Weeks v. State, 44525

• Decision Date: 26 January 1972
• Docket Number: No. 44525,44525
• Citation: 476 S.W.2d 310
• Parties: Winford Anthony WEEKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 310

476 S.W.2d 310

Winford Anthony WEEKS, Appellant, v. The STATE of Texas, Appellee.

No. 44525.

Court of Criminal Appeals of Texas.

Jan. 26, 1972.

Rehearing Denied March 8, 1972.

John J. Browne, Houston, (on appeal only), for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and F. M. Stover, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for the possession of heroin with punishment assessed by the jury at life. ¹

The appellant, in his first five contentions, complains that the State failed to prove the legality of the attempted arrest and search from which the narcotics were recovered, and that the court should have heard evidence out of the presence of the jury regarding probable cause for the attempted arrest and the raliability of the informer.

The evidence reflects that officers positioned themselves at an overpass above Studemont Street, in Houston, on the evening of August 29, 1967, as the result of a call to the narcotics division of the Houston Police Department; that appellant and one Lehman Ray Thompson were observed standing on the esplanade of Studemont Street next to appellant's car, at which time the following occurred according to the testimony of Officer Collins:

'Q: What did Officer Albert say after he got out of the vehicle?

'A: He hollered at both men that were under the overpass there, 'Hold it. We are police officers.'

'Q: What, if anything, did Winford Weeks do after Officer Albert said, 'Hold it. We are police officers?'

'A: It was about that time when Officer Albert hollered, that the defendant shoved the paper sack to the other man and just after he gave the sack, he turned and jumped in the front seat of the car and left.

'Q: Could you describe the manner in which the defendant got into the car, and I'm speaking of the defendant, Winford Weeks, when he got into his car, and the events that transpired immediately after that?

'A. He was standing only maybe 10 feet from the open door on the driver's side of his car. He ran real fast and jumped in the car and slammed the door closed, and laid down.

'Q. Show the jury how he laid down as best you can, and as best you can recall.

'A. When I saw him, he slammed the door, bending over in the driver's side and also, he was taking off at the same time, and two shots were fired from within the vehicle.

'Q: Was anyone else in the car with the defendant?

'A: No, sir.'

In Gonzales v. State, Tex.Cr.App., 461 S.W.2d 408, two deputy city marshals stopped the accused, after they had observed him fail to obey a stop sign. When one of the marshals approached the vehicle, he saw the accused throw a bag over the hood of the car. A paper bag, later found to contain marihuana, was recovered by one of the officers some ten feet from the car. The accused contended that this marihuana was inadmissible because it had been secured by a search that was incident to an illegal arrest, in that, there was no city ordinance establishing traffic control devices or stop signs, and the accused had not received a citation for any traffic offense. This court held that the State did not 'rely upon the fruits of a search of appellant's person or his vehicle incident to an arrest for a traffic offense but only upon marihuana discovered after it was abandoned by the appellant in the presence of the officers and which when found was in plain view of the officers.' In Hamilton v. State, Tex.Cr.App., 438 S.W.2d 814, this Court held that where officers alighted from their unmarked automobile and accused observed them and fled, dropping papers of heroin, and officers pursued accused, apprehended him, and searched him, and found nothing incriminatory, the heroin recovered was not inadmissible on ground that it was obtained as the result of a search and seizure. In Harless v. State, Tex.Cr.App., 473 S.W.2d 519, the accused dropped a bag containing marihuana when the officers approached him. This Court held the narcotics were not inadmissible on the ground that they were the fruits of an illegal search. In the instant case, it is clear that the State does not rely upon the fruits of an attempted arrest of appellant but only upon heroin recovered after appellant attempted to give same to Thompson in the presence of the officers, and which when found, was in plain view of the officers. The seizure of the heroin by the officers under such facts was lawful, and the Court did not err in admitting the same into evidence. We reject appellant's first five contentions.

The appellant contends that the Court erred in denying appellant's first motion for continuance in that the Court forced appellant to trial with an attorney not of his own choosing, who was not in a position to adequately represent him, and the Court erred in failing to appoint an attorney for him. The docket sheet reflects that appellant appeared in open court on November 16, 1969, with Attorneys Frank Mabry and Will Gray and stated arrangements for representation were concluded and the names of said attorneys were entered of record as attorneys for appellant, and further, on December 5, 1969, that appellant was duly arraigned and upon appellant's request, hearing on appellant's pretrial motions were passed, pending review of record in another case (record in Thompson trial), and 'case set for trial Feb. 16, 1970,' and on February 16, 1970, 'Reset to February 26, 1970 for trial,' and the docket sheet reflects that on February 26, 1970, appellant filed his first motion for continuance. After Nov. 16, 1969, the record reflects that Frank Mabry was the only attorney to appear in court with appellant. Appellant's motion for continuance complained about a problem of communication between appellant and his attorney, Mabry; that his uncle hired Mabry, and that they were unable to work together. Mabry testified that he was employed by appellant's uncle, but that appellant employed him in open court. At the conclusion of the hearing, the motion for continuance was overruled, and Mabry then filed a motion to be permitted to withdraw which was overruled. The appellant testified that he did not want Mabry to be his attorney, and that he would like to have the State appoint him a lawyer. We conclude that, under the facts herein, the Court did not err in denying appellant's motion for continuance and his counsel's motion to withdraw, when same were made on the first day of trial. See Brown v. State, Tex.Cr.App., 464 S.W.2d 134; Garza v. State, Tex.Cr.App., 440 S.W.2d 860; Estrada v. State, Tex.Cr.App., 406 S.W.2d 448.

Appellant complains that the evidence is insufficient to support the verdict finding that appellant possessed the narcotics in question.

Officer Collins testified he saw the bag found to contain heroin in the hands of the appellant, observed appellant thrust it toward the hands of Thompson and flee the scene when the officers appeared. The evidence of appellant's possession of the bag containing heroin is ample to support the jury's verdict. In addition, the flight of appellant is further evidence of his guilt . Thames v. State, Tex.Cr.App., 453 S.W.2d 495; Cawley v. State, Tex.Cr.App., 310 S.W.2d 340. We reject appellant's contention that the evidence is insufficient to support the verdict.

In appellant's contentions, ten through fourteen, complaint is made that the trial court erred in not granting appellant's pretrial motion for discovery and in failing to specifically rule on each item set out in appellant's motion for discovery.

The record reflects that when appellant advised the court that arrangements for counsel had been made on November 6, 1969, the court set a hearing on pretrial motions for December 5, 1969, at which time the hearing on appellant's pretrial motions was passed at appellant's request pending review of his co-indictee's trial (Thompson was tried in August, 1968). Appellant's motion for discovery had been filed on December 3, 1969. On February 16, 1970, this case was re-set for February 26, 1970, the record not reflecting the reason for this postponement. On February 26, 1970, appellant's motion for discovery was heard during which hearing appellant attempted to conduct his case after disagreements with his counsel as to the manner in which the motion should be handled. Counsel for appellant acknowledged that he had received a complete record of the Thompson trial and the following testimony is elicited from appellant's counsel at the hearing:

'Q And, by reading these statements of facts, you ascertained the names of the people, the location of the offense, and the offense that was alleged?

'A I have done that, but I do not know if that's all the names of the persons who were present, and I do not know if, in fact, Mr. Weeks might have some witnesses that might furnish an alibi, or other means of defense in this matter, and I have reviewed the witnesses that were produced by the defense and the state in the Lehman Thompson trial, but I don't know what Mr. Weeks has got. It might be a different case altogether.

'Q Well, certainly, the items you have testified to, that you have done, are all the things that any competent attorney would do in preparation of a case for trial?

'A Yes, sir. I have tried.

'Q And, Mr. Mabry, do I understand you did not express an opinion, an opinion as to whether or not the defendant knew the difference between right or wrong?

'A No, sir, I do not know whether he does or not. I do know I can't get through to him. I can't talk to him. I can't communicate with him.'

At this juncture, the Court ordered appellant examined by a psychiatrist and recessed court until the next day. The record reflects that appellant filed a motion for psychiatric examination on February 26, 1970. The following day, Dr. Scher, Consultant Psychiatrist for Harris County, testified that appellant was of sound mind, knew right from wrong, was competent to stand trial and...