Battee v. State
Battee v. State
Opinion of the Court
OPINION
This appeal is from a conviction for sale of marihuana. A jury assessed punishment at five years.
Appellant contends that the trial court erred in admitting into evidence over objection an evidence envelope on which appeared the following (handwritten portions emphasized):
“CITY OF TYLER POLICE DEPT.
REPORTING OFFICE: Vice
EXHIBIT NO.: 1
CASE NUMBER: C-59
NAME: Walter Wavne Battee
ALIAS:
ADDRESS: 215 West Harpole. Tvler. Texas
EVIDENCE: Four (4) plastic bags containing green plant material
HOW OBTAINED:
PURCHASED BY: O. Salazar
SEIZED BY:
COLLECTED BY:
WHERE OBTAINED: 215 West Harnole. Tvler. Texas
DATE: 5-8-73
TIME: 2038
AMOUNT PAID: 844.00
WITNESSES:
PERSON REPORTING CASE: W. Hardv
REMARKS: Sale of marihuana”
The State in its brief by various arguments attempts to evade the holding of Coulter v. State, supra. All such arguments misapprehend the extent of the harm to a defendant that results from admission of such evidence. As the Seventh Circuit has reasoned in United States v. Ware, 247 F.2d 698, 700-701 (7th Cir. 1957):
“The jury thus had before it a neat condensation of the government’s whole case against the defendant. The government’s witnesses in effect accompanied the jury into the jury room. In these circumstances we cannot say that the error did not influence the jury, to the defendant’s detriment, or had but very slight effect.”
The judgment is reversed and the cause remanded.
OPINION
070rehearing
ON STATE’S MOTION FOR REHEARING
The State makes a strenuous effort to distinguish Coulter v. State, 494 S.W.2d 876 (Tex.Cr.App. 1973), upon which the reversal in this case was based. The primary contention is that both the witness who provided the information that appeared on the envelope (Salazar) and the witness who recorded the information on the envelope (Hardy) were present and subject to cross-examination by the appellant. Hardy made it clear that he simply recorded the information given him by Salazar without regard to its truthfulness and' Salazar himself gave the same evidence in his direct testimony that appeared on the envelope. These facts do indeed distinguish this case from Coulter, supra, but they do not dissuade us from our conclusion on original submission.
Coulter, supra, made it clear that the evidence envelope was objectionable hearsay not only because the proper predicate had not been laid for its introduction under the Business Records Act, Art. 3737e, V.A. C.C.P.,
The evidence envelope introduced at appellant’s trial was almost identical to that condemned in Coulter,
By its quotation from Ware, supra, in the opinion on original submission, the Court has also indicated its decision to base this reversal on the independent ground adopted by the 7th, 8th and District of Columbia Circuits in Ware, supra; Sanchez, supra; and Smith, supra, respectively. Those courts condemned the introduction of concise summaries of the government’s cases against the defendants since they had the effect of permitting the government’s witnesses to accompany the jury during its deliberations.
For the foregoing reasons, we reject the arguments offered in the State’s Motion for Rehearing.
. The objectionable exhibit in this case also suffers from this defect inasmuch as there does not appear to have been any attempt to lay a predicate for it under the act.
. See also Rodriquez v. State, 494 S.W.2d 864 (Tex.Cr.App. 1973) and Nelson v. State, 507 S.W.2d 565 (Tex.Cr.App. 1974).
Reference
- Full Case Name
- Walter W. BATTEE, Appellant, v. the STATE of Texas, Appellee
- Cited By
- 24 cases
- Status
- Published