*1 LEAL, Appellant, Richard
The STATE
No. 42086. Appeals of Texas.
May 21, 1969. July O’Dowd, Boyd, W. Jr., Walter E. John
Houston, appellant. Carol Vance, S. Atty., Phyllis Dist. Bell Stover, and F. M. Attys., Asst. Dist. Hous- *2 Vollers, proved as to constitute direct evi ton, Atty., Aus- fact to be D. State’s and Jim circumstantial necessary charge on dence it tin, for the State. facts eviden ce.2 in case the rule announced come within OPINION circumstantial evi Chapin. on required. is suf dence The evidence DOUGLAS, Judge. support the conviction. ficient to possession of is for the The conviction at punishment was assessed heroin. The Complaint is made in the second twenty ground of that erred error refusing to allow the and fifth in the first is contended the offense that Officer Chavez used the court error that erred grounds of memory. reflects to refresh his evi- refusing circumstantial on that did not make or assist Officer Chavez dence, the evidence is insufficient and that making The record re- support the conviction. transcript along used with the of the day of noon on the that about 18th flects memory prior examining trial to refresh his Chavez, of- 1963,1 a July, Michael narcotics State, Tex.Cr.App., to trial. Artell v. Department, ficer of the Police Houston holds the trial court is not knew, a Leal, upon drive saw whom required to make used available Dairy Queen parking lot of Cafe to refresh the where of witness Broadway and Manchester intersection of person other got Leal of the Streets Houston. Appellant urges, the witness. but we re building. car and rear walked to the hold, fuse to that Artell should be overr Arrendondo, Officer Chavez saw Antonio uled.3 knew, upon parking whom he also drive car and park. and Leal to the lot went The third is: cellophane green Arrendondo handed him a “The Trial in refusing Court erred Chavez, partner, paper. his Officer with presence allow the Defendant outside the up got their car. Chavez drove out of ascertain certain informa- they officers and stated were bearing on the informer’s cred- paper. dropped the reached for the Leal ibility.” the car. green cellophane paper inside immediately. opened the car Chavez door The record shows that Officer Chavez paper package He saw the same had received information from Cock- Julius between the seat and door floorboard rell, officer, up. at this time picked it Arrendondo be leaving the block of Austin Street for fifty The con-
had dollars in left hand. Broadway 900 block of with Street to be and package appeared tents of possession. heroin in his The information heroin. Officer was later ascertained was obtained from one known Officer cello- Chavez further testified no other year, Cockrell for and who had on the car. phane package was found in given occasions proved information tti be true. Chapin Many questions by appellant’s where asked concerning the main relation to informer’s back-
facts are in such close 3.See March of Rose tried in 427 S.W. This case March this Court reached the record 359, Sec. Ann.P.C.2d 4 Branch’s char- ground, dealings his business and his for enhancement under Art. V.A.P.C. age, Rodriquez Inquiry acter. was made about affiliation, race,
religious S.W.2d 406.4 after the infor- given false information The fourth of error is overruled. given. mation this case was any authority his conten- does not cite *3 should be jury noted the ques- the that he entitled have was to appellant guilty found guilt stage at the of rely upon or does not answered. He tions 37.07, the under Article V.A.C.C.P. States, 353 within Roviaro v. United come penalty At the stage the trial the of 639, 53, 623, L.Ed.2d 77 S.Ct. 1 U.S. appellant previously found had been con name an informer should the of indictment, charged victed as in the but he had taken material he disclosed where twenty years penalty assessed the instead possession bringing about the of 62, of required by life as Article V.A.P.C. accused, pres- drugs by the had been certain object did the court’s to of at the occurrence ent with the accused ground on the that it authorized crime, might be a material alleged the penalty for a term of of the accused know- witness as to whether charge presented. error on the court’s ingly committed the act. to,
This case is almost identical and is State, by, controlled Leal v. 169 Tex.Cr.R. properly The trial court sustained jt 222, 729, 332 S.W.2d 731.5 was held the prevent objections the to State in the court’s was favor the name of the informer. disclosure of able com to defendant and he could not State, Tex.Cr.App., 437 S.W. Hernandez v. plain. State, 414 Tex.Cr.App., Bosley The sentence reads “not less than ten years twenty years.” nor than more It is Complaint is made in the fourth years read than reformed to “not less two in over- that the trial court erred twenty years.” nor more indictment, quash ruling the motion to for en- prior federal conviction because judgment The is affirmed. an denounced as offense hancement is not of Texas. laws under the of State ONION, Judge (concurring). alleged appellant indictment reached, concur the result but feel I District in a United States
been convicted my must state agreeing reasons for “ * * * receiving the offense of Court of ground of error be overruled. should #2 and con- transportation facilitating the of, narcotic importation, cealment after Officer Chavez testified that grains, and two-tenths drug, wit: six trial he refreshed his from less, hydrochloride, of heroin more report presently offense available which felony.” uncertainty did some he related he prepare in- but to which contributed appeared and which his name alleged would formation Such participating “in the posses as one the officers of unlawful constitute offense of 725b, report apparently case.” The was made drug under Article of a narcotic sion Ann.P.C., alleg- one of three properly other officers. and was Vernon’s 461, State, 525, Taylor 5. See Tex.Cr.R. Granado v. 168 Tex.Cr.R. 172 124, S.W.2d 864. 371 U.S. cert. denied 358 S.W.2d 85; Lopez L.Ed.2d S.Ct. 352 S.W.2d 82 S.Ct. denied 370 U.S. cert. 1604, L.Ed.2d 819. requested particularly for attached record at the time of inspection, Under fail- purpose cross-examination. court’s refusal to allow but have it take action thereafter these circumstances feel incorporated not hesi- record. I would entitled to tate to overrule Artell v. permitted To have 944, limiting the so-called 372 S.W.2d been laid the time record at rule” (172 “Gaskin requested, purpose it was even by the previous 467) statement alone, exception per- the bill for the witness State. accomplish mitted the indirect- ly directly what he had been unable to do Bay- criticized Such limitation ruling. view of 51, 60, as follows: lor Law Review *4 willing Before I would be to reverse for inspect necessity right “The the trial refusal make by fact that changed is virtue record, report available for refresh person’s is used to work by require an would effort fact, memory. In it would seem one’s incorporation defendant for of the instru- allow reason be added there would appeal. ment the record on only right. Not inspection a matter of (i. needed e. safeguards are the same stated, For the reasons I concur. merely is not right to see that evidence fabricated, any- is right if there see detract
thing an addi- memory) but
from the witness’ addi- safeguard is needed. This
tional test the safeguard right is the
tional facts about
witness on cross ob- own recollections independent servations HASLEY, Appellant, Jerome by merely gleaned memorized or were hearsay report. At him from this The STATE of least, en- very the defendant should part such a made titled to have No. ap- exceptions to allow bill of Appeals of Texas. if the defendant pellate to decide May being permitted injured report.” inspect trial court July 16, pre My problem been on this views State, Tex.Cr. expressed in
viously Rose v. 609; cf.
App., Dover
Tex.Cr.App., 421 S.W.2d however, concur, overruling ap- because the
the second to have after trial
pellant made effort no ap- demonstrate
peal could so by the court’s harmed he was
Court how
action. amade appellant’s true that
valiant effort