Hernandez v. State, 47725
| Decision Date | 13 March 1974 |
| Docket Number | No. 47725,47725 |
| Citation | 506 S.W.2d 884 |
| Court | Texas Court of Criminal Appeals |
| Parties | Frank H. HERNANDEZ, Appellant, v. The STATE of Texas, Appellee. |
Joe D. Prickett and Harold L. Warford, San Antonio, for appellant.
Ted Butler, Dist. Atty., Fred Rodriguez, John Hrncir, David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
DAVIS, Commissioner.
Appeal is taken from a conviction for sale of heroin, under an indictment alleging a prior conviction for the possession of heroin. See Article 725b, Vernon's Ann.P.C. Punishment was assessed by the jury at sixty (60) years.
At the outset it is contended that the court erred in refusing to admonish appellant as to his privilege against self-incrimination.
Officer Chevera testified that while working undercover, posing as a dope addict, he purchased a gram of heroin from appellant on June 27, 1972, for thirty dollars.
Appellant, testifying in his own behalf, stated that Chevera and one Jim Levine attempted to buy heroin from him on the day in question and that he told them, 'I ain't got any.' Further, direct examination of appellant reflects that he had 'business' with Levine the day before the occasion in question. Testifying further with regard to what was said on the date of the alleged sale, the record reflects the following testimony of appellant on direct examination:
'Q. Okay. Did the officer say anything, Officer Chevera?
'A. No. He didn't say a single word. Then Jim Levine said, 'That heroin I scored from you yesterday was good."
Upon cross-examination, the prosecutor asked appellant about what Levine had said to him about the heroin bought from him on the previous day and appellant answered that Levine said, "It was all right.' That the heroin was brown and was all right.' It was at this point that counsel for appellant requested the court to instruct appellant that he did not have to answer anything that might tend to incriminate him. The request was again made when appellant responded in the affirmative to questions by the prosecutor regarding whether Levine had told the truth when he said the heroin was good. In both instances, the court overruled the requested instruction and it is this action by the court that appellant complains in effect denied him his Fifth Amendment privilege.
It is well established that when an accused voluntarily takes the stand he waives his privilege against self-incrimination at the hearing at which he takes the stand. Brumfield v. State, Tex.Cr.App., 445 S.W.2d 732.
The cross-examination which appears to have prompted appellant's counsel to request the instruction referred to facts developed on direct. Proper cross-examination extends to establishing the nature and facts of a prior conviction or an extraneous offense first introduced by appellant. See Shaver v. State, Tex.Cr.App., 496 S.W.2d 604; Knox v. State, Tex.Cr.App.,487 S.W.2d 322; Black v. State, Tex.Cr.App., 440 S.W.2d 668.
We find no error in the trial court's refusal to admonish appellant as to his privilege against self-incrimination.
Appellant contends the court erred in permitting prosecutor's argument to continue beyond the time allotted.
The jury argument is not in the record, it appearing that the same was not transcribed. The court reporter's notes reflect that:
'THE COURT: Ladies and gentlemen of the jury, you will please follow the bailiff to the jury room where you will be deliberating; . . .'
A bill of exception reflects that the court allowed the State to argue its case for approximately eight minutes in excess of the agreed upon time period for argument. The bill was qualified by the court to reflect that '. . . both defense attorneys failed to use allotted time for jury arguments . . .' The record reflects that jury argument was set at thirty minutes for each side by agreement. We find it impossible to reconcile the court reporter's notes which reflect that thirty-seven minutes were used in jury arguments for both sides and the bill which reflects that the State exceeded its time by approximately eight minutes.
The trial court is vested with broad discretion in regulation of the duration of argument to the jury. Robinson v. State, Tex.Cr.App., 415 S.W.2d 180; 56 Tex.Jur.2d, Trial, Sections 231, 232.
In Robinson v. State, supra, this court said:
'As a general rule the consumption by an attorney of more time than was allotted him is not reversible error, if in allowing him to finish his argument, the Court did not abuse its discretion,...
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