Elkins v. State
| Decision Date | 01 December 1976 |
| Docket Number | No. 52224,52224 |
| Parties | Larry ELKINS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Sam C. Bashara, San Antonio, for appellant.
Tully Shahan, Dist. Atty., and Durwood Edwards, Asst. Dist. Atty., Del Rio, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for delivery of more than one-fourth ounce of marihuana. Punishment was assessed by the jury at five years and a $5,000 fine.
Appellant complains in his first ground of error that the trial court erred in partially overruling his request for a list of witnesses by ordering the State to identify only the witnesses it would use in its case in chief.
The record reflects that paragraph seven of appellant's motion for discovery requests that the State be ordered to reveal:
'the names and addresses of all witnesses or possible witnesses who are known to the attorneys for the State or any of its agencies.'
Appellant's complaint appears to be bottomed on the court's action in limiting disclosure to those witnesses that the State would use in its case in chief. Hoagland v. State, Tex.Cr.App., 494 S.W.2d 186, is adverse to this argument.
Appellant cites Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), for the proposition that he is entitled to the disclosure of any and all evidence favorable to him in connection with the accusations pending against him, including the names of any witnesses to the alleged marihuana transaction. The record does not reflect, nor does the appellant suggest, that any evidence favorable to appellant was suppressed or that as a result of the court's ruling there was a failure to disclosure evidence which might have exonerated appellant. Brady v. Maryland, supra; Appleman v. State, Tex.Cr.App., 531 S.W.2d 806; Means v. State, Tex.Cr.App., 429 S.W.2d 490.
No error is shown.
Appellant contends that the court erred in failing to instruct a verdict of not guilty in that the State did not prove that he delivered over one-fourth ounce of marihuana because the State did not negate the existence of the excluded materials in the statutory definition of marihuana.
Section 1.02(17) of the Controlled Substances Act excludes certain parts of the marihuana plant from the definition of marihuana; i.e., the resin, mature stalks, and sterlized seeds.
Section 5.10 of the Controlled Substances Act provides in pertinent part:
'(a) It is not necessary for the state to negate any exemption or exception set forth in this Act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this Act, and the burden of going forward with the evidence with respect to any exemption or exception shall be upon the person claiming its benefit.'
After setting forth Sec. 5.10, supra, this Court in Doggett v. State, 530 S.W.2d 552, held:
'. . . the provisions of Sec. 1.02(17) of the Controlled Substances Act which exclude certain materials from the definition of marihuana are in the nature of exceptions and that the burden of going forward with the evidence pertaining thereto rests upon the person claiming their benefit; . . ..'
Appellant recognizes that our decision in Doggett is adverse to his position, but urges that it is in direct conflict with the United States Supreme Court's decisions in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In Winship, it was held that the due process clause protects the accused, whether a juvenile or an adult, against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.
In Mullaney, a Maine statute was held unconstitutional which required a defendant to establish by a preponderance of the evidence that he acted in a heat of passion on sudden provocation in order to reduce murder to manslaughter.
The holding in Doggett construing Secs. 5.10 and 1.02(17) of the Controlled Substances Act does not have the effect of...
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...P.2d 294 (1974); State v. Brothers, 212 Kan. 187, 510 P.2d 608 (1973); State v. Dixon, 546 S.W.2d 774 (Mo.App.1977); Elkins v. State, 543 S.W.2d 648 (Tex.Cr.App.1976). 1 Underhill's Criminal Evidence § 54 (6th ed. 1973); 1 Wharton's Criminal Evidence § 20 (13th Ed. 1972). See also Cockrell ......
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State v. Hart, 14230
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...by limiting his order to certain witnesses, such as those to be called by the State during its case-in-chief. Elkins v. State, 543 S.W.2d 648 (Tex.Crim.App.1976); Green v. State, 510 S.W.2d 919 The posture of the instant case is opposite that usually found in witness discovery situations. A......
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