Smith v. State
Decision Date | 20 December 1978 |
Docket Number | No. 55818.,55818. |
Citation | 574 S.W.2d 555 |
Parties | Charles Edward SMITH, Appellant, v. The STATE of Texas, Appellee. |
Court | Texas Court of Criminal Appeals |
Donald W. Rogers, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Alvin M. Titus and William E. Taylor, III, Asst. Dist. Attys., Houston, for the State.
Before DOUGLAS, TOM G. DAVIS and VOLLERS, JJ.
Appeal is taken from a conviction for burglary of a vehicle. V.T.C.A. Penal Code, Sec. 30.04. Punishment, enhanced by two prior convictions, was assessed at life.
In separate grounds of error, appellant contends that the court erred in admitting two hearsay statements into evidence. Since we find these grounds of error dispositive of the case, we develop the facts only insofar as they are necessary to a discussion of these contentions.
Appellant's conviction was based on the burglary of a vehicle that occurred between 3:00 p. m. and 4:00 p. m. on December 9, 1975. The complaining witness testified that during that time someone entered his locked truck on Foley's parking lot in Northwest Mall in Houston and took a Citizens Band (C.B.) radio and a tool box. This radio and tool box were found by police officers in a red van in which the appellant was riding at approximately 5:00 p. m. on the same day. A search of the appellant revealed two screwdrivers, a knife, and wire cutters. No other connections between the break-in and the appellant were shown.
The officers had stopped the van after they had been approached in a Woolco parking lot by an unidentified teenage girl and told that a red van at a nearby intersection had been stolen from the Woolco parking lot. She stated that she had heard this information over her C.B. radio. The officers could see a red van at that intersection as the girl talked to them.
After the officers stopped the red van, an unidentified man approached the officers and told them that he had heard over his C.B. radio that someone in a red van had been attempting to break into an automobile on the Woolco parking lot. A subsequent search of the van revealed the property stolen in the previous break-in of the truck on Foley's parking lot.
The testimony complained of was by Officer McSwain, the arresting officer. His testimony before the jury was as follows:
After further questioning the appellant again requested that the jury be removed for a hearing on his motion to suppress. After a hearing was held, the jury returned and the following testimony was elicited from Officer McSwain regarding a conversation with another C.B. operator:
All the testimony set out above was also elicited at the hearing on appellant's motion to suppress, at the conclusion of which the court ruled that the articles seized in the search of the van were admissible. No issue was submitted to the jury regarding the search.
The appellant did not testify at trial. The driver of the van arrested with him took the stand but asserted his Fifth Amendment privilege and refused to testify.
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