Klueppel v. State, 47142

• Decision Date: 20 February 1974
• Docket Number: No. 47142,47142
• Citation: 505 S.W.2d 572
• Parties: Michael George KLUEPPEL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 572

505 S.W.2d 572

Michael George KLUEPPEL, Appellant, v. The STATE of Texas, Appellee.

No. 47142.

Court of Criminal Appeals of Texas.

Feb. 20, 1974.

Duane G. Stephens, Tyler, for appellant.

Curtis Owen, Dist. Atty., Tom Tatum, Asst. Dist Atty., Tyler, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of marihuana. Punishment was assessed by the jury at twenty years.

The record reflects that appellant was arrested in Tyler on February 8, 1972. The vehicle appellant was driving was searched and a sack found therein was seized, containing six and one-half pounds of marihuana.

Appellant contends that 'the court erred in allowing improper jury argument.'

The record reflects that the following occurred during the State's argument at the punishment phase of the trial:

'I guess you say, or you hear people say, why don't they do something? We have got these drugs, why don't they do something? Ladies and Gentlemen, y'all are they. You are here and it may be a tough job, it may be the hardest job you have ever done in you life, and it may cause you to lose a little bit of sleep, but I'm asking you for the County of Smith, City of Tyler, the people here in our community, to go back in that Jury Room and talk about the things that the law contemplates you will talk about. What number of years do we have to give to get somebody else to open their eyes? And I'm telling you, it's just as true as it can be, what you do back there, as Mr. Crow said, you set the price, you set the price right here. You come back and in essense (Sic) say, we the Jury, find that the cost for possessing six and a half pounds of marijuana and LSD and selling it and all these other things that he has done, is, and you put in a figure in that slot. (Emphasis supplied.)

'We are asking you not for us, we don't get paid a--.

'MR. STEPHENS: May it please the Court, I request that you instruct the Jury not to follow for all these other things that he has done, because the man stands charged with one thing, Your Honor, and one thing only, and that is possession of marijuana, and according to the Court's instructions, they cannot consider the other things as his penalty.

'THE COURT: Okay, overrule. Go ahead.'

The evidence introduced at the guilt stage of the trial reflects that in addition to marihuana the bag seized in appellant's car contained a number of L.S.D. capsules, L.S.D. power, secobarbital (identified by a chemist as a barbiturate) and methapyrilene (described by a chemist as a weak tranquilizer used in commercial sleep tablets and sometimes used to cut heroin). Appellant, testifying in his own behalf, denied knowledge of the contraband being in the car he was driving. On cross-examination appellant admitted that he had been arrested for the sale of L.S.D. Jerry Hall, the informer who furnished officers with the information which led to appellant's arrest, testified regarding a purchase of L.S.D. from appellant on February 4, 1972, and that he attended a party on said date at which appellant furnished the marihuana and gave an L.S.D. tablet to one of the girls present. Deputy Sheriff Sanders testified that two nights prior to the arrest in question a person he attempted to apprehend fled from him in an automobile and an informer told him that it was appellant.

In Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97, it was stated:

'This court has consistently held that an accused is entitled to be...