Reeves v. State, 45433
| Decision Date | 31 January 1973 |
| Docket Number | No. 45433,45433 |
| Citation | 491 S.W.2d 157 |
| Parties | Fred REEVES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Bill Pemberton, G. C. Harris, Greenville, for appellant.
Larry Miller, Dist. Atty., Greenville, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from the conviction for the offense of unlawful sale of a dangerous drug, to-wit: lysergic acid diethylamide (referred to herein as LSD); punishment assessed, 10 years.
The record reflects that during the early morning hours of January 27, 1971, Glenn Chism, a special agent for the Federal Bureau of Narcotics and Dangerous Drugs, and an informant traveled to a resident in Greenville and there met appellant who was inside the residence. Chief Deputy Norman Gray and two other officers parked their car several houses away and set up a surveillance. Chism asked appellant if he had any drugs for sale. Appellant stated that he did have drugs for sale and asked how much Chism wanted to purchase. After a brief negotiation, appellant agreed to sell ninety tablets of LSD to Chism for eighty dollars. With money which had earlier been supplied by Gray, Chism gave appellant eighty dollars in exchange for ninety tablets of LSD.
Appellant's first ground of error is that the indictment charges him with 'sale' of a dangerous drug and the amendatory act in Section 3(a) of Article 726d, Vernon's Ann.P.C., makes only a 'delivery' of a dangerous drug illegal. Section 1 of the same Article provides:
'The Legislature of the State of Texas hereby finds that it is essential to the public health and safety to regulate and control the handling, Sale and distribution of 'dangerous drugs,' as defined in this Act.
'It is, therefore, hereby declared to be the policy and intent of the Legislature of the State of Texas and the purpose of this Act to regulate and control such handling, Sale, and distribution, and, in particular, but without limitation of such purpose, to insure that the public shall receive the therapeutic benefits of 'dangerous drugs' . . . to prevent such handling, Sale or distribution for harmful or illegitimate purposes; . . . for preventing the improper distribution of such drugs to the extent that such drugs are produced, handled, Sold, or prescribed by them.' (Emphasis added.)
This same contention was overruled recently in Wright v. State, 471 S.W.2d 407, wherein we stated:
Appellant complains in his second ground of error that the court's charge on entrapment was not sufficient for the reason that another name (Norman Gray) should have been included in the charge as a person who may have entrapped appellant.
The court's charge on entrapment reads, in part, as follows:
'. . . Now if you find from the evidence, or if you have a reasonable doubt thereof, that on the occasion alleged, if any, the criminal design originated in the mind of the officer, GLENN CHISM, and that he induced the defendant to commit the crime charged in the indictment for the mere purpose of instituting a criminal prosecution against the defendant, and that the defendant had not contemplated the commission of said crime until such inducement, then you will find defendant not guilty.'
Although Gray supplied Chism with the money he used to purchase the LSD from appellant, the testimony reveals that Gray was not present when Chism negotiated the sale, nor when the sale took place. The trial court did not err in refusing to add Gray's name to its instruction on entrapment. See, Vera v. State, Tex.Cr.App., 473 S.W.2d 22; Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763; Cox v. State, 169 Tex.Cr.R. 332, 333 S.W.2d 849. See also, 8 Willson, Tex.Crim. Forms 7th Ed., Sec. 3579, p. 581; McClung, Jury Charges for Texas Criminal Practice, pp. 201--202.
Appellant's third ground of error is that the evidence was insufficient (1) to show a sale of a dangerous drug, and (2) to show chain of custody of the LSD tablets.
Chism testified as follows:
'A. He (appellant) stated he did have drugs for sale and he asked me how much did I want to buy.
Q. (Prosecutor) What next, sir?
A. I asked him how much did he have.
Q. And what next, sir?
A. He stated that he had a hundred pills.
Q. All right, sir. And what next, if anything, sir?
A. He talked about prices then. He said he wanted at least a dollar a pill for the hundred tablets.
Q. All right, sir, I will ask you what kind of pills you were talking about with the defendant.
A. LSD . . .
Q. I will ask you, Mr. Chism, what occurred next.
A. We discussed prices. He finally agreed to sell one hundred tablets of LSD for ninety dollars and I agreed to buy it.
Q. All right, sir. What happened next, sir?
A. He told another individual who was in the residence at this time to go and get the tablets. The individual went and got the tablets, and handed them to me. I took them and counted them. There were only ninety tablets.
Q. Then what?
A. The defendant agreed to sell me the ninety tablets for eighty dollars.
Q. Then what occurred sir?
A. I gave the defendant eighty dollars of the funds furnished by the Hunt County Sheriff's office.'
The testimony is sufficient to show a sale. Even though the appellant instructed another individual to go get the tablets, it is clear the individual did this at the request and at the instruction of the appellant.
The evidence is also sufficient to prove chain of custody.
Chism testified that he placed the 90 tablets of LSD in a match box on which he placed his initials. He then placed the match box in an evidence envelope, sealed the envelope and placed his initials on it. He then delivered the envelope and its contents to the Dallas Regional Laboratory.
John Wittiner, Jr., a chemist with the United States Bureau of Narcotics and Dangerous Drugs, testified that he removed the envelope from the evidence vault at the Dallas Regional Laboratory where it had remained locked until he removed it on February 8, 1971. He broke the seal on the envelope, removed the match box from the envelope, initialed and dated it, removed the contents of the match box and found there to be 90 tablets. After performing a chemical analysis on a random sample of ten tablets, he was of the opinion that the tablets were Lysergic Acid Diethylamide (LSD). He then placed the remaining tablets back in the match box (State's Exhibit $3), placed the match box in an envelope (State's Exhibit $5) which he initialed and dated, and kept the match box, the evidence envelope (State's Exhibit $4) and his envelope (State's Exhibit $5) in his possession until he personally tendered them to the court on the day of the trial. At the court's direction, the LSD tablets were taken out of the match box and placed in a plastic vial (Exhibit $6) for the jury's convenience.
A proper predicate was laid for the introduction of the exhibits and the chain of custody was shown.
By his fourth ground of error, appellant contends the prosecutor and trial court committed reversible error by informing the jury, during the voir dire examination of the jury panel, that appellant had made a written application for probation. Reference is made to the following colloquy:...
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...defendant is to rely is ground for a challenge for cause and a proper matter for query. Art. 35.16(c)(2), V.A.C.C.P.; Reeves v. State, 491 S.W.2d 157 (Tex.Cr.App.1973). However, the decision as to the propriety of any question is left to the discretion of the trial court and the only review......
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