Holdaway v. State, 47391
Citation | 505 S.W.2d 262 |
Decision Date | 13 February 1974 |
Docket Number | No. 47391,47391 |
Parties | Mike HOLDAWAY, Appellant, v. The STATE of Texas, Appellee. |
Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Harris E. Lofthus, Amarillo, for appellant.
Tom Curtis, Dist. Atty., and John J. Wheir, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of selling a narcotic drug, to-wit: morphine. Punishment was assessed by the court at five years. Appellant raises four grounds of error, the first being that the court erred in refusing his motion for an instructed verdict.
The record reflects that Michael D. Raef was sold two tablets of morphine on July 21, 1971. Raef testified that in July of 1971 he was employed by the Amarillo Police Department as an undercover narcotics agent; that while he was so employed he met a young man by the name of Pat Jackson in the early part of July; that he gave Pat a ride in his car on July 21, 1971, after he had seen him hitchhiking by Elwood Park; and that Pat at that time offered to sell him some morphine, which he agreed to buy for the price of $2.50 per 'hit.' After an agreement had been reached, Raef and Pat went to Pat's house, whereupon Pat and appellant went into the back bedroom and had a short conversation. After appellant and Pat came out of the bedroom, Pat then handed Agent Raef one tablet and Raef gave Pat a five dollar bill. Appellant then produced a package out of his pocket that had approximately fifteen or twenty tablets in it and gave Raef one of the tablets. Raef was then asked by appellant if 'that's all he wanted', to which he replied 'yes.'
Appellant, testifying in his own behalf, stated that the first time he saw Michael Raef was when Pat Jackson brought him to the house on the day in question; that Pat came into the house and stated: 'This is my new friend, he just bought me some wine, a quart of wine'; that Raef asked everybody 1 in the room if they had anything to sell; that he then took Pat in the back room and asked him who this fellow was, to which Pat replied that Pat also said that he was going to sell Raef some morphine; that they then walked out of the bedroom; that Raef then walked up to Pat and said, 'Do you have any,' to which Pat replied 'yeah'; that Pat then pulled out one and gave it to him; that he (appellant) also pulled one out and gave it to him; and that Raef then gave $5.00 to Pat. Appellant also testified that he had gotten the tablet earlier in the day from Pat; that at the time he received it he asked Pat 'What is this,' to which Pat replied 'It's morphine'; that the reason Pat gave him the $5.00 was because he owed him $12.00; and that when Pat gave him the tablet he thought it was a saccharin tablet.
At the close of the State's evidence, appellant made a motion for an instructed verdict, arguing that the evidence showed Raef was an accomplice to the alleged offense and that his testimony was not corroborated.
After reviewing the record, we find nothing contained therein to suggest that Raef was an accomplice witness whose testimony required corroboration. The rule is, as laid down by this Court in Alexander v. State, 168 Tex.Cr.R. 288, 325 S.W.2d 139 (1959), that an undercover agent is not an accomplice witness so long as he does not bring about the crime, but merely obtains evidence to be used against those engaged in the traffic. See also Carr v. State, 495 S.W.2d 936 (Tex.Cr.App.1973); Carter v. State, 480 S.W.2d 735 (Tex.Cr.App.1972); Alvarez v. State, 478 S.W.2d 450 (Tex.Cr.App.1972); Ochoa v. State, 444 S.W.2d 763 (Tex.Cr.App.1969).
Appellant contends by his second ground of error that the trial court erred in refusing to submit his special requested charge on entrapment to the jury. He argues that there is no evidence that he would have sold or given anything to anybody, absent the State's witness' activities in presenting himself as a willing buyer of 'anything' anybody had.
This Court in Haywood v. State, 482 S.W.2d 855 (Tex.Cr.App.1972), in quoting from other cases, stated:
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