Carr v. State, No. 46132

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtDOUGLAS; ONION
Citation495 S.W.2d 936
PartiesAlvin C. CARR, Appellant, v. The STATE of Texas, Appellee.
Decision Date13 June 1973
Docket NumberNo. 46132

Page 936

495 S.W.2d 936
Alvin C. CARR, Appellant,
v.
The STATE of Texas, Appellee.
No. 46132.
Court of Criminal Appeals of Texas.
June 13, 1973.
Rehearing Denied July 11, 1973.

Raymon Jordan, Houston, for appellant.

Stanley Kacir, Dist. Atty., Jerry Secrest, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the sale of a dangerous drug, barbituric

Page 937

acid derivative. The jury assessed the punishment at ten years.

The sufficiency of the evidence is not challenged.

Appellant complains of the trial court's refusal to charge on accomplice testimony and of an unresponsive answer by a writness for the State. The State proved the sale of the dangerous drug as alleged to a narcotics agent for the Texas Department of Public Safety. The court instructed the jury on the law of entrapment and accommodation agency.

Robert J. Harden testified that he was a narcotics agent for the Texas Department of Public Safety and, while he worked as an undercover agent, he met the appellant in Temple. He testified that he and Joe Hicks, also a narcotics agent, at about 3:15 a.m., September 11, 1971, went to the Regal Cafe which was operated by appellant. The appellant asked Harden if he needed any 'reds', which meant seconal, a dangerous drug. Harden asked him the price and the appellant replied that he could let him have fifty for sixty dollars or he could let him have a hundred for one hundred dollars. Harden agreed to take them. The appellant went to the kitchen area, returned and handed Harden 100 red capsules for which Harden paid him $100. The appellant then stated: 'Bob, I don't want you to be dealing these over here in this area.'

Joe Hicks testified that he was at the Regal Cafe with Agent Harden the day in question and the appellant asked Harden if he wanted some 'reds.' After the sale was agreed upon, the appellant went to the kitchen area and came back with an envelope which ad '80' written on it. The appellant then said that he had originally sacked up 80 but had put 20 more in the envelope. Harden paid him. The envelope was introduced into evidence.

The appellant testified that he operated the Regal Cafe in Temple and that Bob Harden who was a friend and customer of his was always coming in and stating that he needed some 'reds.' He also testified that on the day in question Harden asked him to get him some drugs. The appellant replied that he would try to get them for him because Harden said that 'he was coming down from heroin and he needed the pills to help him kick it.' He further testified that when he went to the storeroom area, he got the pills from Albert or 'Bike' Overton. He also testified that he told Harden that he could get him 50 for $60 or that he could get him 100 for $100 from Overton and that Harden gave him five twenty-dollar bills and that he then went back to the kitchen and got the 'reds' from Overton and handed them to Harden; that he only got the pills just to help Harden and that he did not make any profit but gave all the money to Overton.

Harden was recalled and testified that on the 6th of September, 1971, he purchased fifteen capsules of seconal from the appellant for $18 and that he had never seen Overton in the cafe. He also testified that on the 4th of September, 1971, he was with H. Bill Floyd who purchased 50 for $60 and again on the 5th of September saw Floyd purchase 100 red capsules for $100.

The appellant denied selling or delivering seconal to anyone except on two occasions to Harden.

After the court instructed the jury to acquit the appellant if he had been entrapped and also to acquit if he was merely an accommodation agent for Harden, did the court err in refusing to charge that Agent Harden was an accomplice witness? In considering this question, it will be borne in mind that the appellant admitted selling the dangerous drug to Harden. Then appellant's testimony, if believed, would establish a defense of accommodation agent or entrapment. When a person accused of crime admits in open court under oath all of the acts that would constitute the crime, there is no logical reason for a charge on accomplice testimony.

Page 938

The statute on accomplice testimony, Article 38.14, Vernon's Ann. C.C.P., provides:

'A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed. . . .'

The only thing that the appellant would want the jury to believe was that he was telling the truth when he attempted to prove that the crime originated in the mind of the agent. I would be difficult to imagine how a trial court could charge on accomplice appellant cites Ivy v. State, 161 Tex.Cr.R. appellant cites Vy v. State, 161 Tex.Cr.R. 371, 277 S.W.2d 712, which contains language in an opinion on motion for rehearing that this Court has recognized the doctrine of entrapment proof of which makes an entrapping person an accomplice witness because he has become a party to the crime. In that case, the defendant contended that the agent used an addict to purchase heroin and that the addict was an agent for the State. The court did not require a charge on accomplice testimony but held that the defense of entrapment as a defense to crime was not raised by the evidence.

In Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762, 770, on motion for rehearing, the Court wrote: 'The invocation of the defense of entrapment necessarily assumes the act charged was committed. To decline to reverse upon the theory that appellant had admitted his guilt in that he called the porter Washington and conveyed to him the officer's wishes, or to hold that his testimony to that effect furnished the required corroboration of the officer's testimony, would be to deprive him of any relief upon the ground that he was entrapped. Hamilton v. United States, 5 Cir., 221 F.2d 611.'

That case in effect held that Cooper was entitled to a charge under the facts on entrapment, not that he was entitled to a charge on accomplice testimony.

Owens v. State, Tex.Cr.App., 385 S.W.2d 246, is relied upon by the appellant. Owens was convicted for procuring and officers testified that before he went out there he had made up his mind that he could trick someone into sending the girl to him and that was his one purpose. The Court held that the issue of entrapment of a procurer was raised by...

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6 practice notes
  • May v. State, No. 66248
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 20 Mayo 1981
    ...(rule inapplicable to evidence introduced by the accused); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978) and Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) (rule inapplicable to testimony of an accomplice witness when the accused takes the stand and admits all acts constituting the c......
  • Saunders v. State, Nos. 55244
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 25 Octubre 1978
    ...Art. 38.14, supra, when the defendant takes the stand and admits all acts constituting the crime charged. Carr v. State, Tex.Cr.App., 495 S.W.2d 936. An example is when the defendant takes the stand and attempts to establish his defense of entrapment. Carr v. State, supra; Prudhomme v. Stat......
  • Redman v. State, No. 50962
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 18 Febrero 1976
    ...trial court erred in not finding that Martin Valenzuela was an accomplice witness whose testimony required corroboration. Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) is directly in point. This Court stated: 'We hold that in the present case, since the appellant admitted the act, a charg......
  • Holdaway v. State, No. 47391
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 13 Febrero 1974
    ...he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic. See also Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App.1972); Ochoa v. State, 44......
  • Request a trial to view additional results
6 cases
  • May v. State, No. 66248
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 20 Mayo 1981
    ...(rule inapplicable to evidence introduced by the accused); Saunders v. State, 572 S.W.2d 944 (Tex.Cr.App.1978) and Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) (rule inapplicable to testimony of an accomplice witness when the accused takes the stand and admits all acts constituting the c......
  • Saunders v. State, Nos. 55244
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 25 Octubre 1978
    ...Art. 38.14, supra, when the defendant takes the stand and admits all acts constituting the crime charged. Carr v. State, Tex.Cr.App., 495 S.W.2d 936. An example is when the defendant takes the stand and attempts to establish his defense of entrapment. Carr v. State, supra; Prudhomme v. Stat......
  • Redman v. State, No. 50962
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 18 Febrero 1976
    ...trial court erred in not finding that Martin Valenzuela was an accomplice witness whose testimony required corroboration. Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973) is directly in point. This Court stated: 'We hold that in the present case, since the appellant admitted the act, a charg......
  • Holdaway v. State, No. 47391
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 13 Febrero 1974
    ...he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic. See also Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App.1972); Ochoa v. State, 44......
  • Request a trial to view additional results

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