Sonderup v. State, 40520

• Decision Date: 19 July 1967
• Docket Number: No. 40520,40520
• Citation: 418 S.W.2d 807
• Parties: Guy SONDERUP and Dudley McManus, III, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 807

418 S.W.2d 807

Guy SONDERUP and Dudley McManus, III, Appellants, v. The STATE of Texas, Appellee.

No. 40520.

Court of Criminal Appeals of Texas.

July 19, 1967.

Ed. P. Williams, Corpus Christi, for appellants.

Sam L. Jones, Dist. Atty., Kenneth L. Yarbrough, Asst. Dist. Atty., Corpus Christi, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Possession of Heroin; the punishment, assessed by the trial court against each appellant, twenty-five (25) years confinement in the Texas Department of Corrections.

We do not deem a complete recitation of the facts necessary. The evidence reveals a trip from Corpus Christi to the Mexican border by the two appellants, co-indictee Tommy Green, and a woman companion who was later revealed to be a police informant; the purchase by Green of heroin in Miquel Ale man, Mexico; the secreting of such heroin by the three men on the Texas side before the foursome re-crossed the border at Laredo, Texas, and the subsequent arrest of the three men in Corpus Christion April 16, 1966, when the heroin purchased in Mexico was found in the rear seat of Green's automobile where the two appellants were riding. At the time of the arrest, eight bottles of 'dangerous drugs' were discovered in the possession of the appellant McManus.

Appellants initially contend that the trial court erred in overruling their pretrial motion for discovery generally requesting production of 'all statements, documents and evidence now in the possession of police officers or the District Attorney of Nueces County.' We recently held that a similar motion was too broad to be effective. Smith v. State, Tex.Cr.App., 409 S.W.2d 408. The motion does not specifically designate the evidence referred to nor reflect the 'good cause' required by Article 39.14, Vernon's Ann.C.C.P. See 27 Baylor Review 451. There is no showing made by the appellants in the record that the evidence sought was material to their defense, that such evidence was nonprivileged, and that their request was reasonable nor that the items demanded were in possession or control of the State or any of its agencies.

In overruling the discovery motion, the trial court did not abuse its discretion with consequent prejudice to the appellants.

Appellants next claim the trial court erred in failing to grant their separate motions for severance in view of the prior convictions of each. Such motions were not filed until the date of the trial and alleged that each appellant had a prior conviction, but for different types of offenses. There is no showing in the record that these convictions or their nature were introduced into evidence before the jury. At the penalty stage of the proceedings before the court, the prior convictions were stipulated to by the appellants. Such stipulations revealed that the appellant Sonderup had two prior burglary convictions and a misdemeanor conviction for possession of dangerous drugs, and that the appellant McManus had a previous felony theft conviction as well as a previous burglary conviction.

Severance is no longer a matter of right, but rests within the sound discretion of the court. Article 36.09, V.A.C.C.P. We cannot conclude, under the facts here presented, that the trial court abused its discretion and that a joint trial was prejudicial to the apellants.

Appellants further urge that the trial court erred in failing to hear evidence on their motions to suppress filed on the morning the trial began. The court was not required to hear such untimely filed motions for the same reasons set forth recently in Bosley v. State, Tex.Cr.App. 414 S.W.2d 468. Further, we observe that the appellants were not prevented during the trial from objecting to the admissibility of any of the evidence they may have sought to suppress. The contention is without merit.

If we understand the next ground of error of the appellants, it is that these convictions cannot stand because the statement of facts reveal a case of entrapment. The issue of entrapment...