Sigard v. State

537 S.W.2d 736, 1976 Tex. Crim. App. LEXIS 977
CourtCourt of Criminal Appeals of Texas
DecidedJune 9, 1976
Docket51467
StatusPublished
Cited by17 cases

This text of 537 S.W.2d 736 (Sigard v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sigard v. State, 537 S.W.2d 736, 1976 Tex. Crim. App. LEXIS 977 (Tex. 1976).

Opinions

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of sale of heroin under the former Penal Code. In a bench trial the court assessed punishment at life, the punishment being enhanced under the provisions of Article 63, Vernon’s Ann.P.C., 1925.

Appellant urges six grounds of error concerning the absence of an alleged informer, Jimmy Levine1 aka Jimmy Martinez, Jimmy Martinez Levine, Jesse or Jesus Cont-rares. He contends the court erred in overruling his motion to dismiss the prosecution, his motion to abate the prosecution, his motion to suppress evidence, his third motion for continuance, and further contends he was denied compulsory process of wit[738]*738nesses and denied due process when the court refused to require the State to produce Jimmy Levine as a material witness for the defense. The failure of this same individual to appear as a witness was presented in White v. State, 517 S.W.2d 543 (Tex.Cr.App.1975).

A review of the hearing on all pre-trial motions held on May 22, 1975, concerning the absence of Levine is necessary to fully appraise appellant’s contentions. The alleged primary offense is shown to have occurred on July 10, 1972, and the indictment upon which the appellant was tried on May 22, 1975, was returned on March 8, 1973. It does not appear to have been the first indictment returned in connection with the alleged offense.2

Albert Chevera testified he worked as an undercover agent for the San Antonio Police Department and that Levine accompanied him on nearly all of the 138 cases he made. He testified that Levine was with him on July 10, 1972, when they encountered the appellant Sigard while they were looking for another individual. Sigard asked Chevera if he wanted to “score.” Chevera gave Sigard $30.00 and all three got in a ear and Sigard directed him to another location where Sigard left Levine and Chevera in the car and returned a few minutes later and handed a yellow balloon to Chevera which was later shown to contain heroin.

Chevera testified that he knew Levine as Jimmy Martinez and “a bunch of names,” but didn’t know where he lived but always met him at pre-arranged locations. He stated he had not seen Levine since “right before I quit working undercover.” He did not know where Levine was.

Preston Slocum, Jr., of Houston testified he was a San Antonio police lieutenant on July 10, 1972. He knew that Levine was working with Chevera as an informant and was being paid between $35.00 and $50.00 for each case made. He could not recall the date he last talked to Levine over the telephone, but thought it was late August or early September, 1972, just before a narcotics roundup, which apparently, although not clearly established, resulted from the cases Levine had assisted in making. Levine told Slocum that he was going to leave town, and Slocum replied that he “thought that was a good idea” and told Levine he would send him some “eating money.” Slocum sent $75.00 to Levine by Officer Odis Doyle. Slocum testified he agreed it was a good idea for Levine to leave town for his safety and security. Slocum testified he never knew where Levine lived and did not know his present whereabouts.

Odis Doyle, San Antonio police sergeant, testified he was working on July 10, 1972, and that he had known Levine some months prior thereto, and that Levine was assisting in making narcotics cases for him for a certain period of time. He last saw him in the early part of September, 1972, when he delivered to him at the Globe Store on Santa Rosa Street the $75.00 he had gotten from Slocum, and this was before the warrants were issued on September 7,1972, for a narcotics roundup. He stated he knew where Levine lived before that time,3 but not at the present time and that he had no control over whether Levine left town or not.

Mary Helen Ñapóles of 3118 West Commerce Street testified that Levine lived at her house for awhile and she was his girlfriend, but they broke up in July, 1972, and she had not seen him since and did not know where he was.

Marie Levine of 518 San Joaquin testified she was his sister-in-law, but she had not seen him for five or six years.

Assistant District Attorney Bill White testified that he and his office had tried to [739]*739learn Levine’s whereabouts and had checked the national computer system, the P.B.I. and penitentiary records, all without success.

Deputy Sheriff Antonio Gonzales attempted to serve a subpoena on Levine requested by the appellant some 16 days prior to trial and found the address listed was not a current address. Deputy Sheriff William Schultz testified that he learned that Levine had not been at the address listed on the subpoena for over three years. He stated the sheriff’s office had done everything they could to locate Levine but had been unsuccessful.

In addition to the above witnesses, appellant, in support of his pre-trial motions, called a private investigator that he had employed. The investigator testified he had spent 55 hours from January to the time of hearing on May 22, 1975, trying to locate Levine, without success.

The appellant Sigard, testifying for the limited purpose of the hearing, stated he first became acquainted with Levine at the San Antonio State Hospital where they were both being treated for narcotic addiction, but knew him as Contrares. He related that he had seen Levine and Chevera near a restaurant on July 10,1972, and that Levine had introduced Chevera as a cousin. Both told him they were “strung out” and were looking for narcotics and asked the appellant to accompany them because “Little Joe,” whom they were looking for might not recognize Levine but would recognize the appellant. They drove to a location and Chevera gave Levine $30.00, and the appellant and Levine went to an upstairs apartment where Levine talked to someone through a door and obtained two balloons of apparent heroin for $30.00. Appellant related they returned to the car and that the other two took him back to the restaurant; that he did not receive any of the heroin. He stated he believed that Levine would testify to substantially the same facts and show that he did not sell heroin to Chevera. He testified that after his arrest he heard others arrested talking about a “Levine” as having made the cases against them, but at the time he didn’t know Cont-rares was Levine. He then detailed his unsuccessful efforts to find Levine.

After the hearing, the court overruled all pre-trial motions and ordered the appellant to trial. The appellant pled “not guilty.” The State also offered the testimony of Chevera, Doyle and that of a chemist. The State also offered proof of the prior convictions alleged. The appellant did not testify.

We held in James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973), that the identity of an informer must be disclosed when he was present at the time of the occurrence of the alleged crime. See also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). There can be no question in the instant case but that the identity of Levine was revealed or was otherwise well known to the appellant.

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Sigard v. State
537 S.W.2d 736 (Court of Criminal Appeals of Texas, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
537 S.W.2d 736, 1976 Tex. Crim. App. LEXIS 977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sigard-v-state-texcrimapp-1976.