Stanley v. State, 59188

• Court: Texas Court of Criminal Appeals
• Writing for the Court: DALLY
• Citation: Stanley v. State, 606 S.W.2d 918 (Tex. Crim. App. 1980)
• Decision Date: 29 October 1980
• Docket Number: No. 59188,No. 1,59188,1
• Parties: Harry D. STANLEY, Appellant, v. The STATE of Texas, Appellee

Page 918

606 S.W.2d 918

Harry D. STANLEY, Appellant, v. The STATE of Texas, Appellee.

No. 59188.

Court of Criminal Appeals of Texas, Panel No. 1.

Oct. 29, 1980.

Howard O. Lake, Houston, for appellant.

Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Ed Dodd, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of aggravated robbery. The punishment is imprisonment for ninety-nine years.

The appellant contends that it was error to admit in evidence items seized at the time of his arrest thirteen days after the commission of the offense for which he was being tried. The appellant who filed a motion for probation also argues the admission of this inadmissible evidence was harmful because it increased the punishment assessed by the jury.

A cashier for a convenience store testified that the appellant entered the store at approximately 3:55 a. m. on April 3, 1977. He asked for cigarette papers. The cashier turned around and reached the cigarette papers and as she turned back she saw a second man enter the store carrying a shotgun. The man with the shotgun told the cashier to empty the contents of the cash register into a sack. During this time the appellant did not move. Finally, the man with the shotgun said, "Let's go" and the pair left the store with appellant going first. The cashier stated that the gun was a long single barrel shotgun.

The State then offered the testimony of two police officers who arrested the appellant on April 16, 1977. They stated that they were flagged down by a man who told them he had seen three men in an automobile and one of them had a rifle. The officers, after receiving the description of the three men found them sitting in an automobile on a parking lot near a grocery store. The officers approached the automobile and noticed various weapons inside the automobile. The three men, one of whom was the appellant, were ordered out of the automobile and were arrested. A loaded pistol was found near where the appellant had been sitting. The other passenger was carrying another loaded pistol. A third loaded pistol was found between the door and the seat on the driver's side of the automobile. A search of the interior of the automobile uncovered a loaded Luger, a mini-14 semi-automatic carbine, a loaded bolt action twelve-gauge shotgun, a loaded M-1 carbine, a bandelero containing twelve-gauge shotgun shells, a Bowie knife and a bayonet. Two briefcases were found inside the trunk of the automobile. Inside the briefcases were a pistol clip, gloves, a police scanner, and FM wireless microphone, a flashlight, tape, shotgun shells, precision screwdrivers, seven hundred dollars in cash, and pills. The officers brought all of these items, except the M-1 carbine, the money, and the pills, into the court and exhibited and identified them. The three pistols, the bolt-action shotgun, the Bowie knife, the bayonet, the police scanner, and the wireless microphone were admitted into evidence.

Each officer testified that he did not know how any of the items related to the present offense and that he was unaware at the time appellant was arrested that the present offense had been committed thirteen days earlier in another part of Houston.

The cashier of the store testified that the long barrel bolt-action shotgun admitted in evidence looked like the gun which had been pointed at her during the robbery. However, she admitted any number of shotguns would have looked like it. It was not error to admit in evidence this shotgun. Mullenix v. State, 499 S.W.2d 330 (Tex.Cr.App.1973); Jackson v. State, 486 S.W.2d 764 (Tex.Cr.App.1972).

The appellant's counsel offered no evidence and rested when the State did. The jury was instructed that the State had introduced in evidence transactions other than the one charged in the indictment and that this evidence was admitted for the limited purpose of showing appellant's intent and identity.

It is appellant's contention that the items admitted, found when the appellant was arrested, were unrelated to the offense for which he was being tried and had a prejudicial effect upon the jury. When evidence that is prejudicial and harmful and which has little or no relevance to any issue in the case is admitted it generally requires reversal of the judgment. Hernandez v. State, 484 S.W.2d 754 (Tex.Cr.App.1972); Jones v. State, 481 S.W.2d 900 (Tex.Cr.App.1972).

The three pistols, the knife, the bayonet, the scanner, and the microphone had no relevance to any issue in the present case. Nothing was presented to show that these items related to the robbery for which appellant was being tried. These items were improperly admitted in evidence. Cunningham v. State, 500 S.W.2d 820 (Tex.Cr.App.1973); Schuenemann v. State, 500 S.W.2d 319 (Tex.Cr.App.1973); Hernandez v. State, supra. See Reynolds v. State, 505 S.W.2d 265 (Tex.Cr.App.1974).

However, even though the admission of this evidence was error it must be determined whether there is a reasonable possibility that this evidence might have contributed to the conviction and the punishment imposed upon the appellant. Cunningham v. State, supra.

The prosecutor during his closing argument during the guilt-innocence stage of the trial stated:

"... I don't have to spell it out, I don't believe, to show you what everybody was doing with the various pistols. The driver had it down by his side. He had evidently dropped it...