Chambers v. State, 59140

• Decision Date: 16 July 1980
• Docket Number: No. 1,No. 59140,59140,1
• Citation: 601 S.W.2d 360
• Parties: Lester Steven CHAMBERS, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 360

601 S.W.2d 360

Lester Steven CHAMBERS, Appellant, v. The STATE of Texas, Appellee.

No. 59140.

Court of Criminal Appeals of Texas, Panel No. 1.

July 16, 1980.

D. Brian Blessing, Dallas, for appellant.

Henry Wade, Dist. Atty., Steve Wilensky and John William Booth, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and DALLY, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of unlawfully obtaining from a registered pharmacist a controlled substance, to-wit: phenmetrazine, by the use of a false and forged prescription. The punishment, enhanced by two prior felony convictions, is imprisonment for life.

The appellant contends that: the punishment assessed is cruel and unusual; evidence of an extraneous offense was erroneously admitted; evidence of an in-court identification was erroneously admitted; and the evidence is insufficient to support the verdict.

Geraldine O'Brien, a registered pharmacist, testified that appellant entered the pharmacy where she worked at about 9:00 a. m. on March 11, 1976. He was dressed in a light blue work shirt and blue pants. He presented her with a prescription for sixty 75-milligram tablets of Preludin (phenmetrazine). The prescription purported to be for William Bailey. The appellant stated he did not have his driver's license, but gave her a social security number. After O'Brien filled the prescription, the appellant discovered he did not have enough money to pay for the entire prescription. O'Brien allowed him to pay for that portion he could afford, forty-five tablets, and told him he could return that evening to purchase the remaining fifteen tablets. She unsuccessfully tried to reach the prescribing doctor that day to verify the prescription. When appellant returned that evening, at about 6:45, she filled the rest of the prescription. Appellant paid for it with what appeared to be a twenty-dollar bill which O'Brien later discovered was a one dollar bill changed to make it appear to be a twenty-dollar bill. She called the police the following morning. The prescription purported to be written by Dr. Tom E. Kelly, M. D. Dr. Kelly, when reached, confirmed that he had neither written nor authorized the prescription. He testified that appellant was not his patient, nor did he have a patient named William Bailey.

The appellant did not testify. His father, Jerome Chambers, and Geraldine Hatman, both testified that the appellant remained with them in Hatman's apartment from around 7:30 to around 11:30 on the morning of March 11, 1976, except for a three-minute visit to a neighbor. The neighbor, Ron Neff, testified he heard appellant playing a guitar "all morning long."

Appellant first contends, in four grounds of error, that the punishment assessed against him is unconstitutional. He argues that to automatically impose a sentence of life imprisonment because this is his third felony conviction violates the ban against cruel and unusual punishment. We find this contention to be without merit. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980).

The appellant next contends that the trial court erred in admitting, over objection, testimony offered by the state in rebuttal that appellant committed the extraneous offense of obtaining phenmetrazine and biphetamine from a registered pharmacist by use of forged prescriptions. Wendell Warren, a registered pharmacist, positively identified appellant as the man who, at 8:00 p. m. on March 11, 1976, came into his pharmacy in Richardson, Texas, to fill two prescriptions. He stated appellant was wearing a blue-gray shirt. The prescriptions, which purported to be written by Dr. Tom E. Kelly, M. D. for Martha and Walter Driggs, were for sixty 75-milligram tablets of Preludin (phenmetrazine), and for thirty 20-milligram capsules of biphetamine. Warren testified that these were the strongest dosages in which these medications are available. Warren filled the prescription for biphetamine, and filled half the prescription of Preludin, suggesting that appellant return the following day for the other half. Warren testified that these two drugs are usually prescribed for people with weight problems and that appellant did not appear to have a weight problem. Becoming suspicious about the prescriptions, Warren called the doctor to verify that he had made them. The doctor informed him that the prescriptions were forgeries and Warren alerted the police. The next day, when appellant returned to Warren's pharmacy, he was arrested.

Evidence of unrelated offenses committed by a defendant is generally not admissible, since a defendant may not be tried for some collateral crime or for being a criminal generally. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972). There is an exception to this general rule where evidence of the commission of other offenses by the accused is introduced to establish the identity of the person or crime, intent, motive, system, or as part of the res gestae. Albrecht v. State, supra.

The State argues that the testimony about the extraneous offense in this case was admissible in rebuttal because it was offered to establish the issue of appellant's identity in the offense for which he was tried. Evidence that would also prove a separate offense is admissible when offered on the issue of identity only (1) if the identity is a controverted issue and (2) if there are distinguishing characteristics common to both the extraneous offense and the offense for which the defendant is on trial. Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975). See Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Mitchell v. State, 503 S.W.2d 562 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1973).

In the present case, although appellant did not testify, he offered the defense of alibi through defense witnesses, thereby making identity a controverted issue. Collins v. State, 577 S.W.2d 236 (Tex.Cr.App.1979). Therefore, the evidence concerning the extraneous offense is admissible provided that there are distinguishing characteristics common to both the extraneous offense and the offense for which appellant was on trial. The common characteristics may be proximity in time or place, or the common mode of the commission of the act. Collins v. State, supra; Ransom v. State, supra.

In this case, both acquisitions of controlled substances occurred on the same day. Appellant was positively identified as the actor in each instance, and was described as wearing a blue work shirt, and a blue-gray shirt. Each time, the actor used a forged prescription purportedly written by Dr. Kelly which specified sixty 75-milligram tablets of Preludin. In each instance, when necessary because of his lack of money or the pharmacist's low supplies, the actor filled part of the prescription and returned later to obtain the rest of the medicine.

We conclude that there is sufficient similarity shown between the offenses to render the evidence of the extraneous offense admissible on the...