Noah v. State, 46130

• Decision Date: 06 June 1973
• Docket Number: No. 46130,46130
• Citation: 495 S.W.2d 260
• Parties: James D. NOAH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 260

495 S.W.2d 260

James D. NOAH, Appellant, v. The STATE of Texas, Appellee.

No. 46130.

Court of Criminal Appeals of Texas.

June 6, 1973.

Clyde W. Woody and Marian S. Rosen, Houston, for appellant.

Jules Damiani, Jr., Dist. Atty., Ronald L. Wilson and Norman Stevens, Asst. Dist. Attys., Galveston, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for possession of heroin wherein the punishment was assessed at 50 years.

At the outset the appellant urges that the trial court erred in admitting into evidence 'contraband which was recovered as a result of the unlawful chase and arrest of the Appellant in violation of the Fourth, Fifth and Fourteenth Amendments to the Unites States Constitution.'

On February 2, 1971, Galveston City Police Officer Picard, in company with Officer Melanson, was on Pelican Island in an unmarked police vehicle--a 1966 Ford Mustang--when Picard saw the appellant alight from a 1970 Buick automobile at approximately 3 p.m. Shortly thereafter, he saw the appellant emerge from a brushy area accompanied by Wilburn Charles Hinson. Officer Picard testified he was on Pelican Island as a result of information he had received. ¹

Picard observed the appellant and Hinson speak to each other for a few moments and then go to their respective cars. Picard followed the appellant, but was unable to keep up with him as the appellant was travelling in excess of 60 m.p.h. Picard then radioed a dispatch asking for assistance in stopping the appellant's vehicle, and then gave up the chase when the brakes on the Mustang failed. Officer Williams then took up the chase but soon lost sight of the appellant. Officer C. L. Adams, who heard the police dispatch, took up the chase, and chased the appellant for approximately 15 blocks down Avenue H at speeds up to 90 m.p.h. In the vicinity of 43rd Street and Avenue H, he saw the appellant throw a package from the car and he swerved to avoid hitting it, and he stopped the appellant between 44th and 45th Streets after firing a warning shot. Within three to five minutes after the appellant was placed in the custody of another officer, Adams returned to the place where the package had been thrown from the car and found it in the same position, with no other packages in the area nor people about when he arrived. Officer Rubio arrived and took pictures and attempted to lift fingerprints from the package but only obtained smudges.

A field test performed on the substance in the package showed it to be heroin. It was then packaged and mailed to the Department of Public Safety. The chain of custody was established and the chemist testified the substance was heroin and sufficient to make 625 capsules.

No contraband was found on appellant's person or in his automobile.

Testifying in his own behalf, the appellant, who had been convicted previously of a felony, denied any involvement with narcotics. He related that on the afternoon in question he was road testing his sister's automobile because of front end trouble; that he had only stopped to relieve himself in the brushy area on Pelican Island, and that he did not know Hinson. He denied knowing that he was being followed by Officer Picard, and, though he saw a marked police vehicle, he related he did not realize that he was the object of the pursuit until just shortly before he was stopped. He acknowledged he was speeding but insisted he was doing this as a part of the 'road testing.'

It is obvious from what has been said that the contraband in question was not obtained as a result of appellant's arrest and a search incident thereto, but was recovered from the ground where it had been thrown by the appellant. We find no merit in appellant's contention. See King v. State, 416 S.W.2d 823, 824 (Tex.Cr.App.1967), and cases there cited; Gonzales v. State, 461 S.W.2d 408 (Tex.Cr.App.1971); Hamilton v. State, 438 S.W.2d 814 (Tex.Cr.App.1969); Harless v. State, 473 S.W.2d 519 (Tex.Cr.App.1971); Weeks v. State, 476 S.W.2d 310 (Tex.Cr.App.1972).

Appellant further contends '. . . the evidence was insufficient to prove possession of the alleged contraband . . ..'

This contention is based upon the fact that Officer Adams testified that the package was not in his sight for three to five minutes which time it took him to stop the appellant, place him in the custody of another officer, and walk back to the spot where he retrieved the package. Adams testified, however, the package was in the spot where he had seen appellant throw it, that no other packages were in the area, and he saw no other persons in that immediate area.

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that the evidence is sufficient to prove possession. See Floyd v. State, 494 S.W.2d 828 (Tex.Cr.App.1973).

Appellant also urges the contraband should not have been admitted into evidence since the proper chain of custody was not established.

There appears to have been an earlier trial which resulted in a mistrial. Appellant's argument is directed, not so much at the custody from the officers to chemist, but to the fact that the Court Reporter, Ray O'Neill, retained possession of the contraband from the first trial until the second trial. He points to the fact that O'Neill testified that he kept the exhibit in a locker and that there could have been times when the locker had been left unlocked when he was out of the office for a short time thereby rendering access to the locker available to other persons.

The Court Reporter testified that the exhibit had been in his exclusive possession from the time in question until he had turned it over to an Assistant District Attorney during the second trial and that it was in the same condition as when he first received it. He related the locker was kept locked most of the time and that he had the only key. The Assistant District Attorney, the chemist and the officers all testified the package appeared to be in the same condition as when they had earlier handled the same.

There was no showing that the exhibit had been tampered with or changed in any way. The exhibit was not rendered inadmissible. Appellant's objection on the ground urged went to the weight rather than the admissibility of the evidence. The exhibit was sufficiently identified at the trial by the various witnesses. See Walker v. State, 470 S.W.2d 669 (Tex.Cr.App.1971), and cases there cited; Mitchell v. State, 488 S.W.2d 786 (Tex.Cr.App.1973), and cases there cited.

Appellant claims the trial court erred '. . . in allowing the introduction into evidence of the character and reputation of Wilburn Charles Hinson, thereby allowing the jury to infer guilt by association.'

Picard related he had seen the appellant with Hinson. When asked who Hinson was, over objection, he replied '. . . a subject known to me through informants and through his personality . . .' and, later, 'known to me through informants and personal observation.' Later, over objection, he testified that Hinson had been, as recently as 1967, a Galveston Police Officer assigned to the Vice and Narcotics Division.

While there is other evidence in the record as to Hinson's background, the foregoing is all of the testimony complained of that was produced before the jury. We cannot conclude that the court erred in permitting the same to be admitted.

Next, appellant complains the trial court erred '. . . in excusing a negro juror on a challenge for cause in violation of Articles 35.16, 1.03, 1.12, 1.13, and 45.16 V.A.C.C.P., and by depriving the Appellant of a fair and impartial jury represented by a cross-section of the community.'

Mitchell Scurry, a prospective juror, indicated that he had known the appellant 'since school days' and that he would prefer not to serve on the jury. Upon further interrogation, he acknowledged 'it would be hard' for him 'to be fair and impartial in a case like this,' and, when asked by defense counsel, '. . . you can consider the facts, at this point,' he answered, 'No, sir.'

Thereafter, the court sustained the State's challenge for cause. We do not find that the court abused its discretion in doing so. See Article 35.16(a) (9), Vernon's Ann.C.C.P.

Further, we find nothing in this record to support appellant's assertion in his brief that this prospective juror was a Negro, except an oral statement of his counsel in support of a motion for mistrial after the selection of the jury to the effect that '(t)he juror that was excused, was colored.' Whether this reference was to Mitchell Scurry is not clear from this record.

Appellant's second thrust under this ground of error is that there was a 'systematic exclusion' of Negroes from the jury panel. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). This claim is not supported by the record.

The exact number of Negroes on the jury panel is not clear from this record. Appellant asserts in his brief that the State exercised peremptory challenges on four prospective jurors and no Negro sat on the jury but does not direct our attention to any portion of the record to support this claim. We do find couns...