Phenix v. State, 44847

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Citation488 S.W.2d 759
Decision Date19 July 1972
Docket NumberNo. 44847,44847
PartiesRobert Alan PHENIX, Appellant, v. The STATE of Texas, Appellee.

Page 759

488 S.W.2d 759
Robert Alan PHENIX, Appellant,
The STATE of Texas, Appellee.
No. 44847.
Court of Criminal Appeals of Texas.
July 19, 1972.
Rehearing Denied Jan. 24, 1973.

Jones, Blakeslee, Minton, Burton & Fitzgerald, Roy Q. Minton, Charles R. Burton, John L. Foster, Austin, for appellant.

Robert O. Smith, Dist. Atty., Michael J. McCormick, Asst. Dist. Atty., and Jim D. Vollers, State's Atty., Austin, for the State.

Page 761


DALLY, Commissioner.

The conviction is for the possession of marihuana; the punishment, five years imprisonment.

At approximately 6:00 p.m., April 24, 1970, Officers Webb, Gonzales and Williams of the Travis County Sheriff's Department executed a warrant for the search of appellant's garage apartment. As the officers entered the partment, the appellant, who had opened the door for them, was observed putting what appeared to be a 'kilo' or brick-shaped package of marihuana into a paper sack. Officer Webb remarked, 'Well, now what do you suppose that is?' to which appellant replied, 'Well, you know what it is.' The officers then escorted the appellant into the adjoining room and proceeded to advise him of his constitutional rights as provided in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The officers' search of the premises revealed three 'lids,' i.e., plastic bags, containing one ounce of marihuana; a handwritten note that was on top of the desk; four marihuana cigarette butts, or 'roaches,' containing a total of .58 grams of marihuana in an ashtray in the living room; a brown tobacco pouch with two cigarettes containing .67 grams of marihuana; a billfold containing.$373.00; a plastic bag containing 363.42 grams of marihuana; a plastic vial, or capsule, containing 1.62 grams of hashish; a yellow bowl containing 33.85 grams of marihuana; a 'sifter'; a twenty-five pound capacity set of scales with measurements graduated into ounces; two boxes of plastic 'baggies'; wrappers and cellophane bags with marihuana residue in them that were retrieved from two wastebaskets; a 'brick' of marihuana weighing 849 grams; and the 'kilo' of marihuana weighing 1,768 grams. There was testimony that a total of 3018.44 grams of marihuana and hashish was discovered in the apartment.

Appellant's first four grounds of error relate to the admission into evidence of State's Exhibit No. 3, the above mentioned note found on the desk.

The note in question reads as follows:



'More on the way. I still owe you four lids worth. I'll check with Dan on the 150 tomorrow.


The note was offered 'as res gestae of the offense.' Appellant urges that the trial court's admission of the note into evidence over strenuous objection that it was hearsay was reversible error.

'Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' McCormick, Evidence, § 225 at 460. 1

A written extrajudicial utterance may be admissible in evidence to prove the truth of the assertions made; that is, for its testimonial value, if one of the many exceptions to the hearsay rule is satisfied, 5 Wigmore, Evidence § 1420 et seq. (3rd ed. 1940); McCormick, Supra, at 480--625, or it may be admissible in evidence without regard to the truth of the assertions made; that is, for its non-testimonial value as a circumstance, provided it is legally relevant. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971); 6 Wigmore, Supra, §§ 1788--1792. The latter use of the extrajudicial written utterance to which the hearsay rule does not apply has sometimes

Page 762

not been fully articulated and has been said to be part of the res gestae. 2

The note was not offered or received in evidence for its testimonial value; that is, for the truth of the assertions made. The note was not admitted to show 'more on the way,' that 'C.P.' 'owed' 'A.P.' 'four lids worth' or that 'C.P.' was going to 'check with Dan on the 150 tomorrow.'

The appellant now contends that the note is not legally relevant to any issue in the case. Although no objection that the note was not relevant was made at the trial, we do not dispose of appellant's contentions on that ground alone. Assuming that the note is not legally relevant to any issue in this case, its admission into evidence over an objection on that ground would be harmless error under the facts of this case. 3

The appellant argues that a consideration of the note could only lead a jury to believe that the appellant was dealing in marihuana, causing such prejudice and harm as to require reversal.

The other facts and circumstances in the case are such that the jury could only conclude that the appellant was dealing in marihuana. When the officers found 33.85 grams of marihuana in a yellow bowl, appellant asked them not to take that because that was for his 'personal' use. The only inference which could logically be drawn from this statement was that the balance of the marihuana, over six pounds, was being possessed for a purpose other than his own use. It was also logical to infer that the scales found were to be used in weighing out quantities of marihuana to be placed in the baggies found. The appellant had in his possession enough marihuana, the testimony shows, to make 7,500 cigarettes. Solely because of the quantity possessed, a jury could conclude that the appellant possessed the marihuana for purpose of sale, and take this into account in assessing the penalty. Collier v. State, Supra. 4

Even if the note was erroneously admitted under the facts and circumstances presented in this record, we conclude that its admission was harmless error and was not so prejudicial as to require reversal. See and compare Windham v. State, 169 Tex.Cr.R. 448, 335 S.W.2d 221 (Tex.Cr.App.1960). Where the evidence of guilt is clearly established, even constitutional error may be harmless. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

In appellant's fifth ground of error he urges 'The trial court erred in admitting into evidence statements allegedly made by the defendant at the time of his arrest, for the reason that such statements were not properly admitted under Article 38.22 of

Page 763

the (Vernon's Ann.) Code of Criminal Procedure.' He contends that the remark was erroneously admitted as a res gestae statement.

During the search of appellant's apartment, Officer Gonzales opened a desk drawer in which he found the yellow plastic bowl which contained the 33.85 grams of marihuana. Upon seeing Officer Gonzales take the container from the drawer, the appellant, who was sitting nearby, said, 'Oh, man don't take that; that's for my personal use.'

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court said, 'Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.' 384 U.S. at 478, 86 S.Ct. at 1630. See Taylor v. State, 420 S.W.2d 601 (Tex.Cr.App.1967). In Ramos v. State, 419 S.W.2d 359, 363 (Tex.Cr.App.1967), this court quoted with approval the opinion in Keefe v. State, 50 Ariz. 293, 72 P.2d 425 (1937), wherein it was said:

'The true test in spontaneous exclamations is not when the exclamation was made, but whether under all the circumstances of the particular exclamation the speaker may be considered as speaking under the stress of nervous excitement and shock produced by the act in issue, or whether that nervous excitement has died away . . .' See also Fisk v. State, 432 S.W.2d 912, 915 (Tex.Cr.App.1968).

Appellant's statement, a spontaneous exclamation uttered while the officers were executing the warrant for the search of appellant's residence, was properly admitted into evidence. Article 38.22 § 1(f), V.A.C.C.P.; Jones v. State, 458 S.W.2d 654 (Tex.Cr.App.1970); Parsley v. State, 453 S.W.2d 475 (Tex.Cr.App.1970). Appellant's fifth ground of error is overruled.

Appellant complains in ground of error number six that the trial court was in error in failing to grant the defendant's motion to suppress the evidence obtained by the officers' search. He contends that the items obtained through the execution of the search warrant were unlawfully seized 'for the reason that the affidavit for such search warrant was insufficient in law to authorize the issuance of the search warrant in that it does not allege that the described marihuana was being possessed contrary to law.'

The possession of marihuana 'is illegal under all conditions and circumstances except where authorized for use in research . . .' 5

Article 725b, § 21, V.A.P.C., provides:

'In any complaint, information, or indictment, and In any action or proceeding brought for the enforcement of any provisions of this Act, it shall not be necessary to negative any exception, excuse, provisio, or exemption, contained in this Act, and the burden of proof of any such exception, excuse, proviso, or exemption, shall be upon the defendant.' (emphasis supplied.)

We construe the procuring of a warrant for search for marihuana, the possession of which is proscribed by Article 725b, V.A.P.C., to be an 'action . . . for the enforcement of . . . this Act . . .' as contemplated by the statute. As we said in Cummins v. State, 478 S.W.2d 452, 455 (Tex.Cr.App.1972):

'We cannot believe that the Legislature, in writing Article 725b, V.A.P.C., entitled 'Narcotic Drug Regulations' intended that the drafters of an affidavit for a search warrant under Sec. 16 of the Act, should be charged with the burden

Page 764

of using greater precision in setting forth a violation of the Act than is required of those who prepare informations and indictments, under Sec. 21 of the Act. To hold otherwise would be to require the drafter of the affidavit for search warrant to negate any exception under...

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