Leal v. State

Decision Date21 May 1969
Docket NumberNo. 42086,42086
Citation442 S.W.2d 736
PartiesRichard LEAL, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

John W. O'Dowd, Walter E. Boyd, Jr., Houston, for appellant.

Carol S. Vance, Dist. Atty., Phyllis Bell and F. M. Stover, Asst. Dist. Attys., Houston and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for the possession of heroin. The punishment was assessed at twenty years.

It is contended in the first and fifth grounds of error that the court erred in refusing to charge on circumstantial evidence, and that the evidence is insufficient to support the conviction. The record reflects that about noon on the 18th day of July, 1963, 1 Michael Chavez, a narcotics officer of the Houston Police Department, saw Leal, whom he knew, drive upon a parking lot of a Dairy Queen Cafe at the intersection of Broadway and Manchester Streets in Houston. Leal got out of the car and walked to the rear of the building. Officer Chavez saw Antonio Arrendondo, whom he also knew, drive upon the parking lot and park. Leal went to the car and Arrendondo handed him a green cellophane paper. Officer Chavez, with his partner, drove up and got out of their car. Chavez stated that they were police officers and reached for the paper. Leal dropped the green cellophane paper inside the car. Chavez opened the car door immediately. He saw the same paper or package on the floorboard between the seat and the door and picked it up. Arrendondo at this time had fifty dollars in his left hand. The contents of the package appeared to be and was later ascertained to be heroin. Officer Chavez further testified that no other cellophane package was found in the car.

Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341, holds that where the facts are in such close relation to the main fact to be proved as to constitute direct evidence it is not necessary to charge on circumstantial evidence. 2 The facts in this case come within the rule announced in Chapin. No charge on circumstantial evidence was required. The evidence is sufficient to support the conviction.

Complaint is made in the second ground of error that the trial court erred in refusing to allow the appellant to see the offense report that Officer Chavez used to refresh his memory. The record reflects that Officer Chavez did not make or assist in the making of the offense report which was used along with the transcript of the examining trial to refresh his memory prior to trial. Artell v. State, Tex.Cr.App., 372 S.W.2d 944, holds that the trial court is not required to make available a report used to refresh the memory of a witness where the report is made by a person other than the witness. Appellant urges, but we refuse to hold, that Artell should be overruled. 3

The third ground of error is:

'The Trial Court erred in refusing to allow the Defendant outside the presence of the jury to ascertain certain information bearing on the informer's credibility.'

The record shows that Officer Chavez had received information from Julius Cockrell, another officer, that appellant would be leaving the 900 block of Austin Street for the 900 block of Broadway Street with heroin in his possession. The information was obtained from one known to Officer Cockrell for a year, and who had on prior occasions given information which proved to be true.

Many questions were asked by appellant's counsel concerning the informer's background his business dealings and his character. Inquiry was made about his age, religious affiliation, race, and if he had given any false information after the information in this case was given. Appellant does not cite any authority for his contention that he was entitled to have the questions answered. He does not rely upon or come within Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, which holds that the name of an informer should be disclosed where he had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly committed the act.

The trial court properly sustained the objections by the State to prevent the disclosure of the name of the informer. Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831; Bosley v. State, Tex.Cr.App., 414 S.W.2d 468.

Complaint is made in the fourth ground of error that the trial court erred in overruling the motion to quash the indictment, because the prior federal conviction for enhancement is not denounced as an offense under the laws of the State of Texas.

The indictment alleged that appellant had been convicted in a United States District Court '* * * of the offense of receiving and facilitating the transportation and concealment of, after importation, narcotic drug, to wit: six and two-tenths grains, more or less, of heroin hydrochloride, a felony.'

Such an offense as alleged would constitute the offense of unlawful possession of a narcotic drug under Article 725b, Vernon's Ann.P.C., and was properly alleged for enhancement under Art. 62, V.A.P.C. Rodriquez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406. 4

The fourth ground of error is overruled.

It should be noted that the jury found appellant guilty at the guilt stage of the trial under Article 37.07, V.A.C.C.P. At the penalty stage of the trial the jury found appellant had been previously convicted as charged in the indictment, but assessed the penalty at twenty years instead of life as required by Article 62, V.A.P.C. Appellant did not object to the court's charge on the ground that it authorized a penalty for a term of years. No ground of error on the court's charge is presented.

This case is almost identical to, and is controlled by, Leal v. State, 169 Tex.Cr.R. 222, 332 S.W.2d 729, 731. 5 It was held that the error in the court's charge was favorable to the defendant and he could not complain.

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24 cases
  • Corbett v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 1, 1973
    ...preserved the error by filing a Motion to Include Original of Witness' Statement in record on appeal. See Leal v. State, Tex.Cr.App., 442 S.W.2d 736 (concurring opinion). The motion was granted by the court and, while forwarded within the State's appellate brief, it was incorporated by refe......
  • White v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 5, 1972
    ...S.W.2d 110 (Tex.Cr.App.1967); Rose v. State, 427 S.W.2d 609, 612 (Tex.Cr.App.1968) (concurring opinion); Leal v. State, 442 S.W.2d 736, 738 (Tex.Cr.App.1969) (concurring opinion).See also Hart v. State, 447 S.W.2d 944, 947 (Tex.Cr.App.1970); Carey v. State, 455 S.W.2d 217, 219 (Tex.Cr.App.1......
  • White v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 27, 1973
    ...has been used to refresh the memory of a non-maker witness prior to testifying. 16 Baylor L.Rev. 51, 60. Leal v. State, 442 S.W.2d 736, 739 (Tex.Cr.App.1969) (concurring opinion); Rose v. State, supra (concurring opinion). Cf. Dover v. State, 421 S.W.2d 110 In the instant case the reports o......
  • Mendoza v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 8, 1977
    ...record the statement or report he claimed he was deprived of. Gilbreath v. State, supra; Lewis v. State, supra; Leal v. State, 442 S.W.2d 736 (Tex.Cr.App.1969). The record in the instant case fails to reveal that either of these conditions was satisfied. Although it is questionable whether ......
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