Mann v. State

754 S.W.2d 371, 1988 Tex. App. LEXIS 2110, 1988 WL 85122
CourtCourt of Appeals of Texas
DecidedJune 29, 1988
DocketNo. 04-87-00217-CR
StatusPublished
Cited by3 cases

This text of 754 S.W.2d 371 (Mann v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mann v. State, 754 S.W.2d 371, 1988 Tex. App. LEXIS 2110, 1988 WL 85122 (Tex. Ct. App. 1988).

Opinion

OPINION

CHAPA, Justice.

Appellant, Weldon Earl Mann, appeals from a jury conviction for delivery of methamphetamine, by constructive transfer. His punishment was assessed by the jury at 99 years confinement and a fine of $20,-000.00.

The issues before us are

1) whether the evidence was sufficient to sustain the conviction because the State presented an inherently untrustworthy witness and no corroborating evidence;

2) whether the trial court abused its discretion in denying appellant an appointed independent chemist;

3) whether the prosecutor committed reversible error in final argument; and

4) whether the trial court erred by using a form in submission which constituted a comment on the weight of the evidence.

Atascosa County hired Juan Guerra to work undercover narcotics. The employment arrangements were that he be paid $100.00 upon purchase and delivery of narcotics, be furnished an efficiency apartment, and $20.00 a week spending money. He was provided money to make the buys.

On July 11,1986, he met Danny Jacobson to make a buy of drugs as previously arranged. He gave Jacobson $50.00 to buy narcotics and they left in his car to find Jacobson’s wife, Tammy. They found Tammy and appellant in appellant’s car. After an argument between Jacobson and Tammy, Tammy showed Guerra a plastic bag containing brown powder which she offered for $100.00. Guerra told her that he only had the $50.00 he had previously given to Jacobson. In the presence of Guerra, Tammy then asked appellant if he would agree to sell only $50.00 worth of the narcotics from the bag she had. Appellant agreed, and proceeded to cut the plastic bag in half and seal the half with a lighter. Appellant then asked Tammy to show Guerra the $50.00 balloon she had, but Guerra told appellant he had no more money. Appellant responded, “well, whenever you need it.” The $50.00 Guerra had given to Jacobson was then given to appellant, and Guerra received the bag which had been sealed by appellant. The bag was found to contain methamphetamine.

The defense presented evidence that Guerra was a patient in a methadone program, was tested positive for the presence of morphine, had used heroin and other drugs, had lied in another trial about his use of drugs, and had not notified Internal Revenue of his income from his informant work. The defense also presented Fred Jackson Ravinsky, Jr., who testified he worked across the street from the location of the alleged drug transaction involved, had observed the fight between Jacobson and Tammy, had observed that Tammy never left appellant’s car as Guerra contended, that he had worked several jobs with appellant, and that he was on probation for delivery of marihuana.

In the initial complaint, appellant contends the evidence is insufficient to sustain the conviction because the State presented an inherently untrustworthy witness and no corroborating evidence.

[373]*373The standard of review requires that we look at the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984) (en banc); Carlsen v. State, 654 S.W.2d 444, 449 (Tex.Crim.App.1983) (en banc). In a trial by jury, consideration of conflicts or contradictions in the evidence is within the province of the jury, and such conflicts will not call for reversal if there is enough credible testimony to support the conviction. TEX.CODE CRIM.PROC.ANN. art. 36.13 (Vernon 1981); Bowden v. State, 628 S.W.2d 782, 784 (Tex.Crim.App.1982) (en banc). TEX.CODE CRIM.PROC.ANN. art. 38.04 (Vernon 1979) provides:

The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony, except where it is provided by law that proof of any particular fact is to be taken as either conclusive or presumptive proof of the existence of another fact, or where the law directs that a certain degree of weight is to be attached to a certain species of evidence.

Therefore, this Court should not attempt to substitute its judgment as to the credibility of witnesses or what weight to be given their testimony except as provided by law. Since this Court never had the advantage of seeing or hearing any witness, these provisions of the law are logical and justified.

Appellant suggests that this Court, as a matter of law, declare Juan Guerra an inherently untrustworthy witness and thus, unbelievable. Appellant does not contend that Juan Guerra’s testimony falls within the exceptions of art. 38.04, but that all the defects pointed out in impeachment sufficiently establishes his unbelievability. We can find no authority to comply with the wishes of appellant.

Appellant cites United States v. Cervantes-Pacheco, 800 F.2d 452 (5th Cir.1986) in support of his contention. However, on rehearing, the Fifth Circuit affirmed the conviction. United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir.1987). The Court held that an informant who is promised a contingent fee by the government is not disqualified from testifying. The credibility of the compensated witness, like that of the witness promised a reduced sentence, is for the jury to determine. In the instant case, appellant elicited testimony concerning the agreement to compensate Guerra. It was for the jury to determine the reliability of Guerra’s testimony. Guerra was not, as a matter of law, an inherently untrustworthy witness.

Appellant also urges this Court to require corroboration of Guerra’s testimony but fails to cite any authority. However, the law is clear that “[n]o corroboration is required under Sec. 1.02(8) to prove a delivery in the form of a constructive transfer.” Sheffield v. State, 623 S.W.2d 403, 405 (Tex.Crim.App.1981); TEX.REV. CIV.STAT.ANN. art. 4476-15, § 1.02(7) (Vernon Supp.1988). The point is overruled.

Appellant next argues that the trial court abused its discretion in denying appellant the appointment of a chemist.

Under TEX.CODE CRIM.PROC. ANN. § 26.05 (Vernon Supp.1988) the appointment of an expert witness lies within the sound discretion of the trial court. Quin v. State, 608 S.W.2d 937 (Tex.Crim.App.1980). The burden is upon the appellant to show the court abused its discretion in denying appellant’s request for the appointment of a chemist. Castillo v. State, 739 S.W.2d 280 (Tex.Crim.App.1987) (en banc); Myre v. State, 545 S.W.2d 820 (Tex.Crim.App.1977); Volanty v. State,

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Bluebook (online)
754 S.W.2d 371, 1988 Tex. App. LEXIS 2110, 1988 WL 85122, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mann-v-state-texapp-1988.