Rush v. State

576 S.W.2d 628, 1978 Tex. Crim. App. LEXIS 1460
CourtCourt of Criminal Appeals of Texas
DecidedDecember 20, 1978
DocketNos. 55688, 55689
StatusPublished
Cited by8 cases

This text of 576 S.W.2d 628 (Rush v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rush v. State, 576 S.W.2d 628, 1978 Tex. Crim. App. LEXIS 1460 (Tex. 1978).

Opinion

OPINION

ODOM, Judge.

These are appeals from convictions for gambling promotion (V.T.C.A., Penal Code Sec. 47.03) and communicating gambling information (V.T.C.A., Penal Code Sec. 47.05). After a trial before the court punishment was assessed at five years in each case and appellant was placed on probation.

In several grounds of error appellant challenges the sufficiency of the evidence, the sufficiency of the indictments, and the lawfulness of the search warrant under which certain incriminating evidence was seized. He also contends his convictions for these two offenses violate the constitutional prohibition against double jeopardy.

As a groundwork for discussion of the indictment, jeopardy, and sufficiency of the evidence issues, we will first set out the statutory provisions upon which these prosecutions were based.

V.T.C.A., Penal Code Sec. 47.03 provides in part:

“(a) A person commits an offense if he intentionally or knowingly does any of the following acts:
“(2) receives, records, or forwards a bet or offer to bet; . . . ”

[630]*630The indictment charging a violation of this provision alleged that appellant:

“. . . on or about August 5, 1974, did then and there unlawfully knowingly and intentionally receive and record a bet by Andrew William Pritchett said bet having been made by S. D. Plaster to the said Andrew William Pritchett and said Andrew William Pritchett communicating the bet to John Edward Rush on baseball games. . . . ”

V.T.C.A., Penal Code Sec. 47.05 provides in part:

“(a) A person commits an offense if, with the intent to further gambling, he knowingly communicates information as to bets, betting odds, or changes in betting odds or he knowingly provides, installs, or maintains equipment for the transmission or receipt of such information.”

The indictment charging a violation of this provision alleged that appellant:

“. . . on or about August 5, 1974, did then and there unlawfully knowingly and intentionally communicate information as to bets, betting odds and changes in betting odds on baseball games to Andrew William Pritchett with the intent then and there to further gambling.”

There was no motion to quash either indictment, and the language used in each effectively tracks the language of the respective statutory provisions. We find no fundamental error and accordingly overrule the grounds of error. Cf. American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598.

We now turn to a review of the evidence presented. The State presented three witnesses, all officers of the Houston Police Department. The defense presented no evidence.

Officer Plaster testified first. After relating his initial undercover operation at the Seventeen-Eighteen Lounge during which he gained sufficient familiarity with Andrew Pritchett, the bartender, to be able to place bets with him on various sporting events, he told of what happened on Monday, August 5, 1974. On that afternoon he went to Pritchett to place bets. In Plaster’s presence and immediate view, at 5:00 p. m., Pritchett called 665-9390 and asked for the line, or betting odds, on baseball games. Pritchett wrote this list down and gave it to Plaster. After examining the list and making his choices, Plaster wrote down his bets on four games and gave the list to Pritchett. At 5:15 p. m. Pritchett again in Plaster’s presence called 665-9390 and placed the bets. Plaster kept the line sheet and bet list, and they were introduced at trial as State’s Exhibit 1.

From earlier events in the investigation Plaster had learned that 665-9390 was the number being used in the gambling operation, and had also learned that this number served a pay phone at a used car lot run by appellant and located at 5500 Kirby Drive in West University Place, Harris County. On August 2 he had visited the car lot and talked with appellant under the pretense that he wanted to buy a car for his sister. While there he saw the phone with number 665-9390, and by the phone he saw baseball line sheets and bet sheets. He also on that day saw appellant answer the phone two or three times, and on one occasion appellant picked up a sheet of paper and read off figures to the person on the other end.

On August 5, while Plaster was placing bets with Pritchett, officer Steffenhauer, the State’s second witness, was observing appellant at the used car lot at 5500 Kirby. From his vantage point he saw appellant answer the telephone at 5:00 p. m. and again at 5:15 p. m.

Three days later, on August 8, officer Jenkins, the State’s last witness, executed a search warrant at the used car lot office on 5500 Kirby. When he arrived appellant was seated at the desk in the office. Seized were numerous line sheets, betting slips, and tally sheets, which were introduced as State’s Exhibits 4, 5 and 6. Among those papers were a line sheet that listed the teams on the line sheet in State’s Exhibit 1, with corresponding odds, and a betting slip with the same bets placed by Plaster through Pritchett, and bearing the name [631]*631Andy, the name under which Plaster’s bets were placed, and the day Monday, the day on which Plaster’s bets were placed.

The sufficiency of the evidence must be reviewed in the light most favorable to the determination made by the finder of fact. Va lore v. State, Tex.Cr.App., 545 S.W.2d 477. Doing so, we see that Plaster saw Pritchett call a known number at 5:00 p. m. on August 5 and receive gambling information, while Steffenhauer at the same time saw appellant answer that phone. Fifteen minutes later Plaster again saw Pritchett call the same number and place his bets, while Steffenhauer saw appellant answer the phone. Three days later, at the execution of the search warrant at appellant’s premises, he was found seated at the desk on which were found a line sheet and a betting slip corresponding to those communicated to and from Pritchett on the phone calls of August 5. We conclude the evidence is sufficient to show appellant communicated information as to betting odds with the intent to further gambling during the 5:00 p. m. phone call, and to show he received and recorded a bet on baseball games as alleged, from information received in the 5:15 p. m. phone call. The grounds of error challenging the sufficiency of the evidence are overruled.

In his grounds of error invoking the double jeopardy clause appellant argues these two convictions were based on one transaction. The evidence is otherwise. The communication of gambling information, constituting an offense under Sec. 47.-05, supra, was completed with the 5:00 p. m. phone call. The receiving and recording of Prichett’s bet, constituting the offense of gambling promotion under Sec. 47.03, supra, was committed in conjunction with the 5:15 p. m. phone call.

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Cite This Page — Counsel Stack

Bluebook (online)
576 S.W.2d 628, 1978 Tex. Crim. App. LEXIS 1460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-state-texcrimapp-1978.