Wallace v. State

Court of Appeals of Texas

Wallace v. State

648 S.W.2d 377, 1983 Tex. App. LEXIS 4080

CourtCourt of Appeals of Texas

DecidedMarch 2, 1983

DocketNo. 04-81-00149-CR

StatusPublished

Cited by2 cases

This text of 648 S.W.2d 377 (Wallace 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.

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Wallace v. State, 648 S.W.2d 377, 1983 Tex. App. LEXIS 4080 (Tex. Ct. App. 1983).

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OPINION

BUTTS, Justice.

This is an appeal from a conviction of aggravated robbery. After being convicted by the jury, appellant elected to have the trial court assess punishment. Appellant was sentenced to 15 years’ confinement in the Texas Department of Corrections under the enhancement provisions of Tex.Penal Code Ann. § 12.42(a) (Vernon 1974). We affirm the judgment.

The complainant testified that appellant, known to her only by his nickname of “Jack Rabbit,” had come to her house on Christmas night 1979, and that he and his brother [378]*378had robbed her of her stereo at gunpoint. The complainant further testified that she had ordered the stereo by mail from St. Louis, Missouri, and that “S.I.C.” had gotten all the papers on it, because she was financing the stereo through S.I.C.¹ Appellant testified and denied the complainant’s version. He stated that the stereo was his and that he had left it with the complainant as security for a loan she had made to him. When he came to repay the loan on Christmas night of 1979 and recover his stereo, however, complainant allegedly refused to return it. Appellant testified that he and his brother then entered the house and removed the stereo without violence, and he denied having any weapon.

The complainant’s husband was called by the State as a rebuttal witness. He testified that the stereo was paid for through S.I.C. Loan Company, and had come from Southwestern Shoppers in St. Louis, Missouri. Through him, the State offered into evidence a photocopy of a billing form, apparently sent from the Southwestern Shopper in St. Louis, to “Branch Manager, Southwestern Investment Co.” in San Antonio, showing Charles M. Bond, the complainant’s husband, as the customer, and further describing the make, model, and price of the stereo purchased. There was a second photocopied document, a purchase application signed by Charles M. Bond, ordering the Miida home stereo system. On the copy appears a file stamp stating “Accepted DB, Apr. 25 1978,” and a handwritten notation “SW-C81-110.” Comparing these markings to the billing form, one discovers on the billing form that the “order date” is shown as “04-25-78” and the order number as “SW-C81-00110.” These two photocopies were admitted into evidence over appellant’s objections that they were not shown to be the best evidence under the best evidence rule, and that the proper predicate had not been laid under the Texas Business Records Act, Tex.Rev.Civ.Stat. Ann. art. 3737e (Vernon 1980). He raises the same contentions before us in our four related grounds of error.

Although the State expressly declines to concede that the exhibits were erroneously admitted over objection, it does not argue that they were not. Rather, it argues that any error committed by the trial court in admitting these documents was harmless under the doctrine of “curative admissibility.” There are numerous ways inadmissibility of hearsay evidence may be cured or rendered harmless, one of which is by the introduction of other proper evidence of the same facts. Lovel v. State, 538 S.W.2d 630, 632 (Tex.Cr.App.1976) (opinion on rehearing).

As already noted, complainant and her husband both testified that they had ordered the stereo from Southwestern Shoppers in St. Louis and financed it through S.I.C. Loan Company for about $500.00. The documents corroborated complainant’s and her husband’s testimony. The deferred payment price was $435.60. The stereo was ordered from Southwestern Shoppers in St. Louis, and Southwestern Investment Co. (S.I.C.) financed the goods. Even if we were to find error in the admission of the documents, the error would be harmless. Thomas v. State, 621 S.W.2d 158, 164 (Tex.Cr.App.1981) (opinion on rehearing).

Appellant relies on Gassett v. State, 532 S.W.2d 328 (Tex.Cr.App.1976) for the proposition that the error was harmful. In Gas-sett the court noted, “The only other instance in the record in which the State hinted that the deceased had no criminal record was also objected to by the appellant.” Id. at 331. In the case at bar no objection was made to the oral testimony of complainant and her husband. Appellant’s four grounds of error are overruled and the judgment of the trial court affirmed.

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OPINION

BUTTS, Justice.

This is an appeal from a conviction of aggravated robbery. After being convicted by the jury, appellant elected to have the trial court assess punishment. Appellant was sentenced to 15 years’ confinement in the Texas Department of Corrections under the enhancement provisions of Tex.Penal Code Ann. § 12.42(a) (Vernon 1974). We affirm the judgment.

The complainant testified that appellant, known to her only by his nickname of “Jack Rabbit,” had come to her house on Christmas night 1979, and that he and his brother [378]*378had robbed her of her stereo at gunpoint. The complainant further testified that she had ordered the stereo by mail from St. Louis, Missouri, and that “S.I.C.” had gotten all the papers on it, because she was financing the stereo through S.I.C.¹ Appellant testified and denied the complainant’s version. He stated that the stereo was his and that he had left it with the complainant as security for a loan she had made to him. When he came to repay the loan on Christmas night of 1979 and recover his stereo, however, complainant allegedly refused to return it. Appellant testified that he and his brother then entered the house and removed the stereo without violence, and he denied having any weapon.

The complainant’s husband was called by the State as a rebuttal witness. He testified that the stereo was paid for through S.I.C. Loan Company, and had come from Southwestern Shoppers in St. Louis, Missouri. Through him, the State offered into evidence a photocopy of a billing form, apparently sent from the Southwestern Shopper in St. Louis, to “Branch Manager, Southwestern Investment Co.” in San Antonio, showing Charles M. Bond, the complainant’s husband, as the customer, and further describing the make, model, and price of the stereo purchased. There was a second photocopied document, a purchase application signed by Charles M. Bond, ordering the Miida home stereo system. On the copy appears a file stamp stating “Accepted DB, Apr. 25 1978,” and a handwritten notation “SW-C81-110.” Comparing these markings to the billing form, one discovers on the billing form that the “order date” is shown as “04-25-78” and the order number as “SW-C81-00110.” These two photocopies were admitted into evidence over appellant’s objections that they were not shown to be the best evidence under the best evidence rule, and that the proper predicate had not been laid under the Texas Business Records Act, Tex.Rev.Civ.Stat. Ann. art. 3737e (Vernon 1980). He raises the same contentions before us in our four related grounds of error.

Although the State expressly declines to concede that the exhibits were erroneously admitted over objection, it does not argue that they were not. Rather, it argues that any error committed by the trial court in admitting these documents was harmless under the doctrine of “curative admissibility.” There are numerous ways inadmissibility of hearsay evidence may be cured or rendered harmless, one of which is by the introduction of other proper evidence of the same facts. Lovel v. State, 538 S.W.2d 630, 632 (Tex.Cr.App.1976) (opinion on rehearing).

As already noted, complainant and her husband both testified that they had ordered the stereo from Southwestern Shoppers in St. Louis and financed it through S.I.C. Loan Company for about $500.00. The documents corroborated complainant’s and her husband’s testimony. The deferred payment price was $435.60. The stereo was ordered from Southwestern Shoppers in St. Louis, and Southwestern Investment Co. (S.I.C.) financed the goods. Even if we were to find error in the admission of the documents, the error would be harmless. Thomas v. State, 621 S.W.2d 158, 164 (Tex.Cr.App.1981) (opinion on rehearing).

Appellant relies on Gassett v. State, 532 S.W.2d 328 (Tex.Cr.App.1976) for the proposition that the error was harmful. In Gas-sett the court noted, “The only other instance in the record in which the State hinted that the deceased had no criminal record was also objected to by the appellant.” Id. at 331. In the case at bar no objection was made to the oral testimony of complainant and her husband. Appellant’s four grounds of error are overruled and the judgment of the trial court affirmed.

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648 S.W.2d 377, 1983 Tex. App. LEXIS 4080, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-state-texapp-1983.

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