Chambers v. State

711 S.W.2d 240, 1986 Tex. Crim. App. LEXIS 746

• Court: Court of Criminal Appeals of Texas
• Decided: June 4, 1986
• Docket: 1147-83
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING ON PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of credit card abuse. V.T.C.A. Penal Code, § 32.31. Punishment was assessed at eight (8) years confinement in the Texas Department of Corrections and a $4,000 fine. On direct appeal, the Fort Worth Court of Appeals reversed the conviction and ordered a judgment of acquittal. Chambers v. State, delivered October 27, 1983, No. 2-83-198-CR. Both the District Attorney’s and State Prosecuting Attorney’s Petitions for Discretionary Review were refused by this Court on April 4, 1984. On December 3, 1984, we granted leave to file a motion for rehearing by the State Prosecuting Attorney to consider the correctness of the holding by the court of appeals. The motion for rehearing will be granted.

The indictment alleges in pertinent part that appellant, acting “with [the] intent to fraudulently obtain property and services, namely, the rent of a room, from Louise Dyringe Posey, knowingly and intentionally use and present an American Express credit card Number 3782 916388 22022 with knowledge that the card had not been issued to the said defendant, and that the said card was not used with the effective consent of the cardholder, Jerome Thomas Fiske.”

I. Facts¹

The facts, viewed in the light most favorable to the prosecution are as follows.

Jerome Fiske, the cardholder, testified that on December 15, 1981, he checked into the Eight Days’ Inn in Irving. At about 1:00 a.m., shortly after he checked in, he went to Denny’s for coffee. After having coffee, he went to his room and went to sleep. At approximately 7:30 a.m. on the morning of the fifteenth, Fiske went through his belongings and found that his car keys, his American Express card, a Texaco gas credit card, and his Tennessee driver’s license were gone. His 1979 black Mark V Lincoln Continental was also missing from the parking lot. Fiske immediately notified the police. Fiske was asked by the prosecutor whether he gave consent to anyone to enter his room or to use his credit card on December 15, 1981. He told the jury “nobody uses my credit cards, not even my own wife. Nobody uses my credit cards, no, at all.” He further testified that he did not know appellant or his blonde companion.

Louise Dyringe Posey testified that on December 15, 1981, she was the manager at the Lexington Apartments and Motor Inn [hereafter called Lexington] in Irving. She lived on the premises and rented both rooms and apartments. When she arrived at her office at 6:20 a.m. December fifteenth, the desk clerk told her that a couple had just checked into Room 111. The clerk showed Posey the registration card and the American Express imprint from that transaction. The name shown on the registration card and the imprint was that of the complainant, Jerome Fiske.

The State then introduced the imprint of the American Express card and the registration card into evidence. The number on the imprint matches the card number alleged in the indictment. The number of the card is 3782 916388 22 022. The prosecutor then incorrectly read off the number as 3782 916388 23 022. Posey mistakenly agreed that that was the number, although the exhibit displayed the proper number. The same exchange concerning the card number occurred between the prosecutor and Fiske during Fiske’s testimony, but Fiske never identified any card imprint.

Posey stated that appellant and his companion returned to the office within minutes of her conversation with the desk clerk. She described appellant as a black male, medium height, and medium build. He was wearing a hat and had long hair and a mustache. Appellant’s companion was a tall, thin, blonde female wearing a big long cape. Posey identified appellant in open court.

While they were standing in the office, Posey asked the couple what room they were in. The female responded: “Room 111.” They were in the office waiting for a taxi. She told the jury that she knew appellant as Jerome Fiske, the name appearing on the registration card and the credit card imprint.

Posey testified that later that day, she received a call from AGM car rental in Richardson. AGM asked if a Jerome Fiske was registered at the motel and whether he had presented an American Express card when he registered. Posey responded that she had the card imprint; AGM informed Posey that the card was stolen.

Posey immediately notified the Irving Police. When they arrived, she showed them the American Express imprint and registration card. Posey stated that the police set up surveillance on Room 111 by positioning themselves in Room 109. At noon the following day, December 16, 1981, appellant’s female companion called Posey to inform her they were checking out. Po-sey recognized the woman’s voice, and believed her to be Mrs. Fiske. She again notified the police, who by this time had broken their surveillance on Room 111, and told her employees to stay away from the vicinity of Room 111.

Beverly Sue Buchwald told the jury that she worked for AGM car rental in Richardson. On December 15, 1981, two people came into her office to rent a Cadillac, using the name of Mr. and Mrs. Jerome Fiske. One was a black male, whom Buchwald identified as appellant, and the other was a tall, thin, blonde, white female. Appellant presented an American Express credit card and a Tennessee driver’s license in the name of Jerome Fiske to her.² She imprinted the credit card, telephoned the American Express Company for approval on the rental, and was informed that the card had some difficulty. She let appellant, who had identified himself as Jerome Fiske, talk to the American Express representative on the phone, and she heard him giving them various addresses by which they could verify his residence. The rental was not approved. Appellant and his companion left the office. The appellant said he was going to his automobile to get his Visa card. They did not return to the office. Appellant took Fiske’s Tennessee driver’s license with him but left the American Express card with Buchwald. After they left, the real Jerome Fiske called Buchwald and one of Buchwald’s employees subsequently called Louise Posey at the Lexington.

Buchwald testified that she kept the American Express card, imprinted it, cut the card in half, and mailed it back to American Express. She told the jury that she did not remember the complete card number, but she identified a copy of the imprint as the one she later gave to the police. The card number on the identified copy matches the card number alleged in the indictment and placed in the jury charge.

Officer T.L. Garth of the Irving Police Department testified that at 2:14 p.m. on December 15, 1981, he was dispatched to the Lexington to “attempt to locate a stolen car.” The car was a black, 1979 Lincoln Continental owned by Jerome Fiske. Officer Garth located the car in the parking lot of the Lexington.

Officer R.E. Dix testified that on December 15, 1981, while on duty as an undercover police officer for the City of Irving, he was called to go to the City of Richardson and talk to Beverly Buchwald at AGM Rentals. He received from her a copy of the imprint of the American Express card the appellant attempted to use to rent a Cadillac. The imprint copy, authenticated by Dix and Buchwald, was admitted into evidence as State’s Exhibit No. 4. The copy as given by Buchwald to Dix and shown to the jury reflected the same card number as provided in the indictment and jury charge. Both State’s Exhibit No. 1, the credit card imprint from the Lexington Apartments on Room 111 and State’s Exhibit No. 4, the imprint from the credit card used in the attempt to rent the Cadillac, appear to be made from the same card; they contain the same account number with American Express in the name of Jerome Fiske.

Officer Dix further testified that he set up surveillance of Room 111 at the Lexington at about 5:00 p.m. on December 15, 1981. The black Lincoln Continental was outside the Lexington in the parking lot. After it became apparent that the occupants were not going to return, Dix obtained and executed a search warrant for the room. Inside the room he found “papers that went to the Lincoln Continental, keys to it, miscellaneous papers belonging to Jerome Fiske from the Continental, tickets, checks, things of this nature.” The tickets were airline tickets in the name of Jerome Fiske.

Officer Dix also found a check made out to Jerome Fiske drawn on a Harold Vogt. Fiske testified that he did not know anyone by that name. The State offered expert testimony that the check found in Room 111 bore appellant’s fingerprints. Dix further testified that his search produced an “intrusion device” and some clothes. Finally, Dix testified that keys to Room 334 in the Eight Days’ Inn, across the street from the Lexington, were found.

Officer D.M. Collins, Irving Police Department, Organized Crime Unit, stated that he was working undercover on December 14 and 15, 1981. He placed a phone call during this period of time to Room 334 of the Eight Days’ Inn in Irving and the phone was answered by a male. He later was able to identify the voice on the telephone as appellant’s. On the afternoon of the fifteenth, Collins took part in the surveillance operation at the Lexington. Collins was told the surveillance was on two suspects in a stolen car case. Officer Collins stayed on surveillance throughout the night of the fifteenth and was relieved at 5:00 a.m., December 16. During that time period neither the appellant nor his companion returned to the motel.

At about 10:00 a.m., December 16, Collins went back on duty and testified that he received a call from the manager of the Lexington informing him that appellant’s blonde companion had called the Lexington. She told the manager that she and appellant were coming back to the Lexington to check out. As Collins watched on the afternoon of December 16, a taxi cab approached containing a white female with long blonde hair and a black male. He believed these two people were the people who were occupying Room 111. As the taxi approached his location, it suddenly sped up and drove away. Collins was in an unmarked police car, but it had red lights and a siren in its grill. He pursued the taxi, stopped it, identified himself as a police officer, and ordered the occupants of the taxi from the vehicle. The black man identified himself by a name other than Chambers. Collins identified appellant at trial as the man he arrested on December sixteenth.

II. The Standard for Measuring the Sufficiency of the Evidence in “Weak Circumstantial Evidence Cases.”

In analyzing the sufficiency of the evidence, the court of appeals first disregarded Posey’s hearsay testimony about her conversation with the clerk who had been on duty when the couple checked into Room 111, citing Alvarado v. State, 632 S.W.2d 608 (Tex.Cr.App.1982), and Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1980).³ The court then concluded that after Posey’s hearsay testimony was disregarded, the re°maining testimony in the case only circumstantially involved appellant in the charged offense. After noting that the State did not call the only witness (the desk clerk) who could have supplied direct evidence that appellant unlawfully used the credit card, the court of appeals applied the following rule from Cruz v. State, 482 S.W.2d 264 (Tex.Cr.App.1972):

“Where circumstantial evidence relied on by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction.”

When the court of appeals viewed the evidence after disregarding the hearsay, it concluded that it was obviously weak. Since the State failed to adequately explain its failure to call the desk clerk, the court of appeals ordered an acquittal under Cruz, supra.

The Cruz standard relied upon the court of appeals is both inconsistent with our holdings in the Carlsen line of cases,⁴ and inherently illogical. In Carlsen, supra, we held that the standard for review of sufficiency of the evidence is the same in both direct and circumstantial evidence cases.⁵ We also held that we would not abandon “the utilitarian ‘exclusion of outstanding reasonable hypotheses’ analysis for applying the above ‘standard for review’ in circumstantial evidence cases.” Id at 449 (Opinion On State’s Motions For Rehearing) (emphasis in original). The reason for not abandoning the “exclusion of outstanding reasonable hypotheses” analysis is that it is the same mental process that a rational trier of fact would employ in logically analyzing any circumstantial evidence case, weak or strong.

As was stated in the concurrence in Carlsen:

“Logic dictates that if there is a ‘reasonable hypotheses’ other than the guilt of the accused, then it cannot be said that the guilt [of the accused] has been shown ‘beyond a reasonable doubt.’ In Hankins v. State, 646 S.W.2d 191 (Tex.Cr.App.1983), we recognized that direct and circumstantial evidence were to be treated with equal dignity. Thus any effort to weave into the standard of appellate review any exception or difference or special treatment for one type of evidence will fail for lack of logic.”

Id. at 450 (McCormick, J., concurring) (Opinion On State’s Motions For Rehearing).

We believe that the “weak circumstantial evidence case” standard of review employed by the court of appeals in this case is such an effort. It fails for lack of logic because, unlike the “exclusion of outstanding reasonable hypotheses” analysis, it is not a utilitarian mode of analysis for applying the “rational trier of fact” standard in circumstantial evidence cases. The supposed logic of the “weak circumstantial evidence case” standard of review, which is discussed in 24 Tex.Jur.2d, Evidence, Sec. 745, p. 927, stems from the untenable presumption that the State’s failure to produce and failure to account for the non-production of “available testimony” creates reasonable doubt as a matter of law. See Ysasaga v. State, 444 S.W.2d 305, 309 (Tex.Cr.App.1969); Hollingsworth v. State, 419 S.W.2d 854 (Tex.Cr.App.1967); King v. State, 396 S.W.2d 409 (Tex.Cr.App.1965); Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251 (1956). This presumption is rational only if it is assumed that the production of the “available testimony” would have created reasonable doubt in the case. Such an assumption is unreasoned. If it were a legitimate assumption, one can only wonder why the accused would not produce this testimony and demand an instructed verdict in the case. [The entire idea of focusing on what evidence was not introduced by the State is absurd. Instead, the proper focus in reviewing sufficiency of the evidence is on what was introduced into evidence.] Either the evidence permits a rational trier of fact to find the essential elements of the offense beyond a reasonable doubt or it does not. What is not in evidence is irrelevant to a determination of the sufficiency of the evidence. Because Ysasaga, supra, and Cruz, supra, are repugnant to the Carlsen line of cases and are inherently illogical, they and their progeny, to the extent they are in conflict with this opinion, are expressly overruled. The proper standard for review in this case is: whether after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, supra.

III. The Probative Value of Hearsay

Our long standing practice of disregarding inadmissible hearsay in determining evidentiary sufficiency is the lone exception to our general rule that we examine all the evidence before the trier of fact in determining sufficiency questions. See, e.g., Gutierrez, supra; Alvarado, supra. This practice stems from the heretofore erroneous premise that inadmissible hearsay completely lacks probative value. Since, as will presently be demonstrated, inadmissible hearsay does possess probative value, it should be considered in determining the sufficiency of the evidence.

The reasons for the exclusion of hearsay have been explained by Professor Black:

“The so-called hearsay dangers, which justify the exclusionary rule, are universally recognized to be the witness’ perception, memory, narration and sincerity. All of these revolve around the denial of the right of cross-examination, and the lack of opportunity to view the witness’ demeanor. No one has ever suggested lack of probative value as a hearsay danger.

“Perhaps the best argument in favor of the probative value of hearsay lies in the many exceptions to its exclusion. If hearsay were nonprobative there would not be so many courts and lawyers and commentators seeking excuses to admit it. There are no exceptions to the rule excluding irrelevant evidence which truly lacks probative value.”

Black, Hearsay Admitted Without Objection — A Defense of Its Probative Value, 17 So.Tex.L.J. 69, 71-72 (1975) (footnotes omitted).

Many out-of-state cases confirm the probative value of admitted hearsay. In Barlow v. Verrill, 88 N.H. 25, 183 A. 857, 858-59 (1936), the Supreme Court of New Hampshire stated:

“The hearsay rule is merely an exclusionary principle limiting admissibility and in no sense a canon of relevancy. It involves no assertion that hearsay statements are without probative force or that they furnish no logical basis for conclusions of fact. On the contrary, if relevancy were not assumed, no special rule of exclusion would be required. Unless it were logically relevant, hearsay would be excluded by virtue of the fundamental axiom of evidence that ‘none but facts having rational probative value are admissible.’ 1 Wig.Ev. § 9. ‘In judging

... as to the real scope and value of any rule of exclusion like that rejecting hearsay it is necessary to bear in mind that such exclusion can apply, properly speaking, only to that which is already evidence. The hearsay rule cannot be invoked to exclude statements which are merely irrelevant.’ 4 Chamberlayne, Ev. § 2722. ‘The hearsay rule is merely an additional safeguard to be applied to testimonial evidence otherwise admissible.’ 2 Wig.Ev. § 1424. Consequently it is established law, supported by an immense number of decisions, that hearsay testimony when admitted without objection is to be considered and given its logical probative effect.”

In State v. White, 215 S.C. 450, 55 S.E.2d 785, 787 (1949), the South Carolina Supreme Court wrote:

“The rule is well settled that evidence even though incompetent, if admitted without objection or motion to strike, is to be given the same probative value as that to which it would be entitled if it were competent.... It is held by a great majority of the courts that verdicts may result from hearsay testimony and be sustained, where that evidence is permitted without objection to go to the jury. The hearsay rule is merely an exclusionary principle limiting its admissibility and in no sense a canon of relevancy — its probative force, where admitted without objection, being for the jury and not for the court to determine. See the many cases cited in Annotation, 104 A.L.R., Page 1130. As was said in Dan-son v. Carroll, 163 Mass. 404, 40 N.E. 185, 186: ‘Hearsay evidence usually is rejected because it lacks the corroboration of an oath or affirmation, and not because it has no natural tendency to induce belief_’ As hereinabove pointed out, the evidence in question was admitted without objection and may properly be considered as if it were in law admissible — the only question being with regard to its probative weight; and this was a matter for the jury.”

Finally, in Kern v. State, 237 Ind. 144, 144 N.E.2d 705 (1957), a prosecution for robbery, the Indiana Supreme Court, holding that inadmissible hearsay evidence admitted without objection could be considered, stated: “A party who permits incompetent evidence on a material issue to be introduced without objection can not be heard to say on appeal that it should not be considered in determining if the finding is supported by the evidence.”

In fact, Texas (in criminal cases only) and Georgia are the only American jurisdictions that completely deny any probative value to hearsay in determining sufficiency of the evidence claims. See Annot., 79 A.L. R.2d 890. The Texas rule has been the subject of criticism by commentators other than Professor Black. See 1 Wigmore, Evidence, § 18, n. 1 (Tillers rev. ed. 1983) (characterizing rule as “patent nonsense”); 1 Ray, Texas Evidence, § 31 (3rd ed. 1980); Comment, Hearsay Admitted Without Objection: A Reassessment of Its Probative Value, 33 Baylor L.Rev. 983 (1981).

In other contexts, this Court has previously held that inadmissible hearsay has probative value in extradition proceedings, Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975); in probation revocation proceedings, Frazier v. State, 600 S.W.2d 271 (Tex.Cr.App.1980); and in suppression hearings, Lalande v. State, 676 S.W.2d 115 (Tex.Cr.App.1984). Obviously then, inadmissible hearsay is not always “no evidence.” Any suggestion that the burden of persuasion in a given proceeding controls the probative value of a piece of evidence is ridiculous. Evidence either has probative value or it does not. The burden of persuasion is concerned with the cumulative force of all the evidence and simply does not affect the probative force of a particular piece of evidence, the latter determination being the responsibility of the factfinder. Cf. Art. 36.13, V.A.C.C.P.

In Ballew v. State, 640 S.W.2d 237, 244 (Tex.Cr.App.1982) (Opinion on Appellant’s Motion for Rehearing), we stated:

“The fact that other jurisdictions and textbook writers have criticized a rule that we have embraced, does not, standing alone, furnish reason for abandonment of such rule. However, if precedent does not have some sort of reasonable underpinning, we should not bury our heads in the sand when such criticism is voiced.”

The time has come for this Court to acknowledge the lack of any rational underpinning for the special treatment of hearsay in sufficiency of the evidence cases. Therefore, for the reasons stated above and the additional reasons contained in Judge Douglas’ dissenting opinion in Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977), we will follow the majority rule now embraced by Tex.R.Ev. 802 and treat inadmissible hearsay admitted without objection the same as all other evidence in the sufficiency context, i.e., it is capable of sustaining a verdict. Accordingly, to the extent they are in conflict, Alvarado, supra, and Gutierrez, supra, are overruled.

IV. Sufficiency of the Evidence

When all the evidence is viewed in the light most favorable to the jury’s verdict, the following picture emerges.

Jerome Fiske, a guest at the Eight Days’ Inn, woke up on the morning of December 15, 1981, to discover certain personal property missing from his room, including his American Express card, a gas credit card, his car keys, his 1979 black Lincoln Continental Mark V, and his Tennessee driver’s license.

That very same morning, at approximately 6:00 a.m. a couple checked into Room 111 at the Lexington Apartments and Motor Inn by presenting an American Express card in the name of Jerome Fiske. Shortly thereafter, appellant and his blonde companion appeared together in the manager’s office and the blonde companion stated that she and appellant were staying in Room 111. A subsequent search of Room 111 revealed that property belonging to Jerome Fiske was in Room 111; Fiske’s Mark V Lincoln was in the parking lot. A check made out to Fiske, with appellant’s fingerprints on it, was also found in Room 111.

At some time on December 15, 1981, appellant and his blonde companion attempted to rent a Cadillac from AGM car rental by presenting the same American Express card that had been presented at the Lexington, a card bearing the name of Jerome Fiske. Appellant also presented a Tennessee driver’s license in the name of Jerome Fiske. When difficulty arose during the transaction, appellant and his blonde companion fled.

Finally, when appellant and his blonde companion returned the next day to check out of the Lexington, they observed the waiting police reception and attempted to flee.

From these facts, reasonable minds can draw only one inference — that appellant and his blonde companion were in fact the couple who checked into Room 111. Therefore one of them must have presented the American Express card alleged in the indictment. The extraneous offense, in conjunction with the other evidence, is sufficient to prove the intent to defraud, as well as being sufficient to prove that appellant and his blonde companion were acting as parties. See V.T.C.A. Penal Code, § 7.02. Fiske testified that nobody had his consent to use his credit cards. Obviously, the card in question was not issued to appellant. Therefore the evidence was sufficient to prove that appellant, acting alone or as a party⁶, presented the card in question, as alleged in the indictment.

Accordingly, the State’s motion for rehearing is granted. The judgment of the court of appeals is reversed and remanded for consideration of appellant’s remaining ground of error.⁷

1 . We borrow liberally from the State’s brief and the court of appeals opinion.

2 . It appears from the record" that Tennessee driver’s licenses did not have pictures on them at the times involved in this case.

3 .As to the propriety of disregarding hearsay when the sufficiency of the evidence is challenged, see part III, infra.

4 .Carlsen v. State, 654 S.W.2d 444 (Tex.Cr.App.1983); Freeman v. State, 654 S.W.2d 450 (Tex. Cr.App.1983); Denby v. State, 654 S.W.2d 457 (Tex.Cr.App.1983); and Houston v. State, 663 S.W.2d 455 (Tex.Cr.App.1984).

5 . The standard is "whether, after viewing the evidence in the light most favorable to the prosecution, any rationale trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 97 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 563 (1979).

6 . The court’s charge to the jury in this case authorized appellant's conviction under the law of parties.

7 . That ground of error alleges “a fatal variance between the credit card alleged in the indictment and that proved to belong to the named cardholder, ‘based on the misidentification of the cardnumber by Posey and Fiske.’" No opinion is expressed as to the proper disposition of that ground of error.