Rogers v. State
| Decision Date | 16 April 1980 |
| Docket Number | No. 3,No. 58461,58461,3 |
| Citation | 598 S.W.2d 258 |
| Parties | John A. ROGERS, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Ronald L. Goranson, court appointed on appeal, Dallas, for appellant.
Henry Wade, Dist. Atty., Stephen J. Wilensky and Richard Worthy, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.
Before ROBERTS, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for theft of property of the value of at least $10,000. Following a jury verdict of guilty, the court sentenced appellant to 15 years' confinement in the Texas Department of Corrections. Although the sufficiency of the evidence is not challenged, it is necessary to set forth in some detail the facts underlying the conviction so that appellant's first two grounds of error may be placed in perspective.
On December 15, 1974, appellant leased an office in Dallas, using the name Bud Moore. He told the leasing agent that he planned to open a tax accounting office. On December 18, Jack Gillis, a salesman for Dictaphone, went to appellant's office in response to a telephone call and sold him two Ansafones. The purchase prices of each Ansafone unit, a device which automatically answers telephone calls with a taped message, was $675. Appellant originally signed the purchase agreement as Bud Moore and out of the presence of the sales agent appended his true name, John A. Rogers. He told Mr. Gillis that John A. Rogers was his business associate and later said that Rogers was his brother-in-law. As Gillis was preparing to leave, a further discussion ensued during which appellant ordered five more machines. Appellant told Gillis that he was a CPA and needed the telephone answering machines because he was planning to open other tax accounting offices. Appellant agreed to pay for these machines within 120 days.
Later in the month, appellant ordered an additional 43 units. He discussed with Gillis and his sales manager Dennis Messinger the method of payment and stated that he had several backers whose names he could not reveal until the transaction was completed. On December 24, appellant signed the sales agreement on these additional units in the name Bud Moore and later added the name John A. Rogers. On December 31, 1974, appellant ordered 16 more units and on the same day placed a fourth order for 34 units. The total value of all of these units was in excess of $60,000.
Having discovered that appellant had been pawning some of the units, Gillis called appellant and confronted him with this information. Appellant grew angry and hung up. A few minutes later appellant called back and stated that he had had a chance to talk to his brother-in-law John Rogers; that he had ascertained that Rogers was in possession of the machines. He also stated that Rogers was in financial trouble and had asked him, "Moore," for a loan.
On January 3, the question of payment for the telephone units was again discussed. At this time appellant agreed to pay 25 percent down on the week of January 13 and the balance by April 30 on the condition that Dictaphone enter into an agreement that all of the machines were to be delivered at that time. On January 20, yet another meeting was arranged during which appellant stated that he would write a check for the 25 percent down payment and that further payments would be forthcoming on a monthly basis. He then interrupted the discussion stating he needed to show the redrafted orders to his attorney. Appellant returned, but after further discussion he again left saying that the order should be rewritten again. He agreed to meet with Gillis the following morning but he did not keep this appointment.
Later on, in March 1975, appellant requested that several telephone units be serviced at an office in Euless. He maintained that some of the machines were not working properly and stated that counsel had advised him not to make any further payment. He then, however, signed a repair slip signifying his agreement that the machines were indeed in working order. This repair slip was signed in the name of John A. Rogers.
The record reflects that none of these telephone answering units was paid for though five of them were recovered from appellant. A "sworn accounting by defendant John A. Rogers," filed in a civil suit, was introduced by the State to show that appellant had sold or otherwise disposed of 98 of the telephone answering machines. Two such purchasers testified that, in response to a newspaper advertisement, they each purchased a telephone answering machine from appellant for over $300.
In two grounds of error, appellant asserts that the trial court erred in permitting the introduction into evidence of testimony relating to nine extraneous offenses. Without entering into the details of these offenses, we observe that the commission of each was characterized by precisely the same escalating confidence scheme as the offense for which appellant was indicted. Appellant would at first contract for the performance of a modest range of services or the purchase of a small number of items and subsequently, without paying on the original contract, escalate his requirements until the victim, realizing that he was about to be defrauded, abandoned the project entirely. We hold that the admission of testimony relating to extraneous offenses was proper. See Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975); Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).
Appellant next attacks the admission of testimony of a court-appointed psychiatrist that appellant was aware of what he was doing and was capable of forming an intent to do an act. Appellant had introduced testimony that he had undergone approximately 100 electroconvulsive therapy treatments before the incident for which he was indicted. The evident purpose of this testimony was to establish that appellant was incapable of legal culpability for his actions. We disagree with appellant that the psychiatrist's testimony stated a legal conclusion. The psychiatrist did not testify that appellant harbored the intent to commit the crime for which he was indicted; merely that he was "capable of forming an intent to perform an act, . . . aware of what he was doing, and was responsible for his behavior." This does not state a legal conclusion. Likewise, we see no merit in appellant's contention that the trial court erred in permitting the psychiatrist to testify that his opinion was based in part upon the representations of defense counsel. The basis of appellant's contention appears to be that the action of the court in permitting the psychiatrist to testify was a violation of the attorney/client privilege. A like contention was decided adversely to appellant in Granviel v. State, 552 S.W.2d 107, 115 (Tex.Cr.App.1976). These grounds of error are overruled.
In his fifth ground of error, appellant asserts that the trial court erred in his charge to the jury. It is his contention that the charge authorized a conviction on proof of a mental state less than that charged in the indictment. In pertinent part, the indictment alleged that appellant " . . . did unlawfully, knowingly and intentionally exercise control over property . . . with intent to deprive said owner of said property." The complained-of charge, in pertinent part, read:
"Now, if you find from the evidence beyond a reasonable doubt that on or about the first day of May, 1975, in Dallas County, Texas, the defendant John A. Rogers, did unlawfully take and acquire from the possession of Dennis Messinger, the owner thereof, 90 units of model 590 Ansafone, and exercise control over said units, without the effective consent of said owner and with intent to deprive the said owner of said units, and that the said units were of a unit value of at least $200 or more, then you will find the defendant guilty as charged in the indictment." (Emphasis added)
The version of V.T.C.A., Penal Code, Sec. 31.03, in effect at the time of the offense read:
To continue reading
Request your trial
-
Nichols v. State
...that appellant planned the robbery, entered the store with a loaded gun, pointed and fired at close range. See, Rogers v. State, 598 S.W.2d 258, 263-264 (Tex.Cr.App.1980). Likewise, the thirteenth point attacks the prosecutor's reference to a plea bargain given to an accomplice witness as a......
-
McElroy v. State
...of intent. 5 In so holding, the majority has effectively ignored a long line of criminal jurisprudence to the contrary. Rogers v. State, 598 S.W.2d 258 (Tex.Cr.App.1980); Reger v. State, 598 S.W.2d 868 (Tex.Cr.App.1980); Christiansen v. State, 575 S.W.2d 42 (Tex.Cr.App.1979); Crawley v. Sta......
-
Jones v. State, 3-84-200-CR
...Extraneous offenses may be used to show a common plan or scheme, a systematic course of action or conduct. Rogers v. State, 598 S.W.2d 258 (Tex.Cr.App.1980); Collins v. State, 548 S.W.2d 368, 376 (Tex.Cr.App.1976). Evidence to show a common plan or scheme is admissible if the offenses have ......
-
Plante v. State
...distinguishing characteristics which show that there was a common plan or scheme in both offenses. Grayson, 481 S.W.2d at 862; see Rogers, 598 S.W.2d at 261; Lasker, 573 S.W.2d at Crawley v. State, 513 S.W.2d 62 (Tex.Crim.App.1974), exemplifies the situation where such evidence is admissibl......