Matthias v. StateMatthias v. State
- Reporters:
- ,
- Before:
- Sears
OPINION
SEARS, Justice.This is an appeal from a conviction on four of six counts of felony theft under Section 31.03(b)(2) of the Texas Penal Code. The appellant pled not guilty, and the jury found him guilty of counts one, two, three and five. The state abandoned count four, and the trial court instructed the jury to find appellant not guilty on count six. The court assessed punishment at six years’ confinement as to each count and assessed a fine of $5,000.00 as to count one. We affirm in part and reverse and remand in part.
During trial, the state relied heavily on the testimony of David Alto, an accomplice in the thefts. Because Alto was a drug addict, it was necessary for him to steal to support his habit. He met appellant shortly after he (Alto) was released from prison following a burglary conviction. In July of 1982, appellant and Alto drove through appellant’s neighborhood and discussed which houses would be good targets for a burglary. Alto would then burglarize the houses and deliver the stolen goods to appellant in exchange for cash. Counts one, two, three and five of the indictment involve houses in appellant’s neighborhood which Alto burglarized. Count six relates to appellant’s purchase of five firearms from Alto. These weapons were furnished to Alto by Houston Police Department Detective Dallas Bingley and were taken by Bingley from the police property room. Alto agreed to be wired for sound and was instructed by Detective Bingley to call appellant and offer to sell him the weapons. Alto followed instructions, and the transaction was successfully recorded by the po
In his first ground of error appellant asserts that the trial court erred in denying his Motion for Mistrial based on the state’s evidence of an extraneous offense in its presentment of evidence relating to count six. Detective Bingley testified that the guns were taken from the police property room and belonged to the City of Houston. Appellant made no objection to this testimony until after the state rested. By failing to make a timely objection to the testimony, appellant did not offer the trial court an opportunity to sustain an objection and instruct the jury to disregard the evidence. Although he claimed that his Motion for Mistrial represented his first opportunity to object to the evidence, appellant failed to show why he could not object when the testimony was offered. Appellant has waived any objection he may have had to the evidence. Gentry v. State, 494 S.W.2d 169 (Tex.Crim.App.1973); Brown v. State, 460 S.W.2d 925 (Tex.Crim.App.1970). Appellant’s first ground of error is overruled.
Appellant argues in his second ground of error that the trial court committed reversible error by overruling his objections to evidence of extraneous offenses which were not proved to be committed by appellant. Specifically, he complains of the testimony of Lieutenant Richard Rekieta of the Houston Police Department. Lieutenant Rekieta testified that pursuant to his search of appellant’s bedroom, he observed “dozens of pieces of jewelry” on the dresser. Appellant objected to this testimony on the ground that it tended to show an extraneous offense not proved to be committed by him.
It is well settled that evidence not described in a valid warrant, but lawfully seized pursuant to the warrant, is admissible. Chambers v. State, 508 S.W.2d 348, 352 (Tex.Crim.App.1974); Phenix v. State, 488 S.W.2d 759, 766 (Tex.Crim.App.1972). Further, the state made no allegation that the jewelry was stolen. It attempted to establish as stolen only those items which were seized at appellant’s house and listed in the indictment. In addition, any negative inference the jury could have attached to the evidence was overcome by the testimony of appellant’s witness, Patricia Horn-burg, that appellant was a collector of jewelry. When asked on cross-examination how the jewelry got on the dresser, appellant himself testified that he may have put it there. Error, if any, was therefore waived. Appellant’s second ground of error is overruled.
In his third ground of error appellant contends the evidence was insufficient to support the verdict. Count one of the indictment alleges that appellant unlawfully appropriated property from Cheryl Ma-gee “knowing the property was stolen and obtained from the Complainant by another person, namely, David Alto.” Counts two, three and five are identical except the complainant is different in each count of the indictment. The elements of the offense with which appellant is charged are: (1) a person,- (2) with the intent to deprive the owner of property, (3) appropriates property, (4) which is stolen property, (5) knowing it was stolen, (6) by another.
Cheryl Magee was the named complainant in count one. Alto testified that on or about July 24, 1982, he and appellant drove around appellant’s neighborhood to discuss and plan “some burglaries.” They looked at Cheryl Magee’s residence, and Alto determined that it was a “good house” because it appeared that no one was home. On returning to appellant’s house, they called Cheryl Magee’s home after looking up the number in appellant’s neighborhood directory. When no one answered, Alto walked from appellant’s house to complainant’s and rang the doorbell. Again no one answered. Alto pried open a door with a screwdriver, entered and took some stereo components, jewelry and a gun from Ma-gee’s residence, then returned to appellant’s house. The entire transaction took about fifteen minutes. Alto sold the stereo components and jewelry to appellant and placed the components in a closet in appellant’s back bedroom.
Under
Appellant argues in his fourth ground of error that the trial court erred in overruling his objection to hearsay testimony. The testimony objected to was that of Kathy Coffman, President of the Homeowner’s Association in appellant’s neighborhood. It concerned the procedure that the neighborhood residents were encouraged to follow; i.e., notify the security guard or the neighborhood director of security when they went out of town.
First, appellant’s objection at trial did not raise the issue of hearsay. It was established that appellant at one time was the security director of the neighborhood. Appellant objected to the testimony of “procedures” because it had not been established that any witnesses called appellant to report that they were going out of town. He argued the prejudicial effect of the testimony outweighed its probative value. The ground of error urged on appeal must comport with the objection raised at trial, otherwise nothing is presented for review. Smith v. State, 683 S.W.2d 393, 407 (Tex.Crim.App.1984); Crocker v. State, 573 S.W.2d 190, 205 (Tex.Crim.App.1978).
Second, even if we were to find that appellant’s objection at trial was based on hearsay, his ground of error must nonetheless be overruled. Hearsay is generally defined as evidence of a statement made out of court which is offered for the purpose of proving the truth of that statement. Girard v. State, 631 S.W.2d 162, 164 (Tex.Crim.App.1982). Coffman’s testimony as to the policy of homeowners in appellant’s neighborhood was based on her personal knowledge as president of the Homeowner’s Association. Appellant’s fourth ground of error is overruled.
In his final ground of error appellant contends that the trial court erred in failing to grant a mistrial when it discovered that a juror was not a resident of Harris County. Before trial had concluded, the court recessed for the weekend. On Sunday eve
Article 35.12 of the Texas Code of Criminal Procedure provides as follows:
In testing the qualification of a prospective juror after he has been sworn, he shall be asked by the court, or under its direction:
1. Except for failure to register, are you a qualified voter in this county and state under the Constitution and laws of this state?
2. Have you ever been convicted of theft or any felony?
3. Are you under indictment or legal accusation for theft or any felony?
There is nothing in the record which indicates that this procedure was or was not followed. The mandatory language of Article 35.12 merely requires the court to accurately prescribe the test upon which the parties may base their challenges for cause. Lowe v. State, 88 Tex.Crim. 316, 226 S.W. 674, 682 (1921).
Article 35.16 of the Texas Code of Criminal Procedure provides in pertinent part as follows:
(a) A challenge for cause is an objection made to a particular juror, alleging some fact which renders him incapable or unfit to serve on the jury. A challenge for cause may be made by either the state or the defense for any one of the following reasons:
1. That he is not a qualified voter in this state and county under the Constitution and laws of the state; provided, however, the failure to register to vote shall not be a disqualification;
2. That he has been convicted of theft or any felony;
3. That he is under indictment or other legal accusation for theft or any felony;
4. That he is insane; . . .
No juror shall be impaneled when it appears that he is subject to the second, third or fourth grounds of challenge for cause set forth above, although both parties may consent. All other grounds for challenge may be waived by the party or parties in whose favor such grounds of challenge exist....
Since the ground for challenging this juror for cause is the first under Article 35.16, appellant waived it by failing to inquire about the juror’s qualifications during the voir dire examination of the jury panel and by failing to present his challenge at that time. Mangum v. State, 493 S.W.2d 798, 799 (Tex.Crim.App.1973).
Appellant argues that
Salazar v. State,
562 S.W.2d 480 (Tex.Crim.App.1978), supports his contention that he is entitled to a new trial. Salazar was a Mexican-American male charged with indecency with a child. The juror was previously a witness to the sexual assault of his daughter by a Mexican-American male. This was obviously “material information likely to affect the juror’s verdict.”
Salazar v.
We affirm the judgment of the trial court as to count one, and reverse and remand with instructions to enter judgments of acquittal as to counts two, three and five.