State, 214 S.W.2d 469, and Rosales v. State, Tex.Cr.App., 399 S.W.2d 541, are relied upon by appellant in support of his contention.

The state concedes that the testimony was hearsay but insists that under the record no reversible error was shown. With such contention we agree.

An issue of probable cause for appellant's search without a warrant was made before the jury--which fact distinguishes the case from the above cases cited by appellant. Such testimony was therefore admissible on the issue of probable cause, although such issue was not submitted to the jury in the charge.

Further, the mere proof that Officer Hadaway had received information that a load of whisky was going to be hauled--which information did not connect appellant therewith--could not have been injurious to him. In the absence of injury, no reversible error could be shown. Miller v. State, Tex.Cr.App., 396 S.W.2d 128.

In his second ground of error, appellant insists that:

'The trial court erred in allowing the state to introduce evidence at the main trial of the character or reputation of the defendant when same had not been placed in issue.'

Appellant predicates this ground of error on the court's action in permitting Officer Hadaway to testify that, in a conversation with appellant regarding the subject of bootlegging, appellant had stated to the witness: '* * * he (appellant) was a bootlegger and that he knew we knew he was a bootlegger,' and on the further testimony by the officer that prior to and near the day in question he had 'seen Albert Lacy sell beer and whisky; take the money for it and deliver it to cars parked out in the front, to customers out in front of his place of business, several times on Sunday morning, early.'

It should first be pointed out that no objection was made to the testimony on the ground now urged in appellant's brief.

Appellant's objection to the witness's testimony was that it was highly prejudicial and inflammatory because it involved extraneous matters. We perceive no error.

Appellant's statements in conversation with the witness that he was a bootlegger were admissible against him on the issue of the purpose for which he possessed the wine in question. See: 24 Tex.Jur.2d 170, Sec. 614.

The testimony of the officer with reference to having seen appellant sell beer and whisky was admissible on the issue of whether he possessed the wine in question for the purpose of sale. McLendon v. State, 101 Tex.Cr.R. 128, 274 S.W. 159; Moreno v. State, 122 Tex.Cr.R. 178, 54 S.W.2d 509.

Our disposition of appellant's second ground of error also disposes of his third ground of error, which insists that such testimony should not have been admitted because it constituted proof of extraneous offenses and separate acts of misconduct when 'the issues of intent, identity or system had not arisen in the case.' Such ground of error is overruled.

In his ground of error $4, appellant complains of the court's failure to limit the jury's consideration of the evidence of extraneous offenses and other acts of misconduct in his charge on the issue of guilt or innocence.

We perceive no error, as it is the rule that evidence which goes to prove one of the main issues need not be limited. Lane v. State, 111 Tex.Cr.R. 367, 12 S.W.2d 1027; Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395; Moss v. State, Tex.Cr.App., 364 S.W.2d 389. The evidence of other sales by appellant was admissible to prove the purpose for which he possessed the wine in question--which was one of the main issues in the case. While such evidence showed extraneous offenses, under the rule stated a limiting charge was not required.

In his ground of error $5, appellant complains of the court's action in permitting the state to introduce in evidence at the hearing on punishment the information in the case. Appellant objected to the information (state's exhibit $33) on the ground that it was an attempt to bolster the state's case and was hearsay. Urban v. State, 387 S.W.2d 396, is relied upon by appellant in support of his contention.

In Urban v. State, supra, this court, in a majority opinion of two to one, held that an indictment was inadmissible as hearsay. In the opinion the court recognized that it was proper to read the indictment to the jury and for the jury to take it into the jury room during deliberation. The conviction was reversed because of insufficiency of the evidence.

In the instant case, the information was properly read to the jury at the hearing on punishment, except the allegations in paragraph 6 which were withdrawn by the state. The information, with the exception of paragraph 6, was also admitted in evidence and the jury was instructed not to consider the same as any evidence against appellant but only to determine whether the state had met its burden of proof with respect to the allegations of prior convictions. The jury was specifically charged not to consider paragraph 6 thereof, which had been withdrawn by the state.

Under the record, we perceive no injury to appellant by the admission of the information in evidence, and overrule the ground of error.

In his sixth and last ground of error appellant insists that in his charge to the jury on punishment the court commented upon the weight of the evidence in paragraph VIII thereof, which was an instruction to the jury with reference to its consideration of the evidence of prior convictions other than those pleaded for enhancement in fixing the penalty in the case.

We find no exception to the court's instruction on the ground that it was on the weight of the evidence. We have, however, considered the instruction given by the court and find that it does not assume the prior convictions but specifically authorized the jury to consider the prior convictions 'if you find there were any such other convictions of this Defendant.' The ground of error is overruled.

The judgment is affirmed.

DISSENTING OPINION

MORRISON, Judge.

I cannot bring myself to agree with the disposition of appellant's fourth ground of error.

This Court has said on many occasions that evidence of prior sales of liquor is admissible in cases wherein the accused is charged with possession of liquor, but that such evidence is only admissible for the purpose of showing the accused's intent in possessing the liquor. Ybarra v. State, Tex.Cr.App., 401 S.W.2d 608; Davidson v. State, 161 Tex.Cr.R. 486, 278 S.W.2d 861; Gilmore v. State, 159 Tex.Cr.R. 121, 261 S.W.2d 854; Abston v. State, 157 Tex.Cr.R. 500, 250 S.W.2d 214; Carroll v. State, 156 Tex.Cr.R. 533, 244 S.W.2d 828; Morrison v. State, 155 Tex.Cr.R. 106, 230 S.W.2d 808; Dodd v. State, 149 Tex.Cr.App. 278, 193 S.W.2d 819; Lawson v. State, 148 Tex Cr.R. 140, 185 S.W.2d 439; Smiley v. State, 146 Tex.Cr.R. 342, 174 S.W.2d 973; Woodruff v. State, 145 Tex.Cr.R. 324, 167 S.W.2d 769; Crutchfield v. State, 144 Tex.Cr.R. 291, 162 S.W.2d 699; Purselley v. State, 142 Tex.Cr.R. 535, 155 S.W.2d 378; McDowell v. State, 142 Tex.Cr.R. 530, 155 S.W.2d 377; Brooks v. State, 138 Tex.Cr.R. 526, 137 S.W.2d 768; Balleu v. State, 128 Tex.Cr.R. 375, 82...