Chavez v. State

642 S.W.2d 59, 1982 Tex. App. LEXIS 5325
CourtCourt of Appeals of Texas
DecidedOctober 20, 1982
DocketNo. 08-81-00275-CR
StatusPublished
Cited by4 cases

This text of 642 S.W.2d 59 (Chavez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chavez v. State, 642 S.W.2d 59, 1982 Tex. App. LEXIS 5325 (Tex. Ct. App. 1982).

Opinion

OPINION

SCHULTE, Justice.

This is an appeal from a habitualized conviction for third-degree felony theft. Appellant was sentenced to life imprisonment. We affirm.

In 1979, the El Paso Police Department was conducting an anti-fencing “sting” operation. In September of that year, Appellant was recruited as an informant by two El Paso narcotics officers who were peripherally involved in the undercover “sting” project. On October 17, he was certified by the department as a paid informant. His instructions were to arrange for individuals already in possession of stolen property to sell these items to a particular fence site on Montana. The narcotics officers did not tell Appellant that the “fences” were, in reality, undercover officers. He was led to believe that the police were interested in the activities of these “fences,” as well as those of their customers. On the other hand, the “sting” site officers were also unaware that the Appellant was an informant working through the narcotics officers. It was not until after the project was completed and indictments being returned that these officers were advised of his initial status. Appellant was instructed not to participate in or encourage any burglaries or thefts. He was not to engage in the fencing negotiations or take any payments for stolen property. He was to notify the narcotics officers before he took any customers to the site and report the transactions afterward, giving names, descriptions of property and other information. Each after-sale report was to be the basis for his informer payment. Both the State and defense evidence is in agreement that these were the terms of the arrangement. From early October until November 16, Appellant followed these procedures without exception on six transactions. Several days prior to November 16, he began calling the “sting” officers about an inoperative vehicle for sale. The officers declined to buy it in that condition. On November 16, he ar[61]*61rived at the “sting” site with Delia Ramirez. They had the vehicle, listed in the present indictment, with them. Contrary to instructions and prior course of dealing, Appellant did not contact the narcotics officers prior to this transaction. He also took an active role in negotiating the sale. Although the money was paid to Ms. Ramirez, both she and Appellant acknowledged that he had paid for the repairs on the vehicle and would be reimbursed.

At trial, Delia Ramirez and her brother testified that they were with the Appellant when the vehicle was originally stolen. They observed it parked in front of their mother’s house. Owner Jose Mora identified the location as the place where he had left his vehicle when the brake drum broke. They testified that Appellant told them it was his vehicle. He entered it using a coat hanger and had them help him remove personal property from the car. He called a wrecker service and arranged for the vehicle to be repaired in Delia Ramirez’s name. He paid $114.00 out of the $124.00 bill; the car’s spare tire satisfied the remainder. When the car had been repaired he took Ms. Ramirez and the vehicle to the “sting” site. Before entering, he urged her to ask for $400.00. Of the $300.00 ultimately paid, he took $200.00, leaving her with $100.00. After the transaction, he did not contact the narcotics officers. When they looked for him, they found that he had left El Paso. Appellant denied Ms. Ramirez’s version. He testified that he tried to contact the officers ahead of time but could not reach them. He contended that his involvement in this sale was the same as in the six earlier cases and was in accordance with his instructions. He did acknowledge paying for the car repairs.

In Ground of Error No. One, Appellant contends that the court improperly denied him access to the surreptitious videotapes of the six earlier transactions. He bases his appellate complaint upon the “use before the jury rule.” Prior to trial, Appellant sought access to these tapes by motion for discovery. With regard to these tapes the motion was denied, but it was granted as to the videotape of the indicted transaction.

The first witness to testify was Detective Estrada, one of Appellant’s recruiters. On direct examination, he testified that he had viewed all seven videotapes and began to distinguish the scope of Appellant’s involvement in the first six from that in the seventh. Appellant objected on the basis of the “best evidence” rule. The objection does not comport with the issue on appeal. It was also properly overruled at trial since the rule applies only to documentary evidence. Smith v. State, 547 S.W.2d 6 (Tex.Cr.App.1977); Henriksen v. State, 500 S.W.2d 491 (Tex.Cr.App.1973); Casiano v. State, 495 S.W.2d 232 (Tex.Cr.App.1973). Estrada’s partner, Detective Nava, testified next. He was questioned on direct and cross-examination with regard to the first six videotapes without any objection by the defense or further demand for the production of the tapes. Finally, Detective Gomez, the apparent “fence,” was called to testify. He described the first six transactions and the contrast with the seventh from direct personal observation. At the close of cross-examination, Appellant requested that Gomez produce the other six videotapes, arguing that they were admissible because the issue of those transactions had been placed before the jury. This also does not appear as an appellate ground of error and does not comport with the “use before the jury” issue presented in the Appellant's brief. Initially, the court took the request under advisement, but subsequently denied it in conjunction with the denial of Appellant’s motion for directed verdict. The court gave Appellant an opportunity to present the excluded evidence by way of bill of exception. This was not done and the contents of the excluded videotapes are not before us.

The “use before the jury” complaint, presented to this Court, was never suggested to the trial court. For this reason, the failure of the trial objections to comport with the issues raised on appeal, the inadequacy of the trial objections themselves, and the failure to present the excluded evidence by bill, Appellant has failed to pre[62]*62serve error. Furthermore, an examination of the record discloses no harm in the exclusion of these tapes. Both sides were in agreement as to the terms of Appellant’s informer contract, the procedures to be used and the scope of his authorized involvement. Both sides conceded that the first six transactions were in compliance with the police instructions. The description of Appellant’s conduct during the first six transactions is consistent, from both State and defense viewpoints. The fact that one or more of the transactions and the payment of informer fees may have preceded the October 17 formal certification of the Appellant as an informer was admitted by the State’s witness, Nava. There is no suggestion that the videotapes would disclose anything different from the testimony presented, and the first six transactions present no factual dispute for resolution by the jury as a predicate to their decision on the November 16 sale. Appellant has demonstrated no harm by the exclusion of these items of physical evidence. Ground of Error No. One is overruled.

In Ground of Error No. Two, Appellant contends there was insufficient evidence as to the value of the vehicle at the time of the theft to support the jury’s verdict of guilt of theft of property over $200.00.

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Related

Hefner v. State
735 S.W.2d 608 (Court of Appeals of Texas, 1987)
Lewis v. State
659 S.W.2d 429 (Court of Criminal Appeals of Texas, 1983)

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Bluebook (online)
642 S.W.2d 59, 1982 Tex. App. LEXIS 5325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chavez-v-state-texapp-1982.