Bright v. State, 51384
| Decision Date | 14 September 1977 |
| Docket Number | No. 51384,51384 |
| Parties | Albert Rowe BRIGHT, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
This is an appeal from a conviction for possession of heroin. After finding appellant guilty, the jury assessed punishment at twelve years.
Appellant contends (1) that the evidence is insufficient; (2) that the State's reputation questions at the punishment stage were improperly framed and erroneous; (3) that the trial judge should have disqualified himself; (4) that the State's chemist was not qualified to testify concerning the physical effects of heroin on the human body; (5) that the penalty provisions of our Controlled Substances Act have been pre-empted by federal statute; and (6) that the trial court should have instructed the jury on the law of circumstantial evidence. We overrule these contentions and affirm.
On February 8, 1974, Haltom City Police Officer Robert Hurley, Jr., along with Fort Worth Police Officer Bobby Percelli and several other area police officers, executed a search warrant for suspected heroin at 2712 Kinman in Haltom City. Appellant was one of the people named in the warrant as the object of the search. Appellant's wife answered the door at 2712 Kinman. Appellant was not at the house. After searching the house, the officers were directed to the house next door.
The officers went to this adjoining house, where their knock was answered by Karen Coulson, one of the occupants of the house. Her husband Ross Coulson came to the door shortly thereafter and signed a form giving the officers permission to search the house.
Officer Percelli testified that when Karen Coulson first opened the door, and before consent to search was obtained, he saw appellant, whom he recognized as Albert Rowe Bright, Jr., sitting in a large stuffed chair just beyond the front door. As Percelli approached appellant, he saw appellant "making some movements like he was hiding something in that chair." Percelli approached appellant and found what he thought to be marihuana in the chair.
After Ross Coulson signed the consent form, the officers conducted a further search. Percelli found some pills under the side of the chair in which appellant was sitting. He also found several small packages under this chair and in a wastebasket just to the left of the chair; tests later showed that these packages contained heroin.
Karen and Ross Coulson both testified that none of the heroin taken in the search belonged to them, although Karen Coulson admitted, as she had to the officers on the day of the search, that she had a small amount of marihuana in the house. Ross Coulson also testified that appellant possessed heroin in his house on the day of the search.
Appellant testified that he knew nothing of the contraband found in and around the chair. He also stated that Karen Coulson was the person sitting in the chair and that she had put the packages of heroin in the wastebasket and under the chair.
Clearly, the evidence is sufficient to support the verdict. The State's evidence showed that appellant was nearest the heroin and was making furtive gestures when the officers arrived. In addition, Ross Coulson testified that appellant was the possessor of the heroin. Appellant's first contention is overruled.
Appellant next contends that the State asked improperly framed questions of its reputation witnesses. Specifically, the appellant points to four instances where the State's witnesses were asked about appellant's reputation in his community for being a peaceful and law-abiding citizen. Appellant contends that the State was required to frame its questions in terms of appellant's general reputation, following the language of Art. 37.07, Sec. 3(a), Vernon's Ann.C.C.P.
This ground of error is multifarious and in violation of Art. 40.09(9), V.A.C.C.P. Tyra v. State, 534 S.W.2d 695 (Tex.Cr.App.1976). However, since we are able to distinguish appellant's contentions from each other, we will discuss them on their merits. Art. 40.09(9), supra. Cf. Houston v. State, 506 S.W.2d 907 (Tex.Cr.App.1974).
In support of this ground of error, appellant cites Edwards v. State,91 Tex.Cr.R. 196, 198, 237 S.W. 933, 934 (1922), where this Court held:
We have carefully examined the "collated authorities" cited in 1 Branch's Ann.P.C., Sec. 184, p. 115 (1st Ed. 1916). These authorities do not support the distinction drawn in the Edwards case. In addition, we are unable to find any other authority to support this distinction between "reputation" and "general reputation."
In Hamman v. State, 166 Tex.Cr.R. 349, 356, 314 S.W.2d 301, 305 (1958), this Court stated "Nor do we agree that the reputation testimony should have been excluded because the predicate question did not include 'among the people who know him best.' "
We see no difference between asking a witness about a defendant's reputation, on the one hand, and about his general reputation, on the other. 1 Certainly this difference in wording is of no greater moment than that urged by the State in Hamman, supra. Accordingly, we overrule the holding in Edwards v. State, supra, and also overrule this contention of appellant's.
Appellant's third contention is that the trial judge should have disqualified himself because of his personal bias against the appellant.
As grounds for his allegation of bias appellant directs us to the record, which reflects that prior to trial the trial judge admonished appellant that if appellant did in fact have other charges pending against him (as the State had advised the judge), and if the jury found appellant guilty of this charge, then "I'm going to stack the time on him." Appellant also points out that the court forfeited his bail on the first day of trial because appellant was late for trial and, although the court set aside the forfeiture, he did so subject to the requirement that appellant serve three days in the county jail.
In overruling a similar contention in Vera v. State, 547 S.W.2d 283, 285 (Tex.Cr.App.1977), this Court held:
Appellant complains of no error in the rulings of the trial judge which resulted from his alleged bias. We hold that the trial judge was not disqualified. See also Ortega v. State, 493 S.W.2d 828 (Tex.Cr.App.1973); Williams v. State, 492 S.W.2d 522 (Tex.Cr.App.1973). Appellant's contention is overruled.
Appellant's fourth contention is that the trial court erred in allowing the State's chemist to testify as to the physical effects of heroin on the human body. The chemist testified that each of the packets of heroin was capable of having an effect on the human body. Appellant contends that the chemist was not qualified as an expert on this subject and that the chemist's testimony inflamed the minds of the jurors.
The chemist, Ronald Clodfelter, was shown to be a criminalist for the City of Fort Worth. He had received a Bachelor of Science degree in chemistry and had been a criminalist for three years. He had done a large amount of research on and analysis of drugs, their properties, and their effects. Like the chemist in Franklin v. State, 494 S.W.2d 825, 827 (Tex.Cr.App.1973), "(h)e was shown to have knowledge far beyond that of a layman, and the trial court was justified in considering that his opinion might aid the jury in an understanding of the subject." As in Franklin, we hold that the chemist was qualified to testify as he did. See also Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974). Appellant's fourth contention is overruled.
Next, appellant urges that his motion in arrest of judgment should have been sustained because the penalty provisions of the Texas Controlled Substances Act, Art. 4476-15, V.A.C.S., are in positive conflict with those of the Federal Drug Abuse Prevention and Control Act, 21 U.S.C., Sec. 801, et seq., see especially 21 U.S.C., Sec. 903.
Appellant recognizes that recent authority is directly contrary to his contention. Wilson v. State, 525 S.W.2d 30 (Tex.Cr.App.1975); Reynolds v. State, 548 S.W.2d 733 (Tex.Cr.App.1977), and cases there cited. We decline to overrule these authorities; appellant's fifth contention is therefore overruled.
Appellant's final contention is that the trial court erred in failing to charge on the law of circumstantial evidence. Appellant filed a timely objection to the court's charge which, the record reflects, was overruled by the court before the main charge was submitted to the jury. See Art. 36.14, V.A.C.C.P.; McCloud v. State, 527 S.W.2d 885, 887, n. 1 (Tex.Cr.App.1975).
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