Hart v. State

• Decision Date: 23 June 1982
• Docket Number: No. 3,No. 63354,63354,3
• Parties: Harold HART, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 714

634 S.W.2d 714

Harold HART, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 63354.

Court of Criminal Appeals of Texas, Panel No. 3.

June 23, 1982.

Lynn S. Patton, Longview, for appellant.

Odis R. Hill, Dist. Atty., and Alvin G. Khoury, Asst. Dist. Atty., Longview, Robert Huttash, State's Atty., Austin, for the State.

Before ODOM, DALLY and McCORMICK, JJ.

OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of possession of more than four ounces of marihuana; the punishment is imprisonment for five years and a fine of $1,000.

The appellant asserts that the evidence is insufficient to support the verdict, and that the court erred: in failing to allow him to voir dire the prospective jurors on the issue of former jeopardy, in failing to charge the jury on the issue of former jeopardy, in failing to charge the jury on the lesser included offenses, in failing to charge the jury on the objectives of the Penal Code, Section 1.02, and in failing to allow him to interrogate character witnesses outside the presence of the jury before they testified to his reputation.

The appellant complains that the evidence is insufficient to sustain his conviction. The appellant, his wife, and Thomas Earl Montgomery were arrested when officers armed with a search warrant searched a trailer home. The appellant had in his sock nine hand rolled cigarettes shown to be marihuana cigarettes which weighed .30 ounces. Larger amounts of marihuana were found in the trailer, 105 baggies in one bedroom where a laundry ticket bearing the appellant's name was also found and there was a smell of marihuana in the trailer. There was evidence that appellant paid utility bills for the premises where the marihuana was found. The evidence is amply sufficient to prove the appellant was in possession or joint possession of all of the marihuana found on the premises and to sustain the jury's verdict.

The appellant who had filed a plea of former jeopardy complains because the trial court refused to allow him to voir dire the jury on that issue, and because the trial court refused to submit an instruction to the jury on that issue. In a former trial on the same indictment during the direct examination of the first witness the trial court granted appellant's motion for a mistrial. Prior to that trial the court granted the appellant's motion for discovery and inspection and ordered the prosecutor to reveal all papers and objects of real evidence in his possession. The first witness testified that he found some men's clothing in a closet in a bedroom where some of the marihuana had been found. It was developed that the clothing in a cleaning bag had a laundry ticket attached. When the laundry ticket was marked as an exhibit, appellant's counsel moved for a mistrial, because the laundry ticket had not been produced for inspection prior to trial. Although the exhibit had not yet been offered in evidence, the court granted the appellant's motion for a mistrial.

The Supreme Court has very recently held that where a defendant successfully moves for a mistrial he may invoke the bar of double jeopardy in a second effort to try him only if the conduct giving rise to the successful motion for mistrial was prosecutorial or judicial conduct intended to provoke the defendant into moving for the mistrial. Oregon v. Kennedy, --- U.S. ----, 102 S.Ct. 2083, 72 L.Ed.2d ---- (1982). The unrebutted testimony of the prosecutor on the second trial conclusively shows the prosecutor did not intend his conduct to provoke the appellant into moving for a mistrial. The prosecutor's testimony is appended.

The Court's failure to allow the appellant to voir dire the jury and its failure to charge the jury on the issue of former jeopardy was not error.

A charge on the lesser included offenses of possession of less than four ounces of marihuana was not submitted to the jury. Merely because a lesser offense is included within the proof of a greater offense, a charge on the lesser offense is not required unless there is testimony that the appellant, if guilty, is guilty only of the lesser offense. McBrayer v. State, 504 S.W.2d 445 (Tex.Cr.App.1974); Royster v. State, 622 S.W.2d 442 (Tex.Cr.App.1981). In view of the evidence already summarized there is nothing to show that the appellant was only guilty of possession of the nine cigarettes found in his sock. The evidence did not require the court to submit instructions on the lesser included offenses. Cf. McShane v. State, 530 S.W.2d 307 (Tex.Cr.App.1975), where the defendant denied possessing the larger amount of marihuana but admitted possessing less than four ounces.

The appellant complains that the court erred in refusing to charge the jurors informing them of the objectives of the penal code as set out in V.T.C.A. Penal Code, Section 1.02. The appellant contends he was entitled to such a charge because he alleges the prosecutor misinformed the jury on the law. The prosecutor in explaining the bifurcated trial said, "The first stage is primarily designed to see that the defendant and his rights are protected from society, from the system. And when we come into the second stage, at the punishment stage, I believe its...