Miller v. State, 50984

• Decision Date: 09 June 1976
• Docket Number: No. 50984,50984
• Citation: 537 S.W.2d 725
• Parties: Norman Carl MILLER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 725

537 S.W.2d 725

Norman Carl MILLER, Appellant, v. The STATE of Texas, Appellee.

No. 50984.

Court of Criminal Appeals of Texas.

June 9, 1976.

Rehearing Denied July 7, 1976.

Jack W. Beech, Fort Worth, for appellant.

Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for delivery of a controlled substance, to wit lysergic acid diethylamide. ¹ A jury found appellant guilty on December 12, 1974 and assessed his punishment at nine years' imprisonment. The offense occurred on May 1, 1974.

Appellant filed a motion for speedy trial which was granted on September 16, 1974. On the next trial setting, November 5, 1974, though, he asked for and received a continuance until December 11, 1974. On that date, appellant appeared with attorney Max Blankenship and requested another continuance on the grounds that his lead counsel, Jack Beech, had entered the hospital the day before and was unable to represent appellant. It developed that appellant had retained Beech and that Blankenship was an associate of Beech. The trial was continued until later that day, but then proceeded without Beech and over objection until the jury rendered its verdict the next day. Attorney Beech next made an appearance on December 30, 1974 at the hearing on appellant's motion for new trial.

Appellant seeks reversal on the grounds that the trial court abused its discretion in denying his motion for continuance based on the absence of attorney Beech. It is well settled that such action is not an abuse of discretion where the defendant was ably represented throughout the trial by substitute counsel. Taylor v. State, 507 S.W.2d 563 (Tex.Cr.App.1974); Payton v. State, 503 S.W.2d 787 (Tex.Cr.App.1974); Gray v. State, 477 S.W.2d 635 (Tex.Cr.App.1972); McKnight v. State, 432 S.W.2d 69 (Tex.Cr.App.1968). There has been no suggestion that attorney Blankenship did not ably represent appellant. No abuse of discretion is shown.

Appellant also attacks the sufficiency of the evidence to show that it was he who gave the LSD to the intermediary for purchase by the narcotics agent, B. R. Armand. He also contends that there was no showing that he knew he was delivering the LSD to Armand, as alleged in the indictment.

The evidence showed that narcotics officer Armand met one Robert Kaufman at a bowling alley in Fort Worth at 11:00 p.m. on May 1, 1974. The two proceeded to appellant's residence in neighboring Parker County. Armand waited in the car while Kaufman went to the door of the house. Armand testified that appellant answered Kaufman's knock and handed him a small package. Kaufman returned to the car and gave the package to Armand. The package was later proven to contain the LSD.

The court instructed the jury on the law of principals. The evidence was sufficient to sustain the conviction of appellant for delivering LSD to Armand. Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146 (1959).

Appellant lodges several attacks on the impanelling and authority of the grand jury and, hence, on the validity of his indictment. First, he complains that there are no court orders for the appointment of the grand jury commissioners or the grand jury foreman, as required by Arts. 19.01 and 19.34, V.A.C.C.P. Art. 19.34 states no requirement of an order appointing the grand jury foreman. And the requirement of a court order in Art. 19.01 has been held to be directory, not mandatory. Garcia v. State, 522 S.W.2d 203 (Tex.Cr.App.1975). The absence of a written order did not render the indictment fatally defective.

Appellant presented evidence at a pre-trial hearing on his motion to set aside the indictment which showed that the grand jury met only on July 22, August 5, September 17, and October 4, in its July, 1974 term. He contends that there was no court order permitting them to adjourn in the interim periods for more than three days, as required by Art. 20.08, V.A.C.C.P. Art. 20.08 requires only the court's consent to adjourn for more than three days, not an order. The trial judge testified at the hearing that he gave this consent each time the grand jury reassembled and adjourned. No error is shown.

Appellant also makes a complicated attack on the constitutionality of the Texas Controlled Substances Act. The gist of his contention is that the state statute is in conflict with the federal Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.A., Sec. 801 et seq., because it provides harsher penalties than does the federal act. The identical contention was rejected in Wilson v. State, 525 S.W.2d 30 (Tex.Cr.App.1975). This ground of error has no merit.

The judgment is affirmed.

DOUGLAS, Judge (dissenting).

The offense occurred on May 1, 1974. On June 27, 1974, appellant contracted with a Fort Worth attorney, Jack Beech, to represent him. On September 16, 1974, a motion for a speedy trial was filed and the trial was set for November 5, 1974. Appellant requested and received a continuance on November 5 because his attorney, Jack Beech, had been subpoenaed to appear before a grand jury in DeWitt County. Appellant's trial was reset for December 11, 1974.

On the morning of December 11, Max Blankenship, an attorney and employee of Jack Beech, appeared before the trial court and requested a continuance on behalf of appellant. This motion was made because attorney Beech had been admitted to the hospital on December 10, 1974, due to the recent and severe aggravation of a back injury.

In support of his sworn motion for continuance appellant testified that he had hired Beech not Blankenship and that he felt that Beech was more familiar with his case. Appellant stated that he had talked with Blankenship only two or three times about his case and that those conferences were during court appearances. Appellant stated that the most Blankenship had done on his case was attend the pretrial hearing with Beech and file some motions relating to his case. Appellant testified that he had discussed his case with Beech once or twice a week since June, 1974.

In support of the motion for continuance Max Blankenship testified that he had been employed by Beech on a full time basis since October, 1974, and that he had not discussed this case with appellant before the initial motion for continuance in November. Blankenship stated that although he had prepared and filed some motions in appellant's case none required knowledge of the particular facts of appellant's case. He stated that in his opinion it would be in appellant's best interest to be represented by Beech who had more experience, qualifications as a trial lawyer, and familiarity with the case. Blankenship also testified that he had appeared in court prepared only to argue the motion for continuance and...