Magee v. State, 47870

• Decision Date: 06 February 1974
• Docket Number: No. 47870,47870
• Parties: Steve MAGEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 849

504 S.W.2d 849

Steve MAGEE, Appellant, v. The STATE of Texas, Appellee.

No. 47870.

Court of Criminal Appeals of Texas.

Feb. 6, 1974.

Roland H. Hill, Jr., Fort Worth, for appellant.

Tim Curry, Dist. Atty., Earl E. Bates, Glen E. Eakman and Roger W. Crampton, Asst. Dist. Attys., Fort Worth, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

BROWN, Commissioner.

This appeal is from a conviction for the offense of sale of a narcotic drug, to-wit: heroin; the punishment assessed by the jury is confinement in the Texas Department of Corrections for five years.

Appellant does not contest the sufficiency of the evidence, but urges five grounds of error.

In his first ground of error appellant contends the trial court erred in permitting Frank Shiller, the Director of the Criminalistic's Laboratory in Fort Worth, to testify that an injection of 0.22 grams of 80% Heroin would be fatal over an objection that such testimony was irrelevant and immaterial. This testimony of Shiller was offered after the evidence established that the strength of the heroin purchased from the appellant was determined to be 80% And the quantity was 0.22 grams.

We overrule this ground of error. This court has held it is not reversible error to permit 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 narcotic recovered into terms understandable to the jury. Martinez v. State, 407 S.W.2d 504 (Tex.Cr.App.1966); Acosta v. State, 403 S.W.2d 434 (Tex.Cr.App.1966); Guajardo v. State, 378 S.W.2d 853 (Tex.Cr.App.1964); McGaskey v. State, 451 S.W.2d 486 (Tex.Cr.App.1970); and Franklin v. State, 494 S.W.2d 825 (Tex.Cr.App.1973).

Appellant in grounds of error two and three urges the state's attorney committed error in his jury argument during the punishment phase of the trial and the court erred in not granting a mistrial because of such improper argument.

The state in opposition to appellant's application for probation presented only one witness, Chief of Police Prince, who testified that appellant's reputation was not good. During the argument, the state's attorney argued:

'Mr. Hill could have asked the one question that he didn't ask. A question I couldn't ask, and that is 'how do you know that his reputation for being a peaceful and law abiding citizen is bad?' He did not ask that . . .'

The court sustained appellant's objection to the argument, instructed the jury not to consider it for any purpose and denied a mistrial motion.

We hold the argument did not constitute reversible error. In Mims v. State, 466 S.W.2d 317 (Tex.Cr.App.1971) we held:

'While it is never proper for a prosecutor to imply to the jury that he knows more about the accused than the jury has been told, we do not conclude that the error is reversible under the circumstances presented. While such an argument was improper, no statute was violated and no new and harmful fact was injected in this case. Such is the test set forth in Vineyard v. State, 96 Tex.Cr.R. 401, 257 S.W. 548.'

The appellant objected to the following argument as being outside the record:

'This heroin that this man here is out selling at the Fun Palace where 12, 13 and 14 year olds congregate, right here; is making thieves out of our sons and it's making street walkers out of our daughters, and happening here in Tarrant County.'

The objection was sustained and no further relief was requested. This court in Rodgers v. State, 486 S.W.2d 794 (Tex.Cr.App.1972) answered appellant's contention as follows:

'Defense counsel's objection was sustained, no further relief was requested and no adverse ruling was secured, therefore, no error is shown. Moon v. State, 465 S.W.2d 172 (Tex.Cr.App.1971); Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971).'

Finally appellant complains of the following argument by the state's attorney:

'This man was dealing that heroin for money. Price was discussed; he was paid $40.00, and this you heard is 80% Pure heroin. It is death right here. If that undercover man had not purchased this, if somebody else out there had purchased this and had injected this into their system, they would be dead.'

The court sustained an objection that the argument was outside the record, instructed the jury not to consider the statement and denied appellant's motion for mistrial.

We hold that the challenged argument was a reasonable deduction from the evidence and does not violate the standard as set by this Court in Thompson v. State, 480 S.W.2d 624 (Tex.Cr.App.1972):

'The test as to whether...