Carter v. State

• Decision Date: 31 May 1972
• Docket Number: Nos. 45048,s. 45048
• Citation: 480 S.W.2d 735
• Parties: Andrew J. CARTER, Appellant, v. The STATE of Texas, Appellee. to 45050.
• Court: Texas Court of Criminal Appeals

Page 735

480 S.W.2d 735

Andrew J. CARTER, Appellant, v. The STATE of Texas, Appellee.

Nos. 45048 to 45050.

Court of Criminal Appeals of Texas.

May 31, 1972.

James P. Finstrom, Dallas, for appellant.

Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction in each of the three cases was for the sale of heroin. The cases were tried together before the same jury. The court assessed the punishment in cases No. 45,048 and No. 45,049 at fifty years imprisonment and in case No. 45,050 at life imprisonment.

The evidence shows the sale of heroin to an undercover agent on three separate occasions.

The grounds of error raised in each of the three cases are identical.

The appellant's first ground of error is that 'The record in this cause will not support appellant's conviction because same fails to show when appellant's counsel was appointed and same fails to show that appellant waived his statutory and constitutional right to ten days to prepare for trial.'

The appellant argues in support of this ground of error that 'The record in the cause at bar is silent as to the date counsel was appointed to represent appellant who was indigent at the time of his trial. The record is further silent as to any waiver of appellant's right to have ten days to prepare for trial as guaranteed by Article 26.04, V.A.C.C.P.'

The docket sheet in the instant case reflects the name 'Jas. P. Finstrom' in the space for the attorney representing appellant. Immediately below this is 'Jas. P. Finstrom, appointed on appeal 2--12--71.' The docket sheets and the statement of facts indicate that the trial began on January 20, 1971. An instrument is filed in the record designated 'Affidavit of Defendant' which is an affidavit of indigency of appellant and was purportedly signed on January 20, 1971, but was not filed with the clerk of the court until January 28, 1971. At the bottom of this affidavit of indigency is a certificate of the trial court that attorney Finstrom Had represented and 'actually appeared January 20--21, 1971' and was entitled to a fee for his services. This certificate was purportedly signed by the trial judge on January 21, 1971.

There was no motion for continuance. This ground of error was not raised at the time of trial nor on motion for new trial, but it is urged for the first time on appeal.

A similar contention was made in Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968), where it was said:

'There can be no question that a showing on direct appeal of a failure to comply with the mandatory provisions of Article 26.04, supra, would call for reversal. Farmer v. State, Tex.Cr.App., 419 S.W.2d 382; Bennett v. State, Tex.Cr.App., 382 S.W.2d 930; Ex parte Gudel, Tex.Cr.App., 368 S.W.2d 775. Cf. Ex parte Meadows, Tex.Cr.App., 418 S.W.2d 666 (a different rule prevails in a collateral attack on an otherwise valid conviction in the absence of a showing of injury).

'If, on the other hand, counsel's appointment has been more than ten days prior to trial, Article 26.04, supra, has no application. Lamar v. State, Tex.Cr.App., 415 S.W.2d 926.

'In absence of a showing of the date of trial counsel's appointment, we would not be inclined to reverse under the circumstances here presented.' (Emphasis added.)

We would be less inclined to reverse under the circumstances presented in this case than those in Steward v. State, Supra. See also Lee v. State, 478 S.W.2d 469 (Tex.Cr.App.1972) and Schafer v. State, 436 S.W.2d 352 (Tex.Cr.App.1969).

This case is unlike that of Lepoleum Crothers v. State, 480 S.W.2d 642 (Tex.Cr.App. May 31, 1972), in which the record affirmatively showed that the defendant's counsel was appointed on the day the trial commenced.

Like Meeks v. State, 456 S.W.2d 938 (Tex.Cr.App.1970); Gray v. State, 475 S.W.2d 246 (Tex.Cr.App.1971) and Lee v. State, Supra, it appears that counsel had had sufficient time to prepare for trial and the appointment was made merely to allow payment for services. ¹

This ground of error is overruled.

The second ground of error is that 'Appellant was improperly convicted on the uncorroborated testimony of an accomplice.'

The appellant contends that the undercover agent, Fred Young, was an accomplice witness, therefore, his testimony required corroboration. An undercover '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.' Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139 (1959). Jones v. State, 427 S.W.2d 616 (Tex.Cr.App.1968). See also Martinez v. State, 471 S.W.2d 399 (Tex.Cr.App.1971); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App.1972) and Easley v. State, 478 S.W.2d 539 (Tex.Cr.App.1972). There is nothing in this record to suggest that the undercover agent was an accomplice witness and therefore, corroboration was not required.

The third ground of error is that 'The trial court erred when it admitted into evidence exhibits regarding which a proper chain of custody had not been shown.'

It is urged that 'The record does not reflect the manner in which the exhibits one, two and three were transported from the crime laboratory where they were analyzed to the courtroom where they were introduced into evidence.' The undercover agent purchased two capsules of heroin from the appellant on three separate occasions. The chain of custody of the capsules purchased on each occasion was carefully traced from the undercover agent to the crime laboratory where they were analyzed. The container for each one of the exhibits had been marked and was identified by each of the witnesses in the chain of custody when they testified. No error is shown. See Witt v. State, 475 S.W.2d 259 (Tex.Cr.App.1971) and Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971).

The fourth ground of error is that 'The evidence is insufficient to establish sale of any usable quantity of heroin.'

The appellant relies upon Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122 (1956) and Tomlin v. State, 170 Tex.Cr.R. 108, 338 S.W.2d 735 (1960). In Tomlin v. State, Supra, the conviction was for Possession of heroin and there, possession of 1.7 milligrams (1,700 micrograms) of heroin was held to be sufficient to sustain the conviction. The evidence in this case shows that the first Sale was two capsules containing 0.8 milligrams of heroin per capsule, the second Sale was two capsules containing 0.48 milligrams of heroin per capsule and the third Sale was two capsules containing 1.4 milligrams of heroin per capsule.

In Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App. May 24, 1972), we discussed and rejected the application of Greer v. State, Supra, to cases for Sale of heroin as follows:

'In Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122, this court held that a trace of a narcotic, '. . . such as may have been wiped from a needle following an injection . . .,' which had been extracted from a small piece of wet cotton, was an insufficient amount to support a conviction for unlawful possession of heroin.

'In Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, the reasoning behind the decision in the Greer case was discussed, the court stating...