*1 question, sponsive to defense counsel’s
there was no motion to Evidence strike. record, being already in the
of this nature
no error is shown.
George BURNS, Appellant,
The STATE of Texas, Appellee. Denied Nov. Metcalf, Prescott, Holbrook,
Harris & Peebles, Temple, appel- Greenfield lant. and R. C. Atty., Bel- Mileska, Jr., Asst. Dist.
(Joe) Aus- ton, and Jim tin, for the State.
20 Myers, description, found fit who the and surreptitiously
who the contra- delivered band. above, All the including of the arrest of is of sale the appellant together Myers, and the re- with punishment eight (8) years. covery money, of the marked occurred within approximately one hour. We Appellant’s grounds first three error of clude amply is sufficient evidence sufficiency relate to the to evidence to appellant a sale establish the and sustain the conviction. Myers to Grischkowski. Grischkowski, Martin One at student ground fourth error Appellant’s of College Central Texas Killeen majoring at failing is “in to the Court erred Enforcement, in help his volunteered charge jury the the converse ferreting in among military out crime the charged.” Assuming de without offense Investigation to the Criminal Division sta- ciding a ground that this raised of error tioned at nearby Fort Hood. ad- He was Ann.C. Sec. Vernon’s money vanced certain marked to in be used C.P., v. observe that in McKinnon purchasing from narcotics soldiers while Tex.Cr.R. 261 159 they duty city. off in were the He used a from quoted cited brief in portion purchase of money this to marihua- Moore 273 S. Tex.Cr.R. na and LSD from the the W. as night question. in immediately carried purchase his to the in applies the office of the court the law to the “When Killeen; they the notified CID was and facts at the of same and conclusion point accompanied police to the that, the where' the unless instructs arrested, Myers and one were they beyond a reasonable so believe shortly accused, acquit and the marked thereafter they will the possession. open exception was found the not to the paragraph is identity is no present There the not that it does the converse pellant was well known to the CID up.” therein set matters members, which and ground appellant’s fourth We overrule De- City as well as of error. ground partment. only possible sufficiency as to the complaint ground is that fifth of error His in the manner in which evidence lies charge failing to the Court erred buyer. delivered contraband was an accom witness Grischkowski undisputed It is uniformly Court has plice witness. buyer, agreed upon the contact with the though a agent, held that an undercover accepted what was be delivered long volunteer, accomplice so not an payment thereof instructed $26.00 crime. See bring about the he does buyer to leave the cafe State, Tex.Cr.App., 461 S.W.2d Gomez v. seated, proceed to the where end where contraband block him a who be delivered to man would the Court contends He next carefully developed described and who entrap defense of on the failed in the Myers, time to be who was did testimony ment. witness’s spo- appellant had same cafe and to whom shown, No error defense. raise the course of the ne- privately during ken 298 S. State, 164 Tex.Cr.R. Aguero v. State, Tex. buyer Bridges gotiations with also 822. See W.2d (1971). place Cr.App., he 471 S.W.2d proceeded appointed to the where America, laws of the States of error United Appellant’s ground next shall admitted evidence the CID which contends that assistance Grischkowski, informant, case. ren the trial criminal accused on their police force City of Killeen dered the legal “In where the appellant, constituted apprehending hereunder, *3 raises an issue posse con Army a comitatus use of believes, or a that if it has be instructed trary to Title U.S.C. § was reasonable that provisions in violation of obtained both be noted first that It should Article, event, the then and in such soldiers. so disregard any such evidence was not. The obtained.” upon information the arrest based by The assistance furnished basic as- find that We apprehending the sol- given by the CID in 1385, sumption Title that U.S.C.A. § to a violation a defense diers is not has been shown to violated sound. penal State statute. used was no evidence find there We appellant which in the trial was error, judg- Finding no reversible of Title obtained violation U.S.C.A. ment is affirmed. any part of not find that We do § posse as a Forces was used the Armed OPINION the laws. comitatus or to execute otherwise RE- APPELLANT’S MOTION FOR ON vague and Title U.S.C.A. § HEARING construing validity on find no cases its assuming it grounds, but constitutional DALLY, Commissioner. statute, interpret we must then is a valid the laws. what it means to “execute” vigorous has a filed mo- Dic- Third New International Webster’s rehearing. tion for insists evi- is to tionary definition “execute” (1969) dence which the is based conviction effect; fully and com- “put carry into out was obtained in of Title violation U.S. Dictionary, 5th Edi- pletely”. Black’s C.A. That statute provides: § is “to tion definition of “execute” (1968) “Whoever, except in cases out; to follow complete; perform; expressly by circumstances authorized finish; ful- complete; accomplish; make Congress, the Constitution or Act of fill.” willfully part Army uses or posse the Air Force as a or comitatus In this case the witness Grischkowski otherwise to execute the shall be laws a the Armed Services. was not member $10,000 impris- uncompensated; fined not more than or he was His services years, oned not more than two or both.” fur- volunteer; his use of marked a material agents makes no by nished CID Appellant a assumes of that violation a member was difference. The States, law of the United and contends though Even of the Armed Forces. Ann.C.C.P., 38.23, in view of Aft. Vernon’s may active have been agents CID admitting the trial court erred tes- spe- investigation traffic of narcotics instructing timony, and appellant’s activi- cifically investigating the provided statute. Ver- ties, are shown do not believe Ann.C.C.P., non’s reads as other- or as a acted have fact the laws. execute “No evidence obtained an officer wise pres- Lair were Bishop and agents CID person pro- other or violation and Offi- DeLoach ent when Detective or laws of the visions of Constitution Depart- the Killeen or cer Warmuth or the Constitution State ment does not Finding arrested the show the evidence sufficient to sustain violation Title or U.S.C.A. conviction no reversible error § Remaining pearing, even a fact raise issue.
vinced that this case decided submission, original mo- rehearing
tion for is overruled. ON APPELLANT’S MOTION approved by Opinion the Court. FOR REHEARING DALLY, Commissioner. *4 companion identical filed in the case of Burns v. S.W.2d 19. companion What we have said in that disposes case contentions. Richard MYERS, Appellant, Remaining convinced that this case was properly decided on original submission, the Appellee. The STATE of Texas, is over- No. 44095. ruled. Appeals of Criminal Texas. Court of Rehearing Denied Nov. Bragg, Bragg,
Davis Kil- Duncan
leen, appellant. Frank VERA, Appellant, Atty., and Robert Dist. Belton, Wilson, Asst.
B. Jim Austin, for the STATE Appellee. State. July 28, 1971. Rehearing Denied Oct. is sale of punishment (5) years. five Second Denied Dec. 44,- companion
This our No. Burns v. 19. Both
appellants together. were tried challenges only failure suppress
of the court to the evidence based plus
court’s failure thereon. companion
What we have said in the
opinion disposes of these contentions.