Schepps v. State

OPINION ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Judge.

Upon further consideration in light of appellant’s motion for rehearing, we have decided that we erred in overruling his grounds of error Nos. 4 and 5, which complain that the principals’ written confessions contained hearsay statements implicating him that should have been excised and said confessions denied him the right to be confronted with the witnesses whose written statements were introduced against him.

The testimony of the state’s witnesses who apprehended the principals Fusilier, Vitello, Reyes, and Terry in the act of stamping cigarettes with counterfeit stamps in the garage at Terry’s home, while Terry was acting as lookout, sufficiently established the guilt of the principals as counterfeiters. In addition to the positive testimony showing that the principals were caught “red-handed,” the state introduced in evidence the written statements of three of the principals which showed the commission of the offense of counterfeiting. Although not necessary to prove the guilt of the principals, the state introduced their written confessions in their entirety, and they contain numerous incriminating statements relating to the guilt of the appellant as an accomplice.

Following the action of the court in overruling appellant’s objections to the admission in toto of the principals’ written confessions on the ground that they were hearsay and implicated him, the appellant requested the court to excise the portions *934 referring to either Mair Schepps or the House of Tobacco. The appellant objected to the refusal of the court to grant his request.

The written confessions of the principals, Fusilier and Reyes, which were introduced in evidence in their entirety read as follows:

VOLUNTARY STATEMENT OF Warren Joseph Fusilier

October 29 A.D. 1964

I, Warren Joseph Fusilier , after first being duly warned by Texas Ranger J. L. Rundell , the person to whom this statement is made, as follows:

FIRST — That I do not have to make any statement at all;

SECOND — That I have a right to consult with a lawyer, which right I hereby waive; and

THIRD- — That any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement:

My name is Warren Joseph Fusilier I live 3019 Oakdale St., Houston, Texas. I am 46 years old. I was born on 7/4/18 at New Iberia, La. I work for Mair J. Scheeps at 1520 Center, Houston, Texas, the address of House of Tobacco. Mair Schepps owns The House of Tobacco. I started to work for Mair Schepps in about 1949 and have worked'for him continuously except for about one year in 1963. I returned to work for Schepps in the fall of 1963. All of this time my main job has been stamping and loading cigarettes for Mair Schepps. About one month ago Oranza Terry approached me and asked me if I would haul unstamped cigarettes to his house and said we would work in his garage and he would pay me $10.00 for each trip. I agreed to help Oranzo Terry. Oranzo Terry told me I would get the unstamped cigarettes from House of Tobacco. Each day that we were to work, Mair Schepps would tell me to load a certain number of cases of unstamped cigarettes on to the green Chev. Panel truck and take them to to Oranzo Terry residence. Mair Schepps at the start of the operational the Oranzo Terry residence, told me to stop by 601 Preston and pick up Casimiro Reyes and he would help stamp the cigarettes. When I first arrived at the Oranza Terry residence and saw the stamping machine, I saw that the wheel or the meter was different from the mchine I was familiar with. I suspected the machine to be fictitious and soon became convinced that it was an illegal machin _ but I was afraid to say anything, or quit because if I did I would lose my job at the House of Tobacco at 1520 Center.

Thursday, October 29, 1964, about 2:30 PM Mair Schepps told me to back the green panel truck into the building and load it up. The boys at 1520 Center had already got the cigarettes together and they helped me load the unstamped cigarettes. Schepps told me to take the cigarettes to Terry’s house and I knew what to do when I got there. Casimiro Reyes was at 1520 Center because he and Johnny Vitello had been to Bryan, Texas for a load of cigarettes in the big truck. Casimiro Reyes and I in the loaded panel truck left 1520 Center at about 3:00 PM and Met Johnny Vitello *935 on Southmore near my residence. The three of us proceeded to 3429 North MacGregor, which is where Oranza Terry lives. I backed the truck into the driveway back to the garage door and Johnny, Reyes and I unloaded the unstamped cigarettes in the garage and closed the garage door. Every day that we worked Oranza Terry would always be there at his house waiting for us when we got there. Johnny Vitello was operating the Stamping machine today when the officers arrived. I was opening the cigarette cartoons and handing them to Johnny. Reyes was catching the stamped cigarettes and seal the carton and stacking the cartons. While we were working today, the officers arrived and stopped the operation. I thought Terry was coming in, I looked up and saw the pistol and I froze. Our normal operation, if allowed to complete it would be that the stamped cigarettes would have been loaded back on the truck and the truck backed into the garage and door closed. Terry would have taken us home or to our transportation and on the following morning (Friday, Oct. 30, 1964) Terry would come get me at 3019 Oakdale and I would pick up the truck and take it to 1520 Center, The House of Tobacco and unload the cigarettes with the regular stock. Sometimes Schepps would be there when I would arrive. On Thursday Morning, Oct. 29, 1964, when I arrived with the cigarettes we had stamped the afternoon before, Mair schepps was at 1520 Center just after J_ got there with the illegal stamped cigarettes. For the past month we have stamped from 30 to 40 cases of cigarettes almost every day except Sundays. Oranza Terry always paid us himself, in cash, each day after we had finished up. I can read and write the English language and I have read the above statement and it is true and correct.

/s/ Warren J. Fusilier

Witnesses: /s/ E. J. Castille /s/ J. V. Grace

VOLUNTARY STATEMENT OF Casimiro Reyes_

October 29, A.D. 1964

I, Casimiro Reyes , after first being duly warned by Texas Ranger J. L. Rundell , the person to whom this statement is made, as follows:

FIRST — That I do not have to make any statement at all;

SECOND — That I have a right to consult with a lawyer, which right I hereby waive; and

THIRD — That any statement made by me may be used in evidence against me in the trial or trials of the offense or offenses concerning which this statement is made, do hereby make the following voluntary statement:

My name is Casimiro Reyes I live Preston and Smith Streets in the Brazos Hotel, room 222. I am not married. I am about thirty years old. At the present time I work for Mr. Jake Courts at 601 and 607 Preston avenue, Houston, Texas. About one month ago Mr. Mair J. *936 Schepps, who I already knew, told be to go help Warren Fusilier and Oranzo Terry stamp some cigarettes. Mr. Scheeps said that Oranzo Terry would pay me. The first time we went to Oranzo Terry’s house to stamp the cigarettes, Warren Fusilier came by and picked me up at Jake Courts when I finished work for the day. We went out to Terry’s in the Green Chev. Panel Truck. I do not know the exact address but it is the same place where the officers arrested us to_day. After I went out to Terry’s the first time to stamp cigarettes, about one month ago, I have gone back almost every day except Sundays. About a week after I had been working at Terry’s Mr. Schepps asked me how much Terry was paying me. I told him five dollars. Mr. Schepps told me Terry was supposed to pay me six dollars. From then on Terry had paid me six dollars a day for helping him stamp the cigarettes. At different times I have worked with Oranzo Terry, Oranzo Terry’s Son, and Warren Fusilier on the stamping machine. Today was the first day that Johnny Viatello worked with me and Warren on the stamping machine. Today Johnny Viatello and I went to Courts Wholesale in Bryan, Texas, for Mr. Schepps in the big green and white Chev. Truck to get a load of cigarettes. We got back to Center Street at Mr. Schepps at about 1:30 PM and unloaded the truck. Warren then backed the one ton green Chev. Panel truck into loading dock at Mr. Schepps place and someone helped him load it with cigarettes which we took to Terry’s house. On the way to Terry’s house Warren and I picked up Johnny Viatello after he parked the big truck. When we got to Terry’s house we backe the truck to the garage and unloaded it. WE had forty full cases of cigarettes on the truck to be stamped today. We always stamped at least forty cases each day. After we unloaded the truck Warren pulled it up and I pulled the garage door down. We then started the machine and started stamping the cigarettes. W_ had stamped ten (10) half cases when the officers came in and arrested us. When I first started to work on the stamping machine Mr. Schepps tol_me not to tell anybody what I was doing. I have been given the opportunity to call a lawyer but I do not care to do so at this time. Since I cannot read the English language too well this statement has been read to me by Ranger J. L. Rundell. I have not been mistreated in any manner and the above statement is true and correct.

/s/ X_

His mark

It being made known to each of us by Ranger J. L. Rundell that Casimiro Reyes states that he cannot sign his name, we and each of us, not being peace officers, have witnesses him place hs_mark upon the foregoing instrument.

/s/ Robert Wolfe

/s/ Charles Schneider

The repeated references in the written confessions to Mair Schepps and the House of Tobacco were not necessary to show the guilt of the makers as principals, and it is *937 apparent that said references connect the appellant with the acts of the principal offenders, and show appellant’s guilt as an accomplice. These references in the confessions were hearsay and incriminating and not admissible under the facts of this case, and were reasonably calculated to be hurtful and prejudicial to the appellant.

When the state had established by uncon-troverted evidence the guilt of the principals as it did by the testimony of the witnesses who caught them in the act of counterfeiting, the rights of the appellant should not have been jeopardized and exposed to injury before the jury by permitting the state to go further than necessary by introducing hearsay incriminating statements relating to the guilt of the appellant. If permitted to introduce the confessions, the references to Schepps and the House 'of Tobacco should have been deleted as the appellant requested. The damage done by these hearsay statements, which had been introduced in evidence as exhibits, may have been compounded if the jury requested them during their deliberations, which the statute permits them to do. Art. 36.25, Vernon’s Ann.C.C.P.

The original opinion finds no merit in appellant’s fourth and fifth grounds of error for the sole reason that the court’s, charge properly limited the jury’s consideration of the principals’ confessions in substantially the same terms as set forth in our opinion in Louvier v. State, supra.

To point out some of the hearsay incriminating statements in the confessions relating to the guilt of the appellant, a portion of Fusilier’s confession reads as follows :

“Terry would come get me at 3019 Oak-dale and I would pick up the truck and take it to 1520 Center, The House of Tobacco and unload the cigarettes with the regular stock. Sometimes Schepps would be there when I would arrive. On Thursday Morning, Oct. 29, 1964, when I arrived with the cigarettes we had stamped the afternoon before, Mair Schepps was at 1520 Center just after i got there with the illegal stamped cigarettes.” (October 29, 1964, is the date of the offense alleged in the indictment.)

A portion of Reyes’ confession reads as follows:

“When I first started to work on the stamping machine Mr. Schepps tol_ me not to tell anybody what I was doing.”

It is evident from reading the numerous references to Schepps and the House of Tobacco in the principals’ confessions that the limiting charge in this case could not give the relief to which the appellant was entitled. The only safeguard of the appellant’s rights depends, alone, upon the limiting charge. To depend upon the limiting charge, alone, was to speculate on the efficacy of the court’s effort to remove the numerous, inflammatory, and incriminating hearsay statements in the confessions from the minds of the jury. The injury and damage to the rights of the appellant caused by the admission of these incriminating and hearsay statements before the jury could not possibly be removed by the instruction of the court to the jury not to consider them and deprived the appellant of a fair and impartial trial.

In the event of another prosecution it is observed that the law of principals and accomplices applicable to offenders should be carefully considered in light of the evidence to be offered.

The judgment of affirmance is set aside, appellant’s motion for rehearing is granted, and the judgment of the trial court is now reversed and the cause is remanded.