Kemner v. State, 55786

• Decision Date: 13 June 1979
• Docket Number: No. 1,No. 55786,55786,1
• Parties: Charles Richard KEMNER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 403

589 S.W.2d 403

Charles Richard KEMNER, Appellant, v. The STATE of Texas, Appellee.

No. 55786.

Court of Criminal Appeals of Texas, Panel No. 1.

June 13, 1979.

Rehearing Denied Nov. 28, 1979.

Jack M. McGinnis, San Antonio, Samuel H. Bayless, on appeal only, Darby Riley, on appeal only, San Antonio, for appellant.

Tim Curry, Dist. Atty., Marvin Collins, Rufus J. Adcock, Travis Young and Ronald G. Knight, Asst. Dist. Attys., C. Chris Marshall, Asst. Crim. Dist. Atty. for Tarrant County, Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and ROBERTS and W. C. DAVIS, JJ.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for possession of more than four ounces of marihuana. A jury found the appellant guilty and assessed punishment at ten years' confinement.

Appellant is before us with ten grounds of error. He contends: (1) that the court erroneously admitted testimony that the marihuana seized could be used to produce 28,000 marihuana cigarettes; (2) that the court erroneously admitted testimony concerning the value of the seized marihuana (3) that the court erroneously allowed the prosecutor to imply that appellant had committed extraneous offenses; (4) that the marihuana was the product of an illegal search and seizure and should have been excluded from evidence; (5) that the court erroneously admitted evidence of a business record without the proper predicate required by Article 3737e, V.A.C.S. having first been laid; (6) that the court erred in denying appellant's motion that the informant's name be disclosed; (7) that the court erroneously denied appellant's motion to examine a police report; (8) that the court's charge on punishment was fundamentally defective; (9) that Article 42.12(B)(3a), Vernon's Ann.C.C.P., providing for jury recommendations of probation, is unconstitutional, and (10) that the court erroneously denied appellant's motion for continuance. We affirm.

Due to the nature of appellant's contentions, we find it more suitable to set out the salient facts pertaining to each ground of error immediately preceding each discussion thereof. Suffice it to say for the present that appellant was apprehended with approximately 31 pounds of marihuana as he was attempting to leave the Dallas-Fort Worth Airport. The arrest was made as the result of an informant's tip and without a warrant.

In his first two grounds of error, appellant complains of testimony offered by the State to the effect that the marihuana seized could be used to produce 28,000 marihuana cigarettes and had the value of approximately $125 per pound.

Jose Alvarez, a chemist for the Drug Enforcement Administration (DEA), testified that during his two years' employment with the DEA he had the occasion to analyze marihuana and knew the quantity of that substance contained in an average marihuana cigarette. Alvarez further testified that 31.5 pounds of marihuana (the amount seized from the appellant) would produce approximately 28,000 cigarettes. Detective William Glenn of the Department of Public Safety testified that during his experience as an undercover narcotics officer he was familiar with the price of marihuana and that a pound of marihuana would sell for approximately $125 in the Dallas area. All of this testimony was admitted over appellant's timely objection.

This Court has held that it is not reversible error for a chemist to testify on the basis of his expert knowledge as to the strength of the narcotic recovered and to translate the amount of the narcotic recovered into terms understandable by the jury. Magee v. State, 504 S.W.2d 849 (Tex.Cr.App.1974); Enriquez v. State, 501 S.W.2d 117 (Tex.Cr.App.1973). We have reached a similar conclusion where testimony was admitted concerning the value of the narcotic recovered. Castro v. State, 432 S.W.2d 948 (Tex.Cr.App.1968). We cannot say that the facts of the present case require a result different from our previous holdings. Accordingly, appellant's first and second grounds of error are overruled.

By his third ground of error, the appellant contends that the court erroneously permitted the prosecutor to imply that he had committed extraneous offenses which had not resulted in final convictions. With respect to this ground of error, the record reflects that appellant's wife was called as a character witness at the punishment phase of the trial and was asked on cross-examination if she knew the whereabouts of appellant on four different occasions prior to the date of the offense in question. She was also asked if she was aware of any "transactions" which occurred on those various occasions. Appellant failed to object to these questions in a timely and specific manner; therefore, nothing is presented for review. Dinn v. State, 570 S.W.2d 910 (Tex.Cr.App.1978); Rodriguez v. State, 417 S.W.2d 165 (Tex.Cr.App.1967).

By his fourth ground of error, the appellant challenges the legality of the warrantless search of his suitcase conducted at or near the time he was arrested at the Dallas-Fort Worth Airport. He contends that the search cannot be justified under the exigent circumstances exception to the Fourth Amendment warrant requirement (and also the requirement of Article I, Section 9 of the Texas Constitution) nor as a search incident to lawful arrest.

John Powell, agent for the DEA in McAllen, testified at the appellant's motion to suppress that on December 19, 1975, at approximately 8 p. m., a reliable informant employed by Texas International Airlines whose identity he did not reveal informed him that moments earlier the appellant had checked in a large blue suitcase on Texas International Airlines flight 994 bound for Dallas. The informant told Powell that after he smelled the odor of marihuana emanating from appellant's suitcase, he opened it and found a large quantity of marihuana. Powell then relayed this information along with appellant's physical description to a fellow narcotics agent in Dallas who in turn contacted Detective Glenn at the Dallas-Fort Worth Airport advising him of the appellant's flight number and scheduled time of arrival.

Glenn testified that the appellant's flight finally arrived approximately two hours later than the scheduled time of arrival. Glenn observed the appellant's suitcase as it was being unloaded from the plane and kept it under surveillance until the appellant picked it up and began to leave the airport. At that time, Glenn placed the appellant under arrest, seized the suitcase, and escorted the appellant to a nearby security office where a search of the suitcase conducted without a warrant revealed approximately 31 pounds of marihuana.

The appellant places primary reliance on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) in which the Supreme Court held to be unreasonable the warrantless search of the defendant's footlocker which was seized at the time of his arrest but searched over an hour later at the police station. The Court held that the search could not be justified on the basis of exigent circumstances nor as a valid search incident to arrest because the footlocker was searched at a time and place remote from the place of arrest and after it had been reduced to the exclusive possession of government agents.

Although Chadwick lends support to the appellant's contention that the present search cannot be justified under the "incident to lawful arrest" or "exigent circumstances" exception to the warrant requirement, we conclude nevertheless, on the authority of United States v. Peltier, 422 U.S. 531, 95 S.Ct. 2313, 45 L.Ed.2d 374 (1975), that Chadwick should not be applied retroactively. Several federal appellate courts have arrived at the same conclusion. See United States v. Berry, 571 F.2d 2 (7th Cir. 1978); United States v. Montgomery, 558 F.2d 311 (5th Cir. 1977). In United States v. Peltier, supra, the Supreme Court held that any judicial enlargement of the exclusionary rule will be given retroactive effect only when "the law enforcement officer had knowledge or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" at the time it was conducted. Ibid, 422 U.S. at 542, 95 S.Ct. at 2320. With this principle in mind, we are inclined to agree with the 7th Circuit Court of Appeals which held in United States v. Berry, supra, that:

". . . (U)ntil Chadwick, there was no reason for law enforcement officials to believe that attache cases were not among those personal effects which, under United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), could be seized as part of a 'full search of the person' incident to a lawful arrest, and which, under United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), could be searched several hours after the suspect had been taken into custody." Ibid at 571 F.2d 3.

We hold therefore, that at the time in question the warrantless search of appellant's suitcase was justified as a search incident to lawful arrest and that the evidence seized as a result thereof was properly admitted at trial. ¹ Chimel v. California 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Fry v. State, 493 S.W.2d 758, 770 (Tex.Cr.App.1972) (Opinion on State's Second Motion for Rehearing); Lane v. State, 424 S.W.2d 925 (Tex.Cr.App.1967); see and compare Chaires v. State, 480 S.W.2d 196 (Tex.Cr.App.1972). Accordingly, appellant's fourth ground of error is overruled.

Appellant next contends that the court erroneously admitted over his timely objection a DEA "evidence transmittal sheet" without the proper predicate being laid as required by Tex.Rev.Civ.Stat.Ann., Article 3737e. This contention is without merit.

Alvarez testified that the "evidence transmittal sheet" was a record of the DEA; that it was made in the regular course of business; that it was the regular course of business for an employee or representative of the DEA to have personal...