Moore v. State, 50188

• Decision Date: 17 September 1975
• Docket Number: No. 50188,50188
• Citation: 527 S.W.2d 529
• Court: Texas Court of Criminal Appeals
• Parties: John Lynn MOORE, Appellant, v. The STATE of Texas, Appellee.

Page 529

527 S.W.2d 529

John Lynn MOORE, Appellant, v. The STATE of Texas, Appellee.

No. 50188.

Court of Criminal Appeals of Texas.

Sept. 17, 1975.

James H. Kreimeyer, Belton, for appellant.

Joe Carroll, Dist. atty. and William P. Gibson, Asst. Dist. Atty., Belton, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

A jury convicted appellant of delivery of heroin under the Controlled Substances Act, and the court assessed his punishment at ten years.

Appellant's sole ground of error is that the evidence is insufficient to support the conviction since no illegal controlled substance was introduced at trial. Appellant argues that the substance introduced was never properly identified as heroin.

Ronald Tucker, an undercover narcotics agent for the Department of Public Safety, testified for the State. He stated that on May 4, 1974, the appellant approached him at a drive-in in Killeen and told Tucker that he was selling 'skag,' or heroin. The appellant asked Tucker if he knew anyone who might be interested in buying some 'skag.' Tucker expressed such an interest himself, and purchased from appellant a purported half gram of heroin for twenty-five dollars.

On May sixth, Tucker took the substance to the D.P.S. laboratory in Waco for testing. There he personally turned it over to Gary Westerman, a qualified chemist working at the laboratory. Westerman testified that he tested the substance on August 14, 1974, using six separate tests to determine if the substance was heroin. On the basis of these tests he concluded that the substance contained four percent heroin. The substance was then admitted without objection.

In Hicks v. State, 508 S.W.2d 400, 402 (Tex.Cr.App.1974), we wrote:

'As a general rule an object offered in evidence should not be rejected because it is not positively identified as the exact object that was connected with the crime.'

See also Salinas v. State, 507 S.W.2d 730, 731 (Tex.Cr.App.1974); Haggerty v. State, 490 S.W.2d 858, 859 (Tex.Cr.App.1973).

Here Westerman positively identified State's Exhibit Number One as the package he had received from Tucker and tested for heroin. Appellant expressly waived any objections to its admission into evidence. Appellant's contention is overruled. Salinas v. State, supra; Haggerty v. State, supra.

However, there remains an issue not raised by appellant which we shall consider in the interest of justice. Art. 40.09(13), Vernon's Ann.C.C.P.

The record reflects that on August 21, 1974, some four weeks before this case was presented to the jury, appellant pleaded guilty to this offense. After admonishing appellant, the trial court accepted appellant's plea, found him guilty, and assessed his punishment at seven years' confinement upon the joint recommendation of the assistant district attorney and counsel for appellant. The court's docket sheet reflects that appellant was allowed to withdraw his plea of guilty and enter a plea of not guilty on September 6, 1974.

The trial before the jury began some ten days later. As noted above, the jurors were excused after the first stage of the trial. At the punishment stage, the State presented the testimony of four Killeen police officers, who testified that appellant's reputation in the community 'for being a peaceable and law-abiding citizen' was bad.

The trial court then assessed appellant's punishment at ten years. The...