OPINION
DOUGLAS, Judge.
The conviction is for the possession of heroin. The punishment was assessed at twenty years.
It is contended in the first and fifth grounds of error that the court erred in refusing to charge on circumstantial evidence, and that the evidence is insufficient to support the conviction. The record reflects that about noon on the 18th day of July, 1963,
Chapin v. State, 167 Tex.Cr.R. 390, 320 S.W.2d 341, holds that where the facts are in such close relation to the main fact to be proved as to constitute direct evidence it is not necessary to charge on circumstantial evidence.
Complaint is made in the second ground of error that the trial court erred in refusing to allow the appellant to see the offense report that Officer Chavez used to refresh his memory. The record reflects that Officer Chavez did not make or assist in the making of the offense report which was used along with the transcript of the examining trial to refresh his memory prior to trial. Artell v. State, Tex.Cr.App., 372 S.W.2d 944, holds that the trial court is not required to make available a report used to refresh the memory of a witness where the report is made by a person other than the witness. Appellant urges, but we refuse to hold, that Artell should be overruled.
The third ground of error is:
The record shows that Officer Chavez had received information from Julius Cockrell, another officer, that appellant would be leaving the 900 block of Austin Street for the 900 block of Broadway Street with heroin in his possession. The information was obtained from one known to Officer Cockrell for a year, and who had on prior occasions given information which proved to be true.
Many questions were asked by appellant's counsel concerning the informer's background,
The trial court properly sustained the objections by the State to prevent the disclosure of the name of the informer. Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831; Bosley v. State, Tex.Cr.App., 414 S.W.2d 468.
Complaint is made in the fourth ground of error that the trial court erred in overruling the motion to quash the indictment, because the prior federal conviction for enhancement is not denounced as an offense under the laws of the State of Texas.
The indictment alleged that appellant had been convicted in a United States District Court "* * * of the offense of receiving and facilitating the transportation and concealment of, after importation, narcotic drug, to wit: six and two-tenths grains, more or less, of heroin hydrochloride, a felony."
Such an offense as alleged would constitute the offense of unlawful possession of a narcotic drug under Article 725b, Vernon's Ann.P.C., and was properly alleged for enhancement under Art. 62, V.A.P.C. Rodriquez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406.
The fourth ground of error is overruled.
It should be noted that the jury found appellant guilty at the guilt stage of the trial under Article 37.07, V.A.C.C.P. At the penalty stage of the trial the jury found appellant had been previously convicted as charged in the indictment, but assessed the penalty at twenty years instead of life as required by Article 62, V.A.P.C. Appellant did not object to the court's charge on the ground that it authorized a penalty for a term of years. No ground of error on the court's charge is presented.
This case is almost identical to, and is controlled by, Leal v. State, 169 Tex.Cr.R. 222, 332 S.W.2d 729, 731.
The sentence reads "not less than ten years nor more than twenty years." It is reformed to read "not less than two years nor more than twenty years."
The judgment is affirmed.
ONION, Judge (concurring).
I concur in the result reached, but feel I must state my reasons for agreeing that ground of error #2 should be overruled.
Officer Chavez testified that prior to trial he refreshed his memory from a police offense report presently available which after some uncertainty he related he did not prepare but to which he contributed information and on which his name appeared as one of the officers participating "in the case." The report apparently was made by one of three other officers.
Such limitation was criticized in 16 Baylor Law Review 51, 60, as follows:
My views on this problem have been previously expressed in Rose v. State, Tex.Cr. App., 427 S.W.2d 609; cf. Dover v. State, Tex.Cr.App., 421 S.W.2d 110.
I concur, however, in the overruling of the second ground of error because the appellant made no effort after trial to have the report made a part of the record on appeal so that he could demonstrate to this Court how he was harmed by the court's action.
It is true that appellant's counsel made a valiant effort to have the offense report attached to the record at the time of the court's refusal to allow inspection, but failed to take any action thereafter to have it incorporated in the appellate record.
To have permitted the offense report to have been laid out in the record at the time it was requested, even for the purpose of the bill of exception alone, would have permitted the appellant to accomplish indirectly what he had been unable to do directly in view of the court's ruling.
Before I would be willing to reverse for the trial court's refusal to make the offense report available for the appellate record, I would require an effort after trial by the defendant for incorporation of the instrument in the record on appeal.
For the reasons stated, I concur.
Comment
User Comments