Raley v. State

• Decision Date: 16 March 1977
• Docket Number: No. 46123,46123
• Citation: 548 S.W.2d 33
• Parties: Morris W. RALEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 33

548 S.W.2d 33

Morris W. RALEY, Appellant, v. The STATE of Texas, Appellee.

No. 46123.

Court of Criminal Appeals of Texas.

March 16, 1977.

John T. Montford, on appeal only, Lubbock, for appellant.

Steve W. Simmons, Dist. Atty., and David R. Rosado, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This is an appeal from a conviction for embezzlement under Article 1534, Vernon's Ann.P.C. Appellant was tried before a jury and assessed punishment of two years in the Texas Department of Corrections. Imposition of sentence was suspended and appellant was placed on probation.

Appellant was indicted in 1971 for this offense and was initially tried in 1971, such trial ending in a mistrial. On retrial in 1972, appellant was convicted and in a per curiam opinion delivered April 18, 1973 the conviction was affirmed by this Court because no brief had been filed in accordance with Article 40.09(9), Vernon's Ann.C.C.P. Appellant was later granted an out-of-time appeal because his retained counsel had failed to prosecute his appeal after making representations to appellant that he was doing so. Ex Parte Raley, 528 S.W.2d 257 (Tex.Cr.App.1975).

Appellant now raises twenty-nine grounds of error. We have reviewed all of the grounds of error and have determined that the judgment must be reversed for error in the admission into evidence in this trial of a transcript of testimony given by a witness at appellant's first trial. We will, therefore, discuss only appellant's seventh through eleventh grounds of error.

Briefly summarized, the record reflects that appellant was employed as Chief Juvenile Probation Officer for El Paso County at the time of the alleged offense in 1969. He was indicted for the embezzlement of fifty ($50) dollars paid to him by a Mrs. Marie Kellum in restitution for damages caused by her son, a juvenile offender, to a car owned by Gary Sanderling. Mrs. Kellum testified that on September 10, 1969 she made out a check for fifty dollars, payable to appellant, and mailed it to him at the juvenile detention home. She said that the check cleared her bank, endorsed by appellant, on September 22, 1969. She further stated that she was following appellant's instructions in mailing him the check because she understood that appellant would act "as her agent" and see that Sanderling was paid.

One of appellant's secretaries testified that she cashed the check in question and that it was endorsed with appellant's signature. She stated that she gave the fifty dollars in cash to appellant on September 18, 1969. She said that she thought the check was unusual because it contained the notation that it was for "court costs" in the case of Johnny Lansford (Mrs. Kellum's son). She thought it unusual because she did not remember any restitution payments being involved in that particular case.

Other testimony established that it was not unusual for the secretary to cash checks for appellant since he had established a cash disbursement system for restitution payments. It was developed that the juvenile offenders, or their families, would make payments to appellant's office, usually in cash, and would receive a written receipt. The money was maintained in a restitution fund and disbursed to the complainants also in cash. The bookkeeping method for these disbursements was not established by the evidence.

Gary Sanderling, owner of the damaged car, did not testify in this trial. However, the State introduced into evidence the transcript of his testimony at appellant's first trial which resulted in a mistrial. The essence of Sanderling's testimony was that he was present in the courthouse in El Paso on the day of the Lansford boy's juvenile hearing. Sanderling stated that after the hearing he was told by a man, whom he could not identify, that the Lansford family was in poor financial condition due to the recent death of the boy's father. He stated that the man left him with the impression that it would be very difficult to get restitution payments for damage to his car. He further stated that he never received a fifty dollar payment and heard nothing more about the case. He also stated that he made no attempt to contact anyone at the juvenile probation offices before he was transferred away from El Paso in December of 1969.

Appellant objected to the introduction of the transcript of Sanderling's testimony on the grounds that the State failed to lay the proper predicate for the introduction of the transcript under Article 39.01, Vernon's Ann.C.C.P.

If a witness has once testified in a case, in a preliminary hearing or in a former trial, and the accused was present and had the opportunity to cross-examine the witness, and such witness has since died, or resides out of the State, or has removed beyond the limits of the State, or cannot attend by reason of age or bodily infirmity, or has been prevented from attending court through the act or agency of the other party, his testimony may be reproduced at a subsequent trial of the case if the proper predicate be laid for its admission. See Article 39.01, Vernon's Ann.C.C.P.; 1 Branch's Ann.P.C., 2d ed., Sec. 98, p. 110.

To be admissible it must be shown that the witness's testimony at the former trial or hearing was given under oath, that it was competent, that the accused was present and had adequate opportunity to cross-examine him through counsel, and that the accused was the defendant at the former trial or hearing upon the same charge. See 24 Tex.Jur.2d, Sec. 698, p. 337; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Forbes v. State, 513 S.W.2d 72 (Tex.Cr.App.1974); Carver v. State, 510 S.W.2d 349 (Tex.Cr.App.1974). Such predicate must be clearly and satisfactorily established before such testimony can be reproduced. 1 Branch's Ann.P.C., 2d ed., Sec. 99, p. 112.

The Supreme Court in Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), noted that the exception to the confrontation requirement has been explained and "justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement."

Where the State seeks to reproduce testimony of an absent witness given at a prior hearing, it has the burden of establishing an exception to the right of confrontation. Forbes v. State, supra; Carver v. State, supra; Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1969); Cumpston v. State,155 Tex.Cr.R. 385, 235 S.W.2d 446 (Tex.Cr.App.1951).

"Recognizing the traditional exception to the confrontation requirement where a witness is unavailable and has given testimony in a previous judicial proceeding against the same defendant which was subject to cross-examination, the Supreme Court in Barber, supra, nevertheless held that 'a witness is not " unavailable" for purposes of the foregoing exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith...