Lichtenwalter v. State, 52619
| Decision Date | 13 July 1977 |
| Docket Number | No. 52619,52619 |
| Parties | Gary Elsworth LICHTENWALTER, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Appellant was convicted for aggravated assault. His punishment was assessed at five years' imprisonment.
The sufficiency of the evidence is not challenged.
The sole contention raised on appeal is that the trial court improperly admitted evidence of appellant's membership in the Bandido Motorcycle Club. Appellant's membership card was introduced into evidence at trial.
This prosecution arose from events occurring at the "Up Front Lounge" in Houston on February 26, 1974. Deputy Rodney Scott Morgan of the Harris County Sheriff's Department and Officer F. G. Dodd of the Houston Police Department were working as undercover agents in the "Up Front Lounge" on the night of the offense. Their purpose was to investigate "Alley Cat", a member of the Bandido Motorcycle Club and a known narcotics trafficker.
Appellant, Morgan, and Glen Wilhelm, a co-defendant in this case, went to the restroom of the lounge and a fight ensued. Dodd heard the commotion, drew his pistol and went to the aid of his fellow officer. When he opened the restroom door, he observed Wilhelm attempting to stab Morgan.
Dodd fired one shot in the air and assisted Morgan to his feet. Morgan drew his pistol and the two officers subdued appellant and the co-defendant.
The record clearly demonstrates that the jury was presented other evidence establishing appellant's membership in the Bandido Motorcycle Club. This evidence was admitted prior to the introduction of the membership card and no objection was voiced by the appellant when it was introduced.
George Nesbett, the bartender of the Up Front Lounge, testified that he heard a "lot of noise, racket and thumping" after the appellant and the co-defendant, Glen Wilhelm, entered the restroom. Nesbett stated that he went to the restroom to "see what was going on." At this point Nesbett testified:
Nesbett's testimony also established that the persons in the restroom were deputy Morgan, the appellant and Wilhelm, the co-defendant. The jury knew that deputy Morgan was not a member of the Bandidos. The jury was informed by Nesbett's above-quoted testimony that the appellant and the co-defendant were "members of the organization already in there", and that this organization was the "Bandido's Motorcycle Gang." Nesbett's testimony directly connected the appellant with the motorcycle club.
The jury also heard other testimony connecting the appellant with the Bandido organization. The jury was informed that the Up Front Lounge was a Bandido hangout and that Morgan's and Dodd's purpose at the bar was to investigate a member of the motorcycle club. Patricia Jean Kelly, the manager of the lounge, stated that members of the motorcycle club were in her establishment on the night of the offense. Nesbett, in addition to his statements quoted above, also testified that the Bandidos' girls were in the bar at the time of the altercation in the restroom and that his initial statement to the police regarding the incident did not contain everything he knew because he was fearful of "repercussions" from the motorcycle gang.
In Wood v. State, Tex.Cr.App., 511 S.W.2d 37, at 47, we stated:
"The general rule is that a judgment will not be reversed for error in admission of improper evidence if the same facts were proved by other testimony to which there were no objections."
We stated the same principle in Miles v. State, Tex.Cr.App., 499 S.W.2d 175:
"It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to." Also see, Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558; Hawkins v. State, Tex.Cr.App., 505 S.W.2d 578; Compton v. State, Tex.Cr.App., 500 S.W.2d 131; Maldonado v. State, Tex.Cr.App., 467 S.W.2d 468; Lassere v. State, Tex.Cr.App., 458 S.W.2d 81; Merx v. State, Tex.Cr.App., 450 S.W.2d 658.
No objection was made to Nesbett's testimony. The jury was aware that the appellant was a member of the motorcycle club before the identification card was introduced into evidence. The admission of the card, therefore, does not constitute reversible error. Appellant's ground of error is overruled.
The judgment is affirmed.
I.
The majority interprets the record in such a manner that its opinion will hang on one of the hooks of a rule that does not bear one for fundamental unfairness.
First, the majority's interpretation of Nesbett's testimony which "establish(ed) appellant's membership in the Bandido Motorcycle Club." Nesbett testified as follows:
While Nesbett's testimony established that the persons in the restroom were Deputy Morgan, the appellant and Wilhelm, the jury had just finished hearing Kelly's testimony that other members of the "Bandidos" were in the lounge itself on the night of the offense. Nesbett's testimony about "members of the organization already in there" does not answer whether he meant "in there" in the restroom or "in there" in the lounge itself. The jury did know that there were other members of the Bandido motorcycle gang in the lounge. But if Nesbett meant in the lounge, then his testimony merely stated that the mysterious man in the "little foyer here outside the restroom" was with members of the Bandidos already in the lounge.
Next, the "other testimony connecting the appellant with the Bandido organization." (Emphasis added). Apparently, the majority feels that other evidence inferentially connected the appellant with the Bandidos. They draw this inference from the fact that before his Bandido identification card was introduced there were numerous references to the Bandido motorcycle club itself; that Morgan's and Dodd's purpose at the bar was to investigate a member of the motorcycle club; that Kelly testified that members of the motorcycle club were in her establishment on the night of the offense; that Nesbett testified that the Bandidos' girls were in the bar at the time of the altercation in the restroom; and that his statement to the police was not complete because he was fearful of "repercussions from the motorcycle gang."
These facts, the majority feels, connected the appellant with the Bandidos. I concede that the jury was informed that the "Up Front Lounge" was a Bandido hangout and that Morgan's and Dodd's purpose at the bar was to investigate a member of the motorcycle club. However, I am not sure whether the majority feels the inference of a non sequitur or the hammer of an identification card. I am equally not sure what the jury felt.
Next, assuming strained arguendo that Nesbett's testimony "directly connected" the appellant to the Bandidos and makes possible the application of the rules of Wood, supra, and Miles, supra, the majority shortsightedly applies these rules.
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