Spaulding v. State, 48202
| Decision Date | 06 March 1974 |
| Docket Number | No. 48202,48202 |
| Citation | 505 S.W.2d 919 |
| Parties | Malone SPAULDING, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Donald D. Koons, Dallas, for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.
KEITH, Commissioner.
The jury found appellant guilty of the unlawful sale of a dangerous drug--namely, methylphenidate--and his punishment was fixed by the court at confinement for a period of three years. The sufficiency of the evidence to sustain the conviction is not challenged.
R. J. Harden; an undercover agent of the Texas Department of Public Safety, testified that he purchased two tablets from appellant while in the apartment of one Charley Yates in Dallas on November 27, 1971. The regular chain of custody of the tablets having been established, the State proved that the tablets contained the dangerous drug methlphenidate which had a trade or brand name of 'Ritlin'. Since Harden was still conducting his undercover activities, the appellant was not arrested at that time. Instead, the case was referred directly to the Grand Jury which returned the indictment on February 21, 1972, but it was not until May of that year that appellant was arrested upon the capias issued thereunder.
Agent Harden, along with the chemist, made out a prima facie case against appellant and he made no mention of any prior or extraneous sales or use of the drug in his original testimony. Appellant testified in his own behalf at the guilt-innocence stage of the proceedings and upon several occasions denied selling any drugs of any kind to Harden. For instance, in cross-examination by State's counsel, he was asked:
We note that the italicized words in the first answer quoted were a voluntary statement injected into the case by the appellant himself and were not in response to the question asked of him.
Appellant's first complaint, stated in the form of a question, 1 relates to the introduction 'into evidence extraneous offenses and collaterial matters.'
In several recent cases, we have rejected such contentions. Cyrus v. State, 500 S.W.2d 656, 658 (Tex.Cr.App.1973); Haggerty v. State, 490 S.W.2d 858, 859 (Tex.Cr.App.1973); Hamilton v. State, 480 S.W.2d 685, 687 (Tex.Cr.App.1972). The first complaint is overruled.
Next, appellant complains of the court's refusal to grant three items sought in his motion for discovery. 2 It is apparent that this ground of error is multifarious, not in compliance with the statute, and presents nothing for review. Burton v. State, 471 S.W.2d 817, 821 (Tex.Cr.App.1971); Smith v. State, 481 S.W.2d 886, 888 (Tex.Cr.App.1972); Battiste v. State, 485 S.W.2d 781, 782 (Tex.Cr.App.1972). See also, Black v. State, 503 S.W.2d 554 (Tex.Cr.App.1974).
Moreover, appellant made no effort to prove the existence of the material which he sought nor his right to have it furnished to him by State's counsel. No authorities are cited in support of the contentions now advanced. Indeed, as to item (b) mentioned in the preceding footnote, appellant admits that the decisions of this court are to the contrary but urges us 'to reconsider with a view to authorizing full disclosure and discovery.'
We decline the invitation extended. No error is shown and the ground of error is overruled. Feehery v. State, 480 S.W.2d 649 (Tex.Cr.App.1972); Elliott v. State, 475 S.W.2d 239 (Tex.Crim.App.1971).
Appellant's third and fifth 'questions' complain of the closing argument of the assistant district attorney. Since we are unable to consider the complaints in a vacuum, it is necessary to set out some additional background of the trial. As we have noted earlier, several months elapsed between the date of the commission of the offense and appellant's arrest. Appellant complained vigorously in his trial testimony that this fact alone hampered him in the preparation of his defense. Upon the trial, appellant's counsel asked questions of the undercover agent and the chemist which were designed to show that appellant had no connection with the alleged offense; and, the inference was clear: both were mistaken in their sworn testimony. Furthermore, appellant having subjected himself to cross-examination, it developed that he had been an inmate of the penitentiary upon several occasions for long periods of time.
Against this background, appellant's counsel argued with vigor that the State was trying to convict appellant because of his prior criminal record and not upon the merits of the charge then upon trial. The attack upon the undercover agent, and his alleged delay in coming forward with charges against appellant, as well as certain alleged discrepancies in his testimony, were criticized severely. The tactics of State's counsel were also mentioned in an unfavorable context.
Undercover agent Harden had testified that there were many unidentified persons around the Yates apartment at the time appellant sold him the tablets. The assistant district attorney, in reply, commented upon the amendability of such persons to compulsory process as witnesses, the failure of appellant to call any of such persons as witnesses (although he brought many other persons who testified in his behalf), and continued with the argument that agent Harden had no axe to grind in the conviction of appellant.
Then came the remarks complained of in the fifth 'question':
'What do you think would happen to one of these undercover officers if their cover was discovered by these dope pushers and these dope dealers when they're out there in one of these apartments?
The argument forming the basis of the third 'question' came a few minutes later when the assistant district attorney made reference to appellant's argument as to opinions expressed by some of his own witnesses to the effect that appellant was not a law violator, etc. State's counsel disclaimed his intention to make a reply to such argument and continued:
As we enter into our discussion of the prosecutor's argument, we pause to note the increasing frequency with which this court is confronted with complaints of arguments of prosecutors which violate the acceptable parameters governing such proceedings. In some instances, we have noted the impropriety sua sponte. E.g., Baldwin v. State, 499 S.W.2d 7, 9 (Tex.Cr.App.1973). In others, the questions presented have taken an inordinate amount of the time of the members of this court, in some instances requiring multiple opinions. E.g., Fowler v. State, 500 S.W.2d 643 (Tex.Cr.App.1973).
Brinkmanship in the field of jury argument is not to be commended and the careful advocate will better serve his profession--and his client--by following the acceptable standards governing counsel in his courtroom appearances. In a different context, Judge Onion observed, 'A rebuke by the trial court in the presence of the jury may do more to end the practice of intemperate and improper argument than repeated admonitions or even reversals by this court.' Bray v. State, 478 S.W.2d 89, 90 (Tex.Cr.App.1972). In Stearn v. State, 487 S.W.2d 734, 736 (Tex.Cr.App.1972), nothing the 'growing tendency by the prosecutors to go outside the record in jury argument and then, on appeal, submit that such was not error; or, at most, harmless...
To continue reading
Request your trial
-
McGee v. State
...no objection to any of these arguments was made either during or after the prosecutor's arguments. The court in Spaulding v. State, 505 S.W.2d 919, 922 (Tex.Crim.App.1974), stated the pertinent standard of The test as to whether an improper argument constitutes reversible error is whether, ......
-
Ex parte Skelton
...through the course of the trial. Thus, no witness was competent to voice an opinion as to guilt or innocence.”); Spaulding v. State, 505 S.W.2d 919, 923 (Tex.Crim.App.1974) ( “ ‘When the jurors are as well qualified to speak as the witness, the opinion of the witness on the very issue to be......
-
Parr v. State
...that the prosecutor was asking the jury to accept his personal opinion of guilt and such argument requires reversal. In Spaulding v. State, Tex.Cr.App., 505 S.W.2d 919, the prosecutor stated: "I wouldn't be up here right now if I didn't think this man was guilty . . . ." The defendant's obj......
-
Fairow v. State
...of guilt or innocence, his opinion should be excluded. See Boyde v. State, 513 S.W.2d 588 (Tex.Crim.App.1974); Spaulding v. State, 505 S.W.2d 919 (Tex.Crim.App.1974); Huffman v. State, 691 S.W.2d 726, 730 (Tex.App.--Austin 1985, no pet.). All Rule 701 opinions regarding culpable mental stat......