Burns v. State

473 S.W.2d 19, 1971 Tex. Crim. App. LEXIS 1637

Opinions

OPINION

MORRISON, Judge.

The offense is sale of marihuana; the punishment eight (8) years.

Appellant’s first three grounds of error relate to the sufficiency of the evidence to sustain the conviction.

One Martin Grischkowski, a student at Central Texas College at Killeen majoring in Law Enforcement, volunteered his help in ferreting out crime among the military to the Criminal Investigation Division stationed at nearby Fort Hood. He was advanced certain marked money to be used in purchasing narcotics from soldiers while they were off duty in the city. He used a portion of this money to purchase marihuana and LSD from the appellant on the night in question. He immediately carried his purchase to the office of the police in Killeen; the CID was notified and they accompanied the police to the point where' appellant and one Myers were arrested, and shortly thereafter the marked money was found in the appellant’s possession. There is no question of identity as the appellant was well known to the CID of which appellant and Myers were members, as well as to the City of Killeen Police Department. The only possible ground for appellant’s complaint as to the sufficiency of the evidence lies in the manner in which the contraband was delivered to the buyer. It is undisputed that the appellant made the contact with the buyer, agreed upon what was to be delivered and accepted the $26.00 in payment thereof and instructed the buyer Grischkowski to leave the cafe where they were seated, and proceed to the end of the block where the contraband would be delivered to him by a man who was carefully described and who developed to be Myers, who was at that time in the same cafe and to whom appellant had spoken privately during the course of the negotiations with Grischkowski. The buyer proceeded to the appointed place where he found Myers, who fit the description, and who surreptitiously delivered the contraband.

All of the above, including the arrest of appellant and Myers, together with the recovery of the marked money, occurred within approximately one hour. We conclude that the evidence is amply sufficient to establish a sale by the appellant and Myers to Grischkowski.

Appellant’s fourth ground of error is that the Court erred “in failing to charge the jury upon the converse of the offense charged.” Assuming without deciding that this raised a ground of error under Art. 40.09, Sec. 9, Vernon’s Ann.C.C.P., we observe that in McKinnon v. State, 159 Tex.Cr.R. 65, 261 S.W.2d 335, cited in appellant’s brief we quoted from Moore v. State, 100 Tex.Cr.R. 352, 273 S.W. 588, as follows:

“When the court applies the law to the facts and at the conclusion of same properly instructs the jury that, unless they so believe beyond a reasonable doubt, they will acquit the accused, such paragraph is not open to the exception that it does not present the converse of the matters therein set up.”

We overrule appellant’s fourth ground of error.

His fifth ground of error is that the Court erred in failing to charge that the witness Grischkowski was an accomplice witness. This Court has uniformly held that an undercover agent, though a volunteer, is not an accomplice so long as he does not bring about the crime. See Gomez v. State, Tex.Cr.App., 461 S.W.2d 422.

He next contends that the Court failed to charge on the defense of entrapment. The witness’s testimony did not raise the defense. No error is shown, Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822. See also Bridges v. State, Tex.Cr.App., 471 S.W.2d 827 (1971).

Appellant’s next ground of error contends that the assistance which the CID and their informant, Grischkowski, rendered the City of Killeen police force in apprehending this appellant, constituted the use of the Army as a posse comitatus contrary to Title 18 U.S.C. § 1385.

It should be noted at first that both the appellant and Myers were soldiers. Grischkowski was not. The Killeen police made the arrest based upon information furnished by Grischkowski. The assistance given by the CID in apprehending the soldiers is not a defense to a violation of the State penal statute.

Finding no reversible error, the judgment is affirmed.