James Weldon Hughes v. The State of Texas--Appeal from County Court at Law No 1 of Brazos County

NO. 10-90-108-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

JAMES WELDON HUGHES,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From County Court at Law #1

Brazos County, Texas

Trial Court #1339-89

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

The court convicted Appellant James Weldon Hughes in a bench trial of selling alcoholic beverages to a minor. It assessed his punishment at thirty days in jail, probated for thirty days, and a $100 fine. See Tex. Alco. Bev. Code Ann. 106.03 (Vernon Supp. 1991).

Appellant contends, in two points of error, that the court erred when it admitted hearsay into evidence and later refused to acquit him after the State rested its case in chief. The judgment will be affirmed.

Section 106.03 provides in part:

(a)A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.

(b)A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid Texas driver's license or an identification card issued by the Texas Department of Public Safety, containing a physical description consistent with his appearance for the purpose of inducing the person to sell him an alcoholic beverage.

Id. at 106.03(a), (b). In 1987, the legislature changed section 106.03(a) by replacing "if he knowingly sells" with "if with criminal negligence he sells." See Act of April 30, 1987, 70th Leg., R.S., ch. 582, 1987 Tex. Gen. Laws 2298. "Criminal negligence" is defined in the Penal Code as follows:

A person acts with criminal negligence, or is criminally negligent, with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Tex. Penal Code Ann. 6.03(d) (Vernon 1974). Now, the State's burden is lighter in proving the culpable mental state of a defendant who sells alcoholic beverages to a minor. See id. at 6.03(b), (d).

In August 1989, two Texas Alcoholic Beverage Commission agents--Kirk Dalchau and Robert Donahoo--were outside of Coach's liquor store when they noticed two "youthful appearing" black males, later identified as Tony Taylor and Rodney McKinse, leaving the store carrying brown paper bags that appeared to contain bottles of alcoholic beverages. Taylor and McKinse joined three other black males who were waiting in a truck outside the store. The agents followed the truck to a convenience store located next door to Coach's, where Taylor left the truck. After Dalchau could not locate Taylor, the agents identified the occupants remaining in the truck. Dalchau then walked to Coach's where Appellant was closing the liquor store. No other employees of the store were around. Dalchau told Appellant that he believed Appellant had just sold alcoholic beverages to a minor, and Appellant admitted that he had just sold alcoholic beverages to a black male. Less than five minutes had elapsed from the time Dalchau saw Taylor and McKinse leave the store to the time he confronted Appellant. After Dalchau joined his partner and the young men outside the convenience store, Taylor then returned to the scene. Taylor's driver's license listed his age as nineteen. Upon inspection, the agents discovered six forty-ounce bottles, containing either beer or malt liquor, in the brown paper bags. McKinse testified that Taylor entered Coach's that night and bought "five quarts" of liquor. Appellant admitted that he was the only one selling alcoholic beverages during the last hour before closing time.

In his first point, Appellant complains about the admission of a hearsay statement over his objection. The statement was presented through the testimony of Dalchau who stated Taylor told him that, "the owner of the store sold to [Taylor], [the] owner named Jim sold to him, and he had bought many times from the store and that he's never been asked for identification." Although we believe that this statement should not have been admitted, Appellant has not shown how he was harmed by it. Generally, the statement revealed (1) that there was a sale of alcoholic beverages to Taylor, (2) that the owner made the sale, (3) that there was no presentation of identification showing the buyer to be twenty-one years old or older, and (4) that sales had been made in the past without any request for identification. A sale by Appellant to Taylor was established, even absent the hearsay statement, by strong evidence, i.e., alcoholic beverages were found in the paper bags that the young men were carrying, Appellant was the only salesperson seen at the store within five minutes of the sale, Appellant was the only one selling alcoholic beverages in the store during the last hour before closing time, Appellant admitted that he had just sold alcoholic beverages to a black male, and McKinse testified that Taylor had purchased alcoholic beverages at Coach's that night. Therefore, the fact of a sale of alcoholic beverages by the Appellant to Taylor revealed in the hearsay statement could not have harmed Appellant because that fact was properly before the court through other evidence.

The portion of the hearsay testimony about the failure of the owner to request identification from Taylor was in direct conflict with Appellant's testimony. Because this was a trial before the court, however, we must presume that the court disregarded any inadmissible evidence at trial. See Keen v. State, 626 S.W.2d 309, 314 (Tex. Crim. App. [Panel Op.] 1981). As the trier of fact, the trial judge was the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by state or defense witnesses. See Johnson v. State, 571 S.W.2d 170, 173 Tex. Crim. App. [Panel Op.] 1978). Any error in allowing the statement into evidence did not contribute to Appellant's conviction or punishment, beyond reasonable doubt. See Tex. R. App. P. 81(b)(2). Point one is overruled.

Appellant's second point is that the court should have acquitted him after the State rested its case. Appellant contends that there was "absolutely no evidence for a finding beyond a reasonable doubt that proper identification was not presented to [him] by Tony Taylor which is an absolute defense to this offense under 106.03(b)." (Emphasis added). Appellant misplaces the burden of proof on the issue of whether or not Taylor falsely represented himself to be twenty-one years old or older. Section 106.03(b) provides Appellant with exactly what he describes--a defense. See Tex. Alco. Bev. Code Ann. 106.03(b) (Vernon Supp. 1991); Tex. Penal Code Ann. 2.03(e) (Vernon 1974) (providing that "[a] ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense). The State did not have the burden of negating this defense in the presentation of its case, and therefore, a verdict of not guilty granted on this basis after the State rested would have been improper. See Tex. Penal Code Ann. 2.03 (Vernon 1974). Rather, if Appellant believed that this defense applied under these circumstances, he should have presented sufficient evidence to convince the trial judge that he sold alcholic beverages to Taylor only upon Taylor's presentation to him of an apparently valid identification card showing Taylor's age to be twenty-one years or older. See Johnson, 571 S.W.2d at 173.

There is sufficient evidence in the record to justify a rational trier of fact in finding beyond a reasonable doubt that Appellant, with criminal negligence, sold alcoholic beverages to a minor. See Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986). Although some of the case is based upon circumstantial evidence, no reasonable hypothesis exists other than Appellant's guilt. See Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981) (holding that in circumstantial evidence cases the evidence is not sufficient unless the circumstances exclude every reasonable hypothesis except the guilt of the defendant). The State produced evidence that the males appeared "youthful," // that Taylor purchased alcoholic beverages at Coach's that night and was only nineteen years old at the time of the purchase, that the bags contained alcoholic beverages, and that Appellant was the only salesperson at Coach's. The State's evidence was sufficient to support Appellant's conviction and, therefore, the court's refusal to find Appellant not guilty was proper. This point is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas

and Justice Cummings

(Justice Vance not participating)

Affirmed

Opinion delivered and filed January 31, 1991

Do not publish