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581 S.W.2d 164

Ward v. State

Court of Criminal Appeals of Texas · decided 1979-06-06

Key passage — most relied on by later courts

““Appellant overlooks the well-established proposition that the recent unexplained possession of all or any part of the items taken in a burglary is sufficient to sustain a conviction for burglary. [Citations omitted] The proof in the instant case that the appellant was in possession the very next day of the credit cards taken in burglaries was sufficient to show he was the perpetrator of the extraneous offenses and justified the admission of evidence of the burglaries on that score.””

quoted by 1 later decision, including McCann v. State

Applies TX PE § 32.31

Relies on Humble Pipe Line Co. v. Waggonner · Your Host, Inc. v. Commissioner · Williams v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-06-06

How this case has been cited

Cited by 24 later decisions — most recently June 1990

22 state decisions

220197919801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1OPINION ON STATE’S MOTION FOR REHEARING

ONION, Presiding Judge.

¶2On original submission three convictions for credit card abuse [V.T.C.A., Penal Code, § 32.31(b)(1)(A)], wherein the punishment was assessed at ten (10) years’ imprisonment for each offense, was reversed because of the admission of extraneous offenses.

¶3On rehearing the State contends the evidence complained of was so interwoven with the offenses charged that it was admissible. The three count indictment alleged in the first and second counts that appellant used a BankAmericard credit card belonging to R. B. Mussey to obtain property of Marianne Gettinger and Hudnel Jones with knowledge that such credit card had not been issued to him and was not used *167with the effective consent of the cardholder. The third count alleged use of the BankAmericard credit card of James Thomas under the same circumstances to obtain property of Willie Reveles. The offenses were alleged to have occurred on or about October 30, 1976.

¶4It is clear that the State was required to prove beyond a reasonable doubt the use of the credit cards of Mussey and Thomas was without their effective consent on October 30, 1976. See V.T.C.A., Penal Code, § 32.31(b)(1)(A). To so prove the lack of consent the State called Mussey and Thomas as witnesses. To explain their lack of consent they testified that sometime on the night of October 29th and the morning of October 30th someone entered their rooms at different motels in El Paso and took their billfolds containing the BankAm-ericard credit cards. The appellant argues that such testimony improperly injected two extraneous burglary offenses into evidence over objection to his prejudice. He contends that the witnesses could have stated their lack of consent and simply explained their credit cards were missing on a certain date or related simply that their credit cards were taken illegally without further details. While this could have been done, we do not conclude that the witnesses were required to limit the explanation of their lack of consent because extraneous offenses were involved in that explanation. Here credit cards were taken in separate burglaries during the night or early morning and used by the appellant to purchase certain items the next day, in one situation as early as 10 a. m.

¶5It is well established that where an offense is one continuous transaction or where another offense is part of the case on trial or so closely interwoven with the case on trial, proof of all facts relating to the transaction or other offense is proper as part of the res gestae of the offense charged. Rios v. State, 557 S.W.2d 87 (Tex.Cr.App.1977); Smallwood v. State, 464 S.W.2d 846 (Tex.Cr.App.1971). See and cf. Simmons v. State, 504 S.W.2d 465 (Tex.Cr.App.1974), cert. denied 419 U.S. 829, 95 S.Ct. 51, 42 L.Ed.2d 54. It has been held that facts showing commission of a crime other than one directly charged, if part of res gestae and aiding in development of the transaction, are admissible. Travelstead v. State, 105 Tex.Cr.R. 101, 287 S.W. 53 (1926). In Salazar v. State, 137 Tex.Cr.R. 448, 131 S.W.2d 761 (1939), it was held that where two or more offenses are so blended or connected with one another that they form an indivisible transaction, evidence of commission of any or all of them is admissible on the trial for any offense which is itself a detail of the whole criminal scheme. In Outlaw v. State, 125 Tex.Cr.R. 636, 69 S.W.2d 120 (1934), it was held that where several crimes are intermixed evidence of any or all is admissible against a defendant for any offense which is itself a detail of the whole criminal scheme. In Rios v. State, supra, it was held that the defendant’s activities on March 25th in offering to sell heroin to an undercover officer was part of the res gestae of the actual sale of heroin on the following day and was thus admissible on the defendant’s trial for sale even if the action on March 25th constituted a separate offense. In Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974), a prosecution for assault with intent to murder a police officer, it was held that proof the defendant and his companion had committed an attempted robbery prior to flight during which the alleged assault on a police officer was committed was admissible as part of res gestae. In Tillman v. State, 88 Tex.Cr.R. 10, 225 S.W. 165 (1920), it was held the securing of whiskey by the defendant, a bell boy in a hotel, for H., a guest, was admissible in a prosecution for theft of money from H.’s room since it was so intimately connected with the alleged transaction as to be a part of it. See also Warden v. State, 366 S.W.2d 786 (Tex.Cr.App.1963), cert. denied 375 U.S. 886, 84 S.Ct. 162, 11 L.Ed.2d 116.

¶6The lack of consent being an essential element in each of the three counts of the indictment, the State’s witnesses Mus-sey and Thomas were fully entitled to explain their lack of consent in a credit card *168abuse case even if it involved an extraneous offense or offenses, and further because it formed, under the particular circumstances of the case, a part of the res gestae of the offenses charged and was so interconnected and interwoven to be a part of the transactions alleged. Certainly if the appellant was being tried for burglary the fact that he possessed and used a credit card taken in said burglary the very next day would be admissible in evidence.

¶7Appellant argues that the evidence does not establish that he is the perpetrator of the burglary offenses since the victims did not see anyone enter their motel rooms and that without such proof the extraneous offenses were inadmissible. He cites Landers v. State, 519 S.W.2d 115 (Tex.Cr.App.1974), and Eanes v. State, 546 S.W.2d 312 (Tex.Cr.App.1977). Appellant overlooks the well-established proposition that the recent unexplained possession of all or any part of the items taken in a burglary is sufficient to sustain a conviction for burglary. Bernadett v. State, 166 Tex.Cr.R. 621, 317 S.W.2d 747 (1958); Adame v. State, 372 S.W.2d 545 (Tex.Cr.App.1963); Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Texas Digest, Vol. 6A, Burglary, and cases there cited.

¶8The proof in the instant case that the appellant was in possession the very next day of the credit cards taken in the burglaries was sufficient to show he was the perpetrator of the extraneous offenses and justified the admission of evidence of the burglaries on that score. Appellant’s contention is overruled.

¶9In a second ground of error appellant contends the prosecutor committed reversible error by asking the jury at the penalty stage of the trial to consider the extraneous offenses in assessing punishment.

¶10The prosecutor, noting that appellant’s counsel had argued that only $150.00 had been taken by use of the credit cards, stated, “. . . You heard Mr. Mussey say that he had a lot more money stolen . ” The objection that the prosecutor was arguing punishment based on collateral offenses was immediately sustained. When the prosecutor continued his argument, he noted that appellant’s counsel had argued that only the merchants had been hurt and then stated, “I submit to you I don’t think just the merchants were hurt in this case.” There was no objection to this argument, and it was not continued by the prosecutor. While it is improper to request punishment to be assessed upon collateral offenses, Klueppel v. State, 505 S.W.2d 572 (Tex.Cr.App.1974), we observe that first the prosecutor never completed his sentence in the first complained-of argument, the objection was sustained and no further relief was requested. We further note there was no objection to the second complained-of argument. Under the circumstances, no error is preserved for review, and we do not conclude that fundamental error is presented. Appellant’s contention is overruled.

¶11The State’s motion for rehearing is granted, the judgment of reversal is set aside and the judgment is affirmed.

ROBERTS, J., concurs.

¶12PHILLIPS, J., dissents for reasons stated in original opinion.

CLINTON, J., dissents.
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