Norton v. State, 54081

• Decision Date: 05 April 1978
• Docket Number: No. 2,No. 54081,54081,2
• Citation: 564 S.W.2d 714
• Parties: James L. NORTON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 714

564 S.W.2d 714

James L. NORTON, Appellant, v. The STATE of Texas, Appellee.

No. 54081.

Court of Criminal Appeals of Texas,Panel No. 2.

April 5, 1978.

Rehearing En Banc Denied May 3, 1978.

James L. Norton, pro se.

Carol S. Vance, Dist. Atty., James T. Jordan and John S. Holleman, Asst. Dist. Attys., Houston, for the State.

Before ONION, P. J., and DOUGLAS and ODOM, JJ.

OPINION

ODOM, Judge.

This is an appeal from a conviction for making a false report to a peace officer, proscribed by V.T.C.A., Penal Code Sec. 37.08(a). Trial was before a jury which found appellant guilty and assessed the maximum penalty provided by statute.

The facts adduced at trial established that on April 7, 1975, appellant approached J. L. Carter and asked him to procure enough marihuana to constitute a felony offense so that appellant could plant it on his ex-wife, Mrs. Mary Norton, or have it planted on her. On April 11, 1975, at about 12:15 p.m., Carter, along with Wilbur Austin, drove to Mrs. Norton's house and Carter informed Mrs. Norton that her ex-husband was trying to make trouble for her. Evidently Carter was of the opinion that some narcotics had been placed in Mrs. Norton's car and she allowed him to search the vehicle for it. Under the passenger side of the front seat four baggies of marihuana and a bottle of pills were found. Carter asked Mrs. Norton if he could have the drugs, to which she replied that he could, except for one baggie of marihuana which she wanted to give to the police.

On the same day, Officer J. M. Smith testified that he was assigned as desk officer in the narcotics division and that at about 9:30 a.m. he had received a phone call from a man who refused to identify himself who stated that a lady living at 13807 Taylorcrest (the residence of Mrs. Norton) was selling narcotics out of her car. Two undercover narcotic agents were sent to investigate the report and were conducting their surveillance when Carter and Austin arrived at Mrs. Norton's house at noon on April 11. After observing what appeared to them to be a narcotics sale, they arrested Carter and Austin a short distance from Mrs. Norton's residence. The marihuana and pills were seized. The narcotic agents then went to Mrs. Norton's residence and questioned her regarding the incident. Mrs. Norton testified that after Carter and Austin left she called the police department and the district attorney's office concerning the matter. She then drove down to police headquarters to make out a report.

The evidence reflects that the informer had made several phone calls to the police on April the eleventh and the last call was made at approximately 3:00 p.m. Mrs. Norton was at the police station when this last phone call was made and listened in on the conversation between the informer and Officer Smith. Mrs. Norton testified that she recognized the voice of the informer as being that of the appellant. She was then asked by the police officers to speak to him on the phone. She related that she asked the appellant why he was doing this and "hadn't he already done enough." Officer Smith testified that the individual who called this last time at 3:00 p.m. was the same individual he had previously talked to. Lieutenant Rivera of the Houston Police Department testified that he talked to the informer and said: "Mr. Norton, did your wife get the license number of the vehicle," to which the informer stated, "No, she didn't." He further asked the informer whether he had taken down the license plate number, to which the informer replied that he did not because he was not at home.

In his first two grounds of error appellant complains of the trial court's action in overruling his oral motion for continuance. We note that the court had granted appellant's two prior written motions for continuance. The third motion for continuance, of which appellant complains, was not in writing, was not sworn to by appellant, nor were the requirements of Article 29.07, V.A.C.C.P., met. Therefore, nothing is presented for review. Lopez v. State, Tex.Cr.App., 535 S.W.2d 643; Gonzales v. State, Tex.Cr.App., 470 S.W.2d 700; Stubbs v. State, Tex.Cr.App., 457 S.W.2d 563. See also Allen v. State, Tex.Cr.App., 505 S.W.2d 923. Moreover, the record affirmatively reflects that the appellant did not apply for process of witness until two days before trial.

In Peoples v. State, Tex.Cr.App., 477 S.W.2d 889, we held:

"If a defendant does not apply for process of a witness until a day or two before his trial, he has failed to exercise the due diligence which is necessary to support a motion for continuance, particularly where several months have elapsed between the date of the indictment and the date of the trial."

The first two grounds of error are overruled.

In his next three grounds of error the appellant complains that the trial court erred by admitting over timely objection hearsay evidence pertaining to his alleged commission of the crime and that, because of the nature of this evidence, the evidence was insufficient to show his involvement in the crime. We overrule these contentions. The evidence clearly established that Officer Smith recognized the voice of the informer when Mrs. Norton listened in on the last telephone conversation as being that of the person who had called previously. Mrs. Norton testified that she recognized the voice as that of the appellant. Lieutenant Rivera testified that he called the appellant by his name and appellant responded. The foregoing evidence was sufficient to establish the requisite identity of the informer as being the appellant.

In Locke v. State, Tex.Cr.App., 453 S.W.2d 484, we quoted from Collins v. State, 77 Tex.Cr.R. 156, 178 S.W. 345, 355, wherein we held:

"Voice is a competent means of identification if the witness had any previous acquaintance with the person identified. It is sufficient that the witness has heard such person's voice but once previous to the time in question." See also Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174.

As to the argument that the evidence of the conversations was inadmissible as being hearsay, our response is that the conversations did not constitute hearsay at all. Whether the law of evidence denominates such statements as being operative facts or verbal acts, it is clear that "(I)f the fact in controversy is whether a communication was made and not its truth or falsity, the writing, words or other communications is original evidence and not...