Lichtenwalter v. State

OPINION

ODOM, Judge.

Appellant was convicted for aggravated assault. His punishment was assessed at five years’ imprisonment.

The sufficiency of the evidence is not challenged.

The sole contention raised on appeal is that the trial court improperly admitted evidence of appellant’s membership in the Bandido Motorcycle Club. Appellant’s membership card was introduced into evidence at trial.

This prosecution arose from events occurring at the “Up Front Lounge” in Houston on February 26, 1974. Deputy Rodney Scott Morgan of the Harris County Sheriff’s Department and Officer F. G. Dodd of the Houston Police Department were working as undercover agents in the “Up Front Lounge" on the night of the offense. Their purpose was to investigate “Alley Cat”, a member of the Bandido Motorcycle Club and a known narcotics trafficker.

Appellant, Morgan, and Glen Wilhelm, a co-defendant in this case, went to the restroom of the lounge and a fight ensued. Dodd heard the commotion, drew his pistol and went to the aid of his fellow officer. When he opened the restroom door, he observed Wilhelm attempting to stab Morgan.

Dodd fired one shot in the air and assisted Morgan to his feet. Morgan drew his *694pistol and the two officers' subdued appellant and the co-defendant.

The record clearly demonstrates that the jury was presented other evidence establishing appellant’s membership in the Ban-dido Motorcycle Club. This evidence was admitted prior to the introduction of the membership card and no objection was voiced by the appellant when it was introduced.

George Nesbett, the bartender of the Up Front Lounge, testified that he heard a “lot of noise, racket and thumping” after the appellant and the co-defendant, Glen Wilhelm, entered the restroom. Nesbett stated that he went to the restroom to “see what was going on.” At this point Nesbett testified:

“Q. Anybody standing outside the restroom door?
“A. A man was standing there, yes, sir.
“Q. Did you know him as a member of any particular club or organization?
“A. Yes, sir. I didn’t know him as a member, but I knew he was with the members of the organization already in there.
“Q. And what organization is that?
“A. The Bandido’s Motorcycle Gang.”

Nesbett’s testimony also established that the persons in the restroom were deputy Morgan, the appellant and Wilhelm, the co-defendant. The jury knew that deputy Morgan was not a member of the Bandidos. The jury was informed by Nesbett’s above-quoted testimony that the appellant and the co-defendant were “members of the organization already in there”, and that this organization was the “Bandido’s Motorcycle Gang.” Nesbett’s testimony directly connected the appellant with the motorcycle club.

The jury also heard other testimony connecting the appellant with the Bandido organization. The jury was informed that the Up Front Lounge was a Bandido hangout and that Morgan’s and Dodd’s purpose at the bar was to investigate a member of the motorcycle club. Patricia Jean Kelly, the manager of the lounge, stated that members of the motorcycle club were in her establishment on the night of the offense. Nesbett, in addition to his statements quoted above, also testified that the Bandidos’ girls were in the bar at the time of the altercation in the restroom and that his initial statement to the police regarding the incident did not contain everything he knew because he was fearful of “repercussions” from the motorcycle gang.

In Wood v. State, Tex.Cr.App., 511 S.W.2d 37, at 47, we stated:

“The general rule is that a judgment will not be reversed for error in admission of improper evidence if the same facts were proved by other testimony to which there were no objections.”

We stated the same principle in Miles v. State, Tex.Cr.App., 499 S.W.2d 175:

“It has long been the rule that improper admission of evidence does not constitute reversible error if the same facts were proved by evidence not objected to.” Also see, Vaughn v. State, Tex.Cr.App., 530 S.W.2d 558; Hawkins v. State, Tex.Cr.App., 505 S.W.2d 578; Compton v. State, Tex.Cr.App., 500 S.W.2d 131; Maldonado v. State, Tex.Cr.App., 467 S.W.2d 468; Lassere v. State, Tex.Cr.App., 458 S.W.2d 81; Merx v. State, Tex.Cr.App., 450 S.W.2d 658.

No objection was made to Nesbett’s testimony. The jury was aware that the appellant was a member of the motorcycle club before the identification card was introduced into evidence. The admission of the card, therefore, does not constitute reversible error. Appellant’s ground of error is overruled.

The judgment is affirmed.