Anders v. State

445 S.W.2d 167, 1969 Tex. Crim. App. LEXIS 1155

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 1969
• Docket: 41627
• Status: Published

Opinions

OPINION

MEADE F. GRIFFIN, Special Judge.

The appellant was convicted of the offense of burglary. Also, under proper allegations and proof, the jury found he had theretofore been convicted of the offense of burglary, and his punishment was fixed in this case at 12 years’ confinement.

This is a companion case to Arcadio (Harvey) Ysasaga v. State, 444 S.W.2d 305, No. 42,067, decided by this Court May 28, 1969.

That case was a circumstantial evidence case and was reversed by this Court because of the failure of the State to call as a witness “a Spanish boy” who had received and transmitted the money paid by Buckman and Faulkner for ten cases of Treflan which had been taken from a warehouse at Clay’s Corner, in Parmer County, Texas, when it was burglarized on the night of January 11, 1967. There was a total of 49 cases and 11 quarts of Treflan, referred to in the record as 50 cases, taken from this warehouse on the night of the burglary. Each case contained 12 quart cans, and each of the cases and the cans had stamped thereon the identifying lot number, L-2113. The ten cases sold on the night of January 12, 1967, to Buckman and Faulkner were delivered in Hockley County, Texas, and were taken from a late model red and white Chevrolet pickup. The license number on this pickup was issued to Ysasaga as owner. In this pickup were two shadowy male forms which are unidentified by this record. These ten cases and cans were marked by the identifying “Lot No. L-2113.”

There were no witnesses to the burglary and no testimony from anyone to show that appellant, Anders, or the red and white Chevrolet pickup were ever at or in the vicinity of the burglarized warehouse at any time.

Being a circumstantial evidence case, the State must rely upon the rule that unexplained possession of recently stolen property is sufficient to sustain a conviction of the defendant for the burglary of the warehouse from which the stolen property was taken. Ysasaga v. State, No. 42,067, supra, and the authorities therein cited.

The next time we hear of any Treflan allegedly taken in the burglary of the warehouse at Clay’s Corner was on the 16th of January, 1967. About 5 or 5:30 that afternoon some man called Ruben Brock, Jr., a farmer living in Lamb County, Texas, and asked him if he wanted to buy some Treflan at $70.00 per case. Brock replied that he would take ten cases at that price. The voice told Brock he would deliver the ten cases to Brock’s farm residence the next night and that Brock was to pay the $700.00 consideration in cash. Brock called a Mr. Neil Wood, a farmer of that vicinity, and asked Mr. Wood if he wanted to buy the ten cases at $70.00 per case, all cash, and if he would bring the cash to Brock the next afternoon. Wood agreed. The evidence shows that the well known and generally recognized price of Treflan was $8.50 per quart can, or $102.00 per case of 12 quart cans. Wood brought Brock the $700.00 cash on the 17th and gave it to him. About 8:30 or 9:00 P.M. on the night of January 17, 1967, Anders drove up to Brock’s residence in a ’55 or ’56 blue-black Chevrolet sedan with the ten cases of Treflan. Anders was alone in the car. Brock gave Anders the $700.00 cash, and the two of them unloaded the ten cases from Anders’ car into the back of Brock’s pickup, and Anders then drove off. Brock immediately called Wood, who came in his pickup, and he and Brock took the ten cases and loaded them in the back of Wood’s pickup and Wood drove off.

Treflan is a pre-emergence selective herbicide, which when applied to the land, prior to planting, on which cotton or sugar beets are to be planted, will kill the weeds but neither of the two crops. At this time, Wood was preparing the seed bed for his 1967 cotton crop and he used most of the ten cases before he was contacted by the officers about the Treflan he purchased and told it might have been taken in the burglary at Clay’s Corner. At least five of the ten cases he received from Brock, and which Brock testified he purchased from Anders, were fully identified as being marked Lot No. L-2113, and having other distinctive markings on the cases put there by an employee of the owner of the Treflan prior to the time it was taken from the warehouse on the night of January 11, 1967.

The ten cases sold to Buckman and Faulkner by the “Spanish boy” on the night of January 12, 1967, at $75.00 per case, and the cases used by Mr. Wood were the only cases identified as coming from the warehouse at Clay’s Corner.

The record is void of any testimony connecting appellant Anders with the ten cases sold to Buckman and Faulkner. We will not refer further to them.

About ten days after Brock purchased the Wood ten cases, he purchased 40 cases of Treflan from Anders for $35.00 per case. A short time later, he purchased 13 more cases of Treflan at a price of $35.00 per case, and then an additional 10 cases from Anders at $35.00 per case. This makes a total of 63 cases of Treflan Brock purchased from Anders. The 40 cases purchased were delivered by Anders, and he was accompanied by a Spanish speaking man, called Harvey. The two of them were in a red and white Chevrolet pickup and it appeared to be the same pickup from which the ten cases of Treflan were delivered to Buckman and Faulkner on January 12, 1967. None of the Treflan in the 40 cases, the 13-case purchase or the 10-case purchase was identified as having been in the warehouse at Qay’s Corner the night of the burglary, nor taken therefrom.

It looks suspicious that Anders would have sold these cases of Treflan at much less than the market price, would have demanded cash for them, and would have delivered them during the nighttime. However, the suspicious circumstances do not constitute direct evidence that Anders burglarized the warehouse at Clay’s Corner on the night of January 11, 1967, nor prevent the case from being a circumstantial evidence case.

The State’s case does not meet the requirements of sufficient evidence to sustain the conviction. 24 Tex.Jur.2d 422, Sec. 742. The evidence shows that the “Spanish boy” who negotiated the purchase of the ten cases of Treflan by Buckman and Faulkner could have identified the two “shadowy forms” in the red and white Chevrolet pickup, registered to Harvey Ysasaga. This “Spanish boy” evidently was well acquainted with the two men in the pickup and they with him as they allowed him to act as “contact man” and transmit the cash purchase price for the Treflan. The State did not call him as a witness, neither was his absence explained or accounted for. In such situation, circumstantial evidence that is not strong is held to be insufficient to sustain a conviction. 24 Tex.Jur.2d 427, Sec. 745; Hollingsworth v. State, (1967) Tex.Cr.App., 419 S.W.2d 854; King v. State, Tex.Cr.App., 396 S.W.2d 409; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, 261 (1956).

This cause is reversed and remanded to the trial court for retrial.

In view of the necessity of another trial, we will write on two of appellant’s other points of error.

Appellant complains that under this record Brock was an accomplice witness as a matter of law, and he requested the trial judge to so charge the jury. This the trial judge refused to do, but submitted a charge to the jury inquiring whether or not Brock was an accomplice witness. The trial judge gave appropriate definitions and instructions in connection with this fact issue, and appellant has no complaint as to these. His sole complaint about this charge is that there is no fact issue to be decided and the court should have charged the jury that, as a matter of law, Brock was an accomplice witness.

In Ysasaga v. State, supra, the Court of Criminal Appeals held that Brock was an accomplice witness as a matter of law. In the case at bar Brock is shown to have purchased from Anders and sold to various farmers an additional 63 cases of Treflan. Five of these cases were identified by the Lot No. L-2113 as having been taken from the warehouse at Clay’s Corner when it was burglarized on the night of January 11, 1967, and as a part of the ten cases purchased by Wood from Brock. This additional evidence as to Brock’s connection with Anders and with the stolen property is much stronger than in Ysasaga.

We hold Ruben Brock, Jr. was an accomplice witness as a matter of law, and sustain the appellant’s point assigning error because the trial court failed to so charge the jury.

Appellant also complains of the admission in evidence, over his objections, of the testimony of one Bogard, a Hockley County Deputy Sheriff. Bogard lived at, and worked out of, Anton, Texas. He was one of the officers who arrested Anders when he was first indicted for the burglary, and he and Ranger Renfro delivered Anders to the Sheriff of Parmer County, Texas, to answer that charge.

Bogard testified: “I asked Joe Pat, I said ‘Pat, can they convict you’ [Referring to the burglary of the warehouse at Clay’s Corner] and he says ‘I don’t see how they can there in Parmer County, because they will have to have some farmers there on the jury, and I don’t see how them farmers can convict me for taking something from somebody that was actually stealing from them, and selling it to them for what it was worth.’ ”

Anders’ counsel was not present during any part of the conversation. -

Before the trial judge ruled on the admissibility of the above statement, and permitted it to be introduced in evidence to the jury, he excused the jury from the courtroom and had an extensive preliminary hearing at which both Bogard and Anders testified, and were fully examined by their own counsel and vigorously cross-examined by opposing counsel. The following is a summary of the testimony heard by the trial judge and out of the presence of the jury. Deputy Bogard testified he lived at Anton, Texas, and that Joe Pat Anders was frequently seen on the streets of Anton. He and Anders had known each other for approximately one year and had previous conversations there in Anton. An Anton used car dealer who had heard that Anders wanted to sell a pickup he owned for $250.00 had talked with Bogard about a week or ten days prior to the conversation in question and had asked Bogard to tell Anders, the first time he saw him in town, that if Anders still wanted to sell a pickup for $250.00, the dealer was interested in buying it. Within a short time, Bogard did see An-ders at a filling station there in Anton where Anders trades and his car was on the service rack being serviced. Bogard went to Anders and asked him if he still wanted to sell the pickup. Anders replied that “I can’t hardly now,” and proceeded to tell Bogard about a lawyer he had employed in Odessa and the attorney fee he paid him, and about another lawyer in Lubbock Anders had employed and the fee he paid him and how much it cost him to post bond in Parmer and Bailey Counties. Bogard further testified that Anders told him there was no need for Bogard to worry over it as he would not bother anything in Hockley County. At this point, Bogard testified about the conversation in question. He testified that Anders was not under arrest, nor was he placed under arrest at that time, and that he and Anders had a conversation that lasted 3 or 4 hours and then Anders went on his way. On cross-examination, Bogard again testified that the reason he stopped Anders and engaged him in conversation was to inquire about the pickup. Anders’ counsel asked Bogard if, at the time he arrested Anders on this charge, he and Ranger Renfro stayed while the indictment was read to Anders and while (they) “gave him all these warnings and all that?” Bogard said, “No,” that as soon as he had turned Anders over to the Parmer County authorities he and the Ranger returned to their homes. Bogard further testified that he did not mention his conversation to any of the lawyers in the case until the District Attorney and the Sheriff of Parmer County came to Anton to talk with him on Wednesday of the week before the case was being tried and that he was first subpoenaed as a witness after this talk with the officers. He said he had talked with Ranger Renfro on occasion when Renfro would stop in Anton. Bogard also testified that he asked Anders about the case and that he was trying to trap Anders into saying something about the case that would be of value to the State in securing a conviction. He further testified that when Anders said he wouldn’t bother anything in Hockley County “I said: ‘Well, Pat, I appreciate that,’ and this, that, and the other, but I said, ‘When it comes down to it, it will be me or you, if. I have, you know any say-so.’ ” That Anders answered, “Well, I understand that. That is all part of the game.” Bogard further testified: “Sir, we talked there three or four hours about everything in the world, three or four hours, and I don’t really know which question came first, or this, that and the other, but that was the topic of our conversation.”

In answer to the question: “In other words, you were just trying to talk to Pat about everything else, and make him think he had a friend there, and get him to admit something, is that right?” “A. Yes, sir. Q. Sir? A. Yes, sir, I would like for him to admit anything. Q. So you could testify against him? A. Yes.” He said he was not really trying to pin Anders down on this case, but just asked him if they could convict him, but he was trying to get Anders to incriminate himself; he was trying to find out something; that he is still a friend of Pat’s and liked him but would not testify to something that did not happen.

Joe Pat Anders, the defendant, testified that the conversation did not last over thirty minutes to an hour and a half. He denied making the statement in question, but testified that he denied any guilt. He testified that his attorney had advised him not to make any statement at all. He said he had no idea that Deputy Bogard was trying to go into the case. He testified he did not want to sell his pickup and nothing was said about a sale in the conversation. He said Bogard asked him “how I was going to come out in that case over there” and that he answered, “Well, you ought to know more about it than I do,” and then he asked Bogard, “What all have they got on me over there?” and Bogard answered, “Gosh, I don’t know. You know quite a bit more about that than I do.” In answer to a question from his counsel, Anders said, “I knew he wasn’t my friend when he came up there. I knew better than talking to him. I was trying to get along with him. I go over there all the time, and I didn’t want him arresting me everytime he saw me, and I just spoke to him * * *. I was just trying to get along with him.” He testified that Bogard never gave any indication whatsoever that he was trying to gather up evidence against Anders in talking with him. In answer to a question by the District Attorney: “You didn’t consider him your friend, did you?” An-ders answered: “Well, no * * * that ‘friend’ can be a lot of things. It can be a close friend, or a policeman friend, or — I have never considered a policeman too much of a friend. I have never been arrested by him.” He was asked: “So you weren’t shocked by him trying to hold himself out as a friend so you would tell him something?” and “You knew better than that didn’t you?” A. “I have never told one of them anything yet.”

After the hearing, the trial judge permitted the introduction only of the question and answer, and the immediate circumstances at that time and place.

We fail to find anything misleading, underhanded, or any effort to take advantage of Anders or the existence of any fact which was known to the deputy and not known to appellant prompting Anders to engage in the conversation. Anders was not in custody, but had made his bond and was perfectly free to come and go as he wished. He knew he was not talking to a friendly officer, and so testified. We are unable to find anything said or done which would in any way interfere with Anders having a fair trial of the case on the merits. Bogard, the only other witness, was present at the trial, was a sworn witness and testified as to the conversation, and was cross-examined by appellant’s counsel as much as he desired. Only the exact conversation and the bare bones of the circumstances leading up to and surrounding the conversation were admitted in evidence to the jury. We find this action of the trial court is not contrary to the declaration of the United States Supreme Court in the Massiah case [Massiah v. United States], 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964), as applied in later cases by that Court. In discussing the right of a defendant to be represented by counsel at any pretrial confrontation of the defendant, formal or informal, the Court said in United States v. Wade, 388 U.S. 218, on page 227, 87 S.Ct. 1926, on page 1932, 18 L.Ed.2d 1149, on page 1157 (1967):

“In sum, the principle of Powell v. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932)] and succeeding cases requires that we scrutinize any pretrial confrontation of the accused to determine whether the presence of his counsel is necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of the counsel at the trial itself. It calls upon us to analyze whether potential substantive prejudice to defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice.”

On the same day Wade was decided, the U. S. Supreme Court also decided Gilbert v. California, 388 U.S. 263, 87 S.Ct.1951, 18 L.Ed,2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

Our holding on the Massiah point is, we think, consistent with and follows the reasoning in Stovall. Stovall was convicted and given the death penalty by a jury in the State Courts of New York. The New York Appellate Court affirmed. Wade was decided, and shortly thereafter Stovall applied to the Federal District Court for the Southern District of New York for a writ of habeas corpus on the ground that he did not have counsel present at an in-room hospital identification by the deceased’s wife, who was present and saw the killer when her husband was killed and she was knocked to the floor by the attacker and stabbed eleven times. The wife was confined in the hospital and had major surgery the day after the murder in order to save her life. About noon on the second day after the killing, and the next day after the surgery, five or six police officers and two members of the district attorney’s staff brought the accused Stovall into the wife’s room for her to view the accused. He was the only Negro in the hospital room and was handcuffed to one of the officers. Also, the officers required the accused to speak a few words for the purpose of voice identification. One of the officers asked the wife “if he was the man.” The wife identified Stovall as the killer. She recovered and testified in the trial of Stovall, telling about her identification of him in the hospital. She also identified Stovall from the witness stand as the killer. The U. S. Supreme Court affirmed. Its decision was based on (1) the refusal to apply the rules announced in Wade and Gilbert retroactively to Stovall since his conviction was prior to the announcement of such rules, (2) that the hospital room confrontation was not so unnecessarily suggestive as to violate due process of law. We do not have a confrontation for identification purposes in our case. In its opinion, the Supreme Court quotes from the Circuit Court of Appeals’ opinion (355 F. 2d at 735) as follows:

“Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, ‘He is not the man’ could have resulted in freedom for Stovall. The hospital was not far distant from the courthouse and jail. No one knew how long Mrs. Behr-endt might live. Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital. Under these circumstances, the usual police station line-up, which Stovall now argues he should have had, was out of the question.”

From the above authorities it appears to us that the Massiah rule has only been applied to reverse a case (1) where the defendant was in custody at the time the questioned evidence was elicited from him by the police, and (2) where the defendant was on bond and he was the subject of some subterfuge; betrayal by a friend; the presence of a radio transmitter, unknown to defendant but known to the police and the other party to the conversation; the secret presence of the police, again unknown to defendant but known to his confidant, or some other form of trickery. In short, conduct on the part of the police which the appellate court considers unfair and which denies a fair trial to the defendant. We do not find any such condition or conduct in this case.

For the errors pointed out above — this cause is reversed and remanded to the trial court for re-trial.