Sendejo v. State

676 S.W.2d 454, 1984 Tex. App. LEXIS 6353

• Court: Court of Appeals of Texas
• Decided: September 27, 1984
• Docket: 2-84-207-CR
• Status: Published

Opinions

OPINION

FENDER, Chief Justice.

Appellant was convicted by a jury of theft of property valued at over $200.00 and less than $10,000.00. The punishment hearing was before the court without a jury. Two enhancement counts having been proven, the court fixed the penalty at life imprisonment. Appeal has been taken alleging six grounds of error.

The judgment is affirmed.

Appellant first complains that the State relied on oral descriptions of the two handguns he took in the theft but did not offer the weapons into evidence. No authority is cited to indicate that such constitutes error and this Court knows of none. We decline to create new law and thus overrule ground of error number one.

Appellant next complains that the trial court erred in permitting witnesses to describe certain tags which were attached to the weapons when taken and when recovered. Appellant relies entirely on the “best evidence” rule. This reliance is misplaced as the best evidence rule applies to documentary evidence where the writing is to be judged on its face as governing the transaction in issue before the court. Here the tags were described to identify the weapons as being the same pistols as the two that were misappropriated because the tags were there before and after the theft. Thus the tags are not “documentary” evidence at all. Ground of error number two is overruled.

In the third and fourth grounds of error appellant complains that there was a fatal variance between the indictment and the proof since the indictment alleges “one scheme or continuing course of conduct” but no proof was submitted on this subject; and that the court failed to define “pursuant to one scheme or continuing course of conduct.”

TEX.PENAL CODE ANN. Sec. 31.09 (Vernon 1974) permits the allegation and proof of two or more theft offenses in a single indictment where the incidents are “pursuant to one scheme or continuing course of conduct” and the amounts taken shall be “aggregated in determining the grade of the offense.” In the instant case the prosecutor apparently added the magic words of accumulation to be sure that the minimum felony jurisdiction of $200.00 would be reached by adding the value of the pistol first removed from the display case and secreted in the thief’s waistband to the value of the second pistol asportated a few minutes later in the same manner. Since either of the weapons valued out at more than the required amount, this precaution was not really necessary.

Appellant urges that since the court included the “magic words” of accumulation in its charge that the State was bound to prove “scheme” and “continuing course of conduct” or else he should have been acquitted. This court need not choose between treating the “words” as surplusage and requiring the “words” to be proven beyond a reasonable doubt. The evidence clearly shows that at some point (either before or after entering the store) appellant conceived the “scheme” of taking the pistols in question by sticking them in his waistband and he undertook to carry out such scheme by a “continuing course of conduct” which unfortunately (for him) terminated in his capture by law enforcement officials. Either course we might choose will leave appellant no merit to his claim.

Appellant further urges that the trial court should have provided the jury with a charge defining “pursuant to one scheme or continuing course of conduct.” The only case cited for this proposition is Watson v. State, 548 S.W.2d 676 (Tex.Crim.App.1977). Either a casual or an intensive reading of Watson clearly shows that neither “scheme” nor “pursuant to a continuing course of conduct” need be defined by the trial court. These are terms of common understanding.

The third and fourth grounds of error are overruled.

In grounds of error five and six appellant complains that the trial court erred in admitting pen packs which contained proof of other extraneous offenses during the punishmeht hearing and that the business of striking (or scratching through) the inadmissible portions of the pen packs destroyed their certificated reliability. Each of these contentions is without merit. The hearing was before the court without a jury and it is presumed that the trial court heard all objections to the pen packet material and that he disregarded all material not properly admitted into evidence. As to the deletion of portions of the pen packet being improper, appellant cites no authority and we find none. Grounds of error five and six are overruled.

The judgment of the trial court is affirmed.

JORDAN, J., dissents and is joined by BURDOCK, J.