Wilkes v. State, 54425
| Decision Date | 17 May 1978 |
| Docket Number | No. 54425,No. 3,54425,3 |
| Parties | Ralph WILKES, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
Louis Dugas Jr., Orange, for appellant.
Jim Sharon Bearden, County Atty. and Michael W. Shuff, Asst. County Atty., Orange, for the State.
Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
This is an appeal from a conviction for delivery of heroin. Punishment was assessed at 45 years.
Appellant first complains of a conversation between a juror and a witness for the State that occurred during a recess. The trial court conducted a hearing at which the witness and juror testified that the conversation concerned the National Guard, and the case was not mentioned. No harm has been shown and the trial court did not err in denying appellant's motion for mistrial. See, Art. 40.03, Sec. 7, V.A.C.C.P. Maldonado v. State, Tex.Cr.App., 507 S.W.2d 206.
In his other ground of error appellant contends reversible error occurred when State's exhibit one was admitted over his hearsay objection. The exhibit was an evidence envelope with writings made by the undercover officer shortly after the purchase of the heroin. While the objection was good and the trial court's ruling was error under the authorities compared below, we conclude that in this case the exhibit did not harm appellant by presenting "a neat condensation of the government's whole case against the defendant," Battee v. State, Tex.Cr.App., 543 S.W.2d 91, quoting United States v. Ware, 7 Cir.,247 F.2d 698; nor was it shown that the exhibit actually accompanied the jury into the jury room.
Prior cases in which admissions of similar exhibits have required reversal include Coulter v. State, Tex.Cr.App., 494 S.W.2d 876; Nelson v. State, Tex.Cr.App., 507 S.W.2d 565; Battee v. State, supra; Sisson v. State, Tex.Cr.App., 561 S.W.2d 197; and, most recently, Carrier v. State, Tex.Cr.App., 565 S.W.2d 57 (1978). In each of those cases the harmful exhibit is set out in the opinion and may be compared by the reader. To distinguish this case we compare the exhibit here only with that in Carrier, the exhibit to which it is most similar.
In Carrier the exhibit bore these words:
unlawful dist of a
dangerous substance
9/25/74
8:15 B8484
Andy st-1
Res. farragut
----------
$50.00 4-26-76
2 tin foil containing
a brown powder
(heroin) 8:35 P.M
C.P.A. 43 8/25/74
JW
J.W.P
In the instant case the exhibit as offered read:
unlawful Dist. of
a dangerous substance
10/3/74
1:30 p.m
Ralph
Second St. pool hall 1:45 p.m
4 pieces of foil 10/3/74
containing an off J.W
white powder J.W.P
$40.00
C.P.A. 43
The trial court sustained appellant's hearsay objection in part and overruled it in part. Appellant sought exclusion of the entire exhibit, and after the court sustained the objection as to the first two lines on the exhibit by ordering them covered over, appellant secured an adverse ruling on his objection to...
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