Morgan v. State, s. 55097

• Decision Date: 02 November 1977
• Docket Number: Nos. 55097,s. 55097
• Citation: 557 S.W.2d 512
• Parties: Wayne R. MORGAN, Appellant, v. The STATE of Texas, Appellee. Jesse D. SANDERS, Appellant, v. The STATE of Texas, Appellee. to 55108.
• Court: Texas Court of Criminal Appeals

Page 512

557 S.W.2d 512

Wayne R. MORGAN, Appellant, v. The STATE of Texas, Appellee.

Jesse D. SANDERS, Appellant, v. The STATE of Texas, Appellee.

Nos. 55097 to 55108.

Court of Criminal Appeals of Texas.

Nov. 2, 1977 Appellants Motion for Rehearing Denied Nov. 23, 1977.

John Allen Curtis and Howard G. Wilson, Dallas, for appellants.

Henry Wade, Dist. Atty., Gary W. Love, Richard G. Worthy and James K. Johnson, Asst. Dist. Attys., Dallas, Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

These are appeals from convictions for violations of the Securities Act, Article 581-29(C), V.A.C.S. Each appellant initially pled not guilty to each count in each indictment. After the first witness testified on behalf of the state, each appellant changed his plea to guilty to count two of each of the indictments, and upon the state's motion counts one, three and four of each indictment were dismissed. The cases were tried before a jury on the issue of punishment and both appellants filed an application for probation. The jury assessed punishment for each appellant at six years and six months in the Texas Department of Corrections and a fine of $2,750.00 in each case. Probation was not granted.

The sufficiency of the evidence is not challenged and the testimony indicates that the appellants failed to inform investors of interrelations between companies which affected the financial status of such investments, and that no escrow in fact existed for the investors' money. These acts were in violation of Art. 581-29(C)(3), V.A.C.S., which makes it an offense for any person "In connection with the sale (or) offering for sale . . . of . . . any security or securities . . . (to) omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading, . . ."

Appellants' first eleven grounds of error assert reversible error was committed when evidence of extraneous offenses was admitted. The challenged evidence consists of the testimony of seven victims of appellants' scheme other than the six named in the indictments, and of various documents. Denial of a motion in limine on these matters is also challenged. These grounds of error will be considered together.

Appellants argue that "various parties who had purchased alleged securities in the same tracts of land, but who were not named in the indictment, were allowed, over (their) objections, to testify to the details of such purchases . . . (and) that such evidence was inadmissible in that each constituted an extraneous offense."

In Asay v. State, 456 S.W.2d 903, the Court held, "The State's right to introduce evidence is not restricted by entry of a plea of guilty by the defendant, or by his admission of facts sought to be proved." In Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869, it was stated, "(I)f relevant facts are admissible under a plea of not guilty, then we think they are also admissible under a plea of guilty." The fact that appellants entered pleas of guilty does not control disposition of this issue.

In Shappley v. State, Tex.Cr.App., 520 S.W.2d 766, a conviction for selling securities without having been registered as a dealer or salesman in Texas, the defendant complained of the trial court's introduction of evidence of extraneous sales of securities. After acknowledging the general rule that an accused is entitled to be tried on the accusation made in the state's pleading and not for collateral crimes or for being a criminal generally, we further stated that several exceptions have been established. The exceptions relevant in Shappley and in the present case are those of scienter and common plan, scheme or design. As was stated in Shappley, supra, at 771, "(U)nder the fraud counts, the extraneous sales were admissible to show intent or guilty knowledge on the part of the appellant in fraudulently misrepresenting facts concerning the sale of the bonds." See Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. The extraneous offenses were admissible and the first eleven grounds of error are overruled.

In their twelfth and last ground of error, the appellants contend error was committed when the trial court denied their motions to dismiss the indictments because the statute under which they were prosecuted, Art. 581-29(C)(3), supra, is unconstitutionally vague and indefinite. The motions to dismiss the indictments alleged:

"The law upon which such indictment is founded is in violation of the 5th and 14th Amendments to the Constitution of the United States in that such law is vague, indefinite, contradictory and uncertain as to not inform the Defendant what conduct on his part will render him liable to its penalties, to wit . . .

"(1) Vernon's Ann.Civ.St., art. 581-29 fails to define or otherwise advise as to the meaning of the term 'security or securities' and is vague and indefinite...