Williаm Brazile DAVIS, Appellant, v. The STATE of Texas, Appellee.
No. 48082.
Court of Criminal Appeals of Texas.
Jan. 9, 1974.
504 S.W.2d 241
Carol S. Vance, Dist. Atty., Ted Poe, Asst. Dist. Atty., Houston, Jim D. Vollers, State‘s Atty., and Buddy Stevens, Asst. State‘s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction is for the misdemeanor offense of driving a motor vehicle on a public highway while intoxicated; the punishment, confinement in the county jail for ten days аnd a fine of $100.00.
The complaint appearing in the record bears the jurat of an Assistant District Attorney showing “Sworn to and subscribed before me this 2nd day of July, A.D., 1972.” The complaint alleges that the offense was committed “heretofore on or about the 27th day of July, A.D., 1972.”
The date on or about which the offense was alleged to have been committed being subsequent to the date the complaint was sworn to renders the complaint fatally defective. Thomas v. State, 474 S.W.2d 236 (Tex.Cr.App.1971); Hall v. State, 373 S.W.2d 252 (Tex.Cr.App.1963); and Mitchell v. State, 170 Tex.Cr.R. 255, 340 S.W.2d 301 (1960).
An information is void which is based upon a fatally defective complaint. Bradshaw v. State, 156 Tex.Cr.R. 441, 243 S.W.2d 586 (1951).
The judgment is reversed and the prosecution ordered dismissed.
Opinion approved by the Court.
Steve R. MONTES, Appellant, v. The STATE of Texas, Apрellee.
No. 46964.
Court of Criminal Appeals of Texas.
Jan. 9, 1974.
504 S.W.2d 241
Ted Butler, Dist. Atty., Charles Roberts, Gus Wilcox and David K. Chapman, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State‘s Atty., and Buddy Stevens, Asst. State‘s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of а conviction for possession of narcotic paraphernalia wherein the punishment was originally assessed at four (4) years by the court following а guilty verdict.
The sufficiency of the evidence is not challenged. Suffice it to say the record reflects that San Antonio Police officers executеd a search warrant at appellant‘s home on March 23, 1972 and found in the east bathroom “a plastic package containing a cooker cap, an eyedropper with rubber bulb, and a number 25 hypodermic needle.” Arresting Officer Doyal testified that since the time of the arrest he had determined that the appellant had needle marks on his arms, although he did not recall seeing needle marks at the time of the arrest, though a picture taken of the appellant by the officer shortly after arrest reflected needle marks on appellant‘s arms.
The chain of custody was established and thе police chemist Dennis Torraco testified the tests he ran showed 4.73 milligrams of heroin in the “eyedropper with needle” and 4.76 milligrams of heroin in “the coоker and bottle cap.”
The appellant offered no evidence.
Appellant‘s grounds of error read as follows:
I.
“The trial court erred in overruling appellant‘s motion to examine and have chemical analysis of the paraphernalia introduced herein.
“The trial court erred in not allocating funds for the independent examination of the paraphernalia introduced herein.”
Appellant relies heavily on Detmering v. State, 481 S.W.2d 863 (Tex.Cr.App.1972), which held that the right of accused under the discovery statute (
Appellant calls attention to his “Motion for Discovery” filed August 25, 1972, which requested the items (eyedropper, needle, cooker, cotton) be produced and that he be permitted “to conduct chemical analysis on the same for traces of heroin.”
On the same date the court conducted a hearing on such motion, at which hearing the court was informed that a “State‘s witness” was unavailable, and the court then announced the chemist would be subpoenaed on the day of the trial and defense counsel would be given an opportunity to examine “it” before trial. This was agreeable with appellant‘s counsel, who stated, “Fine,” but then he called the court‘s attention to the fact he was court-appointed and orally requested the appointment of an independent chemist to “find out if there really was a trace of heroin.”
The court determined that the police chemist‘s report had already been made availаble to appellant and pointed out to counsel that a searching cross-examination could be made of the chemist. The motion for discоvery was overruled.
The State takes the position that the court did not err in overruling the motion for discovery because it was untimely filed. The State notes thаt notice of a pre-trial setting of August 25, 1972 was mailed to appellant‘s counsel on June 6, 1972, and that he had five days thereafter under the provisions of
Without the neсessity of passing upon these matters we observe that the police chemist testified that shortly after receiving the narcotic paraphernalia he ran several tests using alcohol to rinse out the items not only to determine the nature of the residue, but the amount thereof. Such tests were run long befоre the motion for discovery was made or the oral request to appoint an independent chemist. If such a chemist had been appointed and found heroin on such paraphernalia, that testimony would most likely not have been utilized by the appellant. If the chemist found no residue, then that fact could be explained by the actions of the police chemist. Thus, if the court had appointed an independent chemist and paid for such services out of county funds, such examination would have been of no benefit to the appellant since the police chemist‘s testimony clearly reveals that after the analysis was completed there was no trace of heroin remaining on the narcotic paraphernalia. See Dagley v. State, 394 S.W.2d 179, 183 (Tex.Cr.App.1965).
This clearly distinguishes this case from Detmering v. State, supra, relied upon by the appellant, where enough of drugs remained for an independent chemist to make his own analysis.
The judgment is affirmed.
DOUGLAS, Judge (concurring).
To that рart of the majority opinion that holds that the trial court did not have authority to resentence the appellant after the appellate rеcord had reached this Court, I concur. The trial court had lost jurisdiction and no motion to abate the appeal for resentencing appears in the record.
However, I do not agree that Article 6.01(c) of the Texas Controlled Substances Act, which provides for resentencing, is unconstitutional for the reasons stated in the dissenting opinion in Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774 (1973).