White v. State

451 S.W.2d 497

• Court: Court of Criminal Appeals of Texas
• Decided: March 18, 1970
• Docket: 42161
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is the possession of Narcotic Paraphernalia, with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

Laying aside the question of confrontation¹ so urgently urged by appellant, we are met at the outset with the question of whether or not the confession of one co-conspirator is admissible against the other where the statement or confession is not uttered in furtherance of the conspiracy. Judy Guillory, the co-conspirator, told police officers who were executing a search warrant in appellant’s apartment that she had arrived at the apartment for the purpose of securing a shot of narcotics, found that appellant had none, had given him $15.00 with instructions to go out and buy two caps, one for herself and one for him, and that appellant kept his paraphernalia down the hall in a bathroom common to all tenants on the floor. These statements by Guillory, related at the trial by the police officers to whom she spoke, were admitted over appellant’s objections evidently upon the trial court’s reliance upon the rule announced in Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146:

“The rule is well settled that the acts and declarations of one conspirator during the furtherance of the conspiracy are admissible against the other conspirators. * * * This rule applies though the act or declaration occurred out of the presence and hearing of the conspirator on trial.”

This narration by Guillory to the police officers cannot be said to have been in “furtherance of the conspiracy”, for when this statement was made to the officers, the conspiracy came to an effective end. It would tax credulity of any man to say that a statement made to those in constituted authority, in this case the police, is done so for the purpose of furthering, helping forward, promoting, advancing or progressing² the conspiracy³.

The hearsay testimony was thus not admissible under the co-conspirator exception, and its introduction requires a reversal of this conviction.

For the error of the court in admitting the testimony of the officers in which they detail what the co-conspirator Guillory told them, the judgment is reversed and the cause is remanded.

WOODLEY, P. J., not participating.

1 . Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255.

2 . Black’s Law Dictionary, 4th Ed., West Publishing Co., 1951, p. 805; Maryland Casualty Co. v. Smith, Tex.Civ.App., 40 S.W.2d 913.

3 . We are not here dealing with a conspiracy to bribe an officer, in which case a statement to an officer could come within the exception to the hearsay rule set out above. Womble v. State, 165 Tex. Cr.R. 23, 301 S.W.2d 928.