Jackson v. State, No. 04-81-00373-CR

CourtCourt of Appeals of Texas
Writing for the CourtKLINGEMAN
Citation640 S.W.2d 323
Decision Date30 June 1982
Docket NumberNo. 04-81-00373-CR
PartiesKenneth Earl JACKSON, Appellant, v. STATE of Texas, Appellee.

Page 323

640 S.W.2d 323
Kenneth Earl JACKSON, Appellant,
v.
STATE of Texas, Appellee.
No. 04-81-00373-CR.
Court of Appeals of Texas,
San Antonio.
June 30, 1982.
Rehearing Denied Oct. 26, 1982.

Page 324

David Chapman, San Antonio, for appellant.

Bill White, Dist. Atty., Alan Battaglia, Asst. Dist. Atty., San Antonio, for appellee.

Before KLINGEMAN, BUTTS and CLARK, JJ.

OPINION

KLINGEMAN, Justice.

This appeal is from a conviction for the delivery of heroin as a repeater from a second trial for the same offense. 1 At the first trial appellant was found guilty of the offense of delivery of heroin and determined to be a repeat offender. The court assessed punishment at fifteen years confinement, the minimum punishment for this first-degree felony offense. See Tex.Penal Code Ann. Sec. 12.42(c) (Vernon 1974). At the second trial appellant elected to have the jury assess his punishment. Appellant pled "true" to the State's prior enhancement allegation at the beginning of the hearing on punishment. After the State presented evidence, the jury found the enhancement allegation to be true and assessed punishment at twenty-five years confinement.

The State's principal witness was an undercover San Antonio Police Officer, Philip Jefferson, who arrested the appellant. Jefferson testified that appellant gave him a white, clear-colored capsule which had some powdery substance in it. He stated further that the capsule was supposed to contain heroin. In response to the question "What did you do with that capsule?", the officer said that he took it to Detective Bratton and turned it over to him.

When asked to identify State's exhibit number two, Officer Jefferson testified that it was a plastic container with his initials on the bottom. The capsule was placed inside this plastic container. After stating that he gave this capsule to Detective Bratton on the same day as the arrest of appellant, Officer Jefferson identified State's exhibit number three as a white envelope with his initials on it. He also testified that once the capsule was placed in the plastic bag it was then put into a white envelope which he initialed, sealed, and released to Detective Bratton. Detective Bratton took it to the medical examiner's

Page 325

office. Further, Officer Jefferson testified that this was the only capsule he had in his possession that day.

After Detective Bratton identified State's exhibits number two and three as containing the capsule he received from Officer Jefferson, he testified that he returned the white envelope (State's exhibit number three which contained State's exhibit number two which contained the capsule given to him by Officer Jefferson) to the Narcotics Bureau where it was placed inside a brown envelope. The brown envelope was marked State's exhibit number four. When questioning Detective Bratton about this evidence, the prosecutor stated that this evidence was placed under laboratory number N-2973. Later, when the prosecutor was questioning the chemist about the same evidence, he established that the evidence was placed under laboratory number N-7392. Notwithstanding this discrepancy with respect to the laboratory numbers, the chemist stated that an examination of the contents of State's exhibit number two revealed that it contained heroin.

Appellant's fourth ground of error alleges that the evidence is insufficient to prove that the capsule which appellant allegedly delivered contained heroin. We address this ground of error first because a favorable ruling for appellant would result in a reversal and dismissal of this cause. Specifically, appellant complains that although Officer Jefferson identified State's exhibit number two as a plastic container where the capsule was placed, he did not state that it was the same capsule he received from appellant. Appellant asserts that Jefferson had had other capsules on his person on other occasions. Further, appellant argues that although Jefferson gave the capsule he received from appellant to Detective Bratton, neither Jefferson nor Bratton testified that he gave State's exhibit number two to Bratton. Appellant poses this argument notwithstanding the fact that Bratton also identified State's exhibit number two. Finally, appellant argues that State's exhibit number two was placed in an envelope and apparently placed under laboratory number N-2973. Appellant asserts, however, that the only testimony showing any substance to be heroin was that controlled by laboratory number N-7392. As a result, appellant concludes that heroin was never otherwise tied to appellant or to State's exhibit number two.

At first glimpse the case which appears to be analogous to the case at bar is Jones v. State, 538 S.W.2d 113 (Tex.Cr.App.1976). In Jones, the defendant, who was convicted of the offense of possession of heroin, complained in his sole ground of error that the evidence was insufficient because a chain of custody for the subject heroin had not been established. The Court of Criminal Appeals agreed and reversed the...

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5 practice notes
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 24 Julio 1985
    ...appeal in order that an evidentiary hearing might be held to develop facts regarding appellant's first ground of error. Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd.). Appellant's first ground of error alleged that trial counsel had rendered ineffective assistanc......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 Noviembre 1988
    ...have assessed a more severe penalty than 15 years if he had been chosen by the appellant to have assessed punishment. Jackson v. State, 640 S.W.2d 323 (Tex.App.-San Antonio 1982) pet. ref'd. Following the evidentiary hearing in the trial court, the Court of Appeals determined that Pearce ap......
  • Gullatt v. State, No. 10–09–00244–CR.
    • United States
    • Court of Appeals of Texas
    • 4 Enero 2012
    ...Antonio 1988, pet. ref'd); Simpson v. State, 709 S.W.2d 797, 804–805 (Tex.App.-Fort Worth 1986, pet. ref'd); Jackson v. State, 640 S.W.2d 323, 325–26 (Tex.App.-San Antonio 1982, pet. ref'd). Similarly, Jones has been factually distinguished in numerous unpublished cases. See e.g. Page v. St......
  • Jackson v. State, No. 04-81-00373-CR
    • United States
    • Court of Appeals of Texas
    • 9 Noviembre 1983
    ...hearing might be held to develop facts regarding appellant's allegation of ineffective assistance of counsel. See Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd). The facts of this appeal are fully stated in Jackson, supra, however, for clarity they will be repeate......
  • Request a trial to view additional results
5 cases
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 24 Julio 1985
    ...appeal in order that an evidentiary hearing might be held to develop facts regarding appellant's first ground of error. Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd.). Appellant's first ground of error alleged that trial counsel had rendered ineffective assistanc......
  • Jackson v. State, No. 115-84
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 23 Noviembre 1988
    ...have assessed a more severe penalty than 15 years if he had been chosen by the appellant to have assessed punishment. Jackson v. State, 640 S.W.2d 323 (Tex.App.-San Antonio 1982) pet. ref'd. Following the evidentiary hearing in the trial court, the Court of Appeals determined that Pearce ap......
  • Gullatt v. State, No. 10–09–00244–CR.
    • United States
    • Court of Appeals of Texas
    • 4 Enero 2012
    ...Antonio 1988, pet. ref'd); Simpson v. State, 709 S.W.2d 797, 804–805 (Tex.App.-Fort Worth 1986, pet. ref'd); Jackson v. State, 640 S.W.2d 323, 325–26 (Tex.App.-San Antonio 1982, pet. ref'd). Similarly, Jones has been factually distinguished in numerous unpublished cases. See e.g. Page v. St......
  • Jackson v. State, No. 04-81-00373-CR
    • United States
    • Court of Appeals of Texas
    • 9 Noviembre 1983
    ...hearing might be held to develop facts regarding appellant's allegation of ineffective assistance of counsel. See Jackson v. State, 640 S.W.2d 323 (Tex.App.--San Antonio 1982, pet. ref'd). The facts of this appeal are fully stated in Jackson, supra, however, for clarity they will be repeate......
  • Request a trial to view additional results

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