Stephens v. State, 48458

• Decision Date: 21 May 1975
• Docket Number: No. 48458,48458
• Citation: 522 S.W.2d 924
• Parties: L. C. STEPHENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 924

522 S.W.2d 924

L. C. STEPHENS, Appellant, v. The STATE of Texas, Appellee.

No. 48458.

Court of Criminal Appeals of Texas.

May 21, 1975.

C. C. Divine, Kenneth J. Douglas, Houston, on appeal only, for appellant.

Carol S. Vance, Dist. Atty. and James C. Brough, Mike Schneider and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for sale of heroin. Punishment was assessed by the jury at fifty years.

On original submission, the appeal was abated in order that appellant, an indigent, might be furnished a free transcription of the court reporter's notes for the purpose of the appeal. Stephens v. State, Tex.Cr.App., 509 S.W.2d 363. The record now before us includes a transcription of the court reporter's notes. Since the basis for abatement on original submission is no longer present, the appeal will be considered.

At the outset, appellant contends the court erred in denying his motion to quash the indictment.

In the first paragraph of the indictment, appellant was charged with possession of heroin on August 30, 1972. The second paragraph alleges that appellant 'did then and there unlawfully sell and deliver to Donnie Marshall' heroin on the same date. Appellant's motion to quash alleged that both paragraphs charged the offense of possession. Appellant reasons that by use of the word 'deliver,' the second paragraph charged both sale and possession of heroin, and upon dismissal by the State of the first paragraph, the indictment still charged both offenses. Patently, the words 'possession' and 'deliver' are not synonymous. We cannot agree that the inclusion of the word 'deliver' transformed the second paragraph of the indictment into an allegation of both sale and possession of the narcotic, nor did such word in any manner lessen the burden of proof upon the State. No error is shown.

Appellant contends the court erred in denying his requested charge on entrapment.

Appellant denied that he sold heroin as alleged in the indictment and testified, 'I was at my auntie's in Louisiana' at the time in question.

The defense of entrapment is not available to a defendant who denies that he committed the offense charged. Zamora v. State, Tex.Cr.App., 508 S.W.2d 819; Holdaway v. State, Tex.Cr.App., 505 S.W.2d 262; Canales v. State, Tex.Cr.App., 496 S.W.2d 614; Godin v. State, Tex.Cr.App., 441 S.W.2d 196.

Appellant contends the court erred in refusing his charge on agency.

Accommodation agent, like entrapment, necessarily assumes that the act charged was committed. Appellant denied participation in the sale. Appellant cannot be heard to complain that the court did not grant his requested charge. Guerrero v. State, Tex.Cr.App., 507 S.W.2d 765.

Appellant contends the evidence is insufficient to establish appellant as a principal to the offense. The record reveals the following probative facts which implicate appellant.

Agent Marshall of the Federal Bureau of Narcotics and Dangerous Drugs testified that he was working as an undercover agent on August 30, 1972. On that date, Marshall and an informant went to an apartment on 75th Street in Houston, where they saw appellant and three female companions. In response to the informant's inquiry, appellant stated that he could get some heroin in about thirty or forty minutes. Appellant asked how much they wanted, and Marshall replied 'four bags.' According to Marshall, appellant then said, 'That will be $50,' and Marshall handed that amount to appellant. Appellant asked one of his female companions, Deborah Marie Thompson, to pick up the heroin, telling her, 'Hurry up, and be sure and call me if anything goes wrong.' Appellant handed Thompson the fifty dollars. Appellant advised Marshall that Thompson would return in 'about thirty to forty minutes.' Marshall and the informant left the apartment, and when they returned a short time later appellant told them that Thompson would be back in 'ten or fifteen minutes.' One of appellant's female companions, Shirley Ann Baines, voiced a protest, stating '. . . this ain't right. He looks like the police.' Appellant assured Baines that Marshall was 'okay' and upon Thompson returning in 'about fifteen minutes,' she (Thompson) gave four packets, later determined to contain .171 grams of heroin, to the informant. The informant gave two of the packets to Marshall. Thompson was called as a witness by the State and testified that she went after the heroin in appellant's car, paid $44 for same, and gave the remaining $6 to appellant. We cannot agree with appellant's argument that he could not be a principal under the foregoing circumstances. Appellant was present at the time of the commission of the offense and the evidence places appellant in the chain of causation which led to the sale of the heroin. See Lawrence v. State, Tex.Cr.App., 477 S.W.2d 275; cf. Robinson v. State, Tex.Cr.App., 493 S.W.2d 780.

Appellant contends the court erred in 'admitting facts to attack the credibility of the defendant' at the penalty stage of the trial.

Appellant points to the testimony of several witnesses who testified at the penalty stage of the trial that they knew appellant's reputation for being a peaceful and law-abiding citizen, and that such reputation was bad.

The record reflects that as to some of these witnesses appellant elicited testimony on cross-examination regarding specific acts of misconduct. Clearly, appellant cannot be heard to complain of testimony he elicited by his own cross-examination. Further, it is not improper for a witness to discuss specific acts with other persons as a basis for determining what a defendant's reputation is in the community. Crawford v. State, Tex.Cr.App., 480 S.W.2d 724. A review of the testimony of the reputation witnesses reflects that there is nothing to show that the testimony complained of was based solely upon the instant sale of heroin charge so as to render the testimony inadmissible. Witt v. State, Tex.Cr.App., 475 S.W.2d 259.

In still another argument under this contention, it appears that appellant is urging that testimony as to reputation was based on events not occurring within the community in which appellant lived. In Arocha v. State, Tex.Cr.App., 495 S.W.2d 957, this Court said, 'A person's community is not limited to the locale where the case is tried nor his residence at the date the offense was committed.' See Ables v. State, Tex.Cr.App., 519 S.W.2d 464.

Appellant's complaint that the court erred in refusing to allow him to withdraw his request to have the jury assess punishment where the State objected to same is without merit. Article 37.07, Sec. 2(b), Vernon's Ann.C.C.P. See Benson v. State, Tex.Cr.App., 496 S.W.2d 68.

Appellant contends the court erred in permitting the State to exceed the scope of direct examination of appellant's wife.

Appellant's wife testified that appellant was with her in Benton, Arkansas, on the date in question.

The record reflects that the State was permitted to ask appellant's wife if she knew certain named persons over appellant's objection that such questions exceeded the scope of direct examination. In addition, she was asked if she were in the courtroom the previous day.

Under Art. 38.11, V.A.C.C.P., it is only new incriminating evidence brought out against the husband through the wife that constitutes reversible error. Shirley v. State, Tex.Cr.App., 501 S.W.2d 635; Newby v. State, Tex.Cr.App., 384 S.W.2d 133.

Considering the record as a whole, we conclude that the questions objected to were not so harmful as to require reversal.

Appellant contends the State's failure to disclose its intentions to grant sentencing concessions to accomplice witness Thompson, who testified against appellant, constitutes a denial of due process and requires reversal.

Deborah Thompson, charged in the same indictment with appellant and...