Arnott v. State

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. The jury assessed punishment at twenty-five (25) years’ imprisonment.

Christie Lou Faubian, Arnold Neal, Jr., and Ronald William Arnott, the appellant, were jointly charged as acting together in a three-count indictment for the possession of heroin, marihuana and narcotic paraphernalia. Only the charge for the possession of heroin was submitted to the jury. Christie Lou Faubian and Arnott, the appellant, were tried jointly.1 Miss Faubian was also convicted, and her case on appeal is reported at Tex.Cr.App., 480 S.W.2d 194.

The main contentions of the appellant are that the evidence is insufficient to support the conviction and that the court erred in admitting into evidence the narcotics and notebooks found as the result of a search under a warrant.

*168The record reflects that on September 3, 1970, Miss Faubian, the co-defendant, using the name of Orbitt, made arrangements for the lease of the apartment where the contraband was later found. The next day, the appellant, also using the name of Orbitt, signed a lease for the apartment. Some twelve days later officers of the Austin Police Department went to the apartment where they arrested Neal, Miss Faubian and the appellant and made a search under a search warrant. Capsules of heroin were found on the table where the appellant was seated. Neal, who was apparently asleep, was in another room. The appellant and Miss Faubian had needle marks on their arms, some of which were red, indicating that they were fresh.

The officers testified to finding a large amount of heroin, marihuana, other drugs and narcotic paraphernalia.

It is shown by the testimony of the Department of Public Safety chemist who analyzed the material found in the apartment and submitted to him that State’s Exhibit No. 2 found on the table where the appellant and Miss Faubian were seated contained thirty-nine capsules or 1.61 grams of 20.5 percent heroin.

State’s Exhibit No. 5 consisted of four balloons which contained a total of 3.69 grams of 20.5 percent heroin. These were found in a closet near where Arnold Neal was found asleep. This would amount to enough heroin to make over 86 capsules, and added with the heroin found at the table, the officers found enough for a total of over 125 capsules of 20.5 percent heroin in the apartment.

In State’s Exhibits Nos. 7 and 23, traces of heroin were found in envelopes in the apartment. State’s Exhibit No. 14 contained fourteen capsules of lysergic acid diethylamide (LSD).

A small foil package containing opiate was found. The chemist described the opiate as a sort of base for heroin.

Some mescaline was also found in the apartment. Much of the contraband was found in a large duffle bag in a closet in the room where the appellant was arrested. Several other containers of contraband were in the bag. The notebooks in question were also found there.

In what was described as a large army haversack, the officers found 844.87 grams of marihuana. Other marihuana found is set out below:

A paper bag in the duffle bag contained 329.98 grams.
Thirteen “lids” or small bags contained 277.92 grams.
Two smaller bags contained 91.40 grams.
Another container had 54 grams.
Two peanut cans found in another closet contained 59.72 grams.
The contents of eleven plastic baggies were 3,635 grams.
Two paper bags contained 665.30 grams.
An envelope contained 70 grams.

The chemist testified that the average marihuana cigarette contained .2 of a gram. Based on his testimony, there was enough marihuana found to make more than 29,500 cigarettes.

Also introduced as found in the duffle bag and its containers were apparently a large number of empty plastic capsules. These were described by an officer as being No. 5 capsules, the kind used for heroin and the same kind as found on the table in front of the appellant and Miss Faubian.

One page of State’s Exhibit No. 16, a spiral notebook photocopied for the record, bears the date of August 27, 1970. It contains a column headed “Money out.” Some of the entries under this column are:

“Sam - Ft. Hood 20.00

Rooster 30.00

Clyde 100.00

Dave 380.00

Apfe 495 49r09 [Pd]”

Some of the entries under the other column, designated “Personal debts Money I owe,” are:

Hemphills o o in LO

Uncle Vans o o co i — I

[Paid]

Arnold

*169The next page of Exhibit No. 16 under “money out” shows “Bill EarM-GRMS [pd]” and directly below that appears “Billy Earl $30.00” as well as other names and amounts.

The next column under “Money I owe” includes: “Arnold 130.00.” Further in the spiral notebook, the following page is found:

Then another page is as follows:

Another page lists “P2P Methalene.”

A following page lists:

“Sales Cash Profits

Aug. 26 2 Ids 40.00

Aug. 28 60 Ids 600.00

Aug. 29 7 Ids 70.00

Aug. 30 7 grms Hsh 35.00

Aug. 31 9 Ids 120.00

Ids 50.00

Total

Sept. 1 3 Combined 635.00”

State’s Exhibit 17 starts with August 29, 1970. Apparently dated September 3, the following notation is found: “find a house for rent.” (This is the date the co-defendant Miss Faubian negotiated for the lease, and the day before it was signed by appellant.)

The entry under debts September 3, 1970, shows “Mark T.” apparently another name, and “HSH $50.00” and “55+4 cps.” It also shows a telephone number and “Mr. King.” (The record shows that Miss Fau-bian first negotiated the lease and put up the deposit on September 3 with Mr. King.)

Another page is as follows:

Deposit $50.00

1 yr 40.00

Arnold 30.00

“ 35.00

N.S.C. 20.00

A following page reflects the following entry: “I owe Arnold $80.00.”

State’s Exhibit 18 contained bookkeeping entries similar to those in the other two exhibits.

State’s Exhibits 21, 21A, 21B, 21C and 21D, which were found in the front bedroom near where Neal was found, were all introduced.

The first of these exhibits was correspondence addressed to Arnold James Neal

*170at 607 E Baylor in Austin. The next exhibit was a change of address card bearing the signature “Arnold Neal,” 607 E Baylor St. from 807 E 30 St., both in Austin. (This latter address was shown to have been the one where Miss Faubian had clothes and evidence was offered through her stepfather and that apartment owner in an effort to show she did not live at Baylor Street.)

State’s Exhibit 21C, apparently from a larger spiral notebook, is a photocopy of a page appearing in the record and is as follows :

The second page is as follows:

Rick $5

Mark $2

Ron $105

“ 9/8/70

1. 4 G $160

2. $140 My Money 9/8/70

3. first G 23 pills $115 = $75 profit

4. 3 G at $50 = $30 profit

5. second G 20 pills = $100 = $60 profit

6. third G 21 pill $105 = $65

7. four G 20 pill $100 60

Ron = $30 for rug $75

$25 for speed $30 paying the $30 dollar for Tom

$15 for food $105

$40 $15 dollars payment on 3 pills that were lost

$10 for G $15 for three pills 9/11/70

$50 total $135

$25 worth of pill 2 pills $10 9/11/70

$75 2 pills $10 9/11/70”

The exhibits in the 21 series were admitted without objection. The name Ron appears also in the 21 series of exhibits. (The. appellant’s first name is Ronald.)

One of the officers testified that the term “hash” or HSH referred to hashish and that the term “lid” meant a one-ounce package of marihuana, and that “G” referred to a gram of either heroin or marihuana.

The evidence shows all three of of the coindictees were acting together as principals and is sufficient to support the conviction of the appellant.

Admissibility of Notebooks

The appellant contends that the admission of the notebooks, State’s Exhibits 16, 17 and 18, was reversible error.

The case was tried on the theory of principals. The three were indicted as principals. It is not necessary for those acting together as principals to be indicted as such before evidence of acts and conversations *171of each participant be admissible as to conspirators. Phelps v. State, Tex.Cr.App., 462 S.W.2d 310; Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49 (1959). The theory of principals necessarily involves conspiracy and in most cases such is shown by circumstantial evidence. Each statement or act of a co-conspirator up until the time the object of the conspiracy is completed is admissible. Phelps v. State, supra.

Even if the entries in the notebook were made by Neal, Faubian, the appellant, or someone else connected with the offense, they would be admissible as an act of the conspiracy. The fact that Neal had been tried and convicted does not prevent his part in the crime from being- admissible. See Parnell v. State, supra. Acts and declarations of one co-conspirator during the furtherance of the conspiracy are admissible against other conspirators whether or not the act or declaration occurred out of the presence of and hearing of the conspirator on trial. See Phelps v. State, supra, and Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146.

In the Parnell case, supra, the defendant was indicted in one count as a conspirator and in another count for embezzlement. The State dismissed the conspiracy count. Parnell argued that this was tantamount to a finding of not guilty as to his being a conspirator. The Court wrote:

“Assuming that appellant' stood acquitted of the substantive crime of conspiracy, this did not deprive the State and the jury of the evidence tending to establish the conspiracy, including the acts and declarations of his coconspirators, in considering the charge of embezzlement in pursuance of the common design or conspiracy. Richards v. State, 53 Tex. Cr.R. 400, 110 S.W. 432; Holt v. State, 39 Tex.Cr.R. 282, 45 S.W. 1016, 46 S.W. 829; and 9 Tex.Jur., § 14, p. 392 and 393,

In the case of Phelps v. State, supra, the conviction was for robbery. The State was allowed to prove, even though the robbery was completed, that the purpose of the robbery was to get funds to buy arms at the Cuban Embassy in Canada. There the Court cited 23 Tex.Jur.2d, Evidence— Criminal Cases, Section 128, page 186:

“Although the existence of a motive is not essential to a conviction, nevertheless the presence or absence of a motive for a crime is obviously a factor that is related to the question of the defendant’s guilt or innocence. Consequently, proof of any existing motive for the offense is generally held admissible, . . . ”

The Court also cited 23 Tex.Jur.2d, Section 199, page 309, which reads:

“Evidence of the commission of other crimes by the accused is admissible to show a possible motive for his commission of the crime with which he is charged.”

The Court held that a handwritten list of weapons titled “Alex List,” which was found in the accused’s purse when she was arrested, was admissible to show motive. The list included:

“1. M-l Carbines — 5 With banana clips and extra clips

“2. Sub-Machine guns — 3

“3. 50-calibre “ —1

(( * * *

“10. Grenades — 50”

Even though this list could be construed as showing possible extraneous crimes, it was held admissible to show motive.

The notes in the present case showed the motive or purpose for which the narcotics were kept. See Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435; Collier v. State, 167 Tex.Cr.R. 534, 321 S.W.2d 584, and Hemmeline v. State, 165 Tex.Cr.R. 583, 310 S.W.2d 97. Cf. Greer v. State, Tex.Cr.App., 474 S.W.2d 203.

Recently, in Phenix v. State, Tex.Cr. App., 488 S.W.2d 759, the accused was ar*172rested in his garage apartment and a handwritten note was found on a desk. It read: “A. P. Fri.

“More on the way. I still owe you four lids worth. I’ll check with Dan on the ISO tomorrow. C.P.”

The accused’s full name was Robert Alan Phenix. The note was offered as res gestae of the offense. The Court wrote:

“A written extrajudicial utterance may be admissible in evidence to prove the truth of the assertions made; that is, for its testimonial value, if one of the many exceptions to the hearsay rule is satisfied, 5 Wigmore, Evidence § 1420, et seq. (3rd ed. 1940); McCormick, supra, at 480-625, or it may be admissible in evidence without regard to the truth of the assertions made; that is, for its non-testimonial value, as a circumstance, provided it is legally relevant. Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971); 6 Wigmore, supra, § 1788-1792. The latter use of the extrajudicial written utterance to which the hearsay rule does not apply has sometimes not been fully articulated and has been said to be part of the res gestae.
“The note was not offered or received in evidence for its testimonial value; that is, for the truth of the assertions made. The note was not admitted to show ‘more on the way,’ that ‘C.P.’ ‘owed’ ‘A.P.’ ‘four lids worth’ or that ‘C.P.’ was going to ‘check with Dan on the 150 tomorrow.’ ”

See also Jones v. State, Tex.Cr.App., 472 S.W.2d 529.

In the case of Catching v. State, Tex.Cr.App., 364 S.W.2d 691, the conviction was for abortion. A confession which showed that the accused committed other abortions was admitted over the objection that it included offenses other than that for which he was on trial. The Court held evidence of the other offenses was admissible under Housman v. State, 155 Tex.Cr.R. 49, 230 S.W.2d 541, another abortion case. In Housman, the Court wrote concerning other transactions:

“If such transactions disclosed, by inference or otherwise, that appellant was engaged in the commission of other acts of abortion, it was nevertheless admissible as a part of the res gestae.
⅜ ⅛ ⅝ ⅝ # *
“If the State’s proof of the home of appellant and the furniture, instruments, and equipment therein and the facts showing the use of such home and contents on the witness for the purpose of aborting her for pay show that appellant was a professional abortionist or that her home contained a room equipped as an abortion operating room, such result does not change the rule as to the admissibility of such evidence as a part of the res gestae.
“Nor did the evidence become inadmissible because appellant did not testify or otherwise controvert the testimony as to her acts and intent.”

Article 38.22, Section 1(f), Vernon’s Ann.C.C.P., provides, in part:

“Nothing contained herein shall preclude the admissibility * * * of any statement that is res gestae of the arrest or of the offense.”

While the meaning of this provision is not exactly clear, the Legislature apparently intended to keep in effect the previous decisions of this Court concerning the res gestae of the arrest or of the offense.

In Yaffar v. State, 171 Tex.Cr.R. 341, 349 S.W.2d 730, a driving while intoxicated case, this Court held that testimony of the officers about finding a pistol in the car was admissible as res gestae.

Barbiturates and a pistol found in an automobile in which an accused had been riding just before being arrested for possessing marihuana were held to be a part of the res gestae in Beeler v. State, Tex.Cr.App., 374 S.W.2d 237.

*173In Vavra v. State, 171 Tex.Cr.R. 24, 343 S.W.2d 709, 712, the following is written:

“ * * * Acts done, statements and appearances of the participants, and other similar circumstances are all admissible as part of the res gestae when a witness narrates the events surrounding an offense.”

In Denny v. State, Tex.Cr.App., 473 S.W.2d 503, (reversed on other grounds on motion for rehearing), this Court held:

“While the testimony in the present case about the appearance of the three co-defendants at the time of their arrests when they possessed marihuana added nothing toward proving their guilt or innocence, it was admissible as a part of the res gestae of the offense and arrest.”

In Flores v. State, 89 Tex.Cr.R. 506, 231 S.W. 786 (1921), the conviction was for murder. The accused and others in jail killed a jailer. A short piece of iron wrapped in wire and covered by a rag was found behind a radiator in the jail. This was admitted over the objection that the weapon was not shown to have any connection with the homicide, and that the defendant was not shown to have any knowledge of the same, and therefore, could not be bound by the existence or finding of such object. Judge Lattimore, speaking for the Court, held the evidence admissible and wrote:

“It was a part of the res gestae of the transaction. We are also of [the] opinion that, when parties are charged with acting together in the commission of a crime, evidences of preparation of, or weapons found on, anyone of them, whether before, during, or so soon after the commission of the offense as to shed any fair light on the act or intent of such alleged participants, would be admissible against each or all of them.”

We hold the court did not err in admitting the notebooks as a part of the res ges-tae of the transaction and arrest.

Even if it could be assumed that the admission of the notebooks complained of was error, such would be harmless error. The officers found such a large amount of heroin, marihuana and other drugs in the apartment plus all of the other circumstances surrounding the arrest so that the jury could only logically conclude that these drugs were in part possessed for sale. See Phenix v. State, supra, and the cases there cited.

In addition to the above, the State offered the exhibits, designated as the 21 series, and the appellant’s counsel stated he had no objection. In these exhibits found near Neal, the name of “Ron” was found in connection with narcotics. The jury, no doubt, got substantially the same impression from these exhibits as it did from those exhibits complained of.

Next, the appellant complains that the court erred in admitting the notebooks heretofore discussed because the request for the search warrant was to search for such personal property described in the affidavit and that such personal property mentioned was “Heroin and Marijuana” and that the search should not have been broader than the property set out in the affidavit. As noted earlier, this Court no longer holds inadmissible “mere” evidence obtained as a result of a search warrant. In Haynes v. State, Tex.Cr.App., 475 S.W.2d 739, this Court held that an officer could testify that an envelope addressed to Haynes found in a box in which the marihuana was found was admissible. The Court also noted that the “mere evidence” rule was no longer followed by this Court.

The Court, in Haynes, noted that the envelope was the connecting link between the accused and the narcotic drug.

In the present case the notebooks showed a connecting link between the appellant and Arnold Neal as well as their connection with the apartment and the drugs. The notes are admissible on the theory of conspiracy or principals as well as a part *174of the circumstance of the transaction and arrest.

The officers in the present case were on the premises with a search warrant and found the notebooks within the duffle bag that contained much marihuana and other contraband. They had a right to take the bag and its contents.

Complaint is also made that the search was illegal because the affidavit for the search warrant does not contain a recitation that the affiants believed that the heroin and marihuana were possessed in violation of Article 725b, Section 16, Vernon’s Ann.P.C.

There is no way that either of the co-in-dictees could have lawfully possessed heroin. We hold again as we did in Faubian v. State, supra, that no such recitation in the affidavit is required.

Without setting out the affidavit for the search warrant, it has been reviewed and states sufficient facts for probable cause.

The appellant’s contention of jury misconduct about the discussion concerning the length of time that one might have to serve under certain sentences does not present reversible error.

No reversible error appears in the record. The judgment is affirmed.

ROBERTS, J., concurs in the result.

. Neal was tried earlier. His ease is not before us.