Lacy v. State

424 S.W.2d 929, 1967 Tex. Crim. App. LEXIS 788
Court of Criminal Appeals of Texas·Decided November 29, 1967·No. 40821·Published·Cited by 24 cases

Opinions

OPINION

DICE, Judge.

The conviction is for the unlawful possession of wine for the purpose of sale in a dry area; the punishment, two years in jail and a fine of $3,000.

Five prior convictions for offenses of like character were alleged for enhancement of the punishment.

The issue of appellant’s guilt or innocence was first submitted to the jury. After return of the jury’s verdict of guilty, appellant requested that the jury assess the punishment.

At the hearing on punishment, proof was offered by the state of four of the five prior convictions alleged for enhancement (the state having been permitted to withdraw from the information the allegation, in paragraph 6, of one of the prior convictions). Proof was also offered by the state showing other convictions of appellant for liquor law violations besides those alleged for enhancement.

Upon the trial on the issue of guilt or innocence, state liquor board inspector Gibson L. Hadaway testified that on the morning of March 9, 1966, after having received information that a load of whisky was going to be hauled, he went to a certain location in the northern part of the city of Tyler and stationed himself underneath a vacant house. Soon he observed appellant walk across the street and enter his cafe. Appellant then walked back across thq street and the officer saw a Buick automobile being driven in behind a house at 923 West Field Street. People were then observed rushing back and forth from the car into the house at 923 West Field Street. Appellant was observed making a trip to his house and coming back to the house on Field Street with what appeared to be a case of beer. Appellant was then seen to go behind the house where the car was parked and then come out of the house with two sacks, one under each arm. The officer then seized the two sacks and found that each sack contained six four-fifths quarts of Gypsy Rose wine.

In his first ground of error, appellant insists that the court erred in admitting hearsay testimony over his objection when Officer Hadaway, upon being asked on direct examination why he was underneath [931]*931the vacant house on the occasion in question, testified:

“I had received information that a load of whisky was going to be hauled and I called Lieutenant Elliott, of the Police Department and had him drop me off, out there.”

Wood v. State, 166 Tex.Cr.R. 319, 313 S.W.2d 615, McCormick v. State, 166 Tex.Cr.R. 484, 316 S.W.2d 736, Cabrera v. State, Tex.Cr.App., 395 S.W.2d 34, Hodge v. State, 214 S.W.2d 469, and Rosales v. State, Tex.Cr.App., 399 S.W.2d 541, are relied upon by appellant in support of his contention.

The state concedes that the testimony was hearsay but insists that under the record no reversible error was shown. With such contention we agree.

An issue of probable cause for appellant’s search without a warrant was made before the jury — which fact distinguishes the case from the above cases cited by appellant. Such testimony was therefore admissible on the issue of probable cause, although such issue was not submitted to the jury in the charge.

Further, the mere proof that Officer Hadaway had received information that a load of whisky was going to be hauled— which information did not connect appellant therewith — could not have been injurious to him. In the absence of injury, no reversible error could be shown. Miller v. State, Tex.Cr.App., 396 S.W.2d 128.

In his second ground of error, appellant insists that:

“The trial court erred in allowing the state to introduce evidence at the main trial of the character or reputation of the defendant when same had not been placed in issue.”

Appellant predicates this ground of error on the court’s action in permitting Officer Hadaway to testify that, in a conversation with appellant regarding the subject of bootlegging, appellant had stated to the witness: * * * he [appellant] was a bootlegger and that he knew we knew he was a bootlegger,” and on the further testimony by the officer that prior to and near .the day in question he had “seen Albert Lacy sell beer and whisky; take the money for it and deliver it to cars parked out in the front, to customers out in front of his place of business, several times on Sunday morning, early.”

It should first be pointed out that no objection was made to the testimony on the-ground now urged in appellant’s brief.

Appellant’s objection to the witness’s testimony was that it was highly prejudicial and inflammatory because it involved extraneous matters. We perceive no error.

Appellant’s statements in conversation with the witness that he was a bootlegger were admissible against him on the issue of the purpose for which he possessed the wine in question. See: 24 Tex.Jur.2d 170, Sec. 614.

The testimony of the officer with reference to having seen appellant sell beer and whisky was admissible on the issue of whether he possessed the wine in question for the purpose of sale. McLendon v. State, 101 Tex.Cr.R. 128, 274 S.W. 159; Moreno v. State, 122 Tex.Cr.R. 178, 54 S.W.2d 509.

Our disposition of appellant’s second ground of error also disposes of his third ground of error, which insists that such testimony should not have been admitted because it constituted proof of extraneous-offenses and separate acts of misconduct when “the issues of intent, identity or system had not arisen in the case.” Such ground of error is overruled.

In his ground of error #4, appellant complains of the court’s failure to limit the jury’s consideration of the evidence of extraneous offenses and other acts of misconduct in his charge on the issue of guilt or innocence.

[932]*932We perceive no error, as it is the rule that evidence which goes to prove one of the main issues need not be limited. Lane v. State, 111 Tex.Cr.R. 367, 12 S.W.2d 1027; Arcos v. State, 120 Tex.Cr.R. 315, 29 S.W.2d 395; Moss v. State, Tex.Cr.App., 364 S.W.2d 389. The evidence of other sales by appellant was admissible to prove the purpose for which he possessed the wine in question — which was one of the main issues in the case. While such evidence showed extraneous offenses, under the rule stated a limiting charge was not required.

In his ground of error # 5, appellant complains of the court’s action in permitting the state to introduce in evidence at the hearing on punishment the information in the case. Appellant objected to the information (state’s exhibit # 33) on the ground that it was an attempt to bolster the state’s case and was hearsay. Urban v. State, 387 S.W.2d 396, is relied upon by appellant in support of his contention.

In Urban v. State, supra, this court, in a majority opinion of two to one, held that an indictment was inadmissible as hearsay. In the opinion the court recognized that it was proper to read the indictment to the jury and for the jury to take it into the jury room during deliberation.

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Lacy v. State, 424 S.W.2d 929, 1967 Tex. Crim. App. LEXIS 788 (Tex. 1967).

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Lacy v. State
424 S.W.2d 929 (Court of Criminal Appeals of Texas, 1967)