Varela v. State

561 S.W.2d 186, 1978 Tex. Crim. App. LEXIS 1031

• Court: Court of Criminal Appeals of Texas
• Decided: February 8, 1978
• Docket: 52959
• Status: Published

Opinions

OPINION

ONION, Presiding Judge.

With the exception of the two footnotes contained therein which this writer has inserted, the following opinion was originally prepared by the late Judge Howard P. Green, a Commissioner of this court. In writing for the majority, I adopt Judge Green’s opinion as that of the court.

“This is an appeal from a conviction by a jury for the offense of sale of heroin. Punishment was assessed by the court at twelve (12) years.

The sufficiency of the evidence is not challenged.

The State’s evidence reflects that on the afternoon of June 15, 1972, appellant sold heroin to undercover Officer Albert Chev-era of the San Antonio Police Department. On the date of the transaction Officer Chevera drove with his informant Jimmy Levine a/k/a Jimmy Martinez to the corner of Somerset and Stonewall in San Antonio. Officer Chevera and Levine parked the car and walked over and initiated a conversation with appellant. During the conversation, appellant asked Officer Chevera if he wanted to “score” some heroin. Chevera said yes. The three men got into Chevera’s automobile and appellant directed Chevera to drive to the corner of Guadalupe and Cibolo. While en route, Officer Chevera gave appellant $30.00 as payment for the heroin. Appellant sighted “El Chueco” at the corner of Guadalupe and Cibolo and motioned him to the car. Appellant and “El Chueco” had a conversation which was followed by instructions from “El Chueco” to drive all four of them to the 200 block of Elvira. Upon arrival at Elvira, “El Chue-co” exited the car. Shortly thereafter, he returned, handed something to appellant, and left. Appellant then handed a balloon containing heroin to Officer Chevera. Appellant testified at trial that the crime was initiated by Officer Chevera and Jimmy Levine and that appellant was not predisposed to commit the crime but was induced to do so by Levine and Officer Chevera. Levine was not present to testify at the trial, and the record discloses that the prosecution did not know where he was or how to contact him.

In grounds of error one and four appellant contends the State was required to produce the absent witness Jimmy Levine at trial and the State’s failure to do so violated appellant’s right to compulsory process as guaranteed by the Sixth Amendment.

It is well established that the identity of an informer must be disclosed when he participated in the offense, or was present at the time of the occurrence of the crime, or would be a material witness as to whether or not the accused knowingly committed the offense. James v. State, 493 S.W.2d 201 (Tex.Cr.App.1973); Carmouche v. State, 540 S.W.2d 701 (Tex.Cr.App.1976); see also Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Appellant was aware of the identify of Levine as the informer prior to the instant trial. The record reflects the State fulfilled its obligation by fully disclosing any knowledge it had of the whereabouts of Levine.

The Sixth Amendment does not require that the State or government be successful in trying to subpoena witnesses. All that is required is that process issue and due diligence be exercised in a good faith attempt to secure service of process. Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976); White v. State, 517 S.W.2d 543 (Tex.Cr.App.1974); United States v. Bolden, 461 F.2d 998 (8th Cir.1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968). Appellant does not allege nor does the record reflect that the State did not make a diligent good faith attempt to secure service of process on the absent witness. As in Sigard, supra, the record reflects that the State and appellant were unsuccessful in their efforts to locate Levine and secure his presence at the trial.

Therefore, grounds of error one and four are predicated solely upon the contention that the State played a material role in securing the witness’ disappearance. The basis of appellant’s contention stems from the testimony of Preston Slocum, elicited during the hearing on appellant’s motion for new trial. Slocum, who was not present at the trial, testified at the hearing on the motion as follows:

“Q (Appellant’s Counsel): Did you ever have occasion to talk to Mr. Levine about the advisability of him staying in San Antonio, Bexar County, Texas?

“A (Lt. Slocum): Yes, sir.

“Q What were the facts surrounding that conversation?

“A He said — we told him the raid was going to go down and he said he was going to leave town but didn’t have any money. I told him I thought that was a good idea. I still think it was a good idea. He said he didn’t have any money. I gave Detective Doyal $75.00 for eating money.

“Q You know when you paid Officer Doyal that $75.00 that that was going to be given to Mr. Levine; he was going to use that to leave town?

“A I sent it out to the man. He said he was leaving town. Now, whether he was going to or not, I don’t know.

“Q But, you knew it was to be his advantage to leave town?

“A If I was in his shoes, I would have left town I guarantee you.

“Q And you advised him of the big bust before it went down, right?

“A Yes, he was advised.”

Sigard v. State, supra, is controlling.¹ Sigard also contended he was denied compulsory process of witnesses based upon the same act complained of by appellant.

In Sigard we stated:

“Further, we cannot reach the conclusion that Lt. Slocum had the $75.00 delivered to Levine two and one-half years prior to the actual trial of the case in order to conceal evidence and deprive the appellant of the right of compulsory process of witnesses. The appellant had not even been arrested, and no indictment had ever been returned at the time. The record reflects that Slocum’s reasons were dictated by his concern for Levine’s personal safety and security which would make it a ‘good idea’ for Levine to leave town prior to the narcotics roundup. As stated in the concurring opinion on the State’s motion for rehearing in White (517 S.W.2d 543):

“ ‘ . . . It is certainly common knowledge that lives of informers in narcotic cases are in constant danger. The conversation appears to have taken place shortly after Leveine’s (sic) activities as an informer had been completed. Upon Leveine’s (sic) suggestion that he “needed some money to eat” Slocum sent him $75.00 by one of his officers. The amount involved was not sufficient to allow him to travel any great distance or to keep him in food for long.’

Slocum’s action cannot be seen as a calculated attempt to deprive this appellant of compulsory process because of Levine’s unavailability two and one-half years later. Indeed, Levine’s appearance as a witness at future trials would seem to be more assured and likely if he sought safety out of town at the time than if he remained in town at the mercy of alleged narcotics pushers who might be released on bond.

“Further, for the same reasons, we cannot conclude that the appellant was deprived of due process or that the court erred in overruling the motion for the State to produce Levine, his motions to abate or dismiss the prosecution, the motion to suppress evidence or the third motion for continuance based on the absence of Levine, as were the earlier motions. We are here confronted with a case that long pended on the docket of the court while both sides made a diligent effort to locate Levine without success and there was no showing that if the case was continued there would be any chance of locating Levine, and further, neither the State nor the appellant knew for sure what Levine’s testimony would be. Under the circumstances, the trial court cannot be faulted for proceeding with the trial almost three years after the alleged offense and over two years after return of the last indictment.”

In the instant case appellant also had not been arrested nor had an indictment been returned at the time Levine received the $75.00. Appellant also did not go to trial until almost three years after the payment had been made.

Further, it is highly unlikely that the mere absence of money would dissuade an informer whose life was in jeopardy from leaving town. Lt. Slocum’s testimony reflects that Levine had aided the police in making over one hundred cases against narcotic dealers. Levine would justifiably fear reprisals from numerous individuals. It is obvious that Levine’s leaving town was precipitated by his knowledge of the police’s intention to arrest the very individuals against whom Levine had helped make cases and not by the State’s token $75.00 payment.²

Appellant’s grounds of error one and four are overruled.

Further, for the same reasons, the trial court did not err in overruling appellant’s motion to suppress the evidence of the sale of the heroin by appellant, which motion was based on the State’s having “made unavailable a material witness to the alleged sale . . ..”

Appellant’s ground of error number two is overruled.

Appellant contends in his third ground the trial court erred in denying his first motion for continuance.

On the day the case was called for trial, appellant presented to the court his sworn motion for a continuance based upon the absence of witnesses Slocum and Levine. A hearing was had on the motion after which it was denied.

Appellant’s motion for continuance reflects that appellant had engaged the services of a private investigator as of July 18, 1975, to locate witnesses Levine and Slocum. Appellant, however, did not cause citation to be issued for the missing witnesses until September 2, 1975, the day before the trial on the merits began. Additionally, the motion for continuance was not filed until the day of the trial. The diligence required to support a motion for continuance has not been shown, and error in the overruling of the motion is not presented. Gonzales v. State, 505 S.W.2d 819 (Tex.Cr.App.1974); Booth v. State, 499 S.W.2d 129 (Tex.Cr.App.1973); Kelly v. State, 471 S.W.2d 65 (Tex.Cr.App.1971).

During the hearing on the motion for continuance, appellant’s investigator testified to the following concerning locating Jimmy Levine.

“BY MR. RYMAN:

“Q Since July 18th, 1975, what efforts have you made as far as trying to locate this person by the name of Jimmy Levine or Jimmy Martinez or whatever his true name is?

“A (Mr. Luther, appellant’s investigator): All right, I checked again with the Bexar County Sheriff’s Department when I was appointed on this case, and I cheeked again with the domestic relations section and also the hot check section. I checked with two other investigators that I know that have been appointed on other cases that were stemming from Mr. Levine. And we talked and exchanged ideas to see possibly what idea we could come up with to find him.

“Q In checking with his sister, did she have an address in the State of Minnesota for this person?

“A No, sir. She got a letter from him postmarked from Minnesota and didn’t elaborate on the contents of the letter. She said to me that she thought he had been there for two or three years.

“Q Two or three years?

“A And I’d like to make a correction, that it wasn’t Minnesota; it was Michigan.

“Q Michigan?

“A Yes, sir.

“Q All right, in trying to locate Jimmy Martinez or Jimmy Levine, approximately what amount of time did you use or expend to try to locate him in this case?

“A In this case approximately two hours; maybe three.

“Q All right. Now, if the Court were to give you the opportunity to further try to find this witness, what avenues would you take in trying to locate him?

“A I would have to go back over and contact the same people that I’ve previously contacted and the addresses that I’ve previously contacted that we have on him that I’ve previously checked before.

“Q From your experience in the past in trying to locate this witness, do you think that these efforts would prove fruitful?

“A No, sir.”

From appellant’s investigator’s testimony it appears that the witness Levine was beyond the jurisdiction of the court in a distant state. His address, if any, was unknown. There is nothing in the record to indicate that the witness’ attendance could be secured by a continuance.

If the evidence does not indicate a probability that the witness can be secured by a postponement, or if it appears that a continuance due to the absence of the witness would delay the trial indefinitely, the motion may be properly denied. Salinas v. State, 542 S.W.2d 864 (Tex.Cr.App.1976); Zamora v. State, 158 Tex.Cr.R. 85, 253 S.W.2d 277 (1952); Tuck v. State, 155 Tex.Cr.R. 113, 231 S.W.2d 436 (1950).

Moreover, it is not necessary to pass upon the inadequacy of a motion for continuance where there is no motion for new trial alleging the failure of the court to grant the continuance and no affidavit of the missing witness or a showing under oath from some source that the witness would actually testify to the facts set out in the motion for new trial. Lapp v. State, 519 S.W.2d 443 (Tex.Cr.App.1975); Fields v. State, 495 S.W.2d 926 (Tex.Cr.App.1973); see also Article 29.06, V.A.C.C.P.

Appellant’s motion for new trial does not complain of the trial court’s alleged error in denying the motion for continuance. There is no affidavit of the missing witness Levine. The only testimony elicited during the motion hearing concerning what facts the absent witness Levine would testify to is as follows:

“BY MR. CALLAHAN (counsel for appellant):

“Q Would you state your name for the record?

“A (Appellant): Ernest Ortega Varela.

“Q Ernest, I have one question for you: You have testified earlier in the trial. What I would like you to tell the Court and for the record, Mr. Levine was present at the time while you were with Officer Chevera?

“A Yes, sir, he was.

“Q Okay. Would Mr. Levine’s testimony support your testimony in the trial?

“A He was there and he might say something that I don’t know what he’s going to say, but he was there and the transaction was through him; so he was there.

“Q And he’s the only witness that you have that’s available to you to prove your side of the story?

“A Yes, sir.”

We hold that such testimony is ambiguous at best and is insufficient to show that Levine would actually testify to facts favorable to appellant.

The third ground of error is overruled.

In ground of error number five appellant complains that the following rulings of the trial court in sustaining the objections to the defense counsel’s questions resulted in a comment on the weight of the evidence and denied appellant a fair trial.

“Q (Defense Counsel): What was the $75.00 for?

“A (Officer Doyal): I do not know.

“Q Could it have been to pay Mr. Levine to leave town?

“MR. RYMAN (Prosecutor): Your Honor, I object.

“THE COURT: Sustained.

⅜ ⅜ ⅝ ⅜ ⅜ ⅝:

“Q (Defense Counsel): And was Lieutenant Slocum aware of the working relationship between Mr. Levine and Officer Chevera?

“THE COURT: Do you have an objection?

“MR. RYMAN (Prosecutor): It calls for a conclusion on the part of this witness.

“THE COURT: Sustained.

* ⅝: * ⅜: * *

“Q (Defense Counsel): Have you undergone any rehabilitation or any type of a cure to help you to get over your addiction?

“MR. RYMAN (Prosecutor): Your Honor, we object to this as being irrelevant and immaterial in this case.

“THE COURT: Sustained.”

The rulings first and third, supra, complained of were simply rulings on objections interposed by counsel. Appellant’s counsel interposed no objection to the alleged comment of the court when it requested whether the State had an objection, and, therefore, nothing is presented for review. Calverley v. State, 511 S.W.2d 60 (Tex.Cr.App.1974); Jenkins v. State, 488 S.W.2d 130 (Tex.Cr.App.1972).

Further, to constitute reversible error, the comment of the court must be reasonably calculated to prejudice the defendant’s rights. Abies v. State, 519 S.W.2d 464 (Tex.Cr.App.1975); Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974). Clearly, since the rulings did not amount to a comment on the weight of the evidence, they could not have been reasonably calculated to prejudice appellant’s rights.

Appellant’s ground of error five is overruled.

In ground of error number six appellant contends the trial court erred in failing to instruct the jury that remarks made by the prosecutor during jury argument were not to be considered as evidence. Appellant complains that such failure was error in light of the fact that such an instruction was given regarding appellant’s counsel’s jury argument.

Appellant’s contention is without merit. The record reflects that the court’s admonishment was directed to the jury argument of both the prosecutor and defense counsel.

“THE COURT: ... And after you hear summations, the jury will retire to deliberate. And you will take this charge with you to read it at your leisure. I will admonish you and tell the jury at this time that whatever the State attorneys say or the Defense attorney tells the jury now, that they are not testifying under oath. And so their statements are not to be considered as evidence. They are summing up as they recall the testimony, and you are not to consider their summations as evidence in the case. However, counsel for both sides can make reasonable deductions from the evidence as they heard it. But you will decide the issue in this case of guilt or innocence from what you remember of the case.”

Appellant’s sixth ground of error is overruled.

Appellant in ground seven contends the court erred in denying appellant’s counsel a reasonable second jury argument under Article 36.08, V.A.C.C.P.

Article 36.08, supra, provides:

“The court shall never restrict the argument in felony cases to a number of addresses less than two on each side.”

We have held that where the accused has only one attorney it is within the court’s discretion whether defense counsel may make more than one argument to the jury. Pryor v. State, 449 S.W.2d 482 (Tex.Cr.App.1969). Article 36.08, supra, does not give the accused the right to rebut the closing argument of the State.

No abuse of discretion has been shown; ground of error number seven is overruled.

Appellant finally complains the trial court erred in failing to grant a new trial due to newly discovered evidence. The evidence which appellant says “is so material that it would have changed the results of the trial” was the following testimony of Officer Slocum given at the hearing on the motion for new trial:

“Q (Mr. Callahan): I have a couple of more questions, Lieutenant Slocum. One is on the other side that the State just asked you. You do not have any knowledge that Mr. Levine’s testimony would probably be contradictory to what Mr. Chevera has stated, isn’t that correct?

“A (Lt. Slocum): I really don’t know what Mr. Levine would testify to, you know.

“Q You don’t have knowledge of the fact that Mr. Levine would possibly testify that Officer Chevera lied in his report?

“A It’s a possibility that he could.”

In Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975), we stated:

“In order for a new trial to be granted on the basis of newly-discovered evidence, it must be shown that such evidence was in fact newly-discovered, that it was material, that the failure to discover the evidence sooner was not due to lack of diligence on the part of the appellant, that the new evidence was probably true, and that such evidence would probably produce a different result at another trial. . . .”

See also Williams v. State, 504 S.W.2d 477 (Tex.Cr.App.1974). Article 40.03(6), V.A.C. C.P.

We hold that such testimony does not amount to newly discovered evidence that would probably produce a different result at another trial. Slocum’s testimony merely reflects his recognition of the fact that since he had no knowledge of what Levine’s testimony would be, it was possible that it could impeach Officer Chevera’s testimony.

Appellant’s eighth ground of error is overruled.

The judgment is affirmed.”

1 . The dissenters would construe this testimony in the context of the analysis used in the dissenting opinion in Sigard v. State, 537 S.W.2d 736 (Tex.Cr.App.1976). Insofar as the amount paid Levine is concerned, the dissenting opinion in Sigard misses the mark. The amount of money given to Levine was not there and is not here of any real significance except as some indication that Levine's departure was not likely motivated by such a small sum.

2 . The crux of the dissenting opinion is the characterization of Slocum’s action as improper State involvement which deprived appellant of his right to compulsory process. The dissent admits the record cannot support an assertion that any agent of the State instructed Levine to leave town in order to conceal evidence or deprive appellant of the right to compulsory process. Upon only a showing that Slocum knew Levine could be a potential witness at some uncertain future date, the dissent would, in effect, impute an improper motive to the State. Such a presumption of illegal State action goes too far on too little evidence. While the dissent may colorfully imagine that Slocum “actively participated in facilitating and encouraging Levine’s departure,” the record speaks plainer: Slocum gave Levine $75.00 for “eating money” and agreed with Levine’s own prior assessment that he should leave town for awhile.

As for the dissent’s claim that failure to obtain Levine’s future address was an improper omission by the State, we still have no evidence that such inaction was motivated by the desire to suppress evidence or deprive appellant of a witness. Moreover, the Sixth Amendment does not require the State to insure that a defendant’s attempts to secure witnesses will succeed. All that is required is that process issue and due diligence be exercised in a good faith attempt to secure service of process. United States v. Bolden, 461 F.2d 998 (8th Cir. 1972); Maguire v. United States, 396 F.2d 327 (9th Cir. 1968).