Stewart v. State

H 623, instruction disregard occur the cured S.W.2d (Tex.Crim.App.1981), 625 La State, harm and received all the Bome (Tex.App.— 624 S.W.2d 771 requested. 1981, relief pet.). Houston no How [14th Dist.] n ever, in justice the interest of we have We also question hold that appellant’s pro considered se briefs and proper. in-custody Oral statements of they present Appel find that no error. an accused are impeachment admissible for pro arguments lant’s se concerning ineffec purposes. The originally sup tive assistance of counsel relate to evidence pressed bearing had a credibility on his supposedly during hearing revealed was admissible once took the post-conviction corpus proceed habeas gave stand and his version of the arrest. ing. proceeding No record of that has State, 930, (Tex. Girndt v. 623 S.W.2d brought before us. Without such a 1981); Crim.App. Tex.Code Crim.Proc.Ann. appellant’s pro record we cannot sustain se 38.22, (Vernon 1979). art. Ground grounds. twenty-one error is overruled. The conviction is affirmed. The twenty-two grounds last of er ror deal with asserted ineffective assist

ance of counsel in failing object to vari questions, remarks,

ous sidebar closing

arguments prosecutor. made Most complained-of actions were raised in

grounds of error one through twenty-one. This court speculate will not on whether STEWART, Appellant, the defense counsel’s inaction at certain stages part of the trial were of a conscious trial strategy. Dunn v. Texas, Appellee. STATE 139, 140-41 (Tex.App. [14th —Houston No. A14-83-658CR. pet.). Upon this record we Dist.] cannot hold that counsel was deficient to Texas, Appeals Court of point functioning was not (14th Dist.). Houston guaranteed counsel to defendants under 2,May the Sixth Amendment. Neither can we hold performance that the deficient preju

diced him. v. Washington, Strickland

U.S. 104 S.Ct. 80 L.Ed.2d 674

(1984). The record shows that unruly, belligerent witness,

was an particu

larly during cross-examination. The

was aware of his previ extensive record of

ous convictions and heard several positively

officers contradict

testimony. The fact that he received the

maximum sentence cannot be attributed assistance

ineffective of counsel. Grounds twenty-two through forty-three

are overruled.

Appellant has pro submitted three raising

se briefs additional of er reasserting

ror and ineffective assistance right hy counsel. has no representation.

brid Rudd v. of a pursu- offer to

ant the Controlled Substances TEX. 4476-15, REV.CIV.STAT.ANN.art. 4.03 §§ 1.02(8) (Vernon Supp.1985). The rele- provisions of act are as this follows: vant 4.03(a) Except by Sec. as authorized Act, this person commits an offense if he intentionally or manufac- tures, possesses delivers or with intent to manufacture or deliver a controlled Penalty Group substance listed in 1. added.) (Emphasis Sec. or “delivery” “Deliver” means the actual or constructive transfer Williams, from Houston, person Connie one another ap- Brown for to of a controlled pellant. substance, glue abusable or aerosol paint, drug paraphernalia, or whether or Holmes, Jr., B. Atty., John Dist. Winston not there agency relationship. is an For Cochran, Jr., Houston, Atty., E. Asst. Dist. purposes of this it also includes an appellee. for substance, offer to sell a controlled abus- BROWN, C.J., Before J. CURTISS and glue paint, drug para- able or or aerosal DRAUGHN, CANNON and JJ. phernalia. Proof of an offer to sell must be by corroborated other than OPINION by offeree or evidence other than a statement of the offeree. DRAUGHN, Justice. error, In appel- his first of two appeals Stewart from jury alleges lant there was either no evidence or

conviction for heroin. jury The prove insufficient evidence to the offense punishment, assessed pri- enhanced one charged. He contends substance sold conviction, or at twenty-five years. Mr. offered for sale fact be a con- presents or must eight Stewart grounds of error in appeal. trolled substance to convict defendant judgment. We affirm the under this The evidence adduced statute. Houston Police Department undercover appellant at trial was that stated that he officers, Duke, W.C. Pudifin and D.C. en- accepted heroin that he had for sale and County lounge tered Harris based on a money for a that looked like tip that openly controlled substances were heroin but in fact not. There was no bought and sold in this establishment. The really evidence as to what the substance sat ap- officers at a booth were soon and . Appellant argues he was. has been con- proached appellant. Officer Pudifin for the mere statement that he had victed anything if asked he had to sale, heroin for and he contends this behav- appellant replied he had some that legislature sought is not ior what the to produced packet heroin. then through control enactment of the Con- brown, tinof foil and officers a showed the trolled Act. He asserts that Substances substance, stating powdery that it was of legislature through this intended stat- very high quality. gave appel- The officers prohibit ute the transfer for the requested package lant $100 powder since the substances. testing. took it to the for station arrested, transferred not heroin or Shortly thereafter, appellant was according to the subsequent analysis other controlled substance but chemical trial, powder presented revealed that was not heroin. at con- it evidence possess punished pursuant conspiracy he should not be and distribute tends nar- legislation. to this in violation of 21 cotics U.S.C.A. 841(a)(1) (West 1981). and 846 The §§ argues also not could upheld Fifth the conviction for Circuit con- intentionally” “knowingly offered spiracy, saying that did not Oviedo control heroin, requires, sell if the the statute its decision this case because Oviedowas heroin. con- substance indeed was not He conspiracy. not court tends there was insufficient evidence evidence indicated sufficient was be- him of rational convict this crime because a conspiracy, fore convict Pietri person would know- not conclude he produced while insufficient evidence was ingly intentionally offered transfer possessed heroin what convict Oviedo the different crime of However, indi- bogus material. at record which he had been Id. appellant that attended a second cates find of these We neither cases

meeting days Pudifin four af- with Officer particularly helpful controlling in our appellant the initial If had intend- ter sale. the bogus interpretation of Texas Controlled Sub drugs, unlikely sell it is that he ed to legislation met Pudifin Act. This is found in would have Officer stances again. jury public health, the heard testimo- the Texas civil statutes allowing that ny appellant them to infer liberally and it therefore should be con selling he was heroin believed and intend- Legisla Texas strued. We find that the duped to sell heroin had been his ed but separate as a ture delineated offense an supplier. drug. sell” an enumerated An “offer to separate and dis “offer to sell” is conduct the offered for sale Whether substance possession or sale. tinct from actual actually con drug a controlled to must be 4476-15, 4.03, a defendant under art. vict analogous An situation involves the impression. As presents a case of first Texas a prostitution. of Under law crime the support position for his that knowing a prostitute may be for convicted drug, appellant relies must be a controlled in a engage sexual behavior for offer to upon analogy States v. Ovie from United fee, actually prostitute or not the whether Cir.1976). (5th do, 525 F.2d 881 Oviedo provides the services offered. Cardenas v. attempted of with distribution (Tex.Crim.App. 292 in 846 heroin violation of U.S.C.A. § banc). 1982)(en Thus, precedent is in there 1981). (West to an undercover Oviedo sold of prosecution criminal mere Texas for bogus drug apparently agent accept agreement an to statements with con He was later to be heroin. believed actual payment, even without the attempt, Fifth but the for criminal victed goods of or services offered. the conviction, that saying reversed the Circuit mark objective acts must defendant’s the an of offer To convict defendant re without his conduct criminal substance, the material to sell a controlled Appel his rea. Id. at 885. liance on mens a controlled actually need not have selling objective act his lant asserts that Instead, defendant need substance. the being drug not mark him as bogus does (1) intention to only his verbalized Texas Controlled Sub violation the in in return controlled substance transfer a Act; therefore, his conviction stances (2) conduct consist for exhibited a fee also be reversed. should that the sub subjective ent the belief appellant’s argu- responds State for a controlled sale was stance offered case, citing subsequent federal ment drug. (5th Pietri, 683 F.2d 877 States United contrast, a defendant By way of bogus drugs Cir.1982). Pietri transferred sepa prosecuted under properly is more agent and also believed undercover to an Controlled entitled rate “Simulated charged with statute be He was drugs to real. the Substances,”1 (1) jury. Entrap- entrapment the the defendant offers issue of substance, (2) the officers actu- requires sell the sub- ment that in really selling sub- idea of heroin the ally implant stance is simulated controlled the stance, (3) mind, merely pro- the re- defendant’s conduct defendant’s rather than a sim- veals that knows material is viding opportunity for the defendant ulated controlled In instant substance. commit the crime. See Craver case, testimony allowing there was (Tex.App. —Houston appellant the sub- ref’d). infer believed pet. In the instant [14th Dist.] stance to be instead of simulated heroin the officers case there is no evidence that therefore, heroin; we evi- find sufficient exerted undue influence over the dence of the offense to convict selling implanted the idea overrule first and second We merely They heroin mind. grounds of error. provided opportunity for Appellant’s carry out his own intentions. Appellant’s ground third grounds fourth and fifth of error are over- complains prosecutor’s ruled. closing argument his don’t even “[w]e thought it Stewart know what Appellant’s remaining three was,” referring Ap substance sold. present error. also no reversible pellant an im contends statement was twenty- that his He contends sentence proper testify. his comment on failure to years punishment is cruel and five unusual error, For to be this comment reversible heroin, espe when the was not one at the the must look statement from a cially persons since who deliver jury’s viewpoint, and the that it conclusion (such as mari verified controlled substance was comment on the failure a defendant’s juana) prison can receive much lesser testify necessary must be a one. However, say the sen term. we cannot State, (Tex. 68, McDaniel S.W.2d punishment and tence was cruel unusual Crim.App.1975). prosecu We find that the have determined that since we tor’s fails to meet this standard. prosecuted 4476- properly under art. was A appellant thought comment on what the 4.03, 15, punishment since is and § goes substance was also to the issue of crime range established for this within the whether, during sales pitch his to the offi State, 477 by legislature. the Samuel v. cers, appellant attempted them to delude Ap (Tex.Crim.App.1972). buying bogus drugs, appel into or whether error complains procedural pellant also duped lant had and the truly been believed arraignment enhance on the regarding his jury’s substance to be heroin. the From object he Since failed ment issue. standpoint, easily the comment could trial, error is procedure at improper perceived concerning as a statement preserved for review. Castillo appellant’s during state mind commis (Tex.Crim.App.1976). sion of the crime. it cannot be complains trial that the Lastly, appellant said the state’s argument was improperly admitted into evidence court comment necessarily appellant’s fail judgment. penitentiary packet with a void testify. ure We overrule previous judg contends that a ground of error. third he him was against void because ment days offense oc five after the Appellant’s fourth fifth convicted and counsel showing that his allege without that the trial court curred ten-day period for preparation failing entrapment to find as waived erred in either required trial as TEX.CODE.CRIM. failing of law or matter submit a sim- with intent to deliver or delivers tures art. 4476-15b states TEX.REV.CIV.STAT.ANN. (Emphasis part: pertinent in controlled substance.... ulated added.) 2(a) person A commits an offense if Sec. person knowingly intentionally or manufac- 26.04(b) (Vernon 1966). PROC.ANN. art. above, discussed clearly shows that the be- An rule, however, essential element of this legislature sought havior the to control was is that counsel be appointed by the court the transfer of only. controlled substances instead of retained the defendant. strengthened by This conclusion is further Since the record appel- does not reflect that legisla- September fact that in lant’s counsel appointed, appellant has 4476-15b, ture entitled enacted Article not met his burden proof ground on this Substances,” “Simulated which Controlled of error. See Bowers v. 570 S.W.2d states, pertinent part: 929, 931 (Tex.Crim.App.1978). 2.(a) person Sec. A an offense commits appellant’s eight grounds

We overrule person intentionally knowingly if the judgment error and affirm the below. manufactures with the intent to deliver or delivers a controlled sub- simulated BROWN, Justice, J. CURTISS Chief dis- person: stance senting. (1) expressly represents the substance to I respectfully majority’s dissent to the substance; be a controlled opinion. (2) represents the substance to be a con- and convicted of in a manner that trolled substance substance, by of a controlled offer would lead a reasonable to be- heroin, pursuant wit: to the lieve that the substance is Controlled Substances TEX.REV.CIV. substance, added.) (Emphasis ... 4476-15, STAT.ANN. art. § 4.03(a) (Vernon Supp.1984). 1976 and § 4476-15b, 1(4) Article defines “simulated 4.03(a) provides, part, Section per- that a controlled substance” as “a substance son commits an offense substance, purported is to be a controlled intentionally possesses delivers or in- but is chemically different from the con- tent to deliver a controlled substance. purported trolled substance it is to be.” 1.02(8) Section defines “deliver” or “deliv- (Emphasis added.) ery” as the actual or constructive transfer from one to another of a controlled Act, prior If the Controlled Substances substance, including an offer to sell a con- September, relating included offenses trolled substance. substances, simulated no real purpose enactment would be served The State concedes that there enacting By of Article this stat- 4476-15b. evidence Appellant that the substance of- ute, in- legislature it clear that the seems fact, was, fered to sell heroin. State which had tended to cover certain behavior rely does not on the actual transfer previously been excluded from Con- officer, heroin to narcotics W.C. Pudifin. general trolled Substances Act. It is a rule Rather, places emphasis words, it on the legisla- statutory construction that sell,” “offer to controlling in the statu- presumed ture is never to do a useless act. tory phrase, “offer to sell a controlled sub- Corp., Capital Hunter v. Fort Worth It stance.” is the State’s it contention that (Tex.1981). unnecessary prove the sub- Appellant stance offered to sell actual- I, therefore, in- would hold the evidence substance; ly rather, a controlled it was Appellant to convict of the of- sufficient only required prove of- fense fered to sell to Officer Pudifin a “sub- stance” which claimed was her-

oin. majority supports

While the the State’s

contention, strongly disagree. I The lan-

guage contained in Sections

4.03(a) of the Controlled Substances

Case Details

Case Name: Stewart v. State

Court Name: Court of Appeals of Texas

Date Published: May 2, 1985

Citation: 693 S.W.2d 11

Docket Number: A14-83-658CR

Court Abbreviation: Tex. App.