Artell v. State
| Decision Date | 13 March 1963 |
| Docket Number | No. 35418,35418 |
| Citation | 372 S.W.2d 944,84 S.Ct. 439 |
| Parties | Paul Doyle ARTELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Clyde W. Woody, Houston, for appellant.
Frank Briscoe, Dist. Atty., Carl E. F. Dally and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is carrying a pistol; the punishment, 60 days in jail.
Officer Garcia of the narcotics division of the Houston police testified that on the day in question he received information by telephone from a reliable and credible person that appellant could be found in the 1600 block of Houston Avenue in a 1960 green Chevrolet, License number SR 6700, and that he had a quantity of narcotics in his possession; that he, in company with Officer Strickland and others, proceeded at once to said location, and as he approached the automobile which had been described to him he observed appellant, who was seated therein alone, 'reaching under the front seat directly behind him.' He identified himself as an officer, reached under the seat and pulled out a black holster that contained a .38 caliber Smith & Wesson revolver. Appellant was then carried to the station, and Officer Strickland took charge of the weapon and made out the offense report. Appellant did not testify or offer any evidence in his own behalf, and we find the evidence sufficient to support the conviction.
Appellant's attack upon the legality of the search is overruled upon authority of French v. State, 162 Tex.Cr.R. 48, 284 S.W.2d 359; Sanders v. State, 166 Tex.Cr.R. 293, 312 S.W.2d 640; Slaughter v. State, 314 S.W.2d 92; Bridges v. State, 166 Tex.Cr.R. 556, 316 S.W.2d 757; Baray v. State, 167 Tex.Cr.R. 456, 321 S.W.2d 87; McCall v. State, 167 Tex.Cr.R. 559, 322 S.W.2d 291; and Leal v. State, 169 Tex.Cr.R. 222, 332 S.W.2d 729.
The court did not err in declining to require Officer Garcia to name his informer. Bridges v. State, supra, and Sikes v. State, Tex.Cr.App., 334 S.W.2d 440. This is especially so since there is no showing that the informant took any material part in bringing about the offense, was present when it occurred or might be a material witness as to whether or not accused committed the offense. Anno. 76 A.L.R.2d 262, sec. 20, p. 307.
The sole remaining question which requires discussion is the refusal of the trial court to permit appellant to make Officer Strickland's offense report which Officer Garcia had read some time before the trial and from which he had refreshed his memory available for the purpose of cross-examining Garcia or for the purpose of perfecting his bill of exception. This Court has recently in Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; and Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528, made what we consider wholesome progress in protecting the rights of an accused. We have been cited no case, nor has an exhaustive inquiry revealed one, which requires that a report made by a person other than the witness be made available under the rule set forth above.
We are not inclined at this juncture to expand the rule, especially in view of the relatively recent expression of the Supreme Court of the United States in Palermo v. U. S., 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed.2d 1287, on a similar problem, as follows:
'It is clear that Congress was concerned that only those statements which could properly be called the witness' own words should be made available to the defense for purposes of impeachment.'
Finding no reversible error, the judgment of the trial court is affirmed.
I disagree with the majority opinion in their holding that the trial court did not commit error in refusing to permit appellant to examine...
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