Hice v. State, 45842

• Decision Date: 21 March 1973
• Docket Number: No. 45842,45842
• Citation: 491 S.W.2d 910
• Parties: Johnny Wilbur HICE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 910

491 S.W.2d 910

Johnny Wilbur HICE, Appellant, v. The STATE of Texas, Appellee.

No. 45842.

Court of Criminal Appeals of Texas.

March 21, 1973.

Rehearing Denied April 11, 1973.

Evans & Marshall, San Antonio, for appellant.

Ted Butler, Dist. Atty., Charles T. Conaway, Fred Rodriguez and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of sale of heroin. The jury assessed punishment at ten years.

The sufficiency of the evidence is challenged.

The appellant was arrested on December 3, 1970, as the result of a sale of heroin which he made to Jerry Rangel, an undercover officer of the San Antonio police department. Rangel testified that on November 11, 1970, he purchased one capsule of heroin from the appellant for three dollars and fifty cents. Later that afternoon, he went to the Narcotics Bureau of the San Antonio police department and field tested the capsule and the result showed it contained heroin. Dennis Torraco, a chemist for the San Antonio police department, testified that his analysis showed the capsule to contain heroin.

Counsel contends that a chain of custody was not established and thus the capsule sold to Rangel was not the same one produced in court.

Officer Rangel testified that after he ran the field test on the capsule obtained from appellant, he placed it in a white envelope, labeled and sealed it. He then gave it to Detective Harry Carpenter who then placed the white envelope in a large brown manila envelope, sealed and placed his name on it. Detective Carpenter testified that he locked the envelope in the narcotics locker where it remained until he gave it to Dennis Torraco for a complete laboratory analysis. The chain of custody was established. The evidence is sufficient to support the conviction.

In three grounds of error, appellant contends that the trial court failed to properly admonish the jury and that as a result of that failure jury misconduct occurred when one of the jurors read a newspaper article concerning the undercover work of Officer Rangel.

Article 35.23, Vernon's Ann.C.C.P., in part, reads:

'In any case in which the jury is permitted to separate, the court shall first give the jurors proper instructions with regard to their conduct as jurors when so separated.'

The record reflects the following admonishment to the jury panel by the trial judge during his opening remarks:

'During your deliberation in a case, in any given case, you must not consider nor discuss nor relate any matters not in evidence before you during the trial. You should not consider nor mention any personal knowledge or information that you have about any fact or person connected with the case which is not before you in evidence through sworn testimony.

'. . . During the recesses you will be permitted to separate and go about your different ways. However, during your separations you are not to discuss the facts among yourselves or with any other person, do not attempt to talk to the prosecutors or the defense counsel or the defendant or my Court reporter, my bailiffs or my clerks, or anyone else connected with the case . . . That is not sworn testimony and may influence your verdict.'

Then, again at the close of the first day's testimony and before allowing the jury to separate for the evening, the trial court gave the following admonishment:

'The Court is going to again advise you and admonish you and remind you of what the Court explained to you earlier. Please, when you go home, do not discuss the facts that you have heard with anyone at home, with your husbands or with your wives or with your children or with your neighbors or with your friends or with anyone. Please, because whatever they may say--you may mention something and they may...