*1 109 have in the eases which set forth ” HERNDON, Appellant, Homer Gene . . . 484 S.W.2d reversed been at 383-384. 374 v. the examination the discussion of also See Texas, Appellee. The STATE State, Carry v. 468 Sutton
of venireman
No. 51593.
(Tex.Cr.App.1971), reversed
455
S.W.2d
Appeals of Texas.
of Criminal
Court
light
v.
penalty in
death
Stewart
845,
2845,
Massachusetts, 408 U.S.
92 S.Ct.
6, 1976.
Oct.
Texas,
(1972),
Curry
744
v.
L.Ed.2d
33
939,
2872,
(1972). After we find that neither of
ation of the record veniremen, Barbour, Davis nor cited in violation of the standards of excused
Witherspoon. ground This of error is over-
ruled. judgment affirmed.
Opinion approved by the Court.
ROBERTS, J., concurs. ON APPELLANT’S MOTION
OPINION TO FILE FOR LEAVE MOTION
FOR
REHEARING
DOUGLAS, Judge.
Illinois,
Witherspoon
v.
U.S.
(1968), ques-
tion is objection no and find to the dis-
record jurors.
charge prospective v. 542 S.W.2d we
In Boulware complain that before one can of im-
held discharge prospective juror, of a an
proper has to be made in the trial court.
objection holding, prior of that view dissent-
In has been withdrawn and leave opinion
ing rehearing is denied. the motion
to file
HO bet,
teams and the amount with the individ- depicting ual names which individual bet on each game”; pad how much consist- pages. ed of nine Exhibit No. 6 State’s Biesel, Dallas, appellant. Jerry W. for initials, pad containing note a another team Wade, Edgar A. Henry Atty., M. Dist. odds and the amount bet on with.the Burnham, Attys., and Jim Dist. Asst. Mason team. Dallas, Yollers, D. and Atty., Jim State’s Detective Don Irving Hamon of the Po- McAngus, Aus- Atty., Asst. State’s David S. Department he lice testified that found a tin, for the State. up” “settle identified as State’s Ex- back bedroom. hibit Detective OPINION testified the “settle Hamon sheet DOUGLAS, Judge. bettors, the names of various disclosed their appeal This is an from a conviction losses winnings and and the amount collect- Article bookmaking offense under by bookmaker. paid ed or 652a, penal former code. The court as- D. H. Pfeifer of the Detective Grand punishment years, probated, at three sessed Department Police testified Prairie $1,000.00. fine a and was a “settle up” No. 8 State’s ground sole of error chal- Appellant’s that he and found it in sheet Herndon’s sufficiency In lenges the of the evidence. Pfeifer further testified that pocket. dur- light considering all of the evidence in a telephones apart- search the in the ing the to the this favorable verdict as Court most rang p. often an and at 6:50 m. ment indi- do, up- the evidence is sufficient to should identifying himself as “Sammy” vidual the verdict. hold (Pfeifer) when answered, and he called (Pfeifer) asked, stated, to he which “Gene?” did alleged indictment that Herndon said, Sam; caller “Yeah.” The then “This is take and and “unlawfully offer to take the line?” gave what’s When Pfeifer him for a place and known to accept line, Sammy said, then “I’ll take two ‘Z’, wagers bets and Grand Jurors ‘ half,” plus Miami two and a to dollars “Z” money game, a football to wit: on ” + 2 n 220.’ on,” replied, he “You’re then Miami his inquired of caller if two dollars meant Organized of the Greater Dallas Officers dollars, hundred to which the two caller Force, search Task armed with a Crime “Sure,” hung up. Shortly after replied, warrant, which was went m., a second caller identified p. 6:50 pa- aby padlocked chained and surrounded place “Jack himself as W.” called bet through an After officers crawled tio. games. two basketball on about 2 n on feet and knocked opening Roy of the Dallas Vaughn City Detective door, Herndon admitted them. There Department, expert as an qualified Police telephones dining two room were on bookmaking operations, testified that on Cross, who was' table. Deborah Exhibits Nos. 3 and previously forty-four State’s apartment, had hundred dollars as “line basketball sheets” purse. her This calcu- identified was the amount schedules transfer- having games, from the col- were basketball exhibits as been lated by appellant professional red into line sheets for book- day question. lected Glenn, making. expert who was as an State’s Exhibit No. qualified Fred notebook, by bookmaking operations, gam- identified Officer previously identified having apart- found in the bling paraphernalia which was been found in Glenn ment, 3 and 4 State’s Exhibits Nos. detail Detective apartment. discussed in Vaughn during as line documents on his He testified testimony. sheet games. “particular Exhibit No. 5 (page that the basketball entries on pad exhibit) . .a note going identified as . are to be bet actually teams, the odds on the commonly or what are referred to as listing slips the names
HI name of ‘Z’had a bet coded be where bookmaker It would ‘tickets’. two and a half for two plus on Miami bet that an indi- particular place would twenty response dollars.” In hundred made, keeping pur- for record more vidual court, from the Detective to a money wagered in the the amount poses, Exhibit No. 5 Vaughn replied made, point at what bet that particular *3 entry on it. An no date “juice” at.” He testified that it he made Washington 110,” “C M Exhibit No. pay would a book- the fee a —2 meant wager of some sort. was identified normally per- ten losing wager, aon maker cent, “juice” on a bet so that the $200.00 Green, accountant for the Dallas an Fred testifying In as to the be $20.00. would Department, testified that he had Police of a sheet and content notebook purpose training in the United received States three of Exhibit page to the back of stapled Corps Signal Army cryptography, the my opinion “In that’s 5 he stated: coding decoding messages, science bets, to be some football going a certified probably cryptographer. he was and that Mi- Super Bowl”—between had analyzed that he several probably He related Washington 1973. contained State’s Exhibit No. 5 items ami of which is set out on next ‘Z’ Miami + 2½ appropriate on that page: “In 220”, my described as follows: that would be bettor identified
opinion
IIS course, be midway by substantiated beginning He stated that the fact that seventy-five “Jim plus dollars seven left column “Jimas listed the bettor fifty dollars and cents (BE)1 showed or a total of on the eighty-two . . dollars and fifty cents.” bets (BE)" Georgetown with beginning teams various Green then Cali- described including represent- a bet on the X’s4 as through down ing down the amount of money that the bookie parlay a three-team also fornia won and California, Georgia the W’s5 as representing the bottom at here money amount of that the bettor won. The entries He Washington.” Tech repre- further stated that the bookie usually teams2 indi- the column right side par- winning cated bettor’s money by transactions bet amounts sent as, plus. figures Fla two columns of Georgetown at the games, such ticular notations,3 bottom6 were six described as a summary etc. Bonny 75, St. the wins and losses of the the column side of bookmaker as number, left opposed to the sus- bettor. In this the bettor instance the losses represent bets, difference the two $32.50, for exam- columns was particular on those tained money the amount of lost Bonny, 137.- Jim Georgetown, St. 82.50 ple: figure is verified question, fact response to it Iowa, In etc. consistent with the rest you conclude why computation, court tell the you “Would regular plus “juice” bets those losses as and that sustained the bettor *5 figure had been bookmaker?”, replied: carried forward to the opposed page third over notes in State’s “Well, very simple: its It’s common page 5. The No. was identified bookmaking business to as the page procedure entitled “Monday Joe F -135” percent amount is com- and is a ten set out add would, page: on next juice. to as This monly referred page page as “Item 1” on the Shown in Item 2 on 1. Noted from 4. from State’s Ex- hibit No. 5 set out above. testify- 5 about which Green was ing. 5. Ibid. page 2. Noted as “Item 2” on the from State’s Exhibit No. 5 set out above. page Shown Item 4 on 6. from State’s Exhibit No. 5 set out above. 3. Noted as 3” on “Item from State’s 5 set out Exhibit No. above. *6 which he was entry testifying about late how much the bookmaker had won or then testi- as “Jim -32.50”.7 Green appears Monday and in opinion lost on his the book- by using figures ap- fied maker had a total winning of $1825.00 preceding pages on two and the peared Monday’s bets. able page to calcu- figures 7. The is indicated the “arrow and underline.' $4428.00,“that this would include a hun- of each subse- an examination Based on forty-five dollars and some for- dred losses Green of State’s Exhibit No. quent dollars winnings.” hundred ty-six prac- had a bookmaker concluded settling up day-to- “on a less more or tice Exhibit No. 8 identified earlier The examination of the subse- day basis.” Pfeifer as Detective “settle day of revealed that on the pages quent appellant’s front trousers’ bookmaker, using arrest time of at the his pocket arrest. State’s is set had collected out below: Exhibit No. *7 total winnings computed that which ent with the from Green testified $4428.00 No. Exhibit No. 8. He stated that the calculated from Exhibit had State’s State’s he consist- which were “checked off” indicated winnings figures bookmaker’s was 5 as the tor assigned grand the bettors had been contacted and a to the jury by that the Dallas had been made. He further tes- Department settlement Police and efforts to determine that had been found in the identity $4400.00 tified of an individual known as “Z” Lucille purse of Deborah Cross when she had been grand unsuccessful and the jury Herndon were arrested. and determined that investigation further be would futile. He revealed grand also testified that from his exami- Green jury then returned the indictment alleging of the Exhibit nation first person that “Z” was a unknown to the 5 a No. bettor identified “ELT” had grand jury. four bets. He stated that “ELT” made throughout aas bettor appeared sheets Viewing the evidence light in a most fa- contained in State’s No. and that verdict, vorable to the it shows appel- him this would indicate to that someone lant and Deborah Cross were found in the wagering whose code name or initials apartment padlocked behind a patio. He perhaps “ELT” or “ELT” was short were They the officers. posses- admitted were in part of a name with “ELT” in it. for or gambling paraphernalia. sion of The evi- have 5 in We examined State’s No. dence further shows that State’s Exhibit find “ELT” appears detail and on five a “settle up” was found on pages the exhibit. other appellant’s and cash was $4400.00 purse. in Cross’ During found the execu- Elton admitted that he Schackman warrant, tion of search two bettors who a hostile witness testified that he had “Sammy” themselves as and years known for ten and had been up placed “Jack W.” called wagers bets with placing games with he posed Detective Pfeifer who couple years. [ap- television for a “Gene” watched pellant’s response He stated that his bets usually calls. name] of one names “Sammy” amount hundred dollars but never The and “Jack W.” appear two hundred dollars. numerous times in more than After be- State’s Exhibits Nos. 7 8. This and evasive in much of the evidence is ing response hesitant undis- concerning puted. questions Super Bowl foot- Dolphins ball between the Miami The thrust of argument 14, 1973,
Washington Redskins on evidence is insufficient to connect memory refreshed his from a Schackman apartment him with the and the gambling he had written two and statement one-half paraphernalia therein. He contends to trial and testified that he had years prior no that there is evidence to show his knowl- a two appel- hundred dollar bet with edge notebook identified as testified that lant. He further he had also containing ap- Exhibit No. 5 what on the Cotton Bowl football placed a bet pears to be a record of numerous bookmak- game between Texas Alabama on Jan- ing Appellant transactions. argues that the 1, 1973, as well as bets on the Kansas uary failed in its burden proof State in that He further City Chiefs. testified that when presented was no evidence there to show placed appellant paid won bets he had he apartment leased the or that he paid he lost he appellant. him and when paying utility telephone bills on he placed testified that bets on Schackman present nor did the said State games games. as well as football basketball fingerprints, efforts, surveillance any per- *8 betting to he his stated that he In reference effects, handwriting comparison sonal anal- usually wagers would make on three or four gesture or furtive ysis which would to tend games totalling a week five hundred to apartment show his connection with the or dollars a week. hundred seven knowledge would indicate his of the book- Crutcher, Jr., making materials. He does not discuss Harry the foreman of the that 8, up sheet”, Exhibit No. a “settle grand jury which returned the indictment State’s question, person, found on his evidence in investigation in testified that an was itself by investiga- knowledge been conducted a show that he had special had to and was
H7 or bookmaking. part ‘ELT’ was short for of a name with system See to some party 76, State, Tex.Cr.App. ap- 156 239 v. ‘ELT’ in it.” The code name “ELT” Davis 5; (1951); and Smith v. 491 109 it appears Exhibit No. pears State’s S.W.2d (Tex.Cr.App.1973). spiral pages nine in the note- on six of the S.W.2d appears so It also in two identified. book owned, showing of who was no There by admitted into evidence the exhibits other rented, ap- where or leased the totalling figures relating to By the State. arrested, nor there show- pellant that “ELT” had lost the “ELT” we find telephones were listed and whom the ing to total sum of $540.00. Very showing paid the utilities. no self-respecting bookmakers few, any, if W.”, one name “Jack the The code bookmaking and place have their for would during apartment, callers search of the names if other under their telephone listed times in appears six State’s Exhibit 5.No. used. the failure to could be If names similar addition check on his losses as was A premises or where who owned leased prove of “ELT” shows done that “Jack W.” lost place be cause for bookmaking takes would Additionally, code name $973.00. reversal, large could in operators then the other “Sammy”, the caller at the time of escape by leasing all conviction cases almost arrest, appears on the front of else’s name. someone “Sammy Exhibit No. 200 2V2.” State’s not to this convic- It is essential sustain presented now is whether or is show all of above if it shown to tion analysis the above discussed not State’s appellant that had knowl- evidence by other Exhibit No. 5 establishes or tends to show gam- control over the of and exercised edge connection of with any appel- that exhibit paraphernalia apartment. found in the bling now lant. Let’s examine State’s Exhibit 8, by Detec- Exhibit No. State’s up” appel- the “settle sheet found on “settle up” as a common- tive Pfeifer person. lant’s The first of signifi- bookmakers, appel- was found used ly cance that shows as the $540.00 Thus, pocket. appellant trousers’ lant’s by and amount owed from collected “ELT”. knowledge of and exercised control over Next, entry for “Jack W.” shows No. 8. But what about amount as the owed and collect- $937.00 5, the spiral Exhibit No. notebook “Jack W.” Both of these ed from amounts containing a record of numerous bookmak- to amounts shown being are identical Did ing appellant transactions? exercise by these two bettors in owed State’s Exhib- knowledge over it or did have control spiral notebook containing it No. existence, purpose content? Does its bookmaking record of transactions. There presented evidence as connect other are numerous instances where the State’s Exhibit No. 5? The evidence is with appear code names which up” “settle undisputed Elton Schackman sheet in the appear notebook. So with on numerous occasions bets may reader make the same com- Green, couple years. Fred similarities, himself note the parison for whose was sum- testimony cryptographer especially handwriting, which exist ap- earlier effect marized between the entries the “settle sheet throughout “ELT” the sheets pearance of spiral notebook, sixth Exhibit No. “would indicate to of State’s wagering whose code State’s Exhibit No. him someone the two are set out next page: perhaps initials ‘ELT’ or name *9 It take a does not trained eye to and, therefore, Court this Court can recognize that the handwriting in the two review it as did the trial court in order to instances is identical. Specifically this determine its sufficiency light at only RO, need look Court code names entire record. HST, LUTT, Ted and Jack W just to cite Most of the entries on the “settle up” writing few of the similaritiés. It is rea State’s Exhibit No. and the sixth finder, sonable to assume that fact page notebook, of the spiral State’s Exhibit judge, comparison. trial made same are identical. exceptions are comparison by is authorized Article Such easily explained carry under the forward 38.27, V.A.C.C.P., provides: practiced as by testified to Fred Green. give “It to competent evidence of example, entry For “R. appears -44” comparison, handwriting by made by ex- page sixth of State’s Exhibit No. perts jury. Proof compari- shall not be sufficient son to estab- entry appears while the as “Ro -44 (78) -34 handwriting lish of a witness who on the “settle up” sheet. On the seventh signature denies his under oath.” of State’s Exhibit No. an Salinas v. also pertaining See S.W.2d 913 “Ro” is as follows: (Tex.Cr.App.1972). The evidence is before
H9 Thus, previously -44 have up” appears “settle sheet versations been set out in discussing testimony. similari- Detective Pfeifer’s We could continue with -34 (78).” telephone are be- calls were that There sufficient similarities The evidence ties. connect the book- “settle State’s Exhibit tended to with tween the alleged in 8, person making on the activities the indictment appellant’s found and No. regard to the truth notebook, of the facts spiral without entries in the the The fact gambling in calls. that 5, related found on kitchen No. the table calls were made to telephone apartment the Further, the apartment. to even untrained to show the nature of the is admissible eye, handwriting very is similar if not gambling when enterprise parapherna- identical. Crim.Evid., found. Wharton’s lia was See knowledge Having appellant’s established 274, Ed., 2, page Vol. 26. In 13th Section 5, use of No. probable and State’s Exhibit Tolisano, v. 210, 136 Conn. State 70 A.2d notebook, containing a record 118, find correct rule as “If we follows: bookmaking transactions, several controversy is the fact whether a commu- table, must we also address the kitchen was made not and its truth or nication ourselves to whether or not words, or falsity, writing, other commu- supports charge the evidence as drawn original is evidence hear- nication and not indictment. Ann.P.C.2d, 130, 1 say.” Branch’s Section alleged on or indictment that State, 142; v. Burchfield page 475 S.W.2d 1973, County, January 12, in Dallas about Christ v. (Tex.Cr.App.1972); 480 and and unlawfully then there take he “did (Tex.Cr.App.1972). S.W.2d As stated and accept to take known offer Wigmore, VI, page Volume Section as ‘Z’ to the Grand Jurors bets specific utterance of words “Where money game, on a football wagers part of the details issue is itself ‘T Miami + 220.” bet is This wit: 2V2 law the substantive and pleadings, under on the fourth found recorded proved utterance be without vio- may their 5. The estab evidence rule hearsay they because are lation Bowl Super lishes that between to evidence the truth of the not offered Dolphins Reds Washington the Miami may that be asserted therein.” The matter 14, 1973, played as this kins properly admitted. calls were Schackman, by both matter was testified to argues Appellant further that there was friend of admitted close presented which no evidence showed that game, a bet on Dallas County. was taken in This the bet Vaughn. Appel testimony Detective merit. “Gene”, is without The evidence is argument middle name is lant’s to show that book- sufficient he is known to his friends. name making operation was run from who called while officers two bettors warrant, City at having located 9922 Miller Road in the executing the search after The fact that admit- “Sammy” themselves of Dallas. Schackman “Gene”. Those con- W.”, appellant, asked for he made bets with ted “Jack *11 called, W.,” the two “Sammy Jack Appellant argues also the evidence bets at that location with placed Detective did not establish the bet posing appellant, Pfeifer as and that State’s fact a bet on a football Exhibit No. notebook contain- charged in the indictment. The evidence ing bookmaking a record of transactions shows Miami and Washington played with which connection had been 14, 1973, on Super Bowl. established, was found in the paper sheet of on which the bet ‘Z’ along gambling paraphernalia with other Miami + 2V2 220” was recorded is stapled logical only one leaves conclusion —“Z’s” to the fourth page of No. 5 as well as several others were made in bets appears as follows: Dallas. observed, appellant’s person. on on readily be the entries When this As can is viewed in relate to bets on “Wash” and exhibit context with all evidence, ap- placed Four of the ten code names these bets were other “Miami”. appear Miami-Washington on this sheet also game. football To pearing other any “settle No. conclusion would require reach with State s Exhibit 5 wherein “Z’s disregard experience, its court to the trial Detective and that and common sense. bet recorded logic a bet with it recorded. identified the whom was Vaughn “Z” code name with the bettor judgment is affirmed. plus and a half a bet on Miami two twenty dollars. hundred and for two ONION, Presiding Judge (dissenting). is a circumstantial evidence This ground In his of error chal sole case, necessary every it fact is not but lenges sufficiency the evidence *12 to independently directly appel and point indictment, conviction. The the sustain enough It is if the conclusion guilt. lant’s omitting parts, alleged formal that the the by the combined and cumula is warranted County, Dallas “on or appellant in Texas incriminating the tive force of all circum of in day January year the 12th the about Mills v. 508 S.W.2d stances. Thousand Nine our Lord One Hundred of the the If evidence in (Tex.Cr.App.1974). aforesaid, County and and 78 in the State in entirety case is viewed its the instant unlawfully and then and there take did inescapable left with the conclu reader is accept place to and and for a take offer in that was the business of sion to the as person only known Grand Jurors bookmaldng and operated such business !Z,’ wagers money bets and of on a football apartment located 9922 Miller the at from Miami + 2 n ‘Z’ to wit: 220.”1 striking in Dallas. The Road unusual and appellant’s It is contention that the evi- similarities, or name the similar identi code venue, failed to establish to dence failed handwriting, money the of cal and sums alleged when the establish offense occurred in Exhibit No. and reflected generally failed to sustain allega- and the up” No. the “settle sheet of the indictment. tions person, show appellant’s appel on W. D. Glenn of Greater Detective knowledge culpability with re lant’s Organised Dallas Crime Task Force testi- spect to State’s No. a, 12,1973, January pursuant that on to fied containing records of several notebook he and search warrant other con- officers bookmaking transactions. fact that apartment a search # in of 204 Dal- ducted purse in her at $4400.00 Cross Deborah Miller Road. at 9922 Glenn related the las arrest, the time $28.00 Herndon admitted them after of the amount Fred Green short calculated apartment on the door. they knocked sheet, up” “settle from the State’s Exhibit Glenn observed that there having by appellant collected as been arrangement living-dining room was as two bets with Detec as well top dining room table were two on appellant, are more posing Pfeifer as tive A telephones. Deborah Cross found in A just happenstance. “wager” has than purse In her kitchen and arrested. as a which two or by defined “contract been Glenn, dollars. forty-four hundred agree a sum of parties money that or more expert bookmaking qualified an on thing paid be or shall delivered to one other also testified he operations, observed State’s happening an uncertain of them #4, #3 and which he described as necessary to show the true Exhibits It is not event.” sheet documents identity games. of the second or addi line basketball (personal) State’s Exhibit parties when it is shown all of the #5 as a tional Glenn listing pages it is nine names harmony pad with the note evidence teams, on the teams party accepting that the the wa the odds evidence bet, operation his mode of with the individual names de- gers is identified and amount to show which individual bet how much on picting The evidence sufficient proven. He, however, game. connected never appellant was the each stated upon It is 1. observed the indictment which this was had was not trial returned until 1975. 20. apart- keeping purposes, State’s Exhibit # 5 was found record the amount of He ment. also identified wagered State’s Exhibit money particular bet that pad initials, containing # 6 as note made, team point he at what he made it at.” He and the with the odds amount bet on the a “juice” testified that meant the fee a team. pay a person would bookmaker on a losing normally wager, percent, ten so that Don Irving Detective Hamon Po- juice on a bet be $200 would His $20. Department lice assisted in the search and attention was then “to a directed notebook he testified found a “settle sheet in the stapled sheet back that page disclosing bedroom described the names (three #5),” stated, of Exhibit he “In bettors, winnings their of various and losses my opinion that’s probably going to be some paid and the amount collected bets, football probably Super Bowl” bookmaker. This sheet was admitted as between Miami and Washington on January #7. State’s Exhibit 14, 1973. His attention was then directed Detective Pfeifer of Grand Prairie on that ‘Z’ +Miami Department Police also assisted in the stated, 2½ 220” and my opinion “In *13 search and disclosed he had found a “settle would be a bettor or coded the pants’ pocket. sheet in front placed of ‘Z’ had name a bet on Miami plus Contrary of description to Glenn’s the loca- for two and half two hundred and twenty telephones, tion Pfeifer testified one the dollars.” Under court’s questioning he onwas the kitchen table and another in the admitted State’s Exhibit #5 had no date phones rang bedroom. He related the of- on it. He was shown State’s Exhibit #6 ten, and, objection, over testified that at and the “C Washington 110,” M p. identifying 6:50 m. an individual —2 himself it and he stated was a wager some sort. called “Sammy” as and when Pfeifer an- asked if it Washington When was the foot- swered, asked “Gene?” to which Pfeifer game, answered, “Well, ball he that’s . stated, testified, “Yeah.” Pfeifer then actually say be hard to it whether was a Sam; stated, caller “The ‘This is what’s the or game football not.” line?’ I gave the line to the Sammy caller. said, then ‘I’ll take two dollars on Miami Green, an Fred cryptog- accountant and said, a half.’ plus on,’ two and I ‘You’re rapher of the Dallas Department, Police two dollars meant two and asked if hundred he had testified examined the exhibits in said, ‘Sure,’ hung up.” dollars and he and evidence had made computations there- opinion from. testified He it was his p. 6:50 Pfeifer related after m. a pages the first three Exhibit #5 re- place to on “Jack W” called a bet a basket- winning $1,825 flected the bookmaker as game. ball “Monday”2 for the reflected thereon. He Dallas Ray Vaughn, Depart- Police City testified State’s Exhibit #8 revealed that sergeant, qualified ment was as expert an $4,400 had been netted on various bets and bookmaking operations. He on testified that was the amount found in Deborah Exhibits and #4 that State’s #3 were purse. Cross’ Green also related that a basketball schedules transformed into line code name bettor whose or initials were professional bookmaking. sheets for appeared throughout “ELT” the exhibits. Vaughn testified that Exhibit # a notebook, Elton he and the Schackman testified had known “particular entries appellant the for exhibit) years 1 are 10 for a (page actually couple on slips you years placed wagers to going appel- be bet or what would with the commonly games to It on he on refer as tickets. would be lant watched television. place partic- a bookmaker would the he explained where He did not know appellant bookmaker, ular bet that an individual made more for a but that appellant placed page “Mon,” 2. On 1 State’s Exhibit #5 is the handwritten which the witness translated into “Monday.”
123 large upon relies in measure money State received from for him and he bets #5, paid found in and he when won the notation the “ Schackman, 220,” upon opin- after + 2Vfe lost. Miami when he ‘Z’ refreshed, wager represented testified he memory testimony ion that this his appellant on Mi- game. a bet with on a football Super Bowl on Dolphins in the ami opin- officer’s the State offered an While 12, 1973. or that “Z” was a code name initial ion grand jury, Harry The foreman of jury grand and the foreman an individual Crutcher, Jr., the indict- returned “Z,” locate this was to efforts to testified as indepth an question, stated that ment “Z” only offered to show proof aby spe- been conducted investigation had represented a living person or that “Z” ever investigator assigned grand jury to the cial making wager. living person capable of Department and ef- Dallas Police wager evidence the bet of an indi- identity determine forts alleged a football was on unsuccessful “Z” had been known as vidual Vaughn’s opinion was Officer indictment that further grand jury determined entries testimony the on 3 of Exhibit 5 futile. He revealed investigation would be “probably going to be” bets football jury then returned indict- grand Bowl and so identified Super “Z” un- was a alleging ment Miami + 2 n 220” being ‘T notation grand jury. to the known However, a bet. when shown the en- such ap Turning question presented Washington ... try “C M 110” evidence, it is sufficiency peal, say he could not whether that is a evi that this circumstantial observed *14 a on a wager football or not. was case. is not whether The dence Next, appellant look to we see if the that ap to show evidence is sufficient the with Exhibit 5. connected bookmaking but connected with pellant sustained its burden of the State whether in the Although appellant was arrested or show that on about specifically to proof there apartment, showing was no who 12, 1973, County ap in the Dallas owned, apartment, rented or leased the no unlawfully and there take “did then pellant the showing telephones to whom were listed accept place for a to take and and offer and showing paid no the utilities. to the Jurors as known Grand handwriting, exhibits in Much of the wagers money of on a football ‘Z’bets 5,# including the notation in State’s Exhibit 2¾ n + 220” wit: lll Miami as to game, #8, in well as found in the indictment. charged handwriting but no tes- pocket, appellant’s there was timony was offered and a void meaning of ‘bet’ is the term legal “The testimony. fingerprint While Officer Glenn a gift agreement mutual and tender betting slips testified he saw some valuable, to something belong which is to table, he testified kitchen never that State’s according to contending parties, one #5, a notebook of nine chance, skill, a trial of or or result of one of the items observed or pages, was v. State, 139 Odle Tex.Cr.R. combined.” both 288, in apartment ques- that it was (1940). 595 “A wager S.W.2d 139 was, he never If it tion. parties more which two or by a contract being + 220” ‘Z’ Miami 2½ notation money or other a certain sum of that agree of such exhibit when found. The code part to one of or delivered paid shall be thing only Exhibit # 5 was found an uncertain “Z” happening of them no date at all.3 State, bore exhibit supra. Odle v. event.” Ann.C.C.P., ment, prosecution 21.02, and not so remote that Sec. Vernon’s Article 3. by limitation.” is barred provides: of the offense provision It is settled under well be some date mentioned must “The time by not presentment the State is bound of the iadict- its forerunners to the anterior 124
The
was in the
at
“A
conviction on circumstantial evi-
arrest,
of his
his relationship
the time
but
dence cannot be
proof
sustained on
not
apartment was
established.
only to
amounting
strong suspicion
or
if Exhibit #5 was found in the apart-
Even
probability.
mere
proof
Such
does not
ment,
his connection thereto
finger-
every
exclude
other
hypothe-
reasonable
handwriting
possession
or
prints,
was not
that of
except
guilt
sis
of the ac-
There
no
established.
can be
doubt
cused.”
raised
strong suspicion
proof
other
State,
See also
v.
Higgins
raise State,
Hollingsworth v.
(Tex.Cr.App.1967). State, v.
And as stated in Culmore 447 (Tex.Cr.App.1969): 915
S.W.2d 20, 1975, alleged year about which is within date on or the offense the three limitation committed, may period a conviction been but be have the fact the undated exhibit con- upon proof taining may that the offense was committed had the notation have been prior January 12, any apartment to the return the indictment on time 1973. As earlier Rogers period noted, of limitation. is within State’s Exhibit # 5 was not identified as State, having 333 v. 169 Tex.Cr.R. S.W.2d 383 found in the been on the date State, cited; Neal v. (1960), speculation by question. there There and cases some (Tex.Cr.App.1964); Nees v. S.W.2d 668 witnesses notation had referred to the (Tex.Cr.App.1966). period Super game January S.W.2d Bowl occurred on 14, 1973, bookmaking only the offense this was on of limitation but based the fact years 12.04, place January three under Article Ver- took would be arrest Ann.C.C.P., in effect at the time of the one of non’s and Miami was the teams that con- alleged showing offense. test. There was no that Miami and bearing question Washington evidence never met in a football offense, any, clearly if was committed before. So there is also whether alleged prior return of the indictment “when” the offense occurred.