Witt v. State, 44376

• Decision Date: 07 December 1971
• Docket Number: No. 44376,44376
• Citation: 475 S.W.2d 259
• Parties: Rickey Joe WITT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 259

475 S.W.2d 259

Rickey Joe WITT, Appellant, v. The STATE of Texas, Appellee.

No. 44376.

Court of Criminal Appeals of Texas.

Dec. 7, 1971.

Rehearing Denied Feb. 2, 1972.

Gibson, Ochsner, Adkins, Harlan & Hankins, by Michael C. Musick, Amarillo, for appellant.

George E. Dowlen, Dist. Atty., Canyon, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

This is an appeal from a conviction for the sale of marihuana. The punishment was assessed by the jury at fifteen years.

Policewoman Cox testified she started attending school in Randall County, in September 1969, in connection with an undercover operation; that she first met appellant on October 13th at a drive-in on the Canyon Expressway where a conversation took place about the purchase of drugs and that appellant and one Gary Morris told her that there were better contacts to buy drugs from than the people she had been around; that the next evening, she returned to the drive-in where the appellant and Morris approached her and asked if she wanted to buy some marihuana, and that she purchased a 'lid' of marihuana for twenty dollars from appellant.

Appellant contends that he was denied the right to counsel at critical stages throughout the entire period during which he was arrested or detained. Appellant was arrested in Anaheim, California, on January 17, 1970, waived extradition proceedings, and ten days later was returned to Randall County.

Appellant complains that he was not informed of his right to counsel prior to signing of a waiver of extradition proceedings. This court held in Hinkle v. State, 442 S.W.2d 728, that an illegal removal of defendant across state lines does not afford defendant immunity from prosecution. See also Goodspeed v. Beto, 341 F.2d 908 (5 Cir.), cert. den., 386 U.S. 926, 87 S.Ct. 867, 17 L.Ed.2d 798 (1965), where the court held any illegality in extradition proceeding would not invalidate subsequent conviction.

Appellant further complains of the court's failure to furnish him counsel after his return to Texas in that during this time, when he did not have counsel, he could have started preparing his defense and contacting witnesses who could prove and corroborate his defense of alibi. The appellant's testimony reflects that he was brought before the court upon his return to Texas, and appellant advised the court that he would like to hire his own attorney; that when appellant was unable to hire an attorney, the court appointed counsel requested by appellant. The docket sheet reflects appellant was represented by counsel on February 2, 1970, and the trial did not begin until August 14, 1970.

We reject appellant's contention that he was denied counsel at the critical stage of the proceedings.

Appellant complains that his counsel in the trial court was inadequate to provide for the fundamental fairness which should have been afforded him under the Sixth and Fourteenth Amendments to the U.S. Constitution. We have reviewed the numerous instances cited by appellant in the course of the trial where he claims counsel was ineffective. These complaints have been examined in light of what the court said in Williams v. Beto, 354 F.2d 698 (5th Cir.): 'as no two men can be exactly alike in the practice of the profession, it is basically unreasonable to judge an attorney by what another would have done, or says he would have done, in the better light of hindsight.' Further, the adequacy of an attorney's services on behalf of the accused must be gauged by the totality of the representation. Baker v. State, 204 Kan. 607, 464 P.2d 212; Satillan v. State, Tex.Cr.App., 470 S.W.2d 677. We conclude that the record reflects appellant had adequate representation in the trial court.

Appellant complains of the court admitting into evidence the marihuana, two letters written by the appellant and the character testimony of Witnesses Bowes and Johnston. Officer Cox testified she put the marihuana in an envelope the night she obtained it, placed the envelope in her kitchen cabinet where it remained until 7:30 P.M. the next day, when she delivered it to Officer Smith, of the Amarillo Police Department, who testified he initialed it and delivered same to Chemist Dunn. Witness Dunn testified he received the substance from Officer Smith and that he ran a test on it and found the substance to be marihuana. Appellant contends that since Officer Cox did not have a lock on her cabinet, other members of her family had access to it. In Wright v. State, 420 S.W.2d 411, where marihuana cigarettes had been left on top of the chemist's desk for three weeks and other people had access to them, this court held absent a showing that the exhibits had been tampered with, appellant's objection went to the weight rather than the admissibility of the evidence. See also Walker v. State, Tex.Cr.App.,...