Verret v. State, 43912

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Citation: 470 S.W.2d 883
• Docket Number: No. 43912,43912
• Parties: Milton VERRET, Appellant, v. The STATE of Texas, Appellee.
• Decision Date: 07 July 1971

Page 883

470 S.W.2d 883

Milton VERRET, Appellant, v. The STATE of Texas, Appellee.

No. 43912.

Court of Criminal Appeals of Texas.

July 7, 1971.

Rehearing Denied Oct. 13, 1971.

Everett Lord, Walter M. Sekaly, Beaumont, for appellant.

Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for delivery of a dangerous drug, to wit: Barbiturate; the appellant pled guilty and the jury assessed the punishment at two years.

The indictment alleged that on August 7, 1969, the appellant delivered the barbiturate to Wyley Flynn. Flynn was a narcotics agent for the Department of Public Safety. The record reflects that this transaction occurred at the Burger Chef on South Eleventh Street in Beaumont. Flynn observed the appellant give some pills to another boy who was about 17 years old, and take money from him. About a minute later a girl about 16 or 17 years old came up to him and asked for eight desbutals, and the appellant gave her eight pills and she handed him some money. The appellant then turned to Flynn and said, 'I only got eight tabs left, you want to buy some?' Flynn then purchased chased four 'tabs' from the appellant. The pills were shown to be barbiturates and amphetamines.

The appellant was 18 years old at the time of the trial and 17 when this incident occurred. He had never been convicted of any offense other than traffic tickets. He testified that he had made the sale to Flynn, but he disagreed with the officer as to many particulars of the incident. He denied going up to Flynn and offering to sell him pills and denied that he sold them to the girl. He did admit that he sold them to the boy. He stated that the incident had taught him 'a great lesson,' and that he understood what the terms of probation would be and that he would obey them. He further testified, 'Yes, sir, I think I learned a lesson, it's just that I got mixed up with the wrong people at the wrong time and that's the reason I got into this trouble.' He testified that he was no longer associating with those persons.

The appellant's father, Thomas Joseph Verret, had lived in Beaumont since 1946 and operated his own business in that city. His testimony on both direct and cross-examination indicated that the appellant had changed greatly as a result of this incident. Whereas before, he refused to obey his parents, he then obeyed them in every way. Whereas before, he was failing in school, he was then passing and doing fairly well, especially in orchestra.

Kenesaw Bernsen testified that the appellant had a good reputation as a peaceful and law-abiding citizen in the community. Bernsen had taught the appellant in Sunday School and had known him all of his life. He testified that if the appellant were given probation he would benefit and learn from the experience.

A criminal investigator for the sheriff's department testified that the appellant had a bad reputation as a peaceful and law-abiding citizen.

Dr. Harold Bevil, a physician, testified that barbiturates and amphetamines were not habit forming and that the four tablets could not cause death but that they could cause a person to injure someone else. He had known and treated the appellant since he was five years old. He further testified that, 'Well, I am interested in this boy. Milton had admitted his error, he says he wants to correct it and that he will not make this mistake again, and that he hopes to discourages other youngsters from doing the same sort of thing. Whether or not Milton would do it depends on the future--that, I cannot prognosticate.'

Louis Dennis was employed by the Railway Express, had been active in various types of youth work and was a friend of the appellant's family. Following the arrest, he talked with the appellant about school, about changing his places of entertainment, and about his environment. He also testified that:

'A I certainly have. I feel that he has done an excellent job of rehabilitation in a lot of ways, courtesy, his respect to his parents and other people, his respect to the employees who he works with. He has just done a marvelous job, and I feel like he has been punished, not necessarily by his arrest, but by the guilt that he feels for what he has done. He knows what he has done is wrong and he realizes he has done wrong and he is really trying to rehabilitate himself.'

The appellant presents eight grounds of error, each of which is without merit. The first ground complains of the testimony of sales to the boy and the girl. No objection was made to this testimony, therefore, nothing is presented for this Court to review. Smith v. State, Tex.Cr.App., 437 S.W.2d 835; Klein v. State, Tex.Cr.App., 384 S.W.2d 872. This evidence of other crimes was res gestae of the offense charged and interwoven and blended therewith. Taylor v. State, Tex.Cr.App., 420 S.W.2d 601 and cases there cited; Scott v. State, Tex.Cr.App., 471 S.W.2d 379. The appellant's first ground of error is overruled.

The appellant's second ground of error complains of several references in the prosecutor's argument to the appellant as a 'dope pusher.' When the prosecutor opened his argument, he said that the State wanted to send this 'dope pusher' to the penitentiary. No objections were made. Later, as the prosecutor continued to use the term, sometimes the appellant objected and sometimes he did not. Therefore, any error in the use of the term was waived. Mackin v. State, Tex.Cr.App., 370 S.W.2d 876. Again, even had the alleged error been preserved, such argument would not have constituted reversible error, as it was a reasonable deduction from the evidence. Meyer v. State, Tex.Cr.App., 416 S.W.2d 415; Siwakowski v. State, Tex.Cr.App., 387 S.W.2d 669. The appellant's second ground of error is overruled.

The appellant's third ground of error complains the State argued to the jury that the appellant's counsel lacked good faith. The argument was as follows:

'MR. ANGELLE CONTINUES WITH ARGUMENT: Now, Mr. Pettis knew he had no legal objection there, he had no legal objection to state to the Court, he just tried to break my train of thought, remember--

'MR. PETTIS: Your Honor, we are going to object

'THE C...