*1 J., TEAGUE, concurs in result. 4.04 of the Controlled Substances Sec. 4476-15, Act, provides per- Art. Y.A.C.S. CLINTON, J., ONION, P.J., and dissent. part: tinent an offense if he “A commits person a
knowingly intentionally possesses or the sub- ... unless
controlled substance from, pur- directly was obtained
stance of a to, valid or order prescription
suant a course of acting while in the
practitioner practice.”
his professional Posey v. JOHNSON, Appellant, Michael Charles under the Con Cr.App.1977), we stated that Act: trolled Substances Texas, Appellee. STATE “It is not a criminal offense to obtain friend or fami- controlled substance No. 62417. pharmacist to a ly by presenting member Texas, Appeals of Criminal a controlled prescribing a prescription En Banc. mem- family for that friend or substance obtained.” properly ber which had been 9, 1983. Nov. Id. at 164. 14, 1983. Denied Dec. Rehearing member ob- family the friend or Of course for another taining a controlled substance
may not use the substance. See Scott 600 S.W.2d not establish presented
The evidence does to the Con- exception”
the “prescription Assuming Act.
trolled Substances
prescription person presenting issued to a prescrip- can be a valid
false identification Act, no evidence in
tion under the there is was a case that
the instant anony- member” of the family
“friend or Beasley’s presented who person
mous State, su- Posey Dr. Andrew.
license to not
pra. Appellant testify, was not established.
identity patient phar- at the filled out
The form obtaining that he
macy indicated nothing knew Beasley but
pills Beasley, not know and did prescription
about undisputed it is
Since pills since pills possession, in his him, and since there prescribed
were not family “a friend or
is no evidence that up him to pick authorized
member” sufficient we find the evidence to be
pills, a controlled possession
to show unlawful
substance. is affirmed. *2 Green, a with the agent
Danny Safety, of was Texas Public on a nar- agent undercover working as an of 1977. Ap- cotics October investigation pellant telephone Green about contacted Green and met and heroin sale. of packet Green a appellant handed Appellant eyewit- then arrested. Two for the It undis- nesses testified State. the heroin puted that delivered directly to while Officer York ob- Green delivery nearby. Appellant served the from any did not offer evidence. telephone Green testified about his follows: conversation with “Q. (By Thompson) Agent Mr. Irwin, G. Longview, appel- Brockett for were you day where on that when lant. you Charles called Michael Johnson Brush, Hunter B. Atty. Dist. and William 6th, on October 1977? Saban, Atty., Asst. Dist. Robert Tyler, Hut- A. my I was at residence. tash, Atty., Austin, for State. Q. did the Defendant relate And what you way telephone
to of this that day? conversation A. He me that he had the half advised OPINION ounce of heroin that stated a DAVIS, W.C. Judge. of boy, slang half ounce heroin, A found of we discussed earlier for delivery guilty of heroin and assessed his at a thousand dollars. punishment ninety-nine years’ confinement. Q. A thousand dollars? Appellant contends that the trial court A. Yes. erred in overruling appellant’s objection to Q. And he relate else to anything did of an introduction offense. extraneous you day, on the agree We a proper objection should Agent Green?
have been sustained1 but we find that in meeting place A. We where discussed light of the uncontradicted of ap- evidence I would buy we would meet where pellant’s guilt, light rec- the criminal from the heroin him. ord and other evidence revealed to the trial, at the punishment stage Q. you And he tell that he had a error meeting place preferred? was harmless. which he time, Honor, Appellant ruling 1. failed to obtain a on his And at Your I will this move objection, receiving ruling only instead on his for a mistrial. motion for mistrial. THE It is COURT: denied. Please, Honor, you, “MR. IRWIN: Your at this MR. Thank Your Honor.” IRWIN: object question time I sought would to the and an- Appellant remedy to his later given. swer I would move the Court to in- obtaining signed judge order trial Jury disregard question struct stating that the court had the basis of known given answer as for the reason that the an- objec- and had overruled both the offenses, swer refers to extraneous and the validity tion and motion mistrial. The given given purpose answer as procedure this is doubtful. See Art. 40.- inflaming preju- and would have the result of 09(6)(c), V.A.C.C.P. dice in the minds of the Jurors. A. We both place that the same bined with the record prior evidence of
we had made deals before would be is not a reputation state witnesses there fine with him.” non-respon- have stage might sive answer at the guilt Appellant contends nonrespon- that Green’s contributed sive answer made concerning deals before *3 for this de- ninety-nine years’ refers to confinement extraneous offenses and is so of heroin. require livery harmful as to disa- reversal. We gree that reversal necessary. is shown; No reversible has been the error error,
The test for harmless even is affirmed. constitutional, where the error is is whether there is a that the TEAGUE, Judge, dissenting. complained evidence might of have contrib Johnson, appellant, was Michael Charles pun uted to the or affected the conviction committing a the of- by convicted State, ishment assessed. Clemons v. 605 heroin, controlled delivery fense of of a S.W.2d 571 An ex punish- The jury substance. also assessed amination of the evidence demonstrates peni- the years’ ment at 99 confinement in the unresponsive answer did not con the of tentiary, possible maximum number
tribute. years punishment. it could have assessed as Shannon 510 S.W.2d majority erroneously The has concluded the the Cr.App.1978) defendant was convicted overruling appellant’s trial court’s in of murder. A witness testified that to an of a objection unresponsive answer purchased illegal drugs from the defendant. witness, implicit- answer prosecution testimony This Court that such commented subject the of ly injected into cause the prejudicial inflammatory was not so and offenses, error. extraneous was harmless unresponsive to warrant The an reversal. however, observes present majority, correctly swer in the case is much less The direct in overruling ap than that evidence as court by Shannon. The to that the trial erred appellant’s guilt completely undisputed. general “The pellant’s because: Shannon, The instant like that in testimony, English jurisdictions is speaking rule in all prejudicial was not so warrant rever as to to be person that an accused entitled sal. the tried on the made in accusation crime, not on pleading and some collateral inquiry Our must next focus on whether The rule being generally. or for criminal unresponsive have con- might answer followed in deemed axiomatic and is is now punish- to the tributed State, 159 Tex. jurisdictions.” Young all ment at ninety-nine years’ confinement. Thus, in (1953). Cr.R. S.W.2d 836 Clemons, supra. evidence shows that least, rule of general Texas at there is a appellant had been convicted previously of inadmissibility prose when it to the comes burglary, term, been probated assessed a evidence, either ex offering cution into probation and had his revoked. The offenses. implicitly, extraneous pressly was informed that of- appellant’s probation exception an is first established Unless on carrying ficer had filed are al extraneous offenses prosecution, pistol possession Repu- and of marihuana. inadmissible Al Also see ways evidence. witnesses, tation from Juvenile ranging 97 (Tex.Cr.App. brecht officers Probation offi- Probation to Adult 1972). police officers, appel- cers to testified that reputation peaceful lant’s being of the the of- The facts commission of abiding community law citizen in his Danny the following. fense reflect bad. nature was testimony positive No of a employee and an prosecution witness presented about appellant. Safety, Texas of Public working of an under- capacity conclude over- was We in view of the agent. was contacted whelming evidence com- He guilt cover appellant’s over purchase to con- telephone substances; record then reflects the trolled following questions particular, prosecuting attorney answers word, “deals,” argues that The State and the Green: witness prior only relates discussions Q: And what did the relate Defendant up and Green which led had had you by way of this con- meeting park- store grocery to their on day? versation that ing appellant delivered to Green a lot where A: He advised me that he half had the heroin, quantity after which boy,
ounce of
which is
her-
slang for
However,
immediately
be-
arrested.
oin,
we
discussed
for a
earlier
was the
parking
cause the
lot location
site
dollars.
thousand
heroin, I
delivery
of the actual
find
implausible the
construction
State
Q: A thousand dollars?
*4
places
the word “deals.”
the con-
upon
A: Yes.
given,
text in
the answer
I find
which
Q: And did he relate
else to
anything
word, “deals,”
certainly
that the
most
does
you on
Agent
the
that day,
connotation,
sug-
not have an innocuous
as
Green?
the
gested
State.
by
A:
We discussed
where
meeting place
I
that
at the time of
also find
who
we would meet
I
buy
where would
trial
a member
had been
of the
the
from
heroin
him.
Safety
an
of Public
since
and
under-
Q: And
tell you
did he
had a
that he
approximately
cover
officer
meeting place which he preferred?
three
knew or
have known not
years,
should
A: We
place
both
that the same
the
answer he
given
unresponsive
to have
we had made deals before
be
would
did,
implicitly
contained an answer
which
fine
him.
[Emphasis
with
Added].
to extraneous narcotic offenses
referring
Appellant’s
immediately
trial counsel
ob-
Richardson
by appellant.
committed
See
jected, “for
State,
the reason that
re-
(Tex.Cr.App.1964).
the answer
In the
in
appellant’s
context
which the answer was
Also see
objection.
overrule
given,
conceivable,
only
plain,
State,
the
com-
(Tex.Cr.App.
Hines v.
571
322
S.W.2d
“deals,”
mon
reading
State,
sense
of the
that
1978);
word
Logan
is
answer,
only
contained in the
can
Okra v.
507 S.W.2d
Cr.App.1974);
lead
*
one
inference:
that Green
previously
had
majority
ap-
disposi-
opinion
majority
*The
in footnote 1 of its
that
in its
I also observe
the
upon
pears
appellant’s
Shan-
way appellant
tion of
contention relies
to take issue with the
has
(Tex.Cr.App.
non
Contrary majority, that is a there er-
the inadmissible evidence was harmless fact
ror, when especially one considers punishment received as term possible maximum I that in the
years provided law. believe punishment, quite it have been
conceivable could suggestion
swayed dealt frequently past illicit
delivery controlled substance and not should be reversed I dissent.
affirmed.
ONION, P.J., and and MIL- CLINTON
LER, JJ., join. *5 BURKHOLDER,
Daniel Edward
Appellant, Texas, Appellee. STATE
No. 63901. Texas, Appeals Criminal
En Banc.
Nov. 1983.
Rehearing Dec. 1983. Denied DeGeurin, Houston,
Mike Jr., Holmes, Atty., Dist. Carl John B. Attys., Tom Asst. Dist. Royce, Haggard Huttash, Houston, Atty., Robert Austin, for the State. (1979 Edition). sion, simple dictum, tionary pure and lacks adjudication. of an Dic-
force See Black’s Law