Garber v. State

• Decision Date: 11 April 1984
• Docket Number: No. 08-83-00041-CR,08-83-00041-CR
• Citation: 671 S.W.2d 94
• Parties: David Paul GARBER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 94

671 S.W.2d 94

David Paul GARBER, Appellant, v. The STATE of Texas, Appellee.

No. 08-83-00041-CR.

Court of Appeals of Texas El Paso.

April 11, 1984.

William Ellis, El Paso, for appellant.

Steve Simmons, Dist. Atty., El Paso, for appellee.

Before WARD, OSBORN and SCHULTE, JJ.

OPINION

SCHULTE, Justice.

This is an appeal from a jury conviction for delivery of methaqualone. The court assessed punishment at six years imprisonment. We affirm.

In Ground of Error No. One, Appellant contends that he was entitled to a mistrial since he was exposed to a member of the jury while in handcuffs. After jury selection, the members of the jury were released and instructed to return to the courtroom at 2:30 p.m. At approximately 1:50 p.m., a sheriff's deputy escorted the handcuffed Appellant back to the courtroom. In the hall outside the courtroom, the two passed one member of the jury who had returned early. The deputy was not armed. No words were exchanged with or in the present of the juror. Appellant's immediate motion for mistrial was denied. The court offered an instruction to the jury but Appellant declined.

Appellant's only cited authority, Moore v. State, 535 S.W.2d 357 (Tex.Cr.App.1976), found a reversible infringement of the presumption of innocence where, over objection and without justification appearing in the record, the defendant was brought into the courtroom in handcuffs in the presence of the jury. Here we are dealing with a single, chance exposure to a single juror outside the courtroom. The Appellant was being returned to the courtroom well in advance of the anticipated return of the jurors. The sheriff's deputy was not the same one present at the time of jury selection and consequently, could not have recognized the lone juror seated in the hallway. These facts sufficiently distinguish this case from Moore and render it incumbent upon the Appellant to affirmatively show prejudice to his cause. Wright v. Texas, 533 F.2d 185 (5th Cir.1976); Garcia v. State, 634 S.W.2d 888, 893 (Tex.App.--San Antonio 1982, no pet.). No such showing was attempted in this case. Ground of Error No. One is overruled.

In Ground of Error No. Two, Appellant asserts that the court erred in denying his motion to set aside the indictment for failure to comply with the speedy trial priorities set out in Tex.Code Crim.Pro.Ann. art. 32A.01 (Vernon Supp.1983). Appellant offered evidence that Ramon A. Montes, Sheriff of El Paso County, was indicted on three counts of official misconduct on November 10, 1982. Montes was admitted to bond on the same date and remained free on bond throughout his trial, ending December 13, 1982. Appellant's indictment predated that of Montes and Appellant remained in custody throughout the period ending December 13, 1982. Appellant's trial was conducted on January 10, 1983. No speedy trial complaint is raised under Article 32A.02. Appellant contends that it was the State's burden to present evidence of the impracticability of trying his case in advance of Montes.

Article 32A.01 is directed to the trial courts of this state, while Article 32A.02 is directed toward prosecutorial delay. Barfield v. State, 586 S.W.2d 538 (Tex.Cr.App.1979). The record does not reflect that the Montes trial was accelerated to the detriment of the confined Appellant upon motion of the prosecutorial authority. Furthermore, the very language of Article 32A.01 indicates that while the order of trial priorities between incarcerated and bonded criminal defendants is mandatory, the mechanics of effectuating such priorities must be flexible and subject to reasonable, good-faith variation. Unfortunately, our society could not tolerate a rigid system under which bonded defendants must wait until the jails are empty before they may proceed to trial. Those individuals and society as a whole have a right to speedy trial as well. A single instance of a bonded defendant going to trial before one in pretrial confinement does not demonstrate a violation of Article 32A.01.

Additionally, we note that in this specific instance the acceleration of Sheriff Montes' trial for official misconduct was justified by a substantial State interest in avoiding any prolonged disturbance of the proper operation of the chief law enforcement agency within the county. Ground of Error No. Two is overruled.

In Ground of Error No. Three, Appellant contends that the evidence consisting of two vials of pills taken from a closed safe in his bedroom closet should have been excluded as the product of an illegal, warrantless search.

Operating in an undercover capacity as a purchaser of drugs, Detective Dale Newkirk arrived at the Appellant's apartment and was admitted by the Appellant into the bedroom. Appellant removed two vials of pills from a safe located in the closet. He poured the contents on the bed and allowed Newkirk to select thirty capsules. At that moment, backup police arrived and knocked on the door. Appellant picked up the pills, other than those already tendered to Newkirk, and returned them to the vials and replaced the vials in the safe, closing but not locking the door. Newkirk identified himself and placed Appellant under arrest. As the latter was gathering his clothes, he grabbed two of the thirty pills on the bed and swallowed them. He was then physically restrained. Newkirk went to the safe and retrieved the two vials of pills which were subsequently introduced at trial.

Appellant's complaint does not withstand even the threshold question of whether a "search" took place. A search is a "quest for, a looking for, or a seeking out of that which offends against the law." Vargas v. State, 542 S.W.2d 151, 153 (Tex.Cr.App.1976). Newkirk's action was not an investigative quest; it was a seizure of that which had already been disclosed to him. Had Appellant initially drawn the items from an undisclosed location and subsequently returned them to some cache unknown to Newkirk, we would be confronted with a different situation, one requiring a warrant before an examination of the premises could commence.

Appellant's stance also falls short of the reasonable expectation of privacy standard enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The only expectation of privacy exhibited by Appellant was with regard to those knocking on the door. Newkirk was fully admitted to Appellant's confidence with regard to the safe and its contents. Unfortunately his confidence was misplaced. Ground of Error No. Three is overruled.

In Ground of Error No. Four, Appellant contends that the court should have directed a verdict in his favor since the testimony of the offeree was not corroborated by other evidence as required by Tex.Rev.Civ.Stat.Ann. art. 4476-15, sec. 1.02(8) (Vernon Supp.1984). The only other evidence tending to connect Appellant with the commission of the offense consisted of the pills and capsules and the two prescription vials bearing labels made out in the name of the Appellant.

Appellant's challenge is two-fold. He first contends that the presence of the drugs allegedly offered for sale cannot supply the necessary corroboration.

A process of simple logic compels the conclusion that the pills may have been corroborative of possession, but they cannot be corroborative of an offer to sell. To hold otherwise would hold meaningless the requirements of corroboration in delivery cases, especially as in this case where the testimony of offeree was an essential ingredient to the admissibility of the pills themselves. (Brief of Appellant at page 11).

The first prong of Appellant's argument has a superficial appeal which only evaporates upon realization that this comparative distinction is incorrectly drawn between possession and delivery offenses. That is not the dividing line for the corroboration requirement. Delivery in the form of an offer to sell is the only situation requiring corroboration. Deliveries by actual or constructive transfer, as well as possessory offenses, require no corroboration, thus the underlying distinction is not, as suggested by Appellant, between possessory and delivery offenses. The factor common to the non-corroboration offenses is that the drugs must be present in some fashion, as an element of the offense. Actual presence of the drugs is not an element of the offense of delivery by offer to sell. Hence, a corroboration requirement is superimposed by the legislature. While Appellant suggests the use of other forms of corroboration such as tape recordings, we can think of no more appropriate corroboration than the offeror's possession (or in this case actual tender) of the drugs. Their presence supports not only the intention to sell, but the ability to perform the contract. This is not to say that the presence of any drugs will serve as corroboration for an offer to sell. The type and quantity of drugs present should be consistent with the terms of the offer testified to by the offeree, either as conforming goods or a representative sample of the proffered merchandise. If those qualifications are met, then the actual presence of the drugs can serve as corroboration.

The second prong of Appellant's challenge addresses the source of the corroboration. Section 1.02(8) of the Controlled Substances Act requires that the corroboration be "by a person other than the offeree or by evidence other than a statement of the offeree." In this case, the State's corroboration did not consist of testimony as to audio-visual observations of the offeree or any other individual. It consisted of physical evidence including the pills and pharmacy vials bearing prescription labels in Appellant's name. Appellant contends that this physical evidence is without admissibility or...