Brown v. State

640 S.W.2d 275, 1982 Tex. Crim. App. LEXIS 1019

• Court: Court of Criminal Appeals of Texas
• Decided: September 22, 1982
• Docket: 62421
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of theft of personal property of a value of more than $200 and less than $10,000. The punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant was charged under V.T. C.A. Penal Code, Section 31.09 with theft of several items of personal property from Judith Middagh and with theft of several items of personal property from Jack Mil-len; both thefts occurring on September 22, 1977, in one scheme and continuing course of conduct; the aggregate value of the property is alleged to be more than $200 and less than $10,000. Appellant raises numerous grounds of error, none of which present reversible error.

The appellant asserts that:

(1) The property is not sufficiently described in the indictment;

(2) the indictment is fatally defective because it “aggregates two distinct crimes”;

(3) it was error to allow aggregation of the offenses after he filed a motion to sever;

(4) the evidence is insufficient to support a verdict;

(5) the trial court failed to instruct the jury that a witness was an accomplice witness as a matter of law;

(6) the trial court improperly overruled his objection to a leading question propounded by the prosecutor;

(7) hearsay testimony was improperly admitted;

(8) evidence of an extraneous offense was improperly admitted;

(9) the prosecutor made improper jury argument;

(10) life imprisonment under the facts here is cruel and unusual punishment.

The appellant argues that the trial court erred in failing to quash the indictment. He asserts that the description of the property taken is insufficient. See Article 21.09, V.A.C.C.P. The indictment described the property as follows:

“. . . one (1) Singer Sewing Machine of the value of $150.00, one (1) Texas Instruments Calculator of the value of $30.00, and one (1) hair blower of the value of $20.00.. . .

“one (1) red tool box of the value of $30.00, and one (1) Craftsman chain saw of the value of $115.00 . . . . ”

The descriptions were sufficient. Welch v. State, 543 S.W.2d 378 (Tex.Cr.App.1976).

The appellant argues that the indictment is fundamentally defective because it aggregates two distinct crimes. We conclude that the indictment sufficiently alleged the offense. Tucker v. State, 556 S.W.2d 823 (Tex.Cr.App.1977). The evidence as outlined later demonstrates that the property was stolen pursuant to a single scheme or continuing course of conduct. The ground of error is overruled.

In two grounds of error the appellant argues that it was error to allow the aggregation of the offenses after the appellant had filed a motion to sever.

V.T.C.A. Penal Code, Section 31.09, states:

“When amounts are obtained in violation of this chapter pursuant to one scheme or continuing course of conduct, whether from the same or several sources, the conduct may be considered as one offense and the amounts aggregated in determining the grade of offense.”

Also, see V.T.C.A. Penal Code, Section 3.02(a) and Article 21.24(a), V.A.C.C.P. However, V.T.C.A. Penal Code, Section 3.04(a) provides:

“Whenever two or more offenses have been consolidated or joined for trial under Section 3.02 of this code, the defendant shall have a right to severance of the offense.”

The appellant argues that he was entitled to a severance because Section 3.04(a) is mandatory. See Overton v. State, 552 S.W.2d 849 (Tex.Cr.App.1977). However, the contention raised by appellant has already been decided adversely to his contention. Section 31.09, supra, creates one offense which cannot be severed. Wages v. State, 573 S.W.2d 804 (Tex.Cr.App.1978); Ex parte Wilson, 577 S.W.2d 739 (Tex.Cr.App.1979). No right to sever existed; the grounds of error are overruled.

The appellant contends the evidence is insufficient to support the verdict.

Benito Martinez testified he worked with the appellant as a yardman for Jack Millen. The appellant was a foreman for Millen’s business. Martinez stated that the appellant picked him up early on the morning of September 22, 1977. They drove to Millen’s residence where they picked up various tools and equipment used in their yard work including a Craftsman chain saw. The appellant was driving Millen’s truck which contained a red tool box. After breakfast and a few errands the pair went to the residence of Judith Middagh. They both entered the house; a key had been left for them so they could gain access to an electric outlet. While Martinez waited in the dining room the appellant went into the bedrooms. He brought out a suitcase and a sewing machine. Martinez stated he believed the calculator was in the suitcase and saw the calculator later.

After this the appellant left Martinez at a restaurant for thirty minutes. When he returned Millen’s red tool box was gone and appellant said “he had called him because he had no money to pay for parking .... ” The pair then went to Juarez where the appellant sold the chain saw and the sewing machine. Martinez was taken home after-wards.

Officer Majos testified that on the night of September 22, he investigated an accident report. He found the appellant highly intoxicated, behind the wheel of Millen’s truck. The vehicle was impounded and while an inventory of property was taken a hair dryer and a calculator were found. Middagh testified that she recovered her calculator and hair dryer from the truck. Both Millen and Middagh testified that they did not consent to the taking and disposition of their property.

The evidence is sufficient to show that the appellant appropriated all the alleged property without Millen’s or Middagh’s effective consent and with the intent to deprive them of that property.

The appellant also complains that the evidence is insufficient to establish that the property stolen had a value of $200 or more. Millen testified that the chain saw was three months old and he purchased it for $115. The tool box was three years old and was purchased for $30. Middagh testified that the hair dryer was less than a year old and was purchased for about $20. She stated it was worth about $15. She stated she purchased the calculator for $30. The sewing machine was three years old and she paid $150. She later said that she thought the replacement value was about $100. The appellant offered no objection to the manner of proof of value. We have repeatedly stated that if the manner of proving value does not meet the accused’s approval, it is incumbent upon him to voice his objection at the time of the introduction of the testimony. Bullard v. State, 533 S.W.2d 812 (Tex.Cr.App.1976); Nitcholas v. State, 524 S.W.2d 689 (Tex.Cr.App.1975); Turner v. State, 486 S.W.2d 797 (Tex.Cr.App.1972). We conclude that the evidence is sufficient to show that the stolen items had a combined value of more than $200.

The appellant argues that the trial court erred when it failed to instruct the jury that Benito Martinez was an accomplice witness as a matter of law. The trial court submitted the issue of whether Martinez was an accomplice witness as a question of fact for the jury to decide. If there is a doubt as to whether a witness is an accomplice, submitting the issue to the jury is sufficient even though the evidence seems to preponderate in favor of the conclusion that the witness is an accomplice as a matter of law. Carrillo v. State, 591 S.W.2d 876 (Tex.Cr.App.1979). In the ease at bar Martinez testified that he was unaware that the appellant was stealing the property. He stated he thought the property belonged to the appellant. He was paid his usual wage of $20 and appellant gave him a suitcase. Martinez reported the incident to Millen the next day.

Mere presence at the scene of a crime is insufficient to make a witness an accomplice. Russell v. State, 598 S.W.2d 238 (Tex.Cr.App.1980), cert. denied 449 U.S. 1003, 101 S.Ct. 544, 66 L.Ed.2d 300 (1980). Nor is a person deemed an accomplice witness because he knew of the crime but failed to disclose it or even concealed it. Easter v. State, 536 S.W.2d 223 (Tex.Cr.App.1976). The trial court did not err in submitting the issue of whether Martinez was an accomplice witness as a fact question for the jury. Carrillo v. State, supra.

The appellant contends that the trial court erred when it overruled his objection to a leading question. On redirect examination of Mr. Martinez the prosecutor asked the following question:

“Did you see Mr. LaBrae remove any jewelry or any items of jewelry-type items from that house?”

As the appellant correctly states, this Court will rarely reverse a conviction because of a leading question. Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974). In the present case the witness had a limited command of the English language and all questioning was through an interpreter. The record reveals that both parties had difficulty communicating with the witness. In light of this we conclude no reversible error occurred.

The appellant next argues that inadmissible hearsay testimony was improperly admitted. Mr. Millen testified that he was called by Mr. Martinez the day after the offense. Mr. Millen, over appellant’s objection, testified that Mr. Martinez informed him about the circumstances surrounding the theft. The State concedes that the testimony concerning the contents of the telephone conversation was hearsay. However, Mr. Martinez testified earlier that he called Mr. Millen and told him everything that had happened concerning the theft. The evidence was already before the jury; the ground of error is overruled. Anderson v. State, 504 S.W.2d 508 (Tex.Cr.App.1974).

The appellant next asserts that evidence of an extraneous offense was improperly admitted. Mr. Millen, one of the complainants, testified that the appellant did not return money he was to have collected on the day before and the day of the offense. After a few other questions the appellant objected complaining, “You’re going to let him go into some checks?” Mr. Martinez had earlier testified, without objection, that the appellant had picked up checks for Mr. Millen on the day of the offense. After appellant’s objection was overruled Mr. Millen testified about the apparent misappropriation of funds given to the appellant for Millen’s business during the week prior to the offense. No objection to this testimony was ever made. Nothing is presented for review. Garcia v. State, 573 S.W.2d 12 (Tex.Cr.App.1978); Haynes v. State, 627 S.W.2d 710 (Tex.Cr.App.1982).

The appellant contends that the prosecution engaged in several instances of improper jury argument during the guilt-innocence phase of the trial. The ground of error is multifarious and presents nothing for review. Morgan v. State, 545 S.W.2d 811 (Tex.Cr.App.1977). Nonetheless, we have reviewed the argument and conclude that no reversible error occurred. The appellant complains the prosecutor made references to items stolen which were not alleged in the indictment. The prosecutor was in fact informing the jury that they could not use the non-alleged stolen property to reach the two hundred dollar property value of V.T.C.A. Penal Code, Section 31.-03(d)(4). The argument was proper.

The appellant also complains of the following argument:

“I am not going to jump up and interrupt him [appellant’s counsel] unless it is something so highly prejudicial that I feel that it is necessary to stop him. That’s by way of warning. I am going to give him the opportunity to argue to you anything he wants because you have to make a decision based on this evidence .... ”

The prosecutor was explaining why he might have to object to appellant’s closing argument and was also explaining that the arguments made by either side were not evidence. The ground of error is overruled.

The appellant contends that based upon the facts of this ease the sentence of imprisonment for life is cruel and unusual punishment. Appellant’s contention has been rejected. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). The ground of error is overruled.

The appellant has also filed a pro se brief. After a careful review of the contentions we conclude they are without merit.

The judgment is affirmed.