Earlene Scott PHELPS, Appellant, v. The STATE of Texas, Appellee.
No. 67930
Court of Criminal Appeals of Texas, Panel No. 2.
Sept. 30, 1981.
Rehearing Denied Dec. 9, 1981.
623 S.W.2d 936
Though I am troubled by the looseness of some of the language used by the majority in overruling the first ground of error, the result seems correct since, as I understand the situation, his remark offered to impeach appellant‘s denial that he had made it came during a somewhat argumentative exchange with Trooper Potvin in the patrol unit enroute to the Bell County jail. Thus, while appellant was surely in custody, he was not being subjected to interrogation; his impeaching remark seems purely gratuitous, garrulously uttered; accordingly, it was admissible for that purpose. Sanchez v. State, 589 S.W.2d 422, 423 (Tex.Cr.App. 1979) and cases cited therein are ample authority, and all the discussion about Butler v. State, 493 S.W.2d 190 (Tex.Cr.App. 1973), the amendments to
My disagreement with the majority lies in its disposition of the two grounds of error complaining of failure of the trial court to instruct the jury to disregard the answer of Potvin which informed the jury that at the station house appellant invoked his right to remain silent when questioned by the Trooper. The majority labels “untimely” the objection that was made and, therefore, dismisses the matter as not presenting anything for review. But as I read the part of the record excerpted by the majority, a quite proper objection was made just as soon as Potvin revealed appellant‘s stated refusal to respond to his inquiries. Certainly the trial court had no problem of timeliness since the judge sustained the objection. And, it must be emphasized, the complaint is in failing to instruct the jury to disregard-a request the timeliness of which cannot be faulted.
Therefore, I would review the grounds of error in light of Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) and similar decisions by the Supreme Court of the United States treating with impermissible use of silence on the part of an accused by the prosecuting attorney, e. g., Anderson v. Charles, 447 U.S. 404, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). Because the majority does not, I respectfully dissent.
Robert C. Hunt and Donna C. Pendergast, Houston, for appellant.
Jim Mapel, Dist. Atty. and A. B. Crowther, Jr., Asst. Dist. Atty., Angleton, Robert Huttash, State‘s Atty., Austin, for the State.
Before ODOM, CLINTON and TEAGUE, JJ.
OPINION
ODOM, Judge.
This is an appeal from a conviction for possession of over four ounces of marihuana. Punishment was assessed at ten years and she was placed on probation for seven years.
Appellant first contends that the trial court erred in failing to suppress evidence seized as a result of an illegal search and seizure. Appellant argues that the affidavit presented to the magistrate requesting the issuance of the search warrant was insufficient under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. Specifically, it is argued that the following language is insufficient to establish the credibility of the unnamed informant:
“Affiant believes that said informant is
credible and his information reliable because informant has furnished information to affiant concerning drug trafficking in Brazoria County, Texas on two previous occasions and on each occasion said information proved to be reliable and correct.”
This allegation was sufficient to establish the credibility of the unnamed informant; Aguilar‘s second prong was satisfied. See Gonzales v. State, 577 S.W.2d 226, 230 (Tex.Cr.App.); see also Carmichael v. State, 607 S.W.2d 536, 538 (Tex.Cr.App.).
Next appellant contends that the court erred in failing to quash the instant indictment. The indictment alleged that the appellant “did then and there intentionally and knowingly possess a usable quantity of marijuana of more than four ounces.” It is argued that this was insufficient to put appellant on notice of what type of possession that the State was relying on to prove the offense.
Thomas v. State, 621 S.W.2d 158 (1981), controls the disposition of the instant ground of error. The term “possession” is statutorily defined as “actual care, custody, control or management.”
Accordingly, appellant‘s grounds of error are overruled and the judgment is affirmed.
TEAGUE, Judge, dissenting.
I, too, dissented in Thomas v. State, 621 S.W.2d 158 (No. 59,974, July 1, 1981, opinion on State‘s motion for rehearing).
Here, one should not question the fact that the term “possession” does go to the act of the defendant in possessing the marihuana. The information sought by appellant was the legal theory of just which kind of possession was going to be established by the State‘s proof. In sum, as Judge Clinton pointed out in Ferguson v. State, 622 S.W.2d 846 (1980), this indictment was subject to a motion to quash as it does not show on its face facts necessary to give appellant precise notice of the nature of the accusation against him, as required by
The appellant‘s contention that the trial court erred by not granting his motion to quash the indictment should be sustained and this cause should be reversed and the indictment ordered dismissed.