Thomas v. State

511 S.W.2d 302, 1974 Tex. Crim. App. LEXIS 1812

• Court: Court of Criminal Appeals of Texas
• Decided: July 10, 1974
• Docket: 48692
• Status: Published

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of marihuana. Punishment was assessed by the jury at five years.

The sufficiency of the evidence is not challenged.

Appellant contends the court erred in overruling his motion for discovery.

Appellant directs our attention to his motion for discovery wherein he requested the production of:

“(d) Any papers, object or real evidence that is in the possession of the police or District Attorney’s Office which may in any way be material to the guilt or innocence of the Defendant.”

In addition to the foregoing, appellant’s motion for discovery generally called for statements of appellant, photographs, drawings, results of scientific tests, offense reports, logs of arresting officers, criminal records of appellant and witnesses for the State and transcription of grand jury testimony.

At the hearing on such motion the record reflects nothing more than “an off-the-record discussion at the Bench between the Court and counsel,” a statement by appellant’s counsel that it was his understanding that the police were answering a disturbance call at the time of appellant’s arrest and a request to see the police dispatcher’s records for that evening.

The court denied appellant’s motion for discovery and such action by the court forms the basis of appellant’s complaint.

The record reflects appellant was arrested after he had dropped a substance determined to be marihuana. After arrest appellant was searched and cigarette papers found in his pocket were subsequently introduced into evidence.

Appellant urges that under section “(d)” of his motion for discovery he was entitled to the cigarette papers for fingerprint analysis under Article 39.14, Vernon’s Ann.C.C.P. Appellant argues that he was completely unaware of the existence oi the papers and that he should have been furnished the papers in order that he could be prepared for trial.

Under the decisions of this Court appellant’s request for “any papers, object or real evidence that is in the possession of the police or District Attorney’s Office which may in any way be material to the guilt or innocence of the Defendant” was properly denied because it was too broad to be effective. Jackson v. State, Tex.Cr.App., 501 S.W.2d 660; Feehery v. State, Tex.Cr.App., 480 S.W.2d 649; Smith v. State, Tex.Cr.App., 468 S.W.2d 828; Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807. We find appellant’s reliance on Detmering, v. State, Tex.Cr.App., 481 S.W.2d 863, to be misplaced. In Detmering, the defendant’s motion was to “examine and inspect all drugs . . . designated by the penal statute as dangerous drugs and which the State of Texas intends to introduce into evidence in this case and which is now in the possession of the District Attorney.” This court reversed Detmering for failure of the trial court to allow the defendant to make a chemical analysis of such drugs.

No error is shown in the denial of appellant’s motion.

Appellant’s contention that the court erred in admitting the cigarette papers into evidence is bottomed on his argument heretofore discussed in his first ground of error. We perceive no error in the admission into evidence of the cigarette papers.

Appellant contends that the court erred in overruling his motion for resentencing in accordance with Article 13 of the Penal Code.

Trial was in April, 1973. Motion for new trial was overruled, sentence pronounced, and notice of appeal given on May 17, 1973.

After the effective date of the Controlled Substances Act, (August 27, 1973) appellant filed a motion for resentencing under Section 4.06 thereof pursuant to Article 13, Vernon’s Ann.P.C. Such motion was overruled on November 1, 1973.

Appellant urges that the effective date of the repeal of Article 13, V.A.P.C., was January 1, 1974, and since his trial and motion for resentencing came before such time he was entitled to have punishment ameliorated.

In Worley v. State, Tex.Cr.App., 485 S.W.2d 789, it was said:

“The election under Article 13, supra, is applicable only at the time the trial begins. The controlling rule is found in 1 Branch’s Ann.P.C.2d, Section 19, page 20 as follows:

“ ‘The law in force when the trial commences is the law of the case until its end. If the statute ameliorating the penalty is not in force when the trial begins the court is not required to notice it.’ ”

Appellant’s contention that the “trial court erred in overruling appellant’s motion for resentencing in accordance with Sections 4.06 and 6.01(c) of the Texas Controlled Substances Act, Acts, 63rd Legislature, Chapter 429” has been decided adversely to appellant in decisions of this Court in State ex rel. Smith v. Blackwell, Tex.Cr.App., 500 S.W.2d 97 and Ex parte Giles, Tex.Cr.App., 502 S.W.2d 774.

The judgment is affirmed.

Opinion approved by the Court.