Van Sickle v. State

• Decision Date: 27 June 1979
• Docket Number: No. 1,No. 57009,57009,1
• Citation: 604 S.W.2d 93
• Parties: Archie T. VAN SICKLE, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 93

604 S.W.2d 93

Archie T. VAN SICKLE, Appellant, v. The STATE of Texas, Appellee.

No. 57009.

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

June 27, 1979.

On Rehearing Sept. 10, 1980.

Van A. Hutchins, on appeal only, Alamo, for appellant.

Charles R. Borchers, Dist. Atty., Donato D. Ramos, First Dist. Atty., Sharon S. Trigo and Alonzo Z. Laurel, Jr., Asst. Dist. Attys., Laredo, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

OPINION

ROBERTS, Judge.

A jury found the appellant guilty of theft of property and it assessed his punishment at two years' confinement and a fine of $2,000. The State's case consisted of circumstantial evidence, the chief circumstance being the presence in the appellant's apartment of 16 pieces of stolen furniture. The appellant's explanation of this circumstance was that, with the cooperation of his roommate, he bought the furniture from a third person. According to the appellant, his roommate acted as intermediary by taking the appellant's payment to the third person and bringing back a receipt. When the appellant's counsel tried to elicit from the appellant the details of the arrangement, the State objected to "obtaining testimony from a receipt that has not been admitted in evidence." The appellant then offered the receipt as evidence. The State objected on the ground that the roommate was "available to verify the authenticity of that very exhibit." (In fact, the roommate was a co-indictee who had agreed to testify for the State in return for a dismissal of the charge against him. He denied knowledge of the receipt.) The trial court sustained the objection; this was error.

The appellant's "intent to deprive the owner of property" was an essential element of the offense. V.T.C.A., Penal Code, Section 31.03(a). By this indictment, the State also was required to prove that the appellant "knowingly and unlawfully appropriate(d) property . . . without the effective consent of . . . the owner. . . ." If the roommate gave the appellant the receipt, whether "authentic" or not, it would be relevant to the issues of the appellant's mental states. Long v. State, 1 Tex.Ct.App. 466 (1876); see Goens v. State, 35 Tex.Cr.R. 73, 31 S.W. 656 (1895). That the roommate might (and later did) deny giving the appellant the receipt would create only a factual question of the weight to be given the evidence; it would not render the evidence inadmissible. Because the evidence of guilt was not overwhelming, we cannot say that the error in excluding this evidence was harmless.

The judgment is reversed and the cause is remanded.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING

DALLY, Chief Judge.

The State in its motion for rehearing correctly points out that the error for which the judgment was reversed was not a ground of error urged by the appellant in his brief on appeal filed in the trial court. Art. 40.09, V.A.C.C.P. Art. 40.09, Sec. 13, V.A.C.C.P., provides that the Court of Criminal Appeals shall review ". . . all grounds of error and arguments in support thereof urged in defendant's brief in the trial court . . . as well as any unassigned error which in the opinion of the Court of Criminal Appeals should be reviewed in the interest of justice."

The State asserts in this instance the error, if any, is concerned only with a ruling on the admissibility of evidence and it is not such an error as should be reviewed in the interest of justice as unassigned error.

We quote from the record the matter on which the panel based its reversal:

"Q. Do you have the receipt?

"A. Yes, sir, I do.

"Q. May I see it?

"A. (Witness hands paper to counsel.)

"MR. FLORES: May we have this marked as Defendant's Exhibit No. 1, your Honor? (Court Reporter marks receipt as Defendant's Exhibit No. 1 for identification).

"Q. Who gave you this receipt?

"A. My roommate, Ruben.

"Q. Where did he get it from?

"A. Mr. Adrian Sanchez.

"Q. You are sure that is the receipt you got?

"A. Yes, sir, I am positive.

"Q. And you agreed to pay five hundred dollars for this furniture?

"A. Yes, sir.

"Q. And you were going to pay one hundred dollars a month-?

"MR. BORCHERS: Objection to his testifying or to obtaining testimony from an exhibit that has not been admitted in evidence.

"MR. FLORES: At this time, I will introduce the Defendant's Exhibit No. 1 into evidence.

"THE COURT: You are offering it?

"MR. FLORES: Yes, sir.

"THE COURT: Are there any objections?

"MR. BORCHERS: At this time the State would object; Ruben Salazar is a witness available to the defendant to verify the authenticity of that very exhibit.

"THE COURT: The objection will be sustained."

The appellant's former roommate, Ruben Salazar testified when shown the exhibit marked as Defendant's Exhibit No. 1 for Identification that he had never before seen that exhibit. The purported receipt (Defendant's Exhibit No. 1 for Identification) was never again offered in evidence even for the purposes of a bill of exception. See Art. 40.09, Sec. 6(d). Since the exhibit that the court refused to admit was not offered for a bill of exception and brought to us in the record nothing was preserved for review. Mutscher v. State, 514 S.W.2d 905 (Tex.Cr.App.1974); Toler v. State, 546 S.W.2d 290 (Tex.Cr.App.1977); Deary v. State, 510 S.W.2d 956 (Tex.Cr.App.1974). We were in error on original submission in reviewing this matter in the interest of justice when the error, if any, was not even preserved in the trial court.

We now turn to consideration of the grounds of error raised in appellant's brief. Appellant, in five grounds of error, claims that the trial court erred in allowing the State to use a prior "conviction" for impeachment during the cross-examination of appellant and further argues that the evidence is insufficient to support his conviction. On the impeachment issue, the relevant portion of the cross-examination was as follows:

"Q. Have you ever been convicted of a felony before, Mr. Van Sickle?

"MR. FLORES: Your Honor, objection. May we approach the Bench?

"THE COURT: Yes, you may approach the Bench.

(CONFERENCE at the Bench outside the hearing of the jury, between all counsel and the Court:)

"MR. FLORES: I would like to have a hearing on this outside the presence of the jury. We have talked to the Judge in Oklahoma and he told us it was a deferred judgment and that the record has been expunged.

"MR. BORCHERS: Unless it is a conviction for purposes of probation-

"THE COURT: He is on the stand, and for the purpose of impeachment-here is a case; it is Simmons vs. State. Do you want to read it?

"MR. BORCHERS: I would like to look at it.

"MR. FLORES: No, sir, that's fine.

"MR. BORCHERS: May I proceed?

"THE COURT: You may proceed, counsel.

(WITHIN the hearing of the jury, to-wit:)

(Cross examination continued by Mr. Borchers:)

"Q. Mr. Van Sickle, did you ever live in Oklahoma?

"A. No, sir, I didn't.

"Q. You never did?

"A. No, sir.

"Q. Were you ever convicted of a felony?

"A. Sir, I don't know how to answer that, as far as-

"Q. You've had a lot of difficulty answering my questions, Mr. Van Sickle, but go ahead and give it a try.

"A. As far as I know, I haven't.

"Q. Try and explain that to me, because I have some information that clearly indicates otherwise. Why is that a problem?

"A. Well, sir, I got in trouble one time, and-

"Q. Let's get specific, Mr. Van Sickle. In January of 1975?

"A. No, sir, it was sometime in 1973.

"Q. Okay. You are sworn under oath. Go ahead Mr. Van Sickle.

"A. And-(hesitation.)

"Q. It was for grand larceny, was it not?

"A. Yes. It was 1973 and 1974. I am not really sure. As far as I knew there was never a trial, a hearing, or anything.

"Q. But you were convicted on a plea of guilty and placed on probation on January 23, 1975?

"A. No, sir, there was never any probation.

"Q. Your lawyer has just informed me that he talked to the Judge and you were placed on probation, a deferred type of judgment.

"A. Sir, I don't know what probation is, but I suppose my attorney should know.

"Q. I would think that he would be correct over you, is that correct?

"A. Yes, sir, he would."

As rebuttal evidence, the prosecutor subsequently introduced an F.B.I. "rap sheet" which stated that appellant had been convicted of grand larceny in Guymon, Oklahoma in January, 1975. The evidence was admitted without any objection by defense counsel. After the jury found appellant guilty, the prosecutor again cross-examined appellant during the punishment phase about his plea of guilty to grand larceny in Oklahoma without any objection from defense counsel. Prior to trial, appellant was told by the prosecutor that he would be prosecuted for perjury if he did not tell the truth about the Oklahoma plea.

At the hearing on the motion for new trial, appellant for the first time introduced an authenticated copy of the relevant court order from Oklahoma. The order stated that appellant pleaded guilty to grand larceny in January, 1975, and the judgment was deferred pending the outcome of probation, that appellant had completed his probation, and that in August, 1976, the case was discharged without judgment of guilt and with the plea being expunged from the record. It is undisputed that the Oklahoma charges did not amount to a final conviction under Art. 38.29, V.A.C.C.P., and that the prosecutor should not have used these charges to impeach appellant.

The issue, however, is whether appellant properly objected to the admission of this evidence at the time of trial. The defendant must specifically object to the wrongful introduction of a prior conviction to preserve the error for review. McClinton v. State, 338 S.W.2d 715 (Tex.Cr.App.1960). No such objection was made in this record. Appellant requested that the court consider the matter outside the presence of a jury. This was not a specific objection to the introduction of the evidence and appellant did not secure a ruling...