Ables v. State, 49545

• Decision Date: 26 February 1975
• Docket Number: No. 49545,49545
• Citation: 519 S.W.2d 464
• Parties: James D. ABLES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 464

519 S.W.2d 464

James D. ABLES, Appellant, v. The STATE of Texas, Appellee.

No. 49545.

Court of Criminal Appeals of Texas.

Feb. 26, 1975.

Phillip O. Vick, Denton, for appellant.

John Lawhon, Dist. Atty., Alan L. Levy, Asst. Dist. Atty., Denton, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for sale of a barbituric acid derivative. Punishment was assessed by the jury at two years.

Appellant contends the evidence is insufficient to support the conviction.

Narcotic Agent Sanders testified that he bought a bag of ninety 'reds' from appellant in Lewisville on January 21, 1972, for $45.00. Sanders described a 'red' as a barbituric acid derivative. Sanders initialed the bag containing the 'reds' and mailed same in an envelope to the Department of Public Safety Laboratory in Austin. Joe Urbanovsky, a chemist at said laboratory, testified that he received the envelope mailed by Sanders, ran an analysis on the capsules, and found them to contain a barbituric acid derivative.

Appellant's claim of insufficiency of the evidence to support the conviction is bottomed upon a conflict in the evidence. Sanders testified that he purchased the contraband at 'approximately 10:30 or 10:35 in the morning . . ..' Appellant points to Exhibit No. 1, identified as the evidence envelope containing the bag of pills, which reflects the time of the offense as 10:35 p.m. The jury, as the trier of the facts, was authorized to accept or reject any or all of the testimony of the witnesses for either the State or the accused. Williams v. State, Tex.Cr.App., 506 S.W.2d 868; Powell v. State, Tex.Cr.App., 479 S.W.2d 685. We find the evidence sufficient to support the conviction.

Appellant contends the court erred in making comments regarding his opinion of the case.

The record reflects that After the jury had returned a verdict of guilty the court made the following comment:

'THE COURT: . . . Now, the Defendant, of course, has been found guilty on this charge. We will need to go into a hearing regarding the punishment phase of it . . ..'

Appellant argues that the comment 'of course' conveyed the court's opinion to the jury in violation of Art. 38.05, Vernon's Ann.C.C.P. ¹ The record reflects that no objection was interposed to the complained-of comment of the court. Nothing is presented for review. Calverley v. State, Tex.Cr.App., 511 S.W.2d 60. Further, to constitute reversible error, the comment of the court must be such that it is reasonably calculated to prejudice the accused's rights. Hernandez v. State, Tex.Cr.App., 507 S.W.2d 209; Barnes v. State, Tex.Cr.App., 503 S.W.2d 267; Lee v. State, Tex.Cr.App., 470 S.W.2d 664. Thus, even if appellant had preserved his contention for review, we find no error in light of the fact that the court's comment came after the jury had returned a verdict of guilty.

Appellant's next contention is directed to another comment made by the court. Again, no objection was voiced to the complained-of remark by the court and nothing is presented for review. Calverley v. State, supra.

Appellant contends the court erred in allowing testimony of a reputation witness who had not heard appellant's reputation discussed in the community in which appellant resided.

Narcotic Agent Sanders testified that he knew the reputation of appellant in the community for being a peaceful and lawabiding citizen, and that such reputation was bad. Appellant points to the testimony of Sanders on cross-examination that he had not heard a resident of Lewisville, where appellant resided, say that appellant had a bad reputation. The record reflects that Sanders stated that he discussed the appellant's reputation with persons 'who had been around there (Lewisville)' and 'They knew him around in that area, though, the Denton area,' and 'the Denton and the Lewisville area, yes, sir, Denton County.' His testimony further reflects that he had discussed appellant's reputation with 'people that had bought pills from him . . . in the past before I knew him.'

Appellant's argument appears to be bottomed on the premise that it was necessary for the witness to have discussed appellant's reputation with persons who lived in the same community where appellant lived. In Loyd v. State, Tex.Cr.App., 506 S.W.2d 600, it was held that an officer who lived on the military base was not disqualified to testify as to defendant's reputation for being a peaceful and law-abiding citizen where defendant lived off base. In Jordan v. State, 163 Tex.Cr.R. 287, 290 S.W.2d 666, the offered testimony as to defendant's reputation came from witnesses from Dallas, where the accused worked, and this Court held same to be admissible even though defendant lived in the adjacent community of Richardson. In Arocha v. State, Tex.Cr.App., 495 S.W.2d 957, this Court said, 'A person's community is not limited to the locale where the case is tried nor his...