Rodriquez v. State
| Decision Date | 13 June 1973 |
| Docket Number | No. 46247,46247 |
| Parties | Antonio RODRIQUEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Malcolm Dade (Court appointed on appeal), Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. Westmoreland, Asst. Dist. Atty., Dallas Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
JACKSON, Commissioner.
Conviction is for the sale of heroin; the punishment, 85 years.
The sufficiency of the evidence is not challenged. the evidence showed that appellant sold ten capsules of heroin to Sam J. Roberts, and agent of the Bureau of Narcotics and Dangerous Drugs, for $70, on January 29, 1969. The chain of custody of the capsules was established; the chemist, Charles Pyles, testified that he analyzed the capsules and that they contained 5.7% Heroin.
Appellant testified at the guilt-innocence stage of the trial, denied the sale, and, in response to questions by his own counsel, said that he had been convicted in United States District Court in Dallas of the sale of marihuana in 1962, for which he was sentenced to serve five years. At the punishment stage of the trial, the State, specifically with 'no objection' from appellant, put in evidence the indictment, judgment, and sentence in the 1962 Federal conviction which showed that Rodriquez pleaded guilty. Such conviction was used in argument by the prosecution, at both stages of the trial, again, without objection.
In his pro se brief, appellant asserts that the trial court erred in permitting the Federal convictions to be introduced in evidence. These convictions resulted from a two count indictment in the District Court of the United States at Dallas, dated May 24, 1962, charging him with violations of 21 U.S.C. § 176a and Section 4742 of the Internal Revenue Code of 1954, 26 U.S.C. § 4742. He does not point out specifically upon what grounds he claims these convictions should have been excluded, but apparently relies solely upon Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57.
We have concluded that Leary is not applicable and his reliance thereon is misplaced.
The two 1962 Federal convictions of the appellant and their relationship to Leary, supra, if any, will be considered separately.
The first portion of the judgment dated June 13, 1962, recites that the defendant, Antonio Rodriquez, has been found guilty upon his plea of guilty of violation of 21 U.S.C., Section 176a. This statute prior to its repeal in 1970 1 provided insofar as is here relevant that a criminal penalty shall be imposed upon any person who:
'knowingly, with intent to defraud the United States, imports or brings into the United States marijuana contrary to law . . ., or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marijuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law . . .'
A subsequent paragraph establishes the following presumption:
'Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marijuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.'
This statute, and the validity of convictions under it, has not heretofore been considered by this Court. Our previous decisions in Ex Parte Taylor, Tex.Cr.App., 484 S.W.2d 748; Ex Parte Lopez, Tex.Cr.App., 491 S.W.2d 420; and Bedell v. State, Tex.Cr.App., 492 S.W.2d 555, dealt with convictions under 26 U.S.C., Sec. 4741(a)(2) and 26 U.S.C. Sec. 4744(a)(1) which were held in the Leary decision, supra, to be constitutionally infirm. These statutes are not here invoved.
In Leary, supra, the defendant had also been convicted under a second count of violation of the abovementioned 21 U.S.C., Sec. 176a for 'knowingly transporting and facilitating the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in.' The Supreme Court, in voiding this conviction, said that the statutory presumption of 'knowledge' of illegal importation contained in the second paragraph of the statute was void as violative of due process of law in that there was no 'rational connection between the fact proved and the fact presumed.'
We conclude that the court's decision in Leary did not invalidate the statute as a whole. Walden v. United States, 5 Cir., 417 F.2d 698; United States v. Brooks, 5 Cir., 416 F.2d 459. Rather, it merely struck down the presumptive part of the statute which entitled the jury to infer that an accused knew of the marihuana's illegal importation. Mejia v. United States, 5 Cir., 430 F.2d 1273; Yohey v. United States, 5 Cir., 429 F.2d 1279; Davie v. United States, 7 Cir., 447 F.2d 480.
'The Leary decision does not completely bar prosecution under 176a; it merely puts the government to a more rigorous proof.' Davie v. United States, supra.
It is clear that the presumption of 'knowledge' of illegal importation was not employed in appellant's 1962 trial since his conviction was based upon a plea of guilty. Therefore, Leary, supra, is patently inapplicable. Mejia v. United States, supra; Ochoa v. United States, 5 Cir., 469 F.2d 86.
The appellant's guilty plea under these circumstances must be distinguished from those in cases such as Ex parte Taylor, Tex.Cr.App., 484 S.W.2d 748, and United States v. Liguori, 2 Cir., 430 F.2d 842, wherein a defendant's timely assertion of the Fifth Amendment right against self-incrimination would have been a complete bar to prosecution under 26 U.S.C. § 4744(a).
It is apparent that in those cases the defendants therein would not have plead guilty had they known that a timely assertion of their Fifth Amendment privilege would be a complete defense to the charge under the holdings of Leary, supra.
Here, however, an assertion of the invalidity of the presumption contained in 176a, supra, as being violative of due process, would not have been a complete defense but would have merely required the government to prove that appellant had 'knowledge' of the fact that the marihuana had been imported. Had appellant known of the subsequent Leary decision at the time of his Federal trial in 1962, it cannot be said that he would not have pleaded guilty. It could well be that the government had adequate proof of his 'knowledge' of the fact that the marihuana was imported with the result that appellant might well have chosen to plead guilty in hopes of gaining some benefit therefrom. Davie v. United States, supra.
We hold that appellant's conviction under 21 U.S.C., Sec. 176a, was valid and thus admissible in the case at bar.
Appellant, under his first ground of error, further contends that his conviction under 26 U.S.C., Sec. 4742(a), emanating from the same trial in Federal district court in 1962, is likewise void and inadmissible in the trial of this cause under the Leary decision. More specifically, his allegation appears to be that this statute, like 26 U.S.C., Sec. 4741 and Sec. 4744(a)(1) (), is void in that they require a defendant to incriminate himself in violation of the Fifth Amendment to the United States Constitution.
26 U.S.C., Sec. 4742(a) provides:
'It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.'
The contention put forth by appellant was previously considered in the case of Buie v. United States, 90 S.Ct. 284, 396 U.S. 87, 24 L.Ed.2d 283, wherein the United States Supreme Court upheld this statute as not violative of an accused's Fifth Amendment rights.
In that decision, the court distinguished the situation of a marihuana purchaser, such as in Leary, and that of a seller such as this appellant.
To fully understand the operation of 26 U.S.C., Sec. 4742(a), some background explanation of the total scheme of legislation is necessary.
As pointed out in Buie, supra, the Marihuana Tax Act, 26 U.S.C., Secs. 4751--4753 2 provided that any person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupation tax. It further provided that a tax would be imposed on each transfer of marihuana to be paid for by the transferee at the time he acquired the special form required by Sec. 4741. Sec. 4742, quoted above, prohibited sales of marihuana to a buyer who did not have the proper form. Subsection c of the statute required that the form have the names and address of both the seller and buyer shown on it. Further, Sec. 4742 required the form to be in triplicate with one copy being kept in the files of the Internal Revenue Service, one copy for the buyer's files, and the original delivered to the seller. All of these documents were subject to inspection by law enforcement authorities under Sec. 4742(d) and Sec. 4773.
In Buie, supra, the petitioner alleged that the requirement that he sell only to a purchaser who had the required form which contained his name and address violated his constitutional right not to incriminate himself. The Supreme Court rejected this contention on the grounds that 'there is no real and substantial possibility that Buie's purchaser, or purchasers generally would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law.' Buie v. United States, supra. The court distinguished the decision in Leary by pointing out that, there, ...
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