Spencer v. State, 28891

• Decision Date: 03 April 1957
• Docket Number: No. 28891,28891
• Citation: 164 Tex.Crim. 464,300 S.W.2d 950
• Parties: L. B. SPENCER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 950

300 S.W.2d 950

164 Tex.Crim. 464

L. B. SPENCER, Appellant, v. The STATE of Texas, Appellee.

No. 28891.

Court of Criminal Appeals of Texas.

April 3, 1957.

Jesse P. Cunningham, and Pat T. Peyton, Jr., Beaumont, for appellant.

Ramie H. Griffin, Dist. Atty., James S. McGrath, Asst. Dist. Atty., Beaumont, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

Appellant was convicted under an indictment charging the primary offense of felony theft with two prior convictions of felonies less than capital alleged for enhancement; the punishment, life imprisonment in the penitentiary.

The testimony for the state shows that after Manuel Jones, Jr., left his job at 12:30 a. m., he was with the appellant and another person for some time, then he and the appellant went to his (Jones') room, that they soon left, and shortly thereafter Manual Jones, Jr., returned to his room, closed the door, placed his watch, wallet containing $11, a leather pouch, and the keys to his car, which was parked about one-half block away, on the top of the radio and went to bed. The testimony further shows that when he awoke about 3:30 p. m. everything he had placed on the radio was gone and his car was also missing; that he did not give appellant or any other person his consent to take the things he had placed on the radio or the car; that his car was a 1950 Mercury bearing license number MK-1523, and the next information he had of the car was that it had been wrecked in Houston. He identified the watch, wallet, and the leather pouch at the trial as being those taken from his bedroom and belonging to him.

The state's witness, Lillian Scott, testified that she knew both Manuel Jones, Jr., the owner of the car, and the appellant, and that about 2 p. m. she saw the appellant with the keys to Jones' car, saw him get in the car, asked him where he was going and he replied that he was going to pick up Jones and they were going to work, and then he drove the car away.

The state's evidence shows that the appellant had been, prior to the date of the commission of the primary offense alleged, convicted of two felonies less than capital as alleged in the indictment.

Proof was offered that the appellant was the same person named in the two prior convictions alleged and submitted to the jury.

Officer Peterson of the Houston Police Department testified that about 3:30 a. m. while investigating the collision of a 1950 Mercury bearing license number MK-1523 with a utility pole, Sylvester Small told him that he was the driver of the Mercury and that the appellant was the owner of the Mercury and was then at his home, and soon thereafter he learned that the Mercury was stolen and arrested appellant at Small's home.

Officer Cole of the Beaumont Police Department testified that he went to Houston where appellant and a wallet, leather pouch, and a watch taken from him at the time of his arrest were delivered to him by the Houston Police Department, and he returned the appellant to Beaumont and delivered the personal property to the district attorney.

It was stipulated by and between the state's attorney, the defendant in person, and his attorney that the 1950 Mercury automobile here in question was of the market value of more than $50 at the time and place as alleged.

Appellant did not testify but called a witness who testified that she was with the appellant and Manuel Jones, Jr., shortly before the Mercury was taken and that she heard them talking about going to Houston and that Jones told the appellant that in the event he could not go for him to take the car and go on to Houston.

Appellant contends that the court erred in admitting in evidence the wallet, leather pouch, and watch over his objection that they were not admissible on the ground that they tended to prove an extraneous crime.

The state's evidence shows that the keys to the car alleged to have been stolen were placed along with the wallet, leather pouch, and watch on top of the radio in the bedroom by Manuel Jones, Jr., at the time he retired and that all were missing when he awoke.

In Fite v. State, Tex.Cr.App., 290 S.W.2d 897, 898, under a similar state of facts, we said:

'When an extraneous crime or other transaction is a part of the res gestae, proof of the same is admissible. The testimony shows that the watch was taken at the time of the commission of the offense here charged, hence a part of the res gestae. No error is shown. Branch's Ann.P.C., Sec. 166; Jarman v. State, 112 Tex.Cr.R. 239, 16 S.W.2d 130; Crumrine v. State, 153 Tex.Cr.R. 611, 224 S.W.2d 243; 11 Tex.Dig[est], Criminal Law, k365(1).'

Appellant complains of the admission in evidence of the fingerprint cards and photographs which were attached to certified copies of indictments and judgments of conviction from the records of the Texas Prison System which were admitted alone on the certification of the record clerk of the Texas Prison System over...