*1 ARNOTT, Appellant, Ronald William Texas, Appellee.
The STATE of
No. 44824. Appeals
Court of Criminal of Texas.
Feb. 1973. Rehearing July
On 1973.
Rehearing Sept. Denied
Philliр Friday, Jr., Houston C. Sam Clinton, Austin, appellant. Jr., Smith, Atty., Phillip A. Robert Dist. O. McCormick, Nelson, Dist. Michael Asst. J. Vollers, Attys., Atty., D. Jim Huttash, Atty., Robert A. Asst. State’s Austin, for the State.
OPINION DOUGLAS, Judge. appeal a conviction for
This is an possession of heroin. The the offense twenty-five punishment assessed at years’ imprisonment. (25) Faubian, Neal, Jr., Arnold Christie Lou Arnott, appellant, and Ronald William acting charged together jointly possession for the a three-count indictment para- heroin, marihuana and narcotic phernalia. posses- Only charge jury. sion heroin was submitted ap- Arnott, Lou Christie Faubian and pellant, jointly.1 Faubian were tried Miss convicted, appeal was also her reported Tex.Cr.App., at 194. are appellant contentions of the The main support the evidence insufficient court erred the conviction and admitting into evidence the narcotics a search found as result of under a warrant. us. His ease before Neal was tried earlier. September
The record reflects that on the room where the was arrested. 3, 1970, co-defendant, Faubian, Miss Several other containers of contraband Orbitt, using arrange- bag. question name of made The notebooks in ments for apartment where were also found lease there. the contraband was later found. The next large army what was described as a day, appellant, using also the name of *3 haversack, grams the officers found 844.87 Orbitt, signed apartment. a lease for the of marihuana. Other found is marihuana days Some twelve later officers of the set out below: Department
Austin Police went apartment Neal, they where arrested Miss paper A bag in bag the duffle contained Faubian appellant and the a made grams. 329.98 search Capsules under a search warrant. Thirteen bags “lids” or small contained of heroin were found on the table where grams. 277.92 appellant Neal, was seated. who was Two bags grams. smaller contained 91.40 apparently asleep, was in another room. grams. Another container had 54 appellant The and Miss Faubian had needle peanut Two cans found in another closet arms, marks on their some of which were grams. contained 59.72 red, indicating were fresh. plastic contents of baggies eleven 3,635 grams. finding large officers testified to paper bags Two grams. contained 665.30 heroin, marihuana, amount drugs other An envelope grams. contained 70 paraphernalia. narcotic The chemist average testified that It is testimony shown De- cigarette marihuana gram. contained .2 of a partment Safety of Public chemist who testimony, Based on his enough therе was analyzed apart- the material found in the 29,500 marihuana found to make more than ment and submitted to him that Ex- cigarettes. hibit 2No. found on the table where the Also introduced as the duffle appellant and Miss Faubian seated bag and its apparently containers were thirty-nine capsules contained or 1.61 large number empty plastic capsules. grams percent of 20.5 heroin. These were being described an officer as State’s Exhibit No. 5 of four consisted capsules, 5No. the kind used for heroin balloons which contained total of 3.69 the same kind as found on the in front table grams percent of 20.5 heroin. These were and Miss Faubian. found in a closet near where Arnold Neal page One State’s Exhibit No. asleep. was found This would amount to spiral record, photocopied notebook for the enough capsules, heroin to make over 86 bears the date of August It con- and added with the heroin found at the tains a column “Money headed out.” Some table, enough the officers found for a total of the entries under this column are: capsules over 125 percent of 20.5 heroin apartment. - “Sam Ft. Hood 20.00 Rooster 30.00 In State’s Exhibits Nos. 7 and traces Clyde 100.00 of heroin envelopes were found in Dave 380.00 apartment. State’s Exhibit 14 con- No. Apfe 495 49r09 [Pd]” capsules tained lysergic fourteen acid diethylamide (LSD). Some of the entries under the other col- umn, designated Money “Personal debts I A small package containing opiate foil owe,” are: was found. The chemist described the opiate as a sort of base for heroin. Hemphills LO in o o Some mescaline was also found in the Uncle Vans o co o i—I apartment. Much of the contraband was [Paid] found in a large bag duffle in a closet Arnold page following 16 under A lists: page
The next Exhibit No.
“money out” shows “Bill EarM-GRMS Profits “Sales Cash “Billy directly [pd]” appears below Aug. 2 Ids 40.00 Earl well as other names and $30.00” Aug. 28 60 Ids 600.00 amounts. 70.00 7 Ids Aug. grms 35.00 Aug. 30 Hsh “Money next column under I owe” Aug. 31 9 Ids 120.00 includes: “Arnold Further in 130.00.” 50.00 Ids notebook, spiral following page Total found: 635.00” Sept. Combined *4 August State’s Exhibit 17 starts with Apparently September dated following a house notation found: “find (This rent.” is the date co-defend- lease, ant negotiated Miss Faubian for the the day signed by appel- before it was lant.) entry September 3, under debts name, apparently
shows “Mark T.” another cps.” “HSH It $50.00” “55+4 telephone also shows a number and “Mr. King.” (The record shows that Miss Fau- negotiated put up bian first the lease and deposit September King.) 3 with Mr. page Another is as follows: Deposit $50.00 Then another page is as follows: yr1 40.00
Arnold 30.00 “ 35.00 20.00 N.S.C. following page following A reflects the entry: “I owe Arnold $80.00.” bookkeeping State’s Exhibit 18 contained entries similar to those in other two exhibits. 21, 21A, 21B,
State’s Exhibits 21C and 21D, which found in the front bed- found, room near where Neal were all introduced. exhibits corre- first of these
Another page spondence lists “P2P Methalene.” Arnold Neal addressed to James
at Baylor E607 page Austin. The next appearing exhibit in the record and is as change bearing of address card follows : Neal,” signature Baylor “Arnold 607 E St. St., (This 807 E both Austin.
latter address was shown to have been
one where Miss Faubian had clothes and step- through
evidence was offered her apartment
father and that in an ef- owner Baylor
fort she did show not live at
Street.) 21C, apparently from a
State’s Exhibit notebook, page second larger spiral photocopy of a is as is a follows:
Rick $5 Mark $2 *5 Ron $105 “ 9/8/70 1. 4 G $160 My 2. Money $140 9/8/70 pills
3. first 23 = profit G $115 $75 profit
4. 3 = G at $50 $30 = pills profit
5. second = G 20 $100 $60 pill
6. third 21 = G $105 $65 pill four G 20 60 $100 = rug Ron for $30 $75 speed paying for Tom dollar for $30 $30 $25 for food $15 $105 payment pills on 3 dollars
$40 $15
were lost pills for three $10 for G $15 9/11/70 total $50 $135 pill pills worth $25 of $10 9/11/70 pills $75 $10 9/11/70” pals support ad- convic- and is sufficient to in the 21 series were exhibits The appellant. Ron tion of objection. The name mitted without exhibits. appears also in the 21 series Admissibility Notebooks Ronald.) appellant’s first name is (The. the admis- The contends officers testified One notebooks, Exhibits sion of the hashish
term “hash” or HSH referred error. was reversible “lid” a one-ounce and that the term meant re- marihuana, and that package “G” prin theory The was tried heroin or mari- grama of either ferred to princi indicted cipals. The three huana. acting necessary those pals. It is be principals to indicted together as three of of evidence shows all conversations of acts princi- before evidence acting together as coindictees were robbery though the prove, even to con allowed be admissible participant of each rob- purpose of the completed, that the Tex.Cr.App., was State, spirators. Phelps v. buy at the arms bery get funds to Tex. was to 310; Parnell v. 462 S.W.2d Embassy in There Canada. the Cuban (1959). Cr.R. Tex.Jur.2d, Evidence— Court cited 23 necessarily con involves ory principals Cases, 128,page 186: Criminal Section such is shown spiracy in most cases state by evidence. Each circumstantial is “Although of a motive the existence up until the co-conspirator act of a ment or conviction, not essential to a neverthe- conspiracy is com object of the time the presence of a motive less the or absence State, supra. Phelps pleted is admissible. obviously a factor that for a crime if entries in the notebook Even question related to the of the defendant’s Faubian, appellant, or Neal, made proof guilt Consequently, or innocence. offense, else connected with someone any existing motive the оffense ” act of as an they would admissible admissible, generally held . . . been that Neal had conspiracy. The fact prevent his and convicted does Tex.Jur.2d, tried The Court cited Sec- also being- admissible. page 309, in the crime tion which reads: State, supra. and dec- Acts See Parnell v. “Evidence commission other during the co-conspirator larations of one crimes the accused is admissible to conspiracy are admis- furtherance of the possible show for his commis- motive against conspirators whether sible other sion of the crime with he is out of not the act or declaration occurred charged.” presence hearing con- of and Phelps spirator on trial. held Court that a handwritten list supra, and Saddler v. *6 weapons List,” titled “Alex which was 309, 320 S.W.2d purse found in the accused’s when she was case, supra, In the Parnell the defendant arrested, was admissible to show motive. conspirator was indicted in one count as a The list included: and in another count for embezzlement. clips M-l “1. Carbines —5 banana With conspiracy
The State dismissed the count. clips extra argued Parnell that this tantamount guns “2. Sub-Machine —3 a finding guilty being of not as to his “ —1 “3. 50-calibre (( conspirator. The Court wrote: * * * “10. Grenades —50”
“Assuming
appellant'
that
stood ac-
though
Even
this list could be construed
quitted of the
crime of con-
substantive
showing possible
crimes,
extraneous
spiracy,
deprive
this did not
the State and
was held
admissible
show motive.
tending
the evidence
to estab-
conspiracy,
lish the
including the
acts
present
The notes in the
case showed the
declarations
coconspirators,
of his
purpose
motive or
for which the narcotics
considering
charge
embezzlement
kept.
State,
See Gonzales v.
Tex.Cr.
pursuance
design
of the common
App.,
435;
State,
410
Collier v.
167
S.W.2d
conspiracy.
State,
Richards v.
53 Tex.
534,
584,
321
Tex.Cr.R.
and Hem
S.W.2d
State,
400,
432;
Cr.R.
110
Holt v.
S.W.
State,
583,
meline v.
165
310
Tex.Cr.R.
282,
1016,
46
S.W.
S.W.
State,
S.W.2d 97. Cf. Greer v.
Tex.Cr.
829;
Tex.Jur.,
393,
p.
and 9
392 and
§
App.,
rested Housman, concerning wrote the Court It read: on a desk. note was found written other transactions: Fri. “A. P. you four owe way. I still “More on the disclosed, by in- “If such transactions Dan on with I’ll check
lids worth.
otherwise,
appellant
ference or
ISO tomorrow.
acts
of other
engaged
commission
C.P.”
abortion,
it was nevertheless admissi-
part
gestae.
ble as a
the res
Alan
full name was Robert
accused’s
gestae
Phenix. The note was
оf the offense. The Court
offered as
wrote:
res
n
“If the
n
n
proof
n
of the home
#
[*]
furniture,
instruments,
appellant and the
may
extrajudicial
“A written
utterance
equipment
therein and the facts
prove
be admissible
evidence to
showing the
and con-
use of such home
made;
is, for
truth of the assertions
purpose of
for the
tents on
witness
value,
many
its testimonial
if one of the
aborting
appellant
pay
her for
show
exceptions
hearsay
is satis
to the
rule
professional
was a
abortionist or that
fied,
Wigmore,
seq.
et
Evidence §
equipped
her home contained
room
McCormick, supra, at
(3rd
1940);
ed.
room,
operating
abortion
result
480-625,
may
or it
evi
admissible
change
does
the rule as to the admis-
truth of the
regard
dence without
to the
sibility
part
of such evidence as
made;
is,
its non-tes
assertions
gestae.
res
circumstance,
value,
pro
timonial
Haynes
legally
it is
relevant.
vided
“Nor did the evidence become inadmis-
(Tex.Cr.App.
testify
sible because
did not
1971); Wigmore, supra,
1788-1792.
§
testimony
otherwise controvert
as to
extrajudicial
latter use of
her acts and intent.”
hearsay
written
to which the
utterance
38.22,
1(f),
Article
Section
Vernon’s
apply
rule
does not
has sometimes
Ann.C.C.P., provides, in part:
fully
said
been
articulated and has been
gestae.
to bе
of the res
“Nothing
pre-
contained herein shall
* *
*
admissibility
any
clude the
“The note was not offered or received
gestae
statement that
is res
arrest
value;
in evidence for
*7
its testimonial
or of the offense.”
is,
that
for the truth of the assertions
made. The note
was
admitted
provision
meaning
of this
While
way,’
show ‘more on the
that ‘C.P.’ ‘owed’
clear,
exactly
Legislature
apparent-
‘A.P.’ ‘four lids worth’ or that
‘C.P.’
ly
keep
previous
intended to
in effect the
going to ‘check
Dan
with
on the 150 decisions
concerning
of this Court
the res
”
tomorrow.’
gestae of the arrest or of the offense.
State, Tex.Cr.App.,
See also Jones v.
State,
341,
In Yaffar v.
171 Tex.Cr.R.
S.W.2d 529.
730,
a driving
S.W.2d
while intoxicat-
case,
ed
testimony
this Court held that
In the
State,
case of Catching v.
Tex.Cr.
pistol
the officers
finding
about
in the
App.,
691,
the conviction was
car
gestae.
was admissible as res
for abortion. A confession which showed
that the accused committed other abortions
Barbiturates
pistol
and a
found in an
was admitted
objection
over
in
that it
automobile
which an
had
accused
been
cluded offenses other than that for which
riding just
being
before
pos
for
arrested
he was on trial. The Court held evidence
sessing marihuana
part
were held to be a
of the other offenses was admissible under
gestаe
of the
State,
res
in Beeler v.
Tex.
State,
Housman v.
155 Tex.Cr.R.
230 Cr.App.,
In v. Vavra complained of 709, 712, following written: mission error, error. be harmless would such “ * * * done, statements Acts amount of large found such a The officers oth- participants, of the appearances heroin, drugs marihuana and other are all admissi- er similar circumstances other circum- apartment plus all gestae a wit- part when ble res so that surrounding the arrest stances surrounding ness narrates the events logically only conclude could offense.” drugs part possessed for sale. these cases supra, Phenix v. Denny Tex.Cr.App., 473 S. In v. there cited. grounds on on other (reversed W.2d rehearing), held:
motion this Court above, In to the the State of- addition testimony present exhibits, “While designated fered the as the 21 se- appearance about the of the three ries, appellant’s he and the counsel stated of their co-defendants at the time arrests had no these exhibits found objection. In they possessed added when marihuana Neal, found near the name of “Ron” was in- nothing proving guilt toward their no jury, in connection with narcotics. The nocence, part it was admissible as doubt, got substantially impres- the same gestae the res of the and arrest.” offense sion from these exhibits аs did from complained those exhibits of. In Flores Tex.Cr.R. (1921),
S.W. 786 the conviction Next, appellant complains jail murder. The accused and others in admitting court erred in the notebooks jailer. piece killed a A iron short request heretofore discussed because wrapped rag in wire and covered for the search warrant was to search for jail. found behind a radiator in the This personal property such in the af described was admitted objection over the personal fidavit and that property such weapon any was not con- shown to have mentioned Marijuana” was “Heroin and homicide, nection with the and that the de- and that the search should not have been any fendant was not shown to have knowl- broader than property set out in the af same, edge therefore, could not earlier, noted fidavit. As no Court be bound finding existence longer holds inadmissible “mere” evidence object. Judge Lattimore, speaking obtained a result of a search warrant. Court, for the held the evidence admissible Haynes State, Tex.Cr.App., S. and wrote: 739, this Court held W.2d that an officer testify could envelope that an addressed “It was a gestae of the res Haynes in which the mari box transaction. opin- are also We [the] huana was fоund was admissible. The that, ion parties charged when are with Court also noted the “mere evidence” *8 acting together in the commission a rule longer by was no followed this Court. crime, of, preparation evidences of weapons on, them, anyone of Court, Haynes, in noted the en- before, whether during, or so soon after velope connecting was the link between the the commission of the offense as to shed drug. accused and the narcotic any light fair on the act or intent of present In the case the notebooks showed alleged participants, such would ad- a connecting link between the against missible each or all of them.” and Arnold Neal as well their connec- We hold the court did not err in admit- apartment drugs. tion with the and the ting the part notebooks as a ges- of the res theory notes are admissible on the tae of the transaction and arrest. conspiracy principals well aas co-conspirator. a work of Branch’s transaction the the circumstance Ann.P.C., Sec. 721-722.
arrest. opinion primarily upon relied three That on present case were The officers support conspiracy theory. to We its warrant cases premises awith search find cases and bag have examinеd these duffle notebooks within found the following: and other much marihuana that contained right take They had a contraband. Phelps In v.
bag and its contents. clearly the evidence (Tex.Cr.App.1970), conspiracy. proven showed a It was the search made that Complaint also is conspired the accused there with others affidavit for illegal because the through to purchase weapons obtain funds contain recita- does not warrant search Embassy in Canada. There was her- Cuban that the believed that the affiants tion proof the rob- defendant discussed possessed viola- and marihuana oin it; planned pur- bery 725b, with others Vernon’s of Article Section tion established, pose robbery clearly Ann.P.C. e., buy guns robbery i. Canada. The way the co-in- There that either of is no by a house owned the de- was rehearsed in lawfully possessed her- have dictees could summary, fendant. In and decla- such acts did in Faubian again as we oin. We hold obviously product of a rations were supra, that no recitation v. co-conspirator. required. the affidavit case of In the Parnell 170 Tex. setting affidavit out the Without (1959), Cr.R. the of S.W.2d 49 warrant, been reviewed search charged Again, fense was embezzlement. probable facts for cause. sufficient states conspiracy showing evidence by promoters In certain stock. jury appellant’s contention mis- addition, charged on law concerning conduct about discussion conspiracy, well as the law of on length might time that one have principals. serve under certain sentences does present reversible error. upon, In the third case relied Saddler State, 167 Tex.Cr.R. appears No reversible error clearly (1959), showed ac- judgment record. The affirmed. person acting together, and another cused marihuana, the unlawful sale of ROBERTS, J., concurs in result. accomplice testimony there was witness this effect.
OPINION original The conclusion reached in the opinion APPELLANT’S RE- a unique appeal, ON FOR one—that MOTION on being and it very HEARING mentioned for the first time, theory conspiracy may be devel- oped, authorities, the prosecuting ROBERTS, Judge. Court,
but this and a decision affirmed case, original cited, submission On basis. cases the evi- *9 conspiracy unquestioned. affirmed the that dence of the the basis case, conspiracy. conspiracy highly was a A In the instant this doubtful pled, in proven, question case. that briefed we should even reach that that such exhibits since there is It is axiomatic before not even an affirmative link proof be must be between could аdmissible there shown the “declarations” in the is, fact, in appellant. that the act or declaration the and the The fact re- that three note- record reflects the never au- that exhibits were mains these spiral- in of small co-conspira- question books were product of thenticated as the a They appear type. binder a record Surely, cannot infer tor. this Court money expenditures by personal of and is what oc- essential element. But person be- owing to whom the books original curred on submission. person- of of a long. Many the entries are arguments In other order to answer nature, “groceries al such as Oth- $35.00.” relied, opinion upon original which the large given a number of ers consist of following necessary. facts are surnames, by names, followed without September The evidence that on reflects money, “Rooster such as amounts of $30.- of the addition, four officers Austin Police of there are a number In 00.” a Department executed a warrant at search of to be nature appear entries which City house located in the of Austin. Three example, at inventory. For several an together, entered the house heading officers in places the books “Assets” while of the officers one remained outside by as appears, followed notations such by until called one of the en- Hsh,” “Hsh,” officers who “Lds,” each of which “Gms living- tered. The entered a officers into entry and an des- by is followed amount passed through room and it to the front ignated page “cash value.” One bears In a bedroom. the front bedroom saw a designation “Sales” and consists of list man, Neal, later identified Arnold dates, designation a of each followed asleep on a couch. One of the officers re- and of gms an amount such “7 Hsh” mained in the front room while two money. designat- of money The column proceeded other officers the back bed- places At ed “Cash Profits.” several bedroom, In room. the back the officers headings books the “Plds notations appellant woman, Faubian,1 found Sold,” G,” and a Sold,” Sold,” “Lds “Pills “One upon seated at a plate etc., table which awas appear. “Pills Left” One offi- containing capsules of heroin vari- term “hash” referred cers testified ous of paraphernalia. items narcotic As a hashish, “lid” and that the term meant result of a premises marihuana, further search package one ounce officers, conducted bag” a "barracks gram to a either the term “G” referred found a closet which lоcated Appellant’s or marihuana. name heroin house, immediately kitchen of the adja- books, although appear does cent bag back appears places, bedroom. The con- in several name “Ron” quantity tained a Also, of marihuana and heading three usually under “Assets.” notebooks which contained written entries places in several appears the name Arnold appeared which to be records narcotics Money” in notations “Arnold’s transactions. In closet located “I owe Arnold $80.00.” bedroom, plate front was found on which papers which were found in quantity was a hypoder- of heroin and two University front included a bedroom syringes. mic A group papers card, registration at Austin a busi- Texas appeared to be records of narcotics trans- clothing reply ness card addressed to found actions was also in the closet. firm, and a United States Post Office Appellant eighteen grounds change card, raised all bore er- of address of which ror in his brief. through his (the second the name Arnold Neal man who grounds error, eleventh complained asleep he found in the front bedroom) of the admission into evidence of the note- where the address the house items books which were adja- papers closet found. The notations on the cent to the bedroom where found in the similar to those which were Faubian were seated. notebooks. (Tex.Cr.App.1972). See Faubian v.
176 State, ; 169 v. Tex.Cr.R. 1972) of Windham
Appellant objected to the admission
Therefore,
448,
221
but did
335 S.W.2d
grounds,
(1960).
the notebooks on several
of
assuming
the notebooks were so
that
papers
object
not
to the admission
case,
question
present
bedroom,
in the
apparently be-
fered
in the front
is
con- which must be answered
“What
papers
with the
cause the items found
be drawn from the admission
part of
inference to
This was
nected them with Neal.
e.,
evi
notebooks as circumstantial
of
theory, i.
that
appellant’s defensive
infer
only
is
that
dence?” It
obvious
belonged to
narcotics
Neal.
person
drawn was that some
ence to be
papers
Appellant
that
contended
per
that the
dealing in
narcotics
reasons,
in-
were inadmissible for several
possible
it
appellant. While
son was
to
cluding
they were not
that
shown
(1)
to be
such inference
in order
for
that
they
that
be-
have been written
him or
the truth
necessary
consider
it is
to
drawn
him,
they
irrele-
longed
(2)
to
that
were
notebooks,
contained
of the matters
posses-
unlawful
prosecution
vant in a
assume,
of deci
purpose
we will
narcotics,
they
un-
(3) that
sion of
can be drawn
sion, that
inference
of
duly prejudicial
tending to
sale
as
show
as circumstantial
considering
offense,
narcotics,
that
(4)
an extraneous
brought
only.
are therefore
We
evidence
they
hearsay
did not fall within
an infer
question
whether such
of
rule,
hearsay
(5) that
exception
an
to the
pos
prosecution for
in a
ence is relevant
part
“res
the notebooks were not
and,
so,
if
whether such
of heroin
session
note-
content of the
gestae,”
(6)
excluded
or
be admitted
evidence should
sufficiently
identified
books was not
policy.
a matter
speculate
jury was
therefore the
allowed
meaning
of the entries.
as to
possession
prosecution for
In a
heroin,
The record
that the court admit-
the accused
reflects
evidence
theory
an extraneous
ted the evidence “on the
sold narcotics is evidence
ex
part
rule is that
gestae,
general
are
of the res
and on
theo-
offense. While
case,
evi
ry
co-principals charged
in this
are inadmissible
traneous offenses
”
exceptions
guilt
.
.
.
are certain
guilt,
innocence
.
dence
rule,
exception
general
such as
to the
offens
of extraneous
admits evidencе
improperly
The notebooks were
Ray,&
knowledge. McCormick
es to show
statement,
light
admitted.
of the court’s
supra,
§
appellant’s
the face of
objection on
ground (among
others) that the note
intent)
Knowledge (or criminal
hearsay,
books were
the notebooks were
pos
the crime
not
element of
admitted for the truth
is an essential
of the matter
v.
therein,
drug. E.g., Ramos
a narcotic
asserted
and therefore were not
session
1972);
hearsay.
State,
(Tex.Cr.App.
an
102
Unless
out of
court statement
State,
127 S.
offered for
the truth of
Fawcett v.
assertion con
Therefore,
therein,
tained
hearsay.
(1939).
905
E.g.,
W.2d
a rele
knowledge is
Ray,
McCormick &
which tends
show
Texas Law of Evi
Evi
dence,
781;
in chief.
State,
Brown
vant
of the State’s
v.
74 Tex.Cr.
§
has,
past,
However,
accused
(1913).
R.
dence that
S.W. 437
al
now
he is
extra-judicial
narcotic of which
writing may
statement
be
sold
probative
possession is
leged
admitted
have
as circumstantial evidence
knowledge. People v.
establishing
may
drawn,
which an inference
value
P.2d
MacArthur,
Cal.App.2d
therein,
for the truth of the matter stated
Nev.
violating
hearsay
(1954);
without
rule. Mc
Overton
generally, Gon
Ray, supra,
Haynes
(1962).
Cormick
796. See
liar to that easily distinguishable case is therefore sales, the is still on prior while relevant holding in Phenix v. from our recent in order knowledge, needed is not sue of (Tex.Cr.App.1972). case, and, light prove the State’s Phenix, in his was arrested the accused fact, be admitted because should note handwritten garage apartment and a outweighed then such evidence is value of The note read: was found on desk. prejudice jury. tendency to its Fri.
“A. P. course, the State should not be Of way. you “More on the I owe four still ability in its to offer evidence limited lids ‘Ill with Dan worth. check pos rebuttal, аdmits as where accused 150 tomorrow. session, the sub but denied that he knew C.P.” People v. was a narcotic. stance Howard, Cal.App.2d 310 P.2d full was Robert Alan Defendant’s name (1957). Thus, ownership Phenix. affirmative link This Court held was established. case, being prior evidence of a That any admitting harm- error in the note was by appellant have would been admissi- sale less, in that an abundance However, are knowledge. we ble to show sug- other evidence before determining problem faced with the dealing in mari- that Phenix was gested competent evi- whether prior by appellant. sale dence of huana. *12 At
The State contended that the the outset we note the record Nelson, at- part as of that Mr. were admissible the the assistant district gestae torney, in disagree. argued res We It arrest. as follows: tangible objects true that evidence is right. “All What the evidence of is is during of a search of course possession? an Renting a house under gestae” as ten admitted is evidence “res through name— And assumed some various, seemingly details of irrelevant ability Minton testi- marvelous Mr. permitted, even a transaction. This is really signifi- is you fied that this of no to may though relevance evidence really really cance. Is that true ? Is that readily apparent, not be thе law because to anything true ? this mean That doesn’t recognizes that transactions not occur do you in your at It’s evidence all? first By being in a all the vacuum. informed of in point time, folks, conspiracy aof a surrounding particular circumstances Faubian the de- and defendant transaction, the of fact is enabled trier participated. you Arnott don’t If fendant testimony proper put witness’s in its you think believe conspiracy, it’s have to perspective, judg and to form a for basis independently that somehow each themof ing credibility witness. Some up arrived at the name and showed Orbitt bones” are such that “bare transactions they gave there and name. did his But plausi might quite of the occurrence seem get together, you they got and know to- ble, very but when in context related seem gether going rent a because were unlikely actually (or have vice occurred house, going to use the name were Or- Therefore, versa). is usual you and bitt. And will be Mrs. I Orbitt ly is though admitted even its relevance will And Miss Faubi- be Mr. Orbitt. so shown, or, irrelevant, not if unless it even real approached an went down and Ray, unduly prejudicial. McCormick & is a agent put deposit and down estate $100 case, In supra, the notebooks this § and introduced herself him Mrs. prior being a admissible as evidenсe of Orbitt, And then the 4th Mr. Orbitt. on sale, all, ges- if admissible at “res must be Arnott, signed up alias showed and However, prejudicial. tae.” due to their Re- lease. And there are terms. nature, admis it cannot be said their deposit member terms ? and those $100 would be sion harmless. sixty a hundred and a month dollars mind, Appellant’s rehearing Keep you?” motion is rent. in will those granted, judgment and the (Emphasis reversed supplied) the cause remanded. theory argued conspiracy The jury the trial court was before
DOUGLAS, Judge (dissenting). this Court. majority
A majority opinion of the Court reverses The in its not rec- now does by ognize this after it affirmed substan- conviction the difference between the unanimous tive conspiracy Court. crime of the rules people acting togeth-
evidence where
principals
conspirators.
er as
or
Conspiracy
Arnott,
appellant
Neal and
apparently
for the
Miss
reverses
principals.
Faubian
Ar-
were indicted as
following
statement
given
reason
jointly
nott
pled,
and Miss Faubian
tried
conspiracy was not
opinion: “A
its
principals.
theory
addi-
of the State
case.”
proven
briefed
this
acting together
three were
from the
taken
tion to
above statement
trial
possession of
narcotics. The
appellant
rehearing,
counsel
motion for
charge
court submitted the
to the
conspiracy was
his motion that
stated
principals
the law
circumstantial
urged by the State.
involved,
principals
er
just
evidence.
are
Neither a
Where
decision.
confession of
conspiracy necessarily
nor an
involved.
ror
coun
State
admission
sel for
that no reversible error
Article
and the
Penal Code
binding on
shown is
the Court. Even if
succeeding
provide
four
Articles
sub-
upon
judge
trial
wrong ground
relies
persons
together
that all
acting
stance
gives
wrong
ruling,
reason for a
princi-
the commission of
are
offense
Court is not bound to limit its considera
*13
pals.
in cer-
provide
These Articles also
reason if
tion
such a
the decision below
to
tain
agree
cases
those who
commit
State, Tex.Cr.App.,
is correct. O’Neal v.
something
and
dur-
doing
a crime
who are
130;
State,
Parsons
Tex.
491
v.
S.W.2d
ing
principals.
its
are
commission
Supreme
Cr.App.,
ment as of a before evidence leged in indictment and convictions conspirаcy can does be One introduced. upheld a conspiracy, on evidence of charged not have to in an indictment as State, 265, Aguero see 164 v. Tex.Cr.R. principal in- before such can be 298 In that case S.W.2d 822. the convic troduced. possession tion was for of heroin. acting Conspiracy Proof two or shown people more to between Alvarez gether in Agüero. which and This commission of a crime Court held: conspiracy ais can be and relied made “The and acts declarations of co- one upon though even alleged. it is not A con conspirator against are admissible other agreement is an spiracy manifesting itself conspirators during the furtherance words deeds or more which two conspiracy.” persons confederate to do an unlawful act. State, 378, Young v. 150 201 Tex.Cr.R. S. State, 309, In v. Saddler 167Tex.Cr. 320 A conspiracy 46. W.2d can be established 146, S.W.2d the conviction was for the sale by circumstantial Roberts v. evidence. Conspiracy alleged. was not marihuana. State, 303; Tex.Cr.App., 375 S.W.2d The Court held: State, v. Tex.Cr.App., Westfall 375 S.W.2d 911; State, Price Tex.Cr.App., v. 410 and Brackins S. “Proof 778; State, 68, together W.2d Rice acting selling v. the mari- juana 51 to establish a S.W.2d con- sufficient spiracy to commit between them the of- conspiracy A can seldom be established (Emphasis supplied) fense.” State, direct evidence. 135 Carter v. 457, 371, Tex.Cr.R. 116 382. Nar- S.W.2d dealers, cotic professional like other crimi- “The well settled that acts rule
nals, widely agree- do not publicize their conspirator dur and declarations one plans ments or to officers. ing conspiracy the furtherance of the are It is not necessary against conspirators. brief for the admissible other 2243, par. every pages contain statement of rule of law Ann.P.C. Branch’s upon 603; State, relied for the a convic v. affirmance of Weston Tex.Cr.R. 681; Aguero tion if a correctly case tried. v. has been 297 S.W.2d rulings matters we consider are the Tex.Cr.R. court, attorneys Angle the trial Tex.Cr.R. not v. State the reasons [165 305] give uphold applies though Briefs This rule their contentions. S.W.2d 718. arguments reaching declaration out only are act or occurred aids conspir fully jury argued presence hearing of the before charged in Braley principals 156 Tex. have been
ator on trial. even when 15, 238 indictment? Cr.R. 539.” S.W.2d Angle 165 Tex.Cr. majority Is the the rules changing now 718, the con- substantive crime of game like (after it has been played) complained Angle spiracy alleged. pool re- regular call shot? The of an-
because the court admitted evidence
aрparently
versal
reason
now
cillary
held the acts
offenses. The Court
conspiracy
shot
called
co-conspirator
admissi-
Nesbit were
argument
prosecu-
other
than
opin-
ble.
the other cases cited
court
tor before the
and the trial
original
ion on
submission.
is in the
us. Does
record before
require
principals
now
that where
cases,
authority
Under
above
*14
charged
have been
in an indictment
even if the entries in the
notebook
included before
“conspiracy”
the word
be
Neal, Faubian,
made by
appellant,
or the
relied
conspiracy
of a
can be
evidence
or someone else
the of-
connected with
so,
upon
majori-
for a conviction?
If
the
fense,
they would be
act
admissible
case, supra,
ty
overruling
the Parnell
conspiracy.
during the
See McElwee v.
aof
previous
and all
law on evidence
the
State, Tex.Cr.App.,
bedroom. there ? is not testimony the officers Webb, offi- record. W. R. one their bedroom than it “A. Other search, asked cers conducted who and, course, some there were answer- He exhibits.
where he found the items that were there. other ed: “Q. asking you about what’s I am havé referred “A. In the—what we coming from the evidence here as believe, as, bedroom I the back bag duffel that’s now evidence? the two defendants where bag No, green A-—the barracks just found. “A. It was in their sir. room.” any cap-
Webb was asked if he found “Q. plate sules on the That bedroom? similar to those bedroom, southeast or back and he answer- bedroom, green “A. That barracks ed : just to the bag I found in the closet upon entering the kitchen. left into “We have other—there are other dis-
plays here that was in the haversack. *15 the “Q. you referring then to Are speaking of He also testified that he
southeast bedroom
went immedi-
ately
to the
arriving,
wall of
back bedroom on
closet on the north
“There is a closet right
bedroom?
here in
southeast
this bed-
room, just
right
to the
of the door. From
“A. That is
And to the west
correct.
this
got
closet I
bag
this barracks
contain-
entering
of the
into the kitch-
door
”
ing the brown
.
.
. He
haversack.
en.
testified,
also
this closet there were
“[i]n
clothes
girls’
and—both
and men’s clothes.”
“Q. You found
bag?
the duffel
From the
testimony appears
above
bag
“A. The duffel—the barracks
the
bag containing
duffel
in
the exhibits
bag,
green
duffel
is the
one.
question was found in the closet in the
“Q. Were all of
in
the exhibits
the duf-
room where Arnott and Miss Faubian were
bag?
fel
found. See Frazier
Tex.Cr.App.,
in the bag. Every- barracks The heroin found in bag the duffel in thing together in was the back Faubian, bedroom of Arnott and
each exhibit of heroin found on the table in that bedroom and the heroin found in Clinton, On cross-examination Mr. Neal’s room were All of heroin. appellant’s attorney, 20.5% concerning the duffel the heroin in found the house bag or haversack аnd the included materi- same consistency whether it inwas the als, following occurred: capsules or in the balloons. There were “Q. . . . nothing there was in empty capsules in bag. found the duffel there at identify all to the defend- Traces of heroin were found on the nar- ant Faubian or the defendant Ar- paraphernalia cotics in the back bedroom
nott in bags, connection with those and in Neal’s front bedroom. is there ? A similar contention that there was no May “A. say, too, I this inwas there. connection with the evidence made in in appellants Flores v. the heroin S.W. contained opinion original sub- cited Exhibit 14.” piece mission. In that case a of iron Doesn’t this connect Ronald weapon could been as a not have used narcotics, bag, Arnott with the duffel directly shown to be with either connected paraphernalia and *16 in found oin and other contraband physical possession appellants. of This his was insufficient the evidence bedroom heroin approximately was of the total 2/3 in support the conviction. Williams amount All of the discovered. heroin his kitchen; he needle marks on had packaged (like alike and the heroin testify their as to (the arm officer did present case) contained the molecular same reversed because freshness). indicating came structure that each exhibit connecting In no link was shown. origin. the same This Court wrote: the con- present case reversed because rule does necting link was shown. Which cases, bar, pos “In as in the at some one the trial court follow ? proved by session must be the introduc tion evidence. of circumstantial Such reasoning majority that evi- per affirmatively evidence must link the be complained of here can such as dence al son the narcotic which he accused to cases, in circumstantial evidence admitted State, legedly possessed. Haynes v. 475 cas- strong but not circumstantial 1972). This (Tex.Cr.App. S.W.2d 739 es, ad- only in those cases where one by link show affirmative is established know- possessing but not a container mits ing independent facts and cir additional contains, not be ing will what container cumstances which indicate accused’s not un- because this writer does discussed knowledge and control of narcotic. a trial nor he see how derstand it does State, supra [Tex.Cr.App., 487 Collini v. especially reasoning, follow court can S.W.2d 132] past of this Court decisions view distinguished. which are not presented shows “The evidence pleas of held even on independent facts This Court has additional of has been affirmatively linking guilty direct evidence where and circumstances Jerry Ray may testified Windham he circumstances that other fered renting an about Tex.Cr.App., 456 came to see her State, Asay v. shown. James talking and apartment. did the 903, held: this Court S. W.2d James money Windham furnished “ intro right . . The State’s . first month’s rent. entry is not restricted duce evidence defendant, or by the plea guilty warrant, the officers With search sought to be of facts by his admission half-pints whiskey found and other State, Tex.Cr.App., v. proved. Brookens gin, liquor. containers of vodka and malt 577; Tex. Whan v. 438 S.W.2d search, At found the time of officers Tex.Jur.2d, Cr.App., 438 S.W.2d ga- apartment beer an automobile in the State, 146 130; Trial, Beard v. Sec. rage. jail were in at Windham James There Tex.Cr.R. found that evi- time. Court limit, statutory direction either no occupied dence showed that two kind, upon the interpretation, judicial apartment joint and had over the control testimo or amount of relevant character contents. upon a may introduce ny the State objected Windham to the introduction of State, supra; plea guilty. Whan pieces paper apart- three 124 Tex.Cr.R. Brooker pieces paper ment. One of the def- S.W.2d 1033.” initely handwriting, not in Windham’s but Beard v. this Court held it was admissible to show effect. same (1943), apartment Jerry that he shared with many times to cited This case has been too piece paper One read: James. has not overruled. set out It been here. “April 29 286.00 5 cases limited in the amount If the State May 1 5 cases 277.00 proof and extent of when a defendant May 1 68.00” Jax pled why limited guilty, should be a de- amount relevant evidence where This was not have been shown to guilty? plea of not fendant has entered handwriting. Windham’s The conviction for such a different rule would The reason harm- affirmed on the basis of present erroneous more However, re- on motion for less error. notebook found where Arnott wanted the three hearing, held that Court near in an effort to show Neal introduced *17 pieces paper officers the possessed that Neal all of the contraband. apartment part a their search the “Ron” Those contained the name of *18 State, proof enough Alba Tex.Cr. on good admissible. v. cause the not or See 555, 560, App., good and Phenix v. ground that it too ? S.W.2d State, 759, and Tex.Cr.App., 488 S.W.2d is It also hard that be- to understand no for I see reason cases there cited. it prejudicial cause might the evidence be adopt. majority such a rule would admissi- should not be admitted. Relevant impression testimony no always prejudiсial
It has
been the
ble
is
or there is
writer where
evidence
need for it to be introduced into evidence.
State
people
that
whether it be direct
If one
other
admissible
made statements to
selling narcotics,
case
that he
that would be
circumstantial
it
admissible
majority
State,
appears
It
that
chief.
admissible. Sutton v.
343 S.W.2d
it
him too much with
If
that he is
holds that
connected
one writes statements
narcotics, why is this
admissi-
selling
against admitting
admissible. The rule
by
transac-
evidence of other
ble? The evidence of the whole
crimes
the accused
inapplicable
ex-
Evidence
if
logically
tion should be admissible.
such evidence
of little
placed
guilt
in a vacuum is
tends to show his
crime
tracted
charged,
jury.
or no benefit to a
and is
too
remote.”
State, Tex.Cr.App.,
readily
It can
that
trial
Alba
S.W.
seen
court
555,
ample
had
large
authority
“this
2d
it was contended that
to admit the notebooks
prosecution
quantity of heroin allowed the
evidence at the time he
These
ruled.
heroin
appellants
distinguished.
to
authorities have not been
infer
dealers,
prejudicing
thus
suppliers and
Another case which holds that relevant
Miller v.
jury.”
quoted
The Court
may
circumstances
be introduced to show
180,
State,
181:
Tex.Cr.App., 469 S.W.2d
being possessed
marihuana was
prosecution
possession
il
“In a
purpose
pro
of sale and
had
therefore
narcotics,
legal drugs
illegal
other
State,
bative value is Collier v.
Tex.
drugs
at
the same
or narcotics found
534,
Cr.R.
2d 435. complained Gonzales proof that narcotic addicts and Error users were Harmless entering seen leaving apartment his necessary, but Nothing more should be because it showed or tended show the *19 of the case should be other circumstances sale of This narcotics. Court wrote and if as the noted to see the error held: the de- holds was harmless. Let us look to so, proof purpose “Even and before Exhibits the tails State’s notebooks, which the introduced. possessed questioned narcotics were was Deputy During Honor, direct its examination “MR. CLINTON: Your when Webb, sought series, first to introduce State State offered the Exhibit 21 gestae of- these res we— judge, conducting a fense. The trial after see again. “THE COURT: Let me those presence
hearing jury, outside did ruled The State them inadmissible. “MR. CLINTON: Yes. I hand want to on pursue matter further. Then up them to the Court. not ob- We did cross-examination, question the first asked ject they found, because accord- appellant’s Deputy counsel was: Webb ing testimony, to witness’ bedroom and thought, front we bear- Webb, “Q. Deputy (By Clinton) Mr. ing Mr. Neal’s name on at three least exhibits, begin- all of these have them, that that was indication some with the Exhibit ning Neal, respect with to Mr. and we con- haversack, you have called a what it important sidered as an part of were in the and the exhibits that defense of Arnott that Mr. at least the haversack, then, say, I and matters in front bedroom bag duffel and haversack shown, point from And our view. in the duf- that were the materials object. we didn’t reason those exhibits bag, fel have all of Now, that stage, sort of sets I here, up presented that have been for— guess, bag, there coming from duffel identify all nothing there at (Counsel “MR. MINTON: for Miss de- or the defendant Faubian course, Well, Faubian) problem, in connection with Arnott fendant hope anticipating that I Clinton Mr. bags, is ? there those is that counsel for immedi- the State is ately going say, ‘You are not going too, May say, : I “THE A. WITNESS put in room these books the front this inwas there. try try gone man who “Q. Well, the exhibits were today whatever here I get and tell me can’t these been admitted here into bedroom,’
that have I books back nоt, evidence, was was respectfully suggest Bur- would to Mr. they there ? about ton Mr. think Clinton objec- withdrawing start it before than it in their bedroom “A. Other tions. and, course, some there were in there. items that were At- (Assistant other “MR. NELSON: District cake torney) They want to have the “Q. asking you what’s in evi- about I’m and eat That’s usual. Your too. coming from his duf- dence here Honor, bring wanting what I was bag that’s evidence? now fel now, up whereas abided we excluding all No, ruling, the Court’s just their room.” “A. sir. It was first papers in the instance these prove ap- attempting to Counsel Direct, pressed fur- Mr. Clinton pellant with the contents had no connection Webb, and ther and asks the witness bag. of the duffel he, course, your ruling, heard know obviously his—he doesn’t point in cross-examination At a later you he knew to handle it because how had concerning papers of Webb papers, and it in the exclude would Neal in the front room where been found question, sub- asked the Mr. Clinton arrested, re- for Arnott counsel had been stance, nothing was that there hearing outside quested and obtained the defendant bag that identified following oc- jury. The presence of the Faubian, I believe and now Arnott or : curred *20 they and on theory were res door, gestae that there opened he the because has pur- all cо-principals and for Ron, theory the of name, certainly is the mentioned poses. jury with had left the in the papers in that were found Counsel in impression that there was no evidence at just as it zero bag, and where Faubian or bag to connect either first, the duffel turned Mr. Clinton has now contents, in fact Arnott its when has with ruling something into Court’s an may rebut such he The State put shape, and I was. us bad believe evidence. legally inference with admissible opened for the admission the door that were those notebooks by this No abuse of discretion is shown bag.” duffel outside the hearing held record. A did record reflects Mr. Clinton judge is- presence jury. The trial object to admission of the Exhibit 21 ruling appellant. in favor At the sued a n series when first Im- offered. request appellant’s a second counsel mediately upon objection Mr. Burton’s presence hearing was conducted outside behalf of Miss Faubian to the admission then admitted jury. judge trial series, 16, and Mr. Exhibits the 21 disputed notebooks as those to as well to make objections Clinton said: direct our defense counsel wished “We clear he objecting was not or ac- adopt the Exhibits objection in an exclude the quiescing coun- objections statements and made papers notebook found the front sel.” room Nеal was where arrested. Exhibit (from 21c of the 21 series Neal’s admitted, larger Did room), which was invite make harm- was a spiral if not indirectly, notebook. Counsel less the admission the notes from the directly, objection withdrew his in ef- bag requested duffel when he in effect fect it be asked that It con- admitted. admission the notes found front “Ron”, others, tained the among name bedroom ? did the comprising notebooks Ex- hibits Nos. Min- Co-counsel page reads, The first of that notebook ton recognized the admissibility of part: $105, $5, $5, “Ron Gene Rick Mark notebooks the duffel if the bag $4 n $2, Missing piH44 let with R©».” The papers and notebooks found in front transactions, according second shows page bedroom were admitted. testimony, Officer Webb’s in narcotics. At top page entry court reads “Ron then admitted the
from the bag question duffel page appears: At bottom of $105.”
“Ron rug for $30 $75 speed for paying $25 $30 dollar for Tom $30 for
$15 food $105 $40 4 n dollar $10 G payment pills on 3 $ $50 that were lost pill $25 worth of pill three $ 9/11/70 $75
total $135 pills $10 9/11/70 pills $10 9/11/70 This adds up $105, apparently paid to appears It objected notebook to con- Ron. type tained the same *21 appellant.
admitted at wish He can- complain. Tex.Jur.2d, now Sec-
tion there cited. the cases appellant’s
This evidence introduced
defense also connected proved
Neal with the a con- narcotics
spiracy. original opinion cases cited in the tending
all hold that evidence to connect admissible, accused with crime tending
even evidence of sales evidence
to show show motive sales or evidence to possessed.
for which the items are appears
It of the ma- that the new rule
jority tending is that show if
sales cannot be admitted a lot might one to be
the evidence which show because it too
large dealer wholesaler
prejudicial. and authori-
For all above reasons
ties, mention, many and too more to opinion sub- original
the reasons
mission, affirmed. the conviction should be
MORRISON, in this dissent. J., joins Parks, S.
Jon SWAIM and Michael Appellants, v. Texas, Appellee. STATE
Nos. 46238-46240. Appeals of Texas. of Criminal
Court 24, 1973.
Jan. April 11,
Rehearing Denied 1973. 7,1973. Rehearing Sept. Denied
Second July 11, Rehearing
On notes than more principals jail aft- in the cemetery exhibit buried in a connected jailer er the held it was killed. The Court Alba to that heroin ? quoted admissible. See When rented and has control one original opinion. premises, expecially a closet in his bed- case, Also gives the Parnell supra, room, ex- apparently his on the with name correct that the could offer evi- rule State hibit, him enough is not this to connect conspiracy. dence tending establish re- with it? How much more is the State quired prove? ruling Under original After opinion this case majority, which holds that the evidence written, Presiding Judge Onion wrote Arnott connected with does show for this Court Alba v. Tex.Cr. bedroom, items found closet his App., 492 There the convic S.W.2d 555. would have insufficient evidence State possession tion was for of heroin. posses- one for the connect and convict Contraband was cemetery found in a east found in his bedroom sion of contraband n complained Austin. Alba that the court in- Surely closet. does erred admitting containing an exhibit go this tend to far. days heroin prior which was found two State, Tex.Cr.App., 498 In Williams his surveilling arrest. None of offi decided, Court day this cers had seen Alba оr his co-defendant at rented that where the accused had held location exact where the exhibit was days her- before and trailer some six house buried nor had seen the exhibit
Notes
notes gestae and the the res of the transaction $80, paid and one-half showed Neal ma- evidence was admissible The as such. house, first the and other month’s rent for jority distinguish or overrule now does connecting evidence. Windham. in a simi- judge would a trial rule How connecting links There were several present the lar case in the future? In than in the Alba case—much more this cases judge the cited three case trial was case, supra. the evi- authority as of the introduction of dence. Extraneous Offenses acquainted with was well The trial court re- apparently an State, majority adds new The cases, v. the first of those Windham against admission rule the striction on the where Tex.Cr.R. S.W.2d though it Even offenses. of of extraneous possession prosecution was for the defense was appellant’s recognizes that for the liquor and malt whiskey, gin, vodka belonged to Neal. landlady that the narcotics purpose sale. In that case the says they and then later that the the notebooks were admitted notebooks When un- ma remote and purposes. The connеction too for all were admitted in not be prejudice due the evidence should jority question, was the asks the “What theory do admission of admitted. Under which to be drawn from the ference rely? evi circumstantial question, To answer that dence?” attempt distinguish Phe- There is logical inference to that the most obvious initials supra, nix v. where person some was deal be drawn was that establish used and the note was shown to person ing in and that narcotics ownership The held it was link. Court appellant. recognizes majority The harmless in the Phenix case because rule that of extraneous offenses evidence other evidence was an abundance of may knowledge and to show be introduced dealing in mari- suggested that Phenix was Ray, Texas Law cites McCormick & huana. Evidence, v. and Section Gonzales State, Tex.Cr.App., 410 435. present S.W.2d case other notebook majority restriction on then adds “one found in with Neal’s room introduced cases,” possession objection. use of evidence the statement that there was no is, be introduced such evidence should not This the name “Ron” notebook contained case in chief unless a similar transactions those showed upon evi circumstantial case based shown in the notebooks fоund closet. upon This circum dence. case was based enough Isn’t Neal’s notebook evidence charged. and the court so a stantial evidence adequately establish the de attorney Each for the and the ar State dealer in narcotics? State argued a fense that this was circumstantial he a gument jury to the stated that a would evidence case. No doubt reversal dealer Faubian rented Miss charge a be had if there had not been premises they could set leased the so that Denny ap up circumstantial operation. evidence. wholesale Counsel for State, Tex.Cr.App., apparently pellant objections Forfar v. S.W.2d made no State, Tex.Cr.App., 478 503; S. Ramos v. deduc thinking that this was reasonable ap W.2d tion For cases evidence. large proved by this Court where amount opinion by adds dictum argu been shown and narcotics admis novel rule that further restricts the ment was to the effect that it was for sion to instances where evidence purpose sale Ware Tex.Cr. see possession denies accused admits but App., Archer narcotics. he knows the substance was no Tex.Cr.App., 484. The rule, many cas Under this new possessed doubt narcotics were realized the es which has been admissible show purpose of sale. connecting accused link between the longer possession majority reversing reason for its no be- Is the