Mayse v. State
494 S.W.2d 914
Tex. Crim. App.
1973
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Robert Frank MAYSE and Reagan R. Ross, Appellants, v. The STATE of Texas, Appellee.

No. 46777.

Court of Criminal Appeals of Texas.

May 16, 1973.

Rehearing Denied June 13, 1973.

evidence is sufficient to sustain the conviction.

Grounds of error number one and two challenge the sufficiency of the search warrant. The entire evidence relating to the recovery of the stolen motor, found at appellant‘s home, was admitted without objection. Belatedly appellant objected to “any testimony concerning and items picked up [at appellant‘s residence] . . . unless I see a copy of the search warrant.” At this juncture a copy of the warrant was introduced before the Court after the officer testified how he had secured the same from the issuing Justice of the Peace. The objection interposed at this juncture was that a proper predicate had not been laid for the introduction of the search warrant and affidavit and that the same were copies and not the originals. This objection was overruled. No objection was made during the trial to the form and substance of the affidavit for the search warrant. Grounds of error number one and two are overruled.

Ground of error number three contends that the affidavit and the warrant were admitted without a proper predicate and without proper authentication. Officer Turner testified that he secured the warrant from Judge Albert Lee and executed the same. Ground of error number three is without merit.

Ground of error number four, if we properly understand it, contends appellant was denied the right to impeach Officer Turner, from the affidavit and search warrant, by showing a three-month variance between the date on which the affidavit alleged the Nova (not charged in this indictment) was stolen and the date which the testimony showed it was actually stolen. We find no merit in this contention. The record reflects that Turner testified fully, on cross-examination, explaining the variance in dates. There was no limitation on appellant‘s efforts to impeach him.

Appellant‘s fifth ground of error is that the Court erred in refusing appellant permission to inspect the affidavit and the warrant prior to trial. We are not directed to, nor have we found, where in the record this ruling of the Court occurred. The last ground is overruled. Article 40.09, Section 9, V.A.C.C.P.

Finding no reversible error, the judgment is affirmed.

John Montford, Lubbock, for appellants.

Joe Smith, Dist. Atty., Seminole, Jim D. Vollers, State‘s Atty., Robert A. Huttash, Asst. State‘s Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from convictions for the offense of unlawful possession of a narcotic drug, to-wit: morphine. Punishment was assessed each appellant, upon his plea of guilty, at eight years.

Two grounds of error are urged. One of the contentions is that “The evidence is insufficient to support the appellants’ convictions since there is no evidence of record that the drug morphine is a narcotic drug.” Such contention is without merit.

Article 725b, Sec. 1(12), Vernon‘s Ann. P.C., states that: “‘Opium’ includes morphine, . . .” and Article 725b, Sec. 1 (14), supra, states that: “‘Narcotic drugs’ means coca leaves, opium, . . .” The appellants’ pleas of guilty admitted possession of morphine.

Finally, appellants contend that “The trial court‘s admonition failed to inquire of the defendants whether or not the defendants’ pleas were uninfluenced first, by any persuasion; second, by any fear; and, third, by any delusive hope of pardon.”

The admonitions herein have been reviewed. As to appellants’ specific contentions, we quote from the record:

“THE COURT: Now, are either of you pleading guilty because of any force or coercion upon you to make you plead guilty?

MR. MAYSE: No, sir.

MR. ROSS: No, sir.

THE COURT: Has anyone made any promises to you, to either one of you, to get you to plead guilty?

MR. MAYSE: No, sir.

MR. ROSS: No, sir.”

Although the exact wording of Article 26.13, Vernon‘s Ann.C.C.P., was not stated by the trial judge, we conclude that the admonishment given was sufficient compliance with the statute. See,

;
.

There being no reversible error, the judgments are affirmed.

ROBERTS, Judge (dissenting).

My predictions were not delusive; today, they are fully realized. The majority has, in effect, successfully abolished Article 26.13, V.A.C.C.P.

My concern arose when this Court began to accept as “sufficient compliance” those admonitions which were clearly substandard according to the statute. Admittedly, I have served on this Court for a relatively short period of time, but I retain the perhaps naive notion that we should follow those guidelines which the legislature has seen fit to establish, unless, of course, the law is unconstitutional.

I dissented in

and
, and for the reasons stated in those causes, I dissent herein. See also, Presiding Judge Onion‘s concurring opinion in
. My fear was that a gradual erosion of the statute was taking place. The admonishment in the instant case, even read liberally, inquires of the appellant as follows: was he pleading guilty because of force or promises? There is an absolute void as to an inquiry concerning a plea of guilty based upon any persuasion, fear, or delusive hope of pardon. Trial judges are now put on notice that they need not comply with Article 26.13, V.A.C.C.P. So long as any sloppy effort is put forth in accepting a guilty plea, the majority will accept it as “sufficient compliance“.

I dissent.

ONION, P. J., joins in the dissent.