McBride v. State, 47674

• Decision Date: 20 March 1974
• Docket Number: No. 47674,47674
• Citation: 506 S.W.2d 887
• Parties: Dennis McBRIDE and Verle Byars, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 887

506 S.W.2d 887

Dennis McBRIDE and Verle Byars, Appellants, v. The STATE of Texas, Appellee.

No. 47674.

Court of Criminal Appeals of Texas.

March 20, 1974.

Rehearing Denied April 3, 1974.

Robinson & Wilson, Abilene, for appellants.

Ed Paynter, Dist. Atty., Patricia A. Elliott, Asst. Dist. Atty., Abilene, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

The appeals are from convictions for the offenses of conspiracy to commit theft. After the jury returned a verdict of guilty, punishment was assessed by the court at two years, probated. Appellants contend that the trial court erred in admitting into evidence, over objections, conversations between the arresting officers and one of the appellants. After reviewing the record, we agree.

The record reflects that appellants McBride and Byars worked for the Unitab Company in Abilene for a number of years. Both appellants submitted their resignations to Jack Williams (the President of Unitab) on May 30, 1972.

The State's theory throughout the entire case was that the appellants entered into a positive agreement between themselves to form a new company in Wichita, Kansas, whose operations were identical to Unitab. Byars is an accountant whose clients used Unitab for purposes of doing their data processing work.

Shortly after appellants' resignations, Byars' clients decided to take their business elsewhere. This was done on the advice of Byars. Thereafter, McBride's newly formed company in Wichita, Air Capital Computing, acquired these clients' business.

On July 15, 1972, McBride telephoned one Arnold Wagner, who was employed by Unitab as a computer operator. Wagner testified that during the phone call McBride asked him if he would do him a favor by reproducing the program decks in question; that McBride stated that he would pay him to do it; and that he should deliver them to Byars around noon on July 17th in the parking lot of Horne's Restaurant. On the following Monday (July 17), Wagner told Williams and Gafford, the Vice-President of Unitab, about McBride's call, after which they all went to the District Attorney's Office. From there, Gafford went back to Unitab and made copies of the programs in question. After Gafford had come back, Wagner went to Horne's parking lot, whereupon he found Byars waiting for him. Wagner then got into Byars' car, at which time Byars asked him if 'he had brought the things with him.' Wagner replied, 'yes,' went back to his car, and gave them to him. Byars then gave him $40.00 and stated that if he wanted more he could write a check. Wagner then gave a 'prearranged secret signal' to police officers, who promptly arrested Byars.

Sergeant Harold Emerson of the Abilene Police Department testified that he went to the District Attorney's Office with Texas Ranger Sid Merchant at approximately 11:40 a.m. on the day in question; that Gafford came to the officer with a box of IBM cards, which he gave to Wagner; that Wagner took the cards and went to Horne's Restaurant to meet Byars; that he and Merchant also went to the parking lot of Horne's Restaurant, whereupon they saw Byars sitting in his automobile; that they saw Wagner take the box of cards to Byars' car; and that after Wagner had given him the prearranged signal they both walked up to his car. Merchant then read appellant Byars his 'rights.' ¹ Emerson then asked Byars what he was doing, to which he replied that he was 'buying some IBM cards from this boy' and that he had given him $40.00 for the cards. ² Byars was then taken to the police station.

Byars, testifying in his own behalf, stated that McBride asked him to pick up an Easy-Code AAACLM deck from Wagner at Horne's Restaurant on July 17; that he had no intention to steal the cards; and that there was never any conspiracy or positive agreement between him and McBride to steal anything from Williams. Upon cross-examination of Byars, the following was brought out in reference to his conversations with Merchant while under arrest and at the police station:

'Q. Okay, Do you recall telling him (Ranger Merchant) also that you had also obtained some accounts from Abilene Printing and Stationery?

'A. I don't know that I told him about that; no, sir.

'MR. WILSON: Your Honor, at this time, for the purpose of the record, we object to any questioning, or testimony along this line for the purposes of impeachment, or for any other purposes, for the reason that Mr. Byars was under arrest at the time and any statements made by Mr. Byars after that time while he was under arrest are required by law to be in writing and sworn to before they can become admissible into evidence, must adhere to the law that the statute requires. These have not met them, and for that reason, and that reason alone, we object to any testimony or questioning regarding this matter.

'THE COURT: All right. On that basis alone, I will overrule your objection.

'MR. WILSON: Note our exception.

'Q. Now, Mr. Byars, going back and just for purposes of refreshing us as to where we were, I believe you are now talking to Mr. Sid Merchant, a Texas ranger at the Abilene Police Department. We went over your stay of your previous employment with Unitab and your statement that you quit for personal reasons.

'Then, you were last being questioned with regard to whose cards were in that box. Do you recall that being brought up?

'A. No, sir, I do not.

'Q. Now, do you recall telling Mr. Merchant, at that time, that you, meaning Verle Byars, were entitled to the contents of that box and subject Williams, or Mr. Jack Williams had refused to turn them over to you, and this is the reason that you had done this?

'A. Not--I don't recall making that statement; no sir.

'Q. Well, do you deny making that statement to Mr. Sid Merchant?

'MR. ROBINSON: Now, Your Honor, again, we would like to impose objections here to this line of testimony and questioning on the basis that none of this is in writing. It is inadmissible for any purpose whatsoever.

'THE COURT: I overrule your objection.

'MR. ROBINSON: We further object on the basis that it is an attempt of impeachment, and no statements to the contrary are in evidence as to whether he admits or denies a statement. These statements are an improper attempt to impeach him.

'THE COURT: I overrule your objection.'

After Byars had testified, the State then called Merchant to the stand. Merchant testified:

'A. Yes, sir, we went to an office of the Detective Division in the Police Department.

'Q. All right. Did you have a conversation with him at that time?

'A. Yes, sir.

'Q. Did you have any conversations with him relative to his employment?

'A. Yes, sir, he stated that he had--

'MR. ROBINSON: Your Honor, we again--excuse me, Mr. Merchant. We object to any statement made by the Defendant. It certainly shows that he was under arrest at the time at the Police Station and same is not being in writing.

'MR. PAYNTER: Well, Your Honor, we offer them for purposes of showing the inconsistencies with the testimony here at trial and the...