text:
    Richard RIDYOLPH, Appellant, v. The STATE of Texas, Appellee.
    No. 53109.
    Court of Criminal Appeals of Texas.
    Jan. 5, 1977.
    Rehearing Denied Feb. 2, 1977.

      J. Douglas Tinker, Corpus Christi, Marvin O. Teague, Houston, for appellant.
    Carol S. Vance, Dist. Atty. and James C. Brough, Asst. Dist. Atty., Houston, William B. Mobley, Dist. Atty., and Vic Gillespie, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder with malice under the former Penal Code where the jury assessed punishment at ninety-nine (99) years. The ease was tried in Harris County following a change of venue from Nueces County. A previous conviction was reversed in Ridyolph v. State, 503 S.W.2d 276 (Tex.Cr.App.1973), for the suppression of evidence.

Appellant attacks the admissibility of his confession, complains of the admission of certain evidence, urges error as to the failure to charge on the law of circumstantial evidence, as well as the failure to give other charges and claims that certain jury argument of the prosecutor constitutes reversible error.

The record reflects that two or three minutes after 11 p. m. on August 19, 1971, the deceased, Corpus Christi Police Officer John Sartain, along with officers Lazo and Balli, walked out of the back door of the police station into a well lighted parking lot. Pour or five, seconds later a shot was fired, Sartain slumped over and Lazo pulled him to the ground. Balli scrambled for cover. Lazo observed that Sartain was bleeding profusely about the head. An ambulance was called and Sartain was taken to the hospital.

Dr. Craig Norstrom examined Sartain at the hospital. Sartain was unconscious and bleeding profusely from the head. There were lead pieces in the brain. Sartain died eight hours after admission to the hospital. The cause of death was shown to be a gunshot wound to the head.

The State introduced the written extrajudicial confession of the appellant in which he admitted he was given a rifle and some bullets in June of 1971 and that on August 19, 1971, he had taken the rifle with him and he went to a recreation center and sat on a bench with some older boys drinking wine. He related these boys saw his rifle and that they said “they ought to go and shoot at the law.” When the wine was gone, the appellant told them he was “fixing to make it” and as he left the boys on the bench said “shoot at the police station” and about 11 p. m. he fired one shot at the police station from the baseball field. Appellant fled. The next day he gave the rifle in question to one James to keep for him.

Alex Roberson testified he was with the appellant and his brother on August 19, 1971, about 11 p. m., that appellant was in some bushes behind the ball park fence and had something long in his hand. Roberson heard a shot fired and they all ran to appellant’s home where he took the object into the house. Three minutes later they went to the recreation center and when people at the center were talking about a policeman who was shot at the police station appellant stated, “I got one” and “I got a policeman.”

Leonard James testified that on the weekend of August 20, 1971, the appellant gave him what he assumed was a rifle, wrapped up, to keep for him and it was placed in his car trunk. The next morning the rifle was recovered from him.

Appellant advances four grounds of error relating to the admissibility of his confession. He contends the trial court erred in denying the motion to suppress the confession and later in admitting the confession into evidence over objection as the same failed to satisfy provisions of Articles 15.17 and 38.22, Vernon’s Ann.C.C.P., as to the warnings required thereby. He further contends that the court’s findings of fact on the voluntary nature of the confession are incomplete and should be rejected and admissibility should be resolved on the basis of the statement of facts.

A review of arguments advanced under these grounds of error and the one case cited indicates that appellant limits his argument to one contention — that he was under 17 years of age and without counsel at the time of the confession and that Lovell v. State, 525 S.W.2d 511 (Tex.Cr.App.1975), would render the confession inadmissible.

In Lovell a confession taken from a 16 year old individual on February 10, 1974, without the presence or waiver of counsel was held inadmissible in light of V.T.C.A., Family Code, § 51.09 (Waiver of Rights), which became effective September 1, 1973. Said Section provided:

“Unless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if:
“(1) the waiver is made by the child and the attorney for the child;
“(2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it;
“(3) the waiver is voluntary; and
“(4) the waiver is made in writing or in court proceedings that are recorded.”

The confession in the present case was taken on August 21, 1971, long prior to the effective date of the foregoing quoted section. Apparently appellant would urge that this statutory provision should be applied retroactively. We do not agree. Normally statutes do not apply retroactively.

Further, Acts 1973, 63rd Leg., p. 1460, ch. 544, enacted Title III of the Texas Family Code. Section 4 thereof reads:

“Sec. 4. This Act takes effect on September 1, 1973, and governs all proceedings, orders, and judgments brought after it takes effect, and also further proceedings in actions then pending, except to the extent that in the opinion of the court its application in an action pending when this Act takes effect would not be feasible or would work injustice. All things properly done under any previously existing rule or statute prior to the taking effect of this Act shall be treated as valid. (Emphasis supplied.)

In Lovell v. State, supra, it was stated:

“Prior to the enactment of the Family Code, a minor could waive his right to counsel before making an extrajudicial statement. Moreno v. State, Tex.Cr. App., 511 S.W.2d 273; Garza v. State, Tex.Cr.App., 469 S.W.2d 169; In re Garcia, 443 S.W.2d 594 (Tex.Civ.App. — El Paso, 1969).”

Thus the confession taken on August 21, 1971, was not governed by the provisions of the Family Code later enacted. Appellant’s contention is overruled.

The remaining grounds of error relating to the confession are not briefed, no authority is cited, and no reference is made to the record. There has not been any compliance with Article 40.09, § 9, Vernon’s Ann.C.C.P. See Smith v. State, 472 S.W.2d 520 (Tex.Cr. App.1971). Nothing is presented for review. Nevertheless, we have reviewed the record and find such contentions to be without merit.

Appellant also complains that the trial court erred in failing to declare a mistrial when the State’s witness Bullard made reference to an extraneous shooting at the back of the police station.

On cross-examination it was developed that Bullard, a Commander in the Corpus Christi Police Department, had testified in a prior hearing that there were four lights on the wall of the police station at the time of the shooting in the instant case. It was then developed that Bullard was not at the back of the station at the time in question. Bullard was then asked by appellant’s counsel:

“Q. And, are you telling us now and you testified under oath that that was true when you weren’t even there? You weren’t — you didn’t even have an idea?
“A. Mr. Tinker—
“Q. You couldn’t even testify either way?
“MR. MOBLEY (District Attorney) Let him answer the question.
“THE COURT: Yes, sir. Let him answer the question before the next question.
“A. (By witness) I testified under oath, and honestly believed in what I said at the time, but I had this shooting confused with another shooting.”

Without making an objection, the appellant requested a mistrial and a jury instruction to disregard the answer. The court denied the mistrial motion, but instructed the jury to disregard the witness' answer.

It is observed that Bullard’s answer was to three questions directed to him on cross-examination and that the answer given gave no indication that the appellant was connected in any manner with the extraneous shooting.

Even if it can be argued that the answer was non-responsive, a prompt instruction to disregard a non-responsive answer is usually sufficient to cure the error, if any. Haggerty v. State, 491 S.W.2d 916 (Tex.Cr.App.1973); Noble v. State, 402 S.W.2d 758 (Tex.Cr.App.1966); Jaramillo v. State, 504 S.W.2d 853 (Tex.Cr.App.1974); Melton v. State, 508 S.W.2d 104 (Tex.Cr. App.1974). We hold that the court’s instruction was curative of any error.

Appellant complains that the trial court erred in failing to sustain his objections to the following questions on redirect examination of the witness Bullard:

“Q. I have one last question, Commander Bullard. To your own personal knowledge, was any other person other than Richard Ridyolph ever indicted for the murder of John W. Sartain?
“A. To my knowledge, Richard Ridyolph is the only person that has ever been indicted for the murder of (sic) malice of Police Officer John Sar-tain.”

The objection offered before the question was answered was that the indictment could not be considered as evidence and the answer would further call for hearsay. The objections were overruled and the witness was permitted to answer as to his personal knowledge.

Prior to the time the question was asked and on cross-examination appellant’s counsel had established through Bullard’s testimony that four persons, in addition to the appellant, had been arrested for the offense charged. While there were better means of proving which persons had or had not been indicted, we conclude that the question was invited and the appellant was not harmed thereby.

Appellant in five grounds of error complains of the following charge given by the court:

“You are further instructed that under the law if any person shall purposely and intentionally fire a rifle at a group of people occupying an area, knowing at the time that persons are occupying said area and thereby kill anyone, such offense would be murder with malice aforethought, although the person firing the rifle had no specific intention to kill any particular person.”

Appellant contends this is an erroneous and incorrect statement of the law, an improper application of the law to the facts, a charge on an issue not raised by the evidence, and a comment on the weight of the evidence.

In Davis v. State, 106 Tex.Cr.R. 300, 292 S.W. 220 (1927), a constable fired a pistol twice in the direction of a car occupied by several persons. The passenger in the car was struck and killed. The defendant, who was convicted of murder, contended on appeal the charge was erroneous. This court stated:

“Appellant seriously complains at paragraph 9 of the court’s charge, which in effect instructed the jury that if any person shall purposely and intentionally fire a pistol at an automobile, knowing at the time that persons are occupants therein, and thereby kill any of such occupants, such offense would be murder, although the person firing the pistol had no specific intention to kill. We think this charge is a correct statement of the law and is applicable to the facts in the instant case.”

In Gonzales v. State, 426 S.W.2d 859 (Tex.Cr.App.1968), it was held that the firing of a rifle into a moving automobile containing two passengers was sufficient to justify malice. See also Banks v. State, 85 Tex.Cr.R. 165, 211 S.W. 217 (1919).

We conclude that the court’s charge was a correct statement of the law and was not a comment on the weight of the evidence.

As to appellant’s claim that it was improper application of the law to the facts, we observe that appellant overlooks that part of the charge immediately following the complained of charge where the law was applied to the facts in a similar fashion to the charge approved in Sykes v. State, 503 S.W.2d 287 (Tex.Cr.App.1974).

Further, in light of the evidence, including appellant’s confession, we find no merit in his complaint that the issue was not raised by the evidence.

In two grounds of error appellant urges that the court failed to charge on the law of circumstantial evidence despite his timely presented requested charge.

Appellant contends that the confession falls short of being an unequivocal admission or confession of the offense charged and that when all the evidence is considered there still is no direct evidence that he shot and killed the deceased. He cites and relies upon Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974), and Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975).

Where there is direct evidence from any source that the defendant killed the deceased, then there is direct evidence of the main fact to be proved and a charge on circumstantial evidence is not required. 4 Branch’s Ann.P.C., 2d ed., § 2050, p. 359. Normally proof that a defendant admitted or confessed to having killed the deceased is direct and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission or confession is in evidence. 4 Branch’s Ann.P.C., 2d ed., § 2050, p. 358; Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974). It is true, of course, that an admission or confession must unequivocally admit the commission of the act charged before the court is relieved of the necessity of giving a charge on the law of circumstantial evidence on the basis of the confession alone. Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948); Hielscher v. State, supra.

It was made clear in Martinez v. State, supra, that even if the accused confesses or admits to the commission of a crime it must be shown by the evidence and the confession of the accused that the crime admitted is the same crime for which the defendant is being tried if the circumstantial evidence charge is not given. If it is only by a process of inference from the confession or admission that it can be determined that the accused did the killing or was a guilty participant therein, the court should give the circumstantial evidence charge. See 4 Branch’s Ann.P.C., 2d ed., § 2049, p. 358; Hielscher v. State, supra; Casey v. State, supra.

In adhering to the rule laid down in Martinez v. State, supra, this court in Patterson v. State, 416 S.W.2d 816, 819 (Tex.Cr.App. 1967), noted that each case must in a measure be tested by its own facts. In Patterson the defendant’s statements that he “got an insurance man” and “had big money,” as well as other statements made to friends while not in custody, had to be considered in light of all of the evidence presented. When this was done, it showed that (1) the deceased was an insurance man; (2) the robbery-killing occurred in North Dallas as stated; (3) the money taken and admitted was about the same; (4) the deceased was killed as the defendant described; (5) that defendant and his companion were almost caught as defendant stated. There it was held that in light of all the facts in the case the charge on circumstantial evidence was not required. See also Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970).

Appellant’s written confession that he fired a “30 carbine rifle” at the police station at 11 p. m. on August 19,1971, after he had been told to “shoot at the law” must be considered in light of all the evidence. (1) The deceased, Sartain, was a policeman who was shot and killed walking out of the Corpus Christi city police station at 11 p. m. on August 19, 1971. (2) The witness Roberson testified he saw the appellant with some long object in his hand at 11 p. m. on August 19, 1971, in a ball park near the police station and that he heard a shot fired and he and appellant ran to appellant’s home. (3) There was testimony that later that night when there was a discussion of a policeman being shot at the police station the appellant, while not in custody, stated, “I got one” and “I got a policeman.” (4) The witness James related the appellant gave him a rifle on the August 20, 1971, weekend. The rifle was recovered and was shown by ballistics test to have fired the bullet that killed the deceased.

In light of all the evidence, we cannot conclude that the court erred in refusing to charge on the law of circumstantial evidence.

Appellant further complains that the court erred in failing to give his special requested charges 12 and 15. These requested charges related to a charge on negligent homicide of the second degree and application of the law to the facts. He acknowledges that the court did in fact charge on negligent homicide in the second degree, but complains that the unlawful act used in such charge applying the law to the facts was limited to “firing a gun willfully or maliciously at or against a public building” under the provisions of Articles 859 and 860, Vernon’s Ann.P.C., 1925. He contends that he was entitled to more and should have had a charge on negligent homicide in the second degree where the unlawful act involved was shooting a gun across a public road in violation of Article 480, Vernon’s Ann.P.C., 1925.

The charge given by the court was supported by the evidence in that the appellant stated in his confession, “I stopped and aimed the rifle at the police station and fired one shot.”

It is apparently appellant’s contention that “shooting a gun across a public road” should have been used as the unlawful act rather than “firing a gun willfully or maliciously at or against a public building” in the charge on negligent homicide in the second degree, or in the alternative that both should have been used. Appellant cites no authority. The charge as given adequately protected appellant’s rights.

In two grounds of error appellant complains of the jury argument by the District Attorney from Nueces County. The first argument at the guilt stage of the trial was:

“ ‘. . . Somebody protect our policemen,’ whether it is in Houston, whether it is your own policeman, Corpus Christi, El Paso, Amarillo, Texarkana, or where. What are we going to do about it? Only you, you twelve people, a cross-section of Harris County. I am wondering what you are going to do about it. I wonder what I am going to tell three hundred thousand people I represent in the Hundred and Fiftieth Judicial District.”

At the punishment stage of the trial the Nueces County District Attorney argued:

“. . . and I ask in behalf of myself as District Attorney and I ask in behalf of the three hundred thousand people I represent.”

In each instance the objection was sustained and the jury was instructed to disregard, but the motions for mistrial were denied.

Appellant complains that such jury arguments referred to the expectations or demands of the community for a particular result constituting reversible errors which cannot be cured by instruction to the jury to disregard. See Pennington v. State, 171 Tex.Cr.R. 130, 345 S.W.2d 527 (1961); Cox v. State, 157 Tex.Cr.R. 134, 247 S.W.2d 262 (1952); Porter v. State, 154 Tex.Cr.R. 252, 226 S.W.2d 435 (1950).

In Bothwell v. State, 500 S.W.2d 128 (Tex.Cr.App.1973), the prosecutor stated:

“We, of course, who we represent, as I told you yesterday, a million two hundred thousand people living in this county, we can’t fit them all into court. We can’t have you sympathize with our side.”

In such case this court concluded the statements were not an appeal based on the sentiments of the community, unlike those in Pennington, Cox and Porter.

Likewise, we cannot conclude that the complained of arguments by the Nueces County District Attorney to the Harris County jurors wondering what he would tell the people of his district were appeals based on the sentiments of the community. We hold that these statements did not constitute reversible error. Bothwell v. State supra; Crawford v. State, 511 S.W.2d 14 (Tex.Cr.App.1974); Horn v. State, 505 S.W.2d 269 (Tex.Cr.App.1974); Perbetsky v. State, 429 S.W.2d 471 (Tex.Cr.App.1968).

Finding no reversible error, the judgment is affirmed.

ROBERTS, J., dissents.

      . A subsequent amendment to said Section 51.-09, effective September 1, 1975, permits waiver of rights by a child without the presence of counsel.

      . Although the record was approved without objection, the reference was intended to be made to the 105th Judicial District, which in-eludes Nueces County rather than the 150th Judicial District which is located in Bexar County. Article 199.150, Vernon’s Ann.C.S.


source: Caselaw Access Project

author: GREEN, Commissioner. ROBERTS, Judge,

license: Public Domain

text:
    Robert Lacy CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
    No. 51582.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.
    Kenneth H. Crow and Frank M. Fitzpatrick, Jr., Waco, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Robert C. Bennett, Jr., Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of murder with malice. Punishment was assessed at fifty-two years.

In his eighth ground of error, appellant contends the evidence was insufficient to support the verdict.

In his seventh ground, he complains of the failure of the court, over objection, to charge on specific intent to kill.

The indictment alleged that appellant on or about October 18, 1973, in Harris County with malice aforethought killed Robert Ray Campbell “by beating him about the head with a blunt instrument, the exact description of which is to the Grand Jury unknown

The record reveals that it was the State’s theory that appellant murdered deceased by beating him to death in a motel room in Houston, and his motive was that he did it for hire by Dwight Parks to prevent deceased from testifying against Parks in criminal cases pending against Parks in state and federal courts in Arkansas.

The record reflects that in July, 1972, deceased, Thomas Burke, and Dwight Parks were jointly under indictment in the federal district court for the western district of Arkansas on a “fraud type case” involving a mobile home operation. Deceased, on his plea of nolo contendere, was convicted and placed on probation for three years. Sam Parks, the assistant United States district attorney in charge of the prosecution of the Arkansas federal case, testified in the instant trial that deceased had agreed to become a witness against his two co-defendants. Gary Kennon, the prosecuting attorney in the Arkansas state court where another case was pending, testified that deceased was to be a witness against Parks in a case of “embezzlement of a large sum of money” pending in his court. Thomas Burke testified that he was named as a co-defendant with deceased and Dwight Parks in the fraud case in the federal court in Arkansas. He testified that on the occasion of deceased’s trial in that court Parks told him (Burke) that if deceased turned state’s evidence and testified against him, he (Parks) would kill deceased. Deceased was killed prior to either of the above mentioned cases being tried, and while both were pending.

Larry Campbell, son of deceased, testified that for five or six days prior to October 18, 1973, he saw appellant on each day driving a 1972 Oldsmobile in front of the house in Houston in which he and his father lived. He identified this car as being the car depicted in a photograph admitted in evidence as State’s Exhibit 10. About noon on October 18 he again saw appellant driving this Oldsmobile around the block of which his home was a part. Campbell was “pretty curious about what their business was” so he tried to stop appellant, but appellant as he passed “tried to throw his hand up over his face” and drove on. Shortly thereafter, deceased received a phone call from a man giving his name as Bates, after which deceased left the house telling his son Larry that he had to pick up a man named Bates at the airport at 1:15 or 1:30 p.m. That was the last time Larry Campbell saw his father alive.

Joel Allen, a friend of Larry Campbell, also identified appellant as the driver of the Oldsmobile depicted in State’s Exhibit 10 which circled the block containing deceased’s home on October 18.

A maid, while cleaning room 2122 of the Sheraton Inn of Houston on October 19 found the sheets and towels very bloody. A blanket belonging in the room was missing. Room 2122 was registered to R. J. Bates.

O. 0. Owens testified that in 1972 and 1973 he operated a used car business in Waco which was financed by Dwight Parks. In August, 1973, Parks introduced appellant, under the name of Bray, to Owens, and secured from Owens a 1972 Oldsmobile which Owens subsequently saw appellant driving in Waco. At Parks’ request, Owens recorded this Oldsmobile as having been sold to a “Timmons or Simmons.” Owens testified that Parks, who had financed Owens’ original purchase of the car, “kept all titles to the cars” in his possession. This 1972 Oldsmobile was identified by Owens as being similar to the car depicted in State’s Exhibit 10.

Franklin R. Willis, a State’s witness, testified substantially as follows:

His home was in Milton, Santa Rosa County, Florida, but at the time of the trial he was an inmate of a federal penitentiary. He became acquainted with appellant in May, 1973, and had seen and conversed with him a number of times between May and October. In August, 1973, in a conversation between Willis, appellant, and Carmen Phillips, appellant stated that there was a man in Texas that he had to get rid of to keep him from testifying “in a trailer case of some kind” in Arkansas. He “wanted to know if they could help him or knew anybody that could help him.” Willis and Phillips declined to get involved. On September 6th or 7th, appellant called Willis by phone, stating that he was registered at the Sheraton Inn at Houston under the name of Jack Saunders, and offered Willis $15,-000, and then $25,000 to come to Houston and help him kill a man. He offered to send airplane tickets for Willis and Phillips. Willis talked to Carmen Phillips, and when appellant called back he again declined to get involved.

Three or four days later, appellant drove to Willis’ home in Florida, driving the 1972 Oldsmobile, and appearing “awful upset.” He showed Willis a pistol that he said “he was going to do it with.” Appellant and Willis went to the home of Carmen Phillips, where appellant again made the offer of $25,000 for help in killing a man in Texas. Phillips and Willis again refused. They then went to the home of Glen Porter Dis-mukes in Pensacola, Florida, where there was more talk of the killing. Dismukes asked appellant if he had “got his job done” and appellant replied that he had not.

Willis next heard from appellant on October 22nd or 23rd, when appellant called him from his home nearby where he stayed with his girl friend, Freda Case. Appellant asked him whether lime would “decreate a body,” and told Willis that he had “took care of the man.” At appellant’s request, Willis and Carmen Phillips went to Freda Case’s house, where they had a long conversation with appellant. Appellant told them that he had killed the man he had been hired to kill in a motel room in Houston by beating him in the back of his head “until he gave slap out.” Appellant showed them bruise marks on his legs caused, he said, by the man kicking him during the struggle. When the scuffling was finished, appellant opened the door, and a confederate entered the room. They wrapped deceased’s body in a blanket taken from the room and placed it in the trunk of a car. Willis testified that appellant said he then drove toward Florida. As he got to the Mississippi River, he noticed blood running from the trunk of his car. We washed the blood off, and called a Mrs. Smith, who lived in Hat-tiesburg, Mississippi, and “told her he was coming, but she didn’t know that he was going to bury the body there, is what he said.” Appellant stated that he “buried the body in her back yard.” As to appellant’s disposition of the body, Willis testified:

“Q Not what anybody presumed, but I mean what did the defendant say that he did with the body after he loaded him in the car, if he said anything?
“A He said he carried it to Mississippi but just before he got to Mississippi he said he stopped and used the telephone and called Glen Dismukes up and asked him to help put the body in the Mississippi River, and he looked out there and there was blood running out of thé car, so he went out and raised the trunk of the car and put a pillow under the man’s head where he wouldn’t bleed, and he got a water hose at the service station and washed the blood off and he left and went to Hattiesburg, Mississippi, where he buried the body.
“Q All right, now, did he specifically describe for you the area in which he buried the body?
“A Yes, sir, he did.
“Q What did he say about that?
“A He said it was by a four-lane highway on a main detour to Houston, Texas, and it was a Sears, Roebuck shopping center right behind it because while he was digging the grave he could see the lights of the Sears, Roebuck shopping center.
“A He told me about burying it. He said that he went to digging, he give — he dug until he gave out. He went inside and eat, took a bath and went to bed and come back and finished digging the grave, and drug the man around there and the blanket and put him in and buried him, and put lime on him.
“Q Did he at that time say anything about the lime that he had asked you about over the telephone?
“A He said he put lime on it. Then he buried the man and put pine needles over the grave, he said. Said that the lady where he buried the body at, he called her up in Mississippi and asked — told her he was coming, but she didn’t know that he was going to bring the body there, is what he said.”

Appellant told Willis and Phillips that this place was by a four-lane highway on a main detour to Houston near a Sears-Roebuck shopping center, and while digging the grave he could see the Sears-Roebuck sign. He stated the 1972 Oldsmobile he was driving, in which he had concealed the body, had been given him by the man who had hired him to kill the man, but he needed to get rid of it. Willis sold him a stolen Lincoln Continental automobile. Prior to this, however, Willis and Phillips had told the sheriff of Santa Rosa County of the conversations with appellant and alerted him to the planned delivery of the Lincoln Continental to appellant. Officers saw appellant drive the 1972 Oldsmobile to the place where the other car was to be delivered, exchange luggage into the Lincoln, and drive off. He was soon thereafter arrested. Photographs were taken of the Oldsmobile, and State’s Exhibit 10, one of these photographs, was identified by witnesses including deceased’s son Larry Campbell and Joel Allen as depicting the car seen by them driven by appellant in front of deceased’s house on the day of the killing and seen in appellant’s possession in Hattiesburg.

Carmen Phillips testified substantially as did Willis concerning the conversations with appellant. He stated, in addition to the other details told them by appellant, that appellant said that using the name Bates he met the deceased at the airport in Houston and took him to a hotel room where he beat him from behind with a blackjack until he gave out. He took the body to the home of a friend of his in Mississippi and buried the body in a shallow grave in the back yard, and covered the grave with pine needles.

An employee of Sears-Roebuck and Company in Hattiesburg, Mississippi, testified that on October 19, 1973, appellant purchased a spade, posthole digger and a pick from him. An employee of another store testified that some time in the middle of October she sold Laura Virginia Smith, the owner of the place where the body was buried, seven fifty-pound bags of household lime. A carpenter working at the Smith residence on October 20th said he saw a mound of pine needles and the lime sacks in Mrs. Smith’s yard and asked her what she was planning to do with the lime.

Tammy Smith, the daughter of Laura Virginia Smith, testified that on October 19 she saw appellant go to Sears-Roebuck store, and on October 20 she saw him washing out the trunk of an Oldsmobile, which she identified as being the car pictured in State’s Exhibit 10. A friend of Tammy Smith, Rickey White, testified that on October 19 he saw appellant’s car “backed up on the right side up to the gates” and appellant “out in the yard doing something.” Later he talked to appellant, who was “raking some pine straw.”

Arlon Moulds, a detective on the Hatties-burg police force, testified that the Smith home is separated from Sears-Roebuck store by a four-lane highway and that one standing at the grave site in the Smith yard could see the Sears sign. Moulds found in a storeroom under the carport of the Smith home a new posthole digger, a new pick and a new shovel. These were identified as the same articles sold appellant by the Sears-Roebuck clerk. Moulds testified that, armed with a search warrant, he and other officers probed the ground underneath the mound of pine needles and straw in the Smith yard and found the body of a man buried in a shallow grave, wrapped in a blanket. The blanket was identified as being the one missing from room 2122 of the Sheraton Inn of Houston.

Larry Campbell, son of deceased, testified that he was contacted by officers from Florida, and went to Santa Rosa County, where he identified the 1972 Oldsmobile as being the one seen by him on October 18 under the circumstances heretofore stated. From there he went to Hattiesburg, where he identified the body of the man recovered from the grave in the Smith yard as that of his father, Robert Ray Campbell, the deceased in this case.

The body was delivered to Dr. Joseph Jachimczyk of Houston, Harris County Medical Examiner, for an autopsy. Dr. Ja-chimczyk testified that his autopsy, performed November 8 and 9, revealed the cause of death to be a “fractured skull and broken neck resulting from multiple blunt trauma to the head.”

A member of the grand jury which returned the indictment testified that the grand jury was unable to determine the nature of the weapon used to kill deceased, although it sought diligently to secure that information.

Appellant did not testify.

We find that the evidence sufficiently shows an intent on the part of appellant to kill deceased, and that it is sufficient to support the verdict.

The seventh and eighth grounds of error are overruled.

In his fifth and sixth grounds of error, appellant complains of the refusal of the court to charge on the law of circumstantial evidence.

Appellant’s statements to the witnesses Willis and Phillips admitted that he killed a man in Houston, placed the body in the trunk of his 1972 Oldsmobile, took it to Mississippi, asked about the effect of lime on a body, and buried the body of the man he had killed in the motel room in Houston in a shallow grave in the back yard of a friend. Direct evidence established that the place of burial was the back yard of the home of appellant’s friend Laura Virginia Smith in Hattiesburg, Mississippi. Also, the fact that the body buried there by appellant, who started digging the grave the day following the killing and actually buried the body the day after that, was the body of deceased Robert Ray Campbell was established by direct evidence.

A charge on circumstantial evidence need not be given when there is evidence of an admission by the defendant that he killed deceased. Hurd v. State, Tex.Cr. App., 513 S.W.2d 936, 946; Swift v. State, Tex.Cr.App., 509 S.W.2d 586.

We find the evidence of the admissions of appellant, together with the direct evidence establishing that the man killed was the deceased Robert Ray Campbell, relieved the court of any necessity to charge on circumstantial evidence. The fifth and sixth grounds of error are overruled. See Patterson v. State, Tex.Cr.App., 416 S.W.2d 816; Ridyolph v. State, Tex.Cr.App., 545 S.W.2d 784 (1977).

In his first four grounds of error, appellant complains of the refusal of the court to instruct the jury in the charge that unless the jury found from the evidence beyond a reasonable doubt that a conspiracy existed between appellant and Dwight Parks to kill deceased, it could not consider the acts and declarations of Dwight Parks as introduced in the testimony of Thomas A. Burke (ground 1), Sam parks (ground 2), and O. 0. Owens (ground 3).

The substance of the testimony of these witnesses is summarized in our discussion of the sufficiency of the evidence. Such testimony tended to establish a motive for the killing by appellant of deceased. This motive, to prevent deceased from testifying against Dwight Parks in criminal cases pending in Arkansas, was admitted by appellant in his statements to the witnesses Willis and Phillips, as evidenced by their testimony. These witnesses testified that prior to the killing appellant told them there was a man in Texas he had to get rid of in order to keep him from testifying in a “trailer case” in Arkansas. After the killing, appellant told them the job had been done, and described the details which, along with other evidence, pinpointed the man who had to be killed as the deceased Robert Ray Campbell. Appellant told the witnesses that the Oldsmobile, which is shown by the evidence to have been used by appellant in every stage connected with the homicide, was given him by the man who had hired him to do the killing. There is no evidence in the record contrary to the evidence.

The instruction asked by appellant and refused by the court was that the jury may not consider the testimony of the witness Burke (ground 1), Sam Parks (ground 2), 0. 0. Owens (ground 3) of statements and transactions made by co-conspirator Dwight Parks for any purpose whatever unless it first finds from the evidence beyond a reasonable doubt that at the time and on the occasion in question there was a conspiracy existing between the said DWIGHT PARKS and this defendant and that the alleged statements and transactions of the said DWIGHT PARKS were made during the pendency of such conspiracy and in furtherance of such conspiracy.

The refusal of the court to give such charge in a conspiracy case was held by this Court not to be error in Mutscher v. State, Tex.Cr.App., 514 S.W.2d 905, p. 925.

Additionally, the evidence was clearly sufficient to prove that appellant murdered deceased by committing the violent acts causing his death. Appellant was not tried as a conspirator under the law pertaining to conspiracy. The testimony of Burke, Sam Parks, and Owens was introduced for the purpose of showing motive — that appellant was hired by Dwight Parks to kill deceased to prevent him from testifying as a prosecution witness in criminal cases pending against Dwight Parks in Arkansas. This motive was admitted by appellant in statements made by him to State witnesses Willis and Phillips, as hereinabove summarized. No fact issue was raised by any evidence in the record as to the fact that the killing was the result of such motive.

In view of the totality of the evidence, and the circumstances shown thereby, we conclude that error, if any, in the failure of the court to give the requested instructions was harmless, and does not constitute cause for reversal. See Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

In his ninth ground of error, appellant complains of the court’s response to a note sent to the court by the jury during its deliberations at the guilt stage. The note requested the following testimony be read to the jury and the court made the following reply:

“1.) Testimony of Larry Cambell (sic) in response to questioning by Mr. Bennett with regard to his actions on October 18th.
“2.) Testimony of Larry Cambell (sic) by questions of Mr. Crow with regard to his actions on October 18th.
“3.) Cross-examination of Mr. Willis by Mr. Crow.
“4.) Cross-examination of Carmen Phillips by Mr. Crow.
“The court replied in writing as follows:
‘We are presently looking up the requested testimony in # 1 and # 2 and as to #3 and # 4 you must specify that portion of the testimony about which there is a dispute.’ ”

The record reflects that the court read part of the testimony requested in paragraphs (1) and (2) but, since the jury made no further response to the court’s note as to (3) and (4), this portion of the testimony was not read.

The record does not reflect any objection having been made to the court’s reply until after it was sent to the jury, the testimony requested in (1) and (2), supra, was read, and the jury had returned to their room for further deliberation. Any objection thereafter came too late. Nothing is presented for review. Swindell v. State, Tex.Cr.App., 491 S.W.2d 400 and authorities cited.

The judgment is affirmed.

Opinion approved by the Court.

ROBERTS, Judge,

dissenting.

The majority holds that no circumstantial evidence charge was required. I cannot agree. The case should be reversed and remanded on the authority of our recent holding in Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975).

In Casey, as in this case:

“The direct evidence sufficiently proved the corpus delicti of the offense. The remaining element of proof essential to the State’s case was that appellant was the guilty agent in causing deceased’s death. Self v. State, Tex.Cr.App., 513 S.W.2d 832 [1974]; Brantley v. State, Tex.Cr.App., 522 S.W.2d 519 (1975).” 523 S.W.2d, at 659.

Casey was a murder case which was reversed because no circumstantial evidence charge was given. There it was undisputed that the deceased, O’Neill, was killed on May 22, or 23,1973, during a service station robbery. To show that Casey committed the offense, the State relied on Casey’s written confession and on his admissions to Deborah Ann Simmons. Simmons was the only person who testified about Casey’s admissions to her. She “did not at any time identify the place at which the robbery and killing happened, or who was robbed or who was shot. She did not even fix the date of the occurrence, except to say ‘back in May, 1973,’ although on cross-examination she was asked a couple of questions about May 23, 1973.” Id., at 660.

In discussing whether Casey’s confession sufficiently connected him with the crime, this Court stated:

“In his written confession, appellant admitted that ‘in the latter part of May of this year (1973)’ he and Clifton Currie left a motel room in Dallas together and, using a .32 caliber pistol, committed a robbery at a Gulf or Exxon service station ‘out north’ close to a big freeway, shot the attendant (not named or identified), took between sixty and seventy dollars from the cash box, and drove back to the motel. There is nothing in the statement to identify the service station or the attendant who was shot or the date of the shooting other than as just stated. There is no fingerprint evidence in the record. Although the confession admits to guilt of a robbery and shooting, there is nothing in it which directly connects appellant with the murder of Richard Allen O’Neill. The ultimate fact of whether appellant, either by his own act or as a principal with another, killed deceased, was not established by any direct evidence. Such evidence was necessary to avoid a charge on circumstantial evidence. Crawford v. State, Tex.Cr.App., 502 S.W.2d 768; Hielscher v. State, Tex. Cr.App., 511 S.W.2d 305; Powell v. State, Tex.Cr.App., 494 S.W.2d 575; Blankenship v. State, Tex.Cr.App., 481 S.W.2d 147; 31 Tex.Jur.2d, Instructions, Sec. 123, p. 689. See Parker v. State, Tex.Cr.App., 492 S.W.2d 590. Cf. Hogan v. State, Tex. Cr.App., 496 S.W.2d 594.” Id., at 660.

Here, as in Casey, the evidence is clearly sufficient to prove the corpus delicti. And it is clear that the direct evidence showed that the appellant committed an offense; however, the evidence that appellant was guilty of the murder of Robert Ray Campbell is purely circumstantial. I quote from the majority opinion in this case:

“Appellant’s statements to the witnesses Willis and Phillips admitted that he killed a man in Houston, placed the body in the trunk of his 1972 Oldsmobile, took it to Mississippi, asked about the effect of lime on a body, and buried the body of the man he had killed in the motel room in Houston in a shallow grave in the back yard of a friend. Direct evidence established that the place of burial was the back yard of the home of appellant’s friend Laura Virginia Smith in Hatties-burg, Mississippi. Also, the fact that the body buried there by appellant, who started digging the grave the day following the killing and actually buried the body the day after that, was the body of deceased Robert Ray Campbell was established by direct evidence.”

These facts summarized by the majority are direct evidence, but not of the main fact to be proved; instead they are direct proof of secondary facts from which must be inferred the main fact of appellant’s commission of this offense. This is the fundamental distinction between direct and circumstantial evidence: See Crawford v. State, 502 S.W.2d 768 (Tex.Cr.App.1973).

I fail to see the distinction between this case and Casey. See also Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948). Because of the court’s failure to give a charge on circumstantial evidence, the judgment should be reversed.

      . Expert testimony established that the hotel registration card signature of Jack Saunders was in appellant’s handwriting.

      . The witness subsequently stated that appellant friend’s did not say Hattiesburg, but said he buried the body in a friends back yard in Mississippi. The place where this friend lived was definitely shown to be Hattiesburg, Mississippi by direct evidence.

      . I observe that appellant not only timely objected to the court’s charge on this ground, he also filed a timely requested charge setting out the law of circumstantial evidence and applying it to the facts of this case. See Arts. 36.14, 36.15, V.A.C.C.P.


author: DALLY, Commissioner.

text:
    James Willie POINDEXTER, Appellant, v. The STATE of Texas, Appellee.
    No. 52082.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Clarke Gable Ward, Houston, on appeal only, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis M. Bell and Jim C. Ezer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the offense of unlawful sale of amidone, a narcotic drug, in violation of Article 725b, V.A.P.C. (1925). The punishment is imprisonment for 45 years.

The appellant, a pharmacist, was convicted for the sale of the drug to an undercover agent. The agent obtained the drug from the appellant after presenting to him a purported prescription which did not meet the requirements for a lawful prescription. The appellant asserts that the judgment of conviction should be reversed because it is supported by evidence which was obtained by an unlawful search and seizure. The purported prescription, State’s Exhibit No. 6, and many other exhibits of the same nature were seized in a pharmacy operated by the appellant. The law enforcement officers who seized State’s Exhibit No. 6 and the other evidence did not have a search warrant or the consent of the appellant to enter the locked premises where the evidence was found and seized. The State urges that the evidence about which complaint is made was lawfully obtained by officers under the provisions of Articles 725b and 726d, V.A.P.C. (1925), and a court order which they say is authorized by these statutes.

On January 25, 1973, acting on information from an informer, Houston Police Officer F. C. Miller, who was working as an undercover agent, went to the office of Dr. Samuel George for the purpose of obtaining a prescription for Dolophine; Dolophine is a trade name for amidone. After a consultation with and an examination of Miller in which the receptionist only checked his heartbeat, Dr. George gave Miller a piece of paper that was to serve as a prescription for Dolophine. The purported prescription was undated and unsigned; it did not have the address of the patient and for other reasons did not meet the statutory requirements for a lawful prescription under Article 725b, Sec. 6(1), V.A.P.C. (1925). Miller was instructed to have the purported prescription filled at appellant’s pharmacy located in the same building. Miller took the purported prescription to the police station, made copies of it, and then returned to appellant’s pharmacy. Miller presented the purported prescription to appellant who also asked for the receipt Miller received from Dr. George for Dr. George’s services. After Miller produced the receipt, appellant sold Miller the Dolophine.

Regis DeArza testified that he was an officer with the Department of Public Safety Narcotics Service. He stated that his duty was to enforce the narcotic drug regulations and to conduct audits of the records required to be kept by law. DeArza testified that he and several other officers arrested the appellant on May 7, 1973, pursuant to a capias issued after appellant was indicted by a grand jury for the sale of the drug to Miller. Appellant was arrested at his pharmacy and at that time a search was made of appellant’s prescription records; however, no records were confiscated. On May 8,1973, DeArza talked to the appellant at the Harris County Jail where he was being held. DeArza informed appellant that he was going to conduct an audit of his records. When appellant refused to allow the officers to search his prescription records, the officer and an assistant district attorney obtained an order from a judge of a District Court of Harris County purporting to authorize a search pf the appellant’s pharmacy. The officer returned to the jail and showed the appellant the order. After he called his attorney, the appellant stated that he did not want to return with the officers to the pharmacy and would not let them in. The officers then contacted a police officer who went with them and picked the lock to appellant’s pharmacy. Officer DeArza seized several hundred of appellant’s prescription records and examined them over a period of several weeks. State’s Exhibit No. 6, the original purported prescription that Officer Miller presented to the appellant on January 25, 1973, was obtained as a result of this search. State’s Exhibit No. 6 was admitted into evidence over appellant’s timely objection that it was obtained as a result of a search in violation of the Fourth Amendment.

The State argues that the order obtained from the judge of the District Court was based on former penal code Article 726d, Sec. 6, and Article 725b, Sec. 15, and that it authorized the officers to enter appellant’s pharmacy “for the purpose of examining, inspecting, and copying all records there found relating to barbiturates, narcotic drugs, amphetamines and other hypnotic drugs.” The order would not serve as a search warrant since it was not based on an affidavit and did not comply with statutory requirements. See Article 18.01, et seq., V.A.C.C.P. The facts do not show a search by consent; on the contrary the facts show the appellant protested against a search even after the officers had obtained the order from the District Court.

The United States Supreme Court’s decisions in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967), holding that administrative searches were subject to the warrant requirement of the Fourth Amendment, have been narrowed by the later cases of Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970), and United States v. Biswell, 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972). In Colonnade, supra, the Supreme Court dealt with statutory authorization for a warrantless inspection of a federally licensed dealer in alcoholic beverages. There, federal inspectors had forcibly entered a locked storeroom and seized liquor without the owner’s consent and without a warrant. The court emphasized the historically broad authority of the Government to regulate the liquor industry and concluded that Congress had ample power to provide for inspection laws. However, the Court found that Congress had not expressly provided for forcible entry in the absence of a warrant and instead had provided a remedy of enforcement by making it a criminal offense to refuse admission to the inspector.

In United States v. Biswell, supra, the Court was concerned with administrative inspection laws governing a federally licensed firearms dealer. There, the Court stated that while federal regulation of the interstate firearms traffic was not as deeply rooted in history as regulation of the liquor industry, close scrutiny of this traffic is of central importance to federal efforts to prevent violent crime and assist the States in regulating the firearms traffic within their borders. If this regulation is to be properly enforced and inspection made effectively, the Court stated that inspection without a warrant must be deemed reasonable official conduct under the Fourth Amendment. Therefore, a firearms dealer who chooses to engage in this pervasively regulated business and accept a federal license does so with the knowledge that his business records, firearms, and ammunition will be subject to effective inspection.

The Supreme Court held in both Colonnade and Biswell that the administrative search statutes were valid; however, the search conducted in Colonnade was unlawful while the search in Biswell was valid. The distinction pointed out was that in Colonnade Congress had not expressly provided for forcible entry in the absence of a warrant and had instead given Government agents a remedy by making it a criminal offense to refuse admission to the inspectors under 26 U.S.C. Sec. 1342. In Biswell the search was not accompanied by any unauthorized force; the administrative search conducted there was specifically authorized by the statute and there was at least acquiescence, if not consent to the search.

Here, we are concerned with a state statute regulating narcotics and dangerous drugs. There is no doubt that the states have just as great an interest in regulating the pharmaceutical industry and controlling the illicit use of drugs as the federal government has in regulating the liquor and firearms industry. United States ex rel. Terraciano v. Montanye, 493 F.2d 682 (2nd Cir. 1974). Therefore, the issue is whether the statutes in effect on the date in question authorized the search conducted of appellant’s prescription records.

Article 726d, Sec. 6, V.A.P.C. provided:

“Persons required to keep files or records relating to barbiturate or other hypnotic drugs, as well as those drugs set forth in Section 2(a)(2) hereof, by Section 5 shall, upon the written request of an officer or employee duly designated by the State Board of Pharmacy:

“(1) Make such files or records available to such officer or employee, at all reasonable hours, for inspection and copying; and
“(2) Accord to such officer or employee full opportunity to make inventory of all stocks of barbiturates or other hypnotic drugs, as well as those drugs set forth in Section 2(a)(2) hereof, on hand; and it shall be unlawful for any such person to fail to make such files or records available or to accord such opportunity to check their correctness.”

Article 725b, Sec. 15, V.A.P.C. provided:

“Officers and employees of the Department of Public Safety, and all peace officers who have authority to, and are charged with the duty of enforcing the provisions of this Act, shall have power and authority, without warrant, to enter and examine any buildings, vessels, cars, conveyances, vehicles, or other structures or places, when they have reason to believe and do believe that any or either of same contain narcotic drugs manufactured, bought, sold, shipped, or had in possession contrary to any of the provisions of this Act, or that the receptacle containing the same is falsely labeled, except when any such building, vessel, or other structure is occupied and used as a private residence, in which event, a search warrant shall be procured as here-inbelow provided.
“Said officers and employees of the Department of Public Safety and all peace officers who have authority to, and are charged with the duty of enforcing the provisions of this Act, shall further have power and authority, without warrant, to open and examine any box, parcel, barrel, package, or receptacle in the possession of any person which they have reason to believe, and do believe contain narcotic drugs manufactured, bought, sold, shipped, or had in possession contrary to any of the provisions of this Act and that the receptacle containing same is falsely labeled.
“Officers and employees of the Department of Public Safety and peace officers who have authority to, and are charged with the duty of enforcing the provisions of this Act, when acting under circumstances and conditions where a search or inspection is authorized without a warrant, as immediately hereinabove provided shall be given free access to and shall not be hindered or interfered with in their examination of buildings, vessels, cars, conveyances, vehicles, or other structures or places, and in case any officer or employee of the Department of Public Safety is hindered or interfered with in making such examination, any license held by the person preventing such free access or interfering or hindering such officers, employees, or employee, shall be subject to revocation by the Department of Public Safety. (Emphasis added.)
“Officers and employees of the Department of Public Safety and all peace officers who have authority to, and are charged with the duty of enforcing the provisions of this Act, shall have authority to take into their possession any and all narcotic drugs found by them as a result of any search or inspection without a warrant, as authorized by this Section of this Act provided that said officers shall be required to issue to the person from whose possession said narcotics are taken a receipt therefor if said person is present and to immediately file a sworn inventory of all narcotic drugs taken with any magistrate in the county where said narcotic drugs are taken, and the retention and disposition of said narcotic drugs so taken by any said officer shall, after coming into his possession, be controlled by the applicable provisions of Section 16 hereof.”

Article 726d, Sec. 6, V.A.P.C. authorized inspection of records and files upon the written request of an officer duly designated by the State Board of Pharmacy. While the record reflects that one of the officers who accompanied DeArza was with the Board of Pharmacy, the record does not show that the officer was duly authorized by the Board of Pharmacy to conduct the inspection or that such officer presented a written request for inspection as required by Article 726d, Sec. 6, supra. In addition, that statute provided for a criminal penalty for pharmacists or other persons who are required to keep records if they failed to make the records available.

Article 725b, Sec. 15, V.A.P.C. was overly broad in that it authorized all peace officers to search without a warrant anything which they had reason to believe contained narcotic drugs in possession contrary to the Act. Colonnade Catering Corp. v. United States, supra. Also, this statute does not specifically authorize inspection of records and files. The section also authorized the revocation of any license as a means of enforcing this section just as the statute did in Colonnade. Moreover, Article 725b, Sec. 16, provided for the issuance of search warrants which comply with the requirements of the Code of Criminal Procedure.

The search of appellant’s prescription records was not by consent; in Biswell the search was with consent. Here, the officers were forced to pick the lock of appellant’s pharmacy door. The district court order cannot be treated as a search warrant since it was not based on a sworn affidavit setting forth facts showing probable cause as required by Article 18.01, et seq., V.A.C.C.P. The officers may have shown good faith in obtaining’ the court order, but we find no authority for the issuing of an order such as that which was obtained.

The Fourth Amendment of the United States Constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The requirement of an affidavit is not a mere “technicality.” Our Constitution requires that an independent magistrate determine probable cause based on facts set forth and sworn to. The Supreme Court stated in Colonnade that:

“ . . .In See we reserved decision on the problem of ‘licensing programs’ requiring inspection, by saying they can be resolved ‘on a case-by-case basis under the general Fourth Amendment standards of reasonableness.’ Id., [387 U.S.] at 546, 87 S.Ct., at 1741.
“Where Congress has authorized inspection but made no rules governing the procedure that inspectors must follow, the Fourth Amendment and its various restrictive rules apply."

See also Article 1, Sec. 9, Texas Constitution.

Therefore, we hold that the statutes in effect at the time of the search did not authorize the type of search conducted. The evidence obtained as a result of this search should have been suppressed.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Art. 725b, V.A.P.C. (1925) was repealed by Acts 1973, 63rd Leg., p. 1165, ch. 425, Sec. 6.02, effective August 27, 1973. Art. 726d, V.A.P.C. (1925) was amended and transferred to Art. 4476-14, V.A.C.S., effective August 27, 1973.

      . Although the State argues that the error may not have been preserved, we find that it was. The State argues that the appellant’s motion to suppress was “very broadly stated” and specific objections were not made to the admission of State’s Exhibit No. 6. The hearing on the motion to suppress was held out of the presence of the jury, on the day of trial. There was extensive testimony and argument of counsel. The grounds for the appellant’s objection are unmistakable and were sufficient to preserve the error now urged on appeal.

      . The procedures for administrative inspection have been significantly changed by Art. 4476-15, V.A.C.S., the Controlled Substances Act and we express no opinion on the new procedure at this time. Also, see and compare, 21 U.S.C. Section 880.

      . The State relied heavily on the provisions of Article 726d, V.A.P.C., and we are giving it consideration. However, in this case we are dealing with narcotics and Article 726d, V.A. P.C. dealt with dangerous drugs rather than narcotics.


author: ROBERTS, Judge.

text:
    James AVERY, Appellant, v. The STATE of Texas, Appellee.
    No. 52239.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.
    Rehearing Denied Feb. 9, 1977.
    Tom Upchurch, Jr. and V. G. Kolius, Amarillo, for appellant.
    Tom Curtis, Dist. Atty., Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ROBERTS, Judge.

This is an appeal from a conviction for keeping a gambling place. The jury assessed punishment at seven years’ confinement in the Texas Department of Corrections.

The record reflects that on November 3, 1974, several law enforcement officials entered appellant’s apartment in Amarillo, armed with a search warrant. While inside, they arrested the appellant and searched the apartment pursuant to the warrant. They seized items of gambling paraphernalia and tape recorded incoming phone calls while they were there. This evidence formed the basis of appellant’s conviction.

Appellant challenged the admissibility of this evidence by a motion to suppress and by objections at the trial, the basis of the motion and objections being that the search warrant was issued without probable cause. The motion and objections were overruled.

Appellant contends that the affidavit upon which the search warrant was issued did not constitutionally satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), because it failed to state sufficient facts from which a neutral magistrate could determine that the affiant correctly concluded that the informant “was ‘credible’ or his information ‘reliable.’ ” Id., at 114. In short, appellant hangs his hat on the “second-prong.”

The affidavit, in pertinent part, reads as follows:

“4. AFFIANTS HAVE PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT:
Within the last 24 hours of this date, November 3,1974, two confidential informants, whose names are withheld for security reasons, told affiant, Dan Self, Intelligence Agent with the Texas Department of Public Safety that the suspected parties are in control of and are knowingly possessing gambling paraphe_rhalia with the intent to further gambling at the said suspected place. Both informants were present when James Avery removed the gambling paraphernalia from the above described suspected vehicle and took it into the suspected place. Affiant Self believes that this information given by such informants is reliable and that such information is credible for the following reason, such informants have both given information on numerous occassions in the past in reference to violations of the gambling laws of this state, to affiant Self.”

In order to determine whether an affidavit states facts which are sufficient under Aguilar to establish the credibility and reliability of the informant, it is necessary to focus on the type of informant relied upon.

If the informant is named, the affidavit satisfies Aguilar when it also contains the information given by him, and such information is sufficiently detailed so as to suggest direct knowledge on his part. Lopez v. State, 535 S.W.2d 643, 648 (Tex.Cr. App.1976).

If the informant is unnamed, the minimal requirement is that the affidavit recite that the informant has no criminal record, and enjoys a good reputation among his associates and in the community. Compare, Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975), cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976) with, Caldarera v. State, 504 S.W.2d 914 (Tex.Cr.App.1974) (and cases there cited). This is true even though the informant has not given information before, because an affidavit in support of a warrant to search need not recite that the affiant’s informant has given information in the past. See, Barnes v. State, 504 S.W.2d 450, 454 (Tex. Cr.App.1974).

However, when an unnamed informant is relied upon, his credibility may be established under Aguilar simply “by allegations to the effect that the informer ha(s) proven reliable on prior occasions.” Gonzales v. Beto, 425 F.2d 963, 968 (5th Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970); 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971). This is accomplished when the affiant swears that the informant has “given information in the past which has proven to be true and correct in every instance,” Curtis v. State, 519 S.W.2d 883, 886 (Tex.Cr.App.1975); that the informant has given information on “prior occasions and on each occasion the information has proven to be reliable,” Morgan v. State, 516 S.W.2d 188, 190 (Tex.Cr.App. 1974), cert. denied, 420 U.S. 947, 95 S.Ct. 1330, 43 L.Ed.2d 426 (1975); that the informant has given information “on several previous occasions . . . and on each occasion the information has proven to be true,” Powell v. State, 505 S.W.2d 585, 586 (Tex.Cr.App.1974); that the informant “has given information on numerous occasions in the past . . . and on several occasions the informant has proven to be reliable, true and correct,” Barnes, supra, at 454; that the informant has given information “many times in the past and the information has always been true and correct,” Sessions v. State, 498 S.W.2d 933, 934 (Tex. Cr.App.1973); that the informant has given information “on previous occasions and such information has proven to be true and correct,” Hegdal v. State, 488 S.W.2d 782, 785 (Tex.Cr.App.1972); that the “informant has given the affiant true and reliable information on numerous occasions in the past . . . Hilson v. State, 475 S.W.2d 788, 790 (Tex.Cr.App.1972); that the informant “has furnish(ed) truthful and reliable information in the past . . . Heredia v. State, 468 S.W.2d 833, 834 (Tex.Cr.App. 1971); that the informant has given the affiant information on previous occasions which has proven to be correct, Casas v. State, 462 S.W.2d 581, 582 (Tex.Cr.App. 1970), cert. denied, 404 U.S. 841, 92 S.Ct. 135, 30 L.Ed.2d 75 (1971); or that the informant has given information on several prior occasions which has proven to be true and correct, O’Quinn v. State, 462 S.W.2d 583, 585 (Tex.Cr.App.1970).

In the case at bar, the informants are not named informants. Lopez, supra. They are not unnamed first time informants. Carvajal, supra; Caldarera, supra. They are unnamed informants who have “given information on numerous occasions.” As can be seen, the affidavit does not recite whether the prior information given “in reference to violations of the gambling laws of this state” turned out to be true or false. We hold that an affidavit which pitches the credibility of an unnamed informant solely on the fact that he has given the affiant information in the past must necessarily couple that prior information with some indicia of trustworthiness in order to allow a neutral magistrate to correctly conclude that the information presently before him probably follows suit.

The instant affidavit does not satisfy the “second-prong” of Aguilar. The search warrant should not have been issued upon such affidavit. Consequently, the evidence obtained pursuant to the search warrant which formed the basis of appellant’s conviction should not have been admitted.

In reversing appellant’s conviction, we are aware

that affidavits for search warrants are normally drafted in the midst and haste of a criminal investigation, and adhere to the teachings of the United States Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, that they must be interpreted ‘in a common sense and realistic fashion.’ (Citation). Nonetheless, in our efforts to avoid technical and strict interpretation, we must be ever mindful that we stay within the boundaries of constitutional requirements. (Citation).” Ashmore v. State, 507 S.W.2d 221, 223 (Tex.Cr.App.1974).

Because of such constitutional requirements, we, as a reviewing Court, “. must still insist that the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar, supra, 378 U.S. at 111, 84 S.Ct. at 1512.

Since we reverse appellant’s conviction upon his initial contention, we deem it unnecessary to discuss the others.

The judgment of the trial court is reversed and the cause remanded.


author: CORNELIUS, Commissioner.

text:
    Andrew HICKS, Appellant, v. The STATE of Texas, Appellee.
    No. 52356.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1977.

      Richard Thornton, Galveston, for appellant.

      Ronald L. Wilson, Dist. Atty., and David P. Walker, Asst. Dist. Atty., Galveston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

CORNELIUS, Commissioner.

In a jury trial appellant was convicted of possession of cocaine, a controlled substance. Punishment, enhanced by reason of a prior conviction, was set at thirty years’ confinement.

Appellant and a passenger were in appellant’s automobile in Galveston when they were stopped by officers of the Regional Crime Squad. A search of the car for narcotics was made but it produced nothing. The officers saw appellant make a moving motion toward his mouth, whereupon they forcibly removed from his mouth a particle of tin foil which contained a substance later identified as cocaine. The officers had neither a search warrant nor an arrest warrant.

Appellant has assigned 19 grounds of error. Grounds 1, 2, 3 and 8 are directed toward the legality of the search. It is claimed that probable cause for the search did not exist or, if it did exist, the officers had ample time and opportunity to procure a search or arrest warrant but failed to do so. These grounds will be overruled.

The State’s evidence showed that John Leonard, a narcotics officer, received about 3:30 or 4:00 o’clock p. m. on Saturday, February 15, 1975, a telephone call from an informant advising that appellant was en-route from Houston to Galveston with a quantity of cocaine. The license number and a complete description of the car were given. Officer Leonard alerted other officers and they set out to look for appellant. About an hour after receiving the tip, they saw a car which fit the description given. The car was stopped and the search ensued. The officers observed no contraband in plain view or any traffic or other law violations prior to stopping appellant’s car, but stopped it solely upon the information supplied by the informant. The trial court made written findings of fact to the effect that the search was based upon probable cause and was lawful.

For information supplied by an informer to constitute probable cause for a warrant or for a search without warrant, it must be established that the informant was reliable, and that there were sufficient underlying circumstances surrounding the information to indicate that it was credible and did not constitute a mere conclusion of the informer. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Appellant first contends that probable cause was not demonstrated here because there was no proof of the informant’s reliability. It is true that the State did not produce evidence of reliability at the initial hearing on appellant’s motion to suppress, but reliability was established during the trial prior to the introduction of the contraband into evidence. Appellant was therefore not prejudiced. Bosley v. State, 414 S.W.2d 468 (Tex.Cr.App.1967). Officer Leonard testified that the informant was one with whom he had dealt for approximately one year and from whom he had received on numerous occasions information which had proven to be accurate. In addition, the information here met the second test of “underlying circumstances” as required by Aguilar. It was not a mere conclusion, but included such details and circumstances that an officer or magistrate, when confronted with such detail, could reasonably infer that the informant had gained his information in a reliable way. See Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. Moreover, when the officers saw appellant’s car at approximately the time and place the informant reported it would be, the information was further verified. Under such circumstances probable cause is adequately demonstrated. Draper v. U. S., 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327; Almendarez v. State, 460 S.W.2d 921 (Tex.Cr.App. 1970); United States v. Acosta, 411 F.2d 627 (U.S.Ct.App., 5th Cir., 1969). As to the claim that the officers had ample opportunity, and thus the obligation, to obtain a warrant, we cannot agree. When the telephone tip was received, the officers were told that appellant was at that time “en-route” to Galveston from Houston. As it is only a 50 mile drive from Houston to Galveston, the officers were justified in believing there was not sufficient time to procure a warrant. Further see U. S. v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).

In ground number 4 appellant complains because the trial court allowed Officer Leonard to testify that the informant told him appellant “was enroute to Galveston with a large quantity of cocaine”. Ordinarily, if the question of probable cause is not before the jury, the hearsay statements of an informant should not be admitted. Mejia v. State, 505 S.W.2d 532 (Tex. Cr.App.1974); Cabrera v. State, 395 S.W.2d 34 (Tex.Cr.App.1965). But in this case, appellant’s counsel brought the issue of probable cause before the jury by his repeated questioning of the officers concerning their lack of a warrant or any sufficient reason to stop appellant’s automobile. Having made probable cause for stopping appellant an issue before the jury, appellant opened the matter for proof of the information upon which the officers relied, even though no issue on probable cause was submitted to the jury. Lacy v. State, 424 S.W.2d 929 (Tex.Cr.App.1967). See also Carter v. State, 172 Tex.Cr.R. 95, 353 S.W.2d 458 (1962).

Grounds 5 and 7 argue it was error to admit into evidence State’s Exhibits 4, 5, 5A and 5B for the reason that they were not properly identified and the proper chain of custody was not established. Officer Leonard testified that after recovering the substance from appellant’s mouth a field test was run on a portion of it, and the remainder was timed, dated and initialed by him and kept in a locked box under his control until he mailed it to the Department of Public Safety Laboratory. He identified Exhibits 5 and 5A as the two small packets of contraband, Exhibit 3 as a container in which he put Exhibits 5 and 5A, and Exhibit 2 as a box in which Exhibit 3 and its contents were mailed to the Laboratory. He could not identify Exhibit 4 or Exhibit 5B. Mike Johnston, the State’s Chemist, likewise identified and testified that he received Exhibits 2, 3, 5 and 5A. He further identified Exhibit 4 as the container which contained Exhibits 5 and 5A, the packets of cocaine, and was within Exhibit 3. He identified Exhibit 5B as a piece of glassine paper which he used in his analysis. He testified that he received the material, made his analysis and retained possession of all of the material until the trial. The trial court admitted all exhibits except number 4 into evidence.

Appellant first argues that because Officer Leonard did not recognize Exhibit 4, which the chemist said was within Exhibit 3 and contained Exhibits 5 and 5A, there was insufficient proof of identification and chain of custody. We do not agree. Both Officer Leonard and Chemist Johnston positively identified Exhibit 2 (the box in which the other exhibits were mailed), Exhibit 3 (a metal container), and Exhibits 5 and 5A (the cocaine) as being the items they mailed and received respectively. The items were in their exclusive custody except while being mailed. There was no evidence of loss of possession or of tampering. The fact that Officer Leonard could not remember Exhibit 4, a metal container, would go to the weight rather than to the admissibility of the evidence. See Boss v. State, 489 S.W.2d 582 (Tex.Cr.App.1973); Salinas v. State, 507 S.W.2d 730 (Tex.Cr.App.1974); DeLeon v. State, 505 S.W.2d 288 (Tex.Cr. App.1974); Kilburn v. State, 490 S.W.2d 551 (Tex.Cr.App.1973). As to Exhibit 5B, it was identified by the chemist and explained as glassine paper which he placed with the exhibits after making his analysis. No error is shown. Montgomery v. State, 506 S.W.2d 623 (Tex.Cr.App.1974).

In ground number 6 appellant complains of the testimony of Officer Leonard that he conducted a field test on the substance taken from appellant, and that the result, according to the test directions and color chart, showed positive for cocaine. If this testimony was error it was rendered harmless when a qualified and expert chemist later testified that the substance was cocaine. See White v. State, 486 S.W.2d 377 (Tex.Cr.App.1972); Boatright v. State, 472 S.W.2d 765 (Tex.Cr.App.1971).

Appellant complains in grounds 9, 10, 15 and 16 of certain jury arguments made by the prosecutor. The first is the prosecutor’s statement that:

“. . . you twelve people are the ultimate people to determine what will and will not be tolerated in our community.”

Such a statement was a proper plea for law enforcement and was not objectionable. The second statement was:

“I would venture a guess that there is not one of you that has not listened to the radio or read the newspapers about the increasing crime rate in our county.”

We do not consider that statement to be of such a prejudicial nature as to constitute reversible error. See Knox v. State, 487 S.W.2d 322 (Tex.Cr.App.1972). At the punishment stage of the trial the prosecutor said:

“You can consider . . . the information they had when they went out there that this defendant would be coming in a gold Cadillac . with a large quantity of heroin.” (Emphasis supplied)

Appellant objected only to the misstatement in characterizing the substance as heroin. When the objection was made the prosecutor corrected “heroin” to “cocaine”, and the court instructed the jury to disregard any reference to heroin. Under the circumstances, no error is shown. Also at the punishment stage, the prosecutor argued:

“There’s only one way you can get this message out, ladies and gentlemen, you’re going to have to give this man, a man who is not new to our system, you’re going to have to send a message with him when you send him to the penitentiary, you’re going to say: We don’t want these people here and when they do come here, we are not going to baby them.”

This was a proper plea for adequate punishment and did not constitute error.

In grounds of error 11 and 14, appellant contends his prior conviction, which was dated in 1955, was too remote for enhancement purposes under the provisions of V.T.C.A., Penal Code, Sec. 12.42(d). There is no merit to this contention. Unlike the rule that a prior conviction too remote in time cannot be used for impeachment purposes, such a prior conviction may be utilized for enhancement purposes. Simmons v. State, 493 S.W.2d 937 (Tex.Cr.App. 1973); Morrison v. State, 169 Tex.Cr.R. 556, 336 S.W.2d 173 (1960).

Grounds 12 and 13 assert that it was error to allow State’s witnesses at the punishment stage of the trial to testify that appellant’s reputation was bad, when his reputation had not previously been put in issue. This contention is overruled. Tex. Code Crim.Proc.Ann. art. 37.07, Sec. 3(a) (Supp.1976) expressly allows either side to present reputation evidence at the punishment stage of the trial. Smith v. State, 414 S.W.2d 659 (Tex.Cr.App.1967).

Appellant’s ground of error 17 is not briefed and is therefore waived.

Ground of error 18 argues that the trial court erred in allowing the State to propound “have you heard” questions to appellant’s reputation witnesses at the punishment stage of the trial. The basis of the argument is that (1) appellant’s witnesses did not actually testify to his reputation and therefore should not have been subjected to the “have you heard” questions, and (2) the questions were so phrased as to imply the appellant’s guilt or the truth of the events inquired about, as prohibited by the rule expressed in Webber v. State, 472 S.W.2d 136 (Tex.Cr.App.1971). Concerning the first contention, appellant’s witnesses did not use the specific word “good” to describe appellant’s general reputation, but the questions asked, as well as the import of the witnesses’ entire testimony, were geared to show appellant’s reputation. The witnesses were therefore effectively rendered character witnesses, and the “have you heard” questions became authorized. Mitchell v. State, 517 S.W.2d 282 (Tex.Cr. App.1975). As to the questions themselves, we have carefully examined them and find that they did not imply or assert the truth that appellant had been guilty of particular offenses of misconduct as condemned by Webber v. State, supra.

Appellant’s last ground of error asserts that a mistrial should have been granted because of the trial court’s action in allegedly coercing the jury to a verdict at the punishment stage of the trial. The argument is based upon the following events: After one hour of deliberation the jury inquired of the court what its plans were as to the time the jury would be required to stay in session that day. The court then excused the jury for the night with instructions for them to return at 9:00 o’clock the following morning. During deliberations that morning, the jury requested the court’s guidance in arriving at an “agreed to” punishment. The court replied that he could not answer the question. The third communication came at 11:15 a. m. that morning and asked the court about the consequences of the trial and whether it was required that the jury determine the punishment, whereupon the court advised that the punishment was a matter for determination by the jury. At 11:45 a. m. the jury was sent to lunch and at 1:20 p. m. it arrived at its verdict.

We are unable to perceive any coercion in these actions. Considering the length of the trial and the serious nature of the offense, the trial court did not abuse its discretion in requiring the jury to deliberate a total of three and one-half hours before arriving at the punishment.

We find no reversible error. The judgment of the trial court is affirmed.

Opinion approved by the Court.