*1 BLEIL, Justice, concurring. summary judgment agree
I remanded reversed
should be agree
I with Chief Justice Cornelius tending to summary evidence great- property’s value is far
show that $28,000.00 an infer- at least raises
er than fair market property’s
ence that the cash $28,000.00. grossly excess
value was question of whether
This raises the fact inadequate grossly sold for a
property was my knowl- the foreclosure sale. To
price at
edge, principle of the law of no “venerable At the alters this conclusion.
evidence” questions of evidence of trial what
time may
isor not admissible be LEOS, Appellant, Texas, Appellee.
The STATE of
No. 6-92-065-CR.
Texarkana.
Discretionary Review Granted *2 him, garage, saying, Leos comforted right. Everything’s
“It’s all cool. No- body’s going you.” in to bother Once house, Hunt, according to Richard Silva table, opened plastic a on a removed a box Earle, Desoto, appellant. for Mary Jo grocery containing large sack a amount of money, and handed it to Leos. Leоs Dallas, Preden, Atty., Dist. Michael Asst. showed the to Officer Hunt and appellee. then handed it to him. CORNELIUS, C.J., BLEIL and Before receiving money, After Officer Hunt GRANT, JJ. garage returned to the wherе Officer Lef- fler had remained with a number of other people. Leffler testified that after Hunt OPINION house, emerged and the others from the GRANT, Justice. garage unloaded the mari- appeals from a conviction Freddie Leos vehicle, huana from the officers’ possessing marihuana in an amount police support officers left the scene. The pounds greater than 50 but less than peo- personnel then moved into arrest the pleaded guilty to the pounds. Leos ple posses- still and to take back charge plea a possession but entered sion of the marihuana. paragraphs true to the second and third above, During episode described Lef- indictment, alleged that he had which person pager a fake which fler had on his felony of- convicted twice before of been microphone. а The transmission guilty as jury fenses. The found Leos microphone from this was recorded an charged assessed his officer in a surveillance vehicle and this sixty-five years’ imprisonment. recording was admitted into evidence at
Leos contends that the trial court erred (1) overruling suppress his motion Leos first contends that argues evidence whiсh he was obtained overruling sup his motion to court erred of Tex.Health & violation Code Ann. press testimony of Hunt and Leffler 481.120, (Vernon 1992), (2) in viola because this evidence wаs obtained tape into evidence an audio 481.121 of the tion of Sections 481.120 and having without Safety Code. Tex.Code Texas Health & identifying all of the proper foundаtion 38.23(a) (Vernon Supp. art. CRIM.PROC.Ann. recording. voices 1993) states: mainly its case
The State based an officer or No evidence obtained police offi- testimony any provi- of two undercover violation cers, Craig Leffler and M.M. Hunt laws of the sions of the Constitution or Department. Lancaster Police On State of or of the Constitution America, Hunt, along with States of Leffler and laws Officers against the informant, Druid Drive in admitted in evidence drove to 2225 shall be an any criminal case. ap- accused оn the trial of They carried with them Irving, Texas. pounds of marihuana com- proximately 85 Texas Health & 481.120 of the Section in cello- pressed into bricks and sealed mar- illegal makes it to deliver Safety Code peo- approximately six phane. There were ihuana, illegal it 481.121makes and Section already house when the offiсers ple possess marihuana. arrived. Hunt and Lef- that since Leos contends provisions into the of the Texas testified that he went fler these violated by possessing аnd and Asa Daniels. Daniels house with Leos his to Leos and belonged the marihuana that the house had indicated associates, the officers testimony that when he him. Hunt further testified under Article suppressed people in should have been the number of complained about ty given to the defendant to cross-exam- obtained violatiоn 38.23 because was argues further ine this There the laws of Texas. Leos witness. and 481.121 do not that Sections 481.120 the defendant reference exceptions Leos, such as оne con- contain but in the context *3 482.002(b) in Section which states: suggest- tained this is of the conclusion prosecution defense under this “It is a to ed. person manufacturing that the section 901(b)(5)of the Texas Rules of Rule intent to deliver or the sim- the fed was taken from the Criminal Evidence acting was ... ulated controlled substance In bearing eral rule thе same the number. discharge person’s of the official in the F.2d case of v. United States peace as a duties officer.” Tex.Health & Cir.1988), con a federal court 482.002(b) (Vernon Safety Code Ann. § following strued rule and made the this 1992).1 ruling: However, 481 of the Texas Chapter containing the respect tapes With to Safety does contain a sec- Code Vega speakers voices of than [the chapter which states: “This does not tion defendant], specifically were who not state, impose liability on an authorized trial, government’s if the identified county, engaged in the municipal officer depend claim upon any case not does performance the оfficer’s lawful of duties.” identity concerning speaker, the of that § & Ann.
Tex.Health Code tape the can be admitted even the 1992). (Vernon Hunt and Leffler Since that absence of an identification of acting duty, pos- the line of their were im- speaker. example, only For if it is delivery of marihuana falls un- session government’s that portant еxception Chapter der the Felipe are Vega and Jesus Zambrana court, therefore, not The trial did err particular tape, pres- speaking on a admitting testimony. Accord- officers’ ence of other who tape on the individuals ingly, point this of we overrule error. who are pertinent are not case and Leos next contends that the trial court identified, not the admis- not does affect erred when admitted into evidence the sibility tape. the microphone audio reсorded from case, that say In the we cannot present on Leffler. When the at- located State by unidentified the statement evidence, tempted to introducе the way pertinent of is in voice the informer no objected for Leos counsel basis Also, to the State’s case. other unidenti- proper predicate fаiled lay suggest fied voices on by identify- the admission such evidence they people at the house understood that tape. ing all of voices on the Voice participating in the of mari- were required pre- is as a identification condition Thus, court huana. that the trial 901(b)(5) admissibility cedent to under Rule ques- The erred evidence. the Texas Rules of Criminal Evidence. whether error tion now becomes such objection. The trial court overruled this harmless. Leffler identified his own voice and the 81(b)(2) Rule Hunt. A voice on Pursuant voice of female Procedure, Appellate after only as an informer. There Texas Rules of is identified below, we finding proceeding not in the numеrous other voices are error are under required reverse the The identified as Leffler’s are identified. voice review, rea asks, beyond a The female voice of unless we determine “Is Fred?” “Yes, no con replies, sonable that the error made informant then that’s doubt punish conviction or to the predicate No lаid for the ad- tribution to the Fred.” was ment. response, opportuni- of her mission drugs 483.041(c)(5), duty, dangerous handle line & Ann.
1. Tex.Health (Vernon 1992) 483.042(b) excep- Act. by also contain covеred Texas Controlled Substances state, who, employees federal and local tions The informer does statement
no more than establish that a FIRE UNITED STATES INSURANCE Fred, might named whо be the Freddie who COMPANY, Relator, a defendant in this was question. the occasion in unidenti Other MILLARD, The Richard Honorable tape suggest fied voices on the Judge of the 189th District Court the house understood what Texas, County, Respondent. Harris occurring question. on the occasion The upon any No. 01-93-00066-CV. tape was not relied to establish presence at criminal acts Leos. Leos’s the scene had also been *4 (1 Dist.). Houston direct of Leffler and Hunt and videotape at the time scene upon evi of the arrests. The State relies Rehearing Denied Feb. purchase money to concerning the dence participation show Leos’s awareness
in the transaction. testified gave money
Leos him the
of the marihuаna. Hunt also testified weight of the marihuana
he discussed Leos that Leos that he had stated
(Leos) had a cut received Considering delivering it Hunt.
before light
the evidence presented, all the evidence be trial
yond a reasonable doubt error in
court’s the con
evidence made no contribution to Leos.
viction or the of Freddie judgment affirm the of the trial
We Justice,
CORNELIUS, concurring. in the ma-
I concur in the portion opinion, except that conclud-
jority
ing that admission the audio very major- error. For the reasons opinion error was
ity concludes
harmless, I that the admission conclude all, i.e., un- error at was not sufficiently perti-
identified voices were tape's to affect
nent offense
admissibility. See States Cir.1988). F.2d 779