Alvarez v. State, 44753
| Decision Date | 12 April 1972 |
| Docket Number | No. 44753,44753 |
| Citation | 478 S.W.2d 450 |
| Parties | Frank ALVAREZ, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Arthur L. Lapham of Hartman & Lapham, Victoria, Ted Dunnam and Mary Anne Dunnam, Port Lavaca, for appellant.
Robert J. Seerden, Dist. Atty., and D. F. Martinak, Asst. Dist. Atty., Victoria, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: marihuana. The punishment was assessed by a jury at five years.
Appellant brings three grounds of error. First, we will discuss his contention that 'The District Court erred in failing to submit to the jury, for its consideration, the defendant's second requested charge inquiring as to whether or not the undercover agent was an accomplice, and, if so, his testimony must be corroborated.'
The record reflects that some time during the early evening hours of June 5, 1970, Jay Pietsch contacted Jesse Ramirez, the assistant manager of the investigations division of the Victoria Police Department. Officer Ramirez introduced Pietsch to Officer Charles L. Luna. Officer Luna, who was dressed in casual civilian clothes, and Pietsch left the police station and drove around Victoria in a blue and white van for several hours looking for the appellant, who was known by Pietsch, but not by Officer Luna. As they cruised about the city Pietsch would, from time to time, get out of the van and go into various places in search of the appellant to get him to make a sale of marihuana.
After searching for the appellant and being unable to locate him, Officer Luna discontinued the search and went home at approximately 12:30 A.M. on June 6, 1970. Pietsch apparently continued his search for the appellant and called Officer Luna and arranged to meet him at the Lone Tree Shopping Center and appeared there with appellant at approximately 3:15 A.M. on that date. When Officer Luna drove up to the location, the appellant entered the van and sat down. At this time Officer Luna asked him, 'What you got?' And the appellant '. . . pulled from underneath the front of his shirt a bag, small baggie.' He handed the bag to Officer Luna and said: 'It has a lot of seed in it, but it's good grass.' After some negotiations about the price, Officer Luna paid the appellant $13.00 for the marihuana.
The record is clear that the appellant approached Officer Luna and advised him that he had some 'grass', showed the same to Officer Luna and then sold the same to him for $13.00. The record further reflects that the appellant told Officer Luna that he could get up to 150 pounds of marihuana at a later date. This court has long held that an undercover agent is not an accomplice as long as he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic. E.g., Ikner v. State, Tex.Cr.App., 468 S.W.2d 809; Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139.
Next, appellant contends that his second motion for continuance should have been granted in order for him to obtain the Witness Pietsch as a material witness for his defense.
The record reflects that on September 8, 1970, the trial court conducted hearings on motions filed by the appellant and a motion was granted for him to take the deposition of Witness Pietsch, as well as some other witnesses. The case was then set for trial for October 5, 1970.
On October 5, 1970, appellant's counsel announced to the court that he could not move forward on the taking of the depositions because his client was 'broke.' 1 On November 5, 1970, appellant's motion for continuance was granted and on November 24, 1970, an application for out of state witness was filed. The return on the subpoena reflects that the Witness Pietsch was due to be home from the service in the Marine Corps in San Diego for the Christmas holidays.
On November 27, 1970, a motion for continuance was filed stating that the witness was unavailable and that he was in San Diego. Another motion was filed on November 30, 1970, stating that the Witness Pietsch would be a material witness for the appellant; this motion was granted by the court.
On December 28, 1970,...
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