Hackney v. State

634 S.W.2d 337, 1982 Tex. App. LEXIS 4407
CourtCourt of Appeals of Texas
DecidedMay 5, 1982
DocketNo. 09 81 089 CR
StatusPublished
Cited by2 cases

This text of 634 S.W.2d 337 (Hackney 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
Hackney v. State, 634 S.W.2d 337, 1982 Tex. App. LEXIS 4407 (Tex. Ct. App. 1982).

Opinion

OPINION

CLAYTON, Justice.

Appellant was convicted of robbery by a jury and sentenced by the court to confine[338]*338ment in the Texas Department of Corrections for two to fifteen years. The sufficiency of the evidence supporting the conviction is not challenged.

Appellant’s first ground of error urges the indictment is fundamentally defective for failure to give any description of the property taken in the robbery. It is no longer necessary for the State to make this allegation. Ex parte Lucas, 574 S. W.2d 162 (Tex.Cr.App.1978); Hill v. State, 568 S.W.2d 338 (Tex.Cr.App.1978).

Appellant’s second ground of error complains that the trial court commented on the weight of the evidence. Appellant objected out of the presence of the jury to the admission in evidence of the gun used in the robbery. On the jury’s return, appellant re-urged his objection. The court in ruling said: “It is overruled.... Your motion is overruled, and it is admitted particularly as the gun just like they saw it at the time of the robbery.” It is clear that the court was admitting only the gun previously identified by the victim. To constitute reversible error in violation of Vernon’s Ann.C.C.P., Art. 38.05, the comment must be such that it is reasonably calculated to benefit the State or prejudice the defendant’s rights. Carrillo v. State, 591 S.W.2d 876, 893 (Tex.Cr.App.1979); Sikes v. State, 500 S.W.2d 650 (Tex.Cr.App.1973). This appellant did not testify and only offered the defense of alibi. The record does not warrant the conclusion that the comment was calculated to benefit the State or prejudice appellant. This ground of error is overruled.

Appellant’s third ground of error complains of the admission into evidence of “hearsay testimony to the effect that the car used in the robbery with license number NCH 527 belonged to the appellant.”

The witness Rose, Deputy Tax Assessor in Harris County, testified that he had in his custody a computer which has access to Texas Highway Registration Records from the Texas Highway Department and Texas Department of Public Safety. He testified that he had a straight line to the teletype machine to such state departments and that the teletyped messages come from the records of either the Texas Highway Department or the Texas Department of Public Safety. Even though the witness testified that the teletyped messages received from the computer in Austin are in his care, custody, and control, no such evidence with reference to any information placed into or received from such computer in Austin was given by any custodian or any other person connected with the information placed into such computer.

The State argued that the evidence showing the car bearing the license number NCH 527, registered in the name of appellant, and received from the Austin compute er was admissible pursuant to the provisions of Art. 3737e, Sec. 1, Tex.Rev.Civ.Stat.Ann. (Supp.1982). We do not agree.

The witness Rose was not qualified to testify to the business practices of either the Texas Highway Department or the Texas Department of Public Safety with respect to records kept by such agencies, and the proper predicate was not laid to permit the admission of this evidence under either Art. 3731a or Art. 3737e. Moreover, inasmuch as the witness’s testimony clearly indicated the information as to the ownership of the automobile was derived from a computer, the State had the additional burden of laying a proper predicate for the admission of such evidence pursuant to the rules announced in Railroad Commission v. Southern Pacific Co., 468 S.W.2d 125, 129 (Tex.Civ.App.—Austin 1971, writ ref’d n.r. e.), and O’Shea v. International Business Machines Corp., 578 S.W.2d 844, 848 (Tex.Civ.App.—Houston [1st Dist.] 1979, writ ref’d n.r.e.). We agree with appellant that the evidence as to ownership of the automobile is hearsay and, as such, should not have been admitted into evidence. However, we are convinced the admission of such evidence was harmless error and does not constitute reversible error for the following reasons.

The victim in this case, Sherry Renee Maynard, testified that she was employed by National Car Rental as accounts payable [339]*339clerk, and her duties, among others, were to go to different locations of of the company’s offices and “pick up their day’s work and their deposits and bring them back.” On this day in question, she had made her “runs” and was on her way back to the main office when she noticed “there was a car behind me that was tailgating.” She described the car as a Buick Regal, maroon colored, either a 1976 or 1977 model. As this car began to pass her car, it ran into the side of her car. She pulled over to the side and stopped. The Buick car also stopped. Maynard took down the license number of the other car. Maynard walked over to the Buick, and, after conversation with the driver of the Buick, the driver got into his car, reached under the front seat, and pulled out a gun that looked like a “sawed-off shotgun.” Maynard very definitely identified appellant as the driver of the Buick.

Appellant then told Maynard to get into her car which she did. He then told her “the bags are sitting behind the seat,” and he started to grab the bags. He took the bags, which contained the money receipts she had picked up. He took Maynard’s car keys and left in his car. Shortly thereafter, she called the police and gave them a description of appellant and the car and the license number of the Buick. On the following day, a detective came out to see her and showed her pictures of numerous individuals. She picked out one and identified that to be the picture of the one who had robbed her, which was a picture of appellant. She later identified appellant in a police lineup as the man that “held me up that day.”

A. W. Stephens, a Houston police officer, testified that during his investigation of this robbery he was, through a radio dispatch, directed to a Sears store where he observed a “white over red” colored vehicle with the same license number previously given by Maynard. The automobile was unattended, and the witness recovered a saw-off pellet gun and observed some money bags used by National Car Rental in the vehicle.

J. C. McGuire, a Houston police officer, testified that he went to the location where Maynard’s vehicle was parked, received a description of appellant (as identified by Maynard) and proceeded in the direction in which the Buick had left the scene. This witness located the vehicle and described it as a red Buick Regal. The witness inventoried the vehicle and found a weapon, car keys belonging to Maynard, and money bags.

Thomas Gants, manager of National Car Rental, testified that an employee named Joe Louis Hackney had been employed as a service agent by his company and would have knowledge about the pick-ups and delivery routes.

Appellant states in his brief that he does not challenge the sufficiency of the evidence to support his conviction. Appellant did not testify.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Eckert v. State
672 S.W.2d 600 (Court of Appeals of Texas, 1984)
Wallace v. State
648 S.W.2d 377 (Court of Appeals of Texas, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
634 S.W.2d 337, 1982 Tex. App. LEXIS 4407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hackney-v-state-texapp-1982.