Alexander v. State, 30537

• Citation: 168 Tex.Crim. 288,325 S.W.2d 139
• Decision Date: 11 March 1959
• Docket Number: No. 30537,30537
• Parties: Jewel ALEXANDER, Appellant, v. STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 139

325 S.W.2d 139

168 Tex.Crim. 288

Jewel ALEXANDER, Appellant, v. STATE of Texas, Appellee.

No. 30537.

Court of Criminal Appeals of Texas.

March 11, 1959.

Rehearing Denied June 3, 1959.

Charles William Tessmer, Dallas, for appellant.

Henry Wade, Dist. Atty., Ben Ellis, Dunstin Fillmore, Jerome Chamberlain, Jr., and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is the unlawful sale of marijuana; the punishment, ten years.

The indictment alleged the sale to have been made to Dan Evans. He testified, as did L. D. Stringfellow, Detective of the Narcotic Section of the Special Service Bureau, Dallas Police Department, that he was a member of the Dallas Police Department on November 26, 1956, on which date he received $5 from Detective Stringfellow about 2:30 P.M. with instructions.

Dan Evans, the evidence shows, was a colored person; a graduate of Prairie View A & M College and former Assistant Boy's Secretary of the Moreland Branch Y.M.C.A. He had been a policeman for some four or five months and was working as an undercover officer.

Evans testified that accompanied by one Edward Jordan, described as a user of narcotics and an underworld character who answered to the name 'Little Fat', he met appellant, also colored, on a street in North Dallas and 'told him we wanted to buy some stuff' which, the witness explained, in the language of the underworld meant marijuana.

Appellant replied that he would have to go some place and get it, and the three went to the car Evans was using and, directed by appellant, proceeded to an address in South Dallas.

Appellant asked 'how much we wanted' and Dan Evans 'told him that I wanted a nickels worth of cigarettes', which he testified meant in the language of the underworld $5 worth.

Appellant said 'he would let us have five cigarettes for five dollars providing that he would help us smoke one' and 'we agreed.'

Appellant then left the car and in five or ten minutes returned and dropped four cigarettes in the car and Dan Evans paid him $5.

The four cigarettes were delivered to Detective Stringfellow the following morning. The evidence shows that they were thereafter delivered to Chemist Sidney Lee who tested them and found their contents to be marijuana.

The fifth cigarette which appellant produced was smoked by appellant and Jordan.

Appellant contends that the evidence shows Dan Evans to be an accomplice witness as a matter of law.

Lundy v. State, Tex.Cr.App., 296 S.W.2d 775; Jones v. State, Tex.Cr.App., 297 S.W.2d 179; and Aguero v. State, Tex.Cr.App., 298 S.W.2d 822, cited by the State, are deemed authority against such contention.

Appellant would distinguish these cases by reason of Dan Evans agreeing that the appellant and Jordan smoke the fifth cigarette; his failure to arrest them then and there for doing so in his presence, and to then arrest appellant for selling the marijuana.

We can well agree that the conduct of an undercover agent engaged in ferreting out violations of the Uniform Narcotic Drug Act leaves much to be desired and may even be termed reprehensible. Yet the agent is not an accomplice witness so long as he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic.

That Evans' purpose was to obtain evidence against sellers of marijuana is demonstrated by the fact that he acted under instruction of Detective Stringfellow who furnished the $5, and delivered the cigarettes to him. The fact that appellant was not arrested until several weeks later, and not then by the undercover agent, is consistent with Evans' status as a purchaser for evidence purposes rather than an accomplice.

Appellant did not testify and the jury rejected his defense of alibi. We would not be warranted in substituting our finding for that of the jury even though we should agree that there was strong evidence that appellant was at another place when Evans testified he purchased the marijuana. Stapler v. State, 120 Tex.Cr.R. 263, 47 S.W.2d 837, presents a similar conflict in the evidence which was resolved by the jury.

Appellant's complaint as to Dr. Lee's testimony regarding the effect of the use of marijuana presents no error calling for reversal. The only objection was as to the qualification of the witness to testify, which qualifications were well established.

The evidence sustained the allegation of the indictment that the sale was made to Dan Evans. If Jordan was a joint purchaser there would have been no variance. McGee v. State, 112 Tex.Cr.R. 450, 17 S.W.2d 50, overruling Asher v. State, 102 Tex.Cr.R. 162, 277 S.W. 1099; Stapler v. State, 120 Tex.Cr.R. 263, 47 S.W.2d 837; Petty v. State, 121 Tex.Cr.R. 218, 53 S.W.2d 300; Metaxes v. State, 127 Tex.Cr.R. 313, 75 S.W.2d 888; and Colley v. State, 140 Tex.Cr.R. 34, 143 S.W.2d 597.

The judgment is affirmed.

On Motion for Rehearing.

MORRISON, Presiding Judge.

By supplemental motion for rehearing, the appellant asserts that the undisputed evidence shows that appellant was acting as agent for Officer Evans and therefore could not be guilty of making a sale to him. Reliance is had upon Durham v. State, 162 Tex.Cr.R. 25, 280 S.W.2d 737. In Durham, the undisputed evidence was that the accused purchased the narcotics from one Clarence and delivered the same to the officer with no advance in price and with no showing that she was in any way interested in behalf of Clarence. In the case at bar, we have no such showing. Here, the appellant directed the parties to his address in South Dallas and there delivered the marijuana to the witness. There is no evidence that the appellant purchased the marijuana in South Dallas or that he delivered it to Evans at no advance in price.

Remaining convinced that we properly disposed of this cause originally, the appellant's motion for rehearing is overruled.

DAVIDSON, Judge (dissenting).

In Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, 763, over my protest and dissent my brethern declared the law in this state to be:

'* * * if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, this is entrapment, and in law may constitute a defense to such crime.'

In my dissenting opinion in that case I pointed out that:

'It is apparent that what my brethren hold is that if a peace officer, by entrapment, induces another person to commit a crime, that person may not be prosecuted or convicted of the crime because he was entrapped by the officer into committing it. So, neither the peace officer nor the person actually committing the crime may be punished therefor.'

The majority of this court have neither overruled nor changed that holding, which is directly applicable and controlling under the undisputed facts of this case.

Here, Evans, the plain-clothes policeman and undercover agent, was so afraid that he would disclose the fact that he was a peace officer that he did not go around or near police headquarters but communicated with his superior officer only by telephone.

On the occasion in question and by previous telephone arrangement, Evans met Stringfellow, the officer above mentioned, at 2:30 o'clock, p. m., at the Dal-Hi stadium, which Stringfellow said was 'more or less a remote area.' In that connection he further testified:

'* * * there was a large parking station to the west of the Stadium. Cars very seldom come in there and I picked that location so that no one would observe us in the meeting.'

The witness Stringfellow also testified '* * * I gave him [Evans] a five dollar bill that I had obtained from a fund that is set up for the Narcotics Section to buy contraband drugs, narcotics; And told him to go to the vicinity * * *.'

The details of the instruction Stringfellow gave to Evans are not shown.

Be that as it may, about four hours later, at 6:30 o'clock, p. m., Evans not Jordan, a known narcotics user and underworld character who Evans said was his 'contact with the underworld' and whom he used 'as a contact.'

Traveling in a 'State owned vehicle, a 1951 Ford,' Evans and Jordan went to the corner of Thomas and Hall Streets in the city of Dallas and parked their car nearby. They walked around the corner and met or ran into the appellant, whom Jordan 'seemed to be knowing.' Evans did not know the appellant. Evans testified that:

'Well, it's the first time I had ever seen him to know who he was * * *.'

Thereupon, Evans told appellant that they wanted to buy 'some stuff,' meaning 'specifically, marijuana.' Appellant...