Loftis v. State , 1968 Tex. Crim. App. LEXIS 978 ( 1968 )

OPINION

WOODLEY, Presiding Judge.

The offense is unlawful possession of heroin; the punishment, 50 years.

The indictment alleged that appellant and Rosemary Servance, alias Rosemary Williams, acting together, did unlawfully possess a narcotic drug, to-wit, heroin.

Trial was before a jury. Both of the co-indictees were represented by the same counsel of their choice. Rosemary Ser-vance pleaded guilty while appellant pleaded not guilty before the same jury.

The jury found appellant guilty and he elected to have the court assess the punishment. Rosemary Servance’s punishment was assessed by the jury at 35 years. Her appeal is before us in Servance v. State of Texas, Tex.Cr.App., 433 S.W.2d 709, this day decided.

Appellant’s counsel on appeal, appointed by the court following sentence and notice of appeal, presents the contention that appellant was denied the effective assistance of counsel at his trial.

This contention is predicated upon the overruling of appellant’s motion for continuance in which it was alleged that his trial counsel had not had adequate time to properly prepare his defense; the overruling of his motion for severance; and the joint representation by the same counsel of appellant, who pleaded not guilty, and Rosemary Servance, who pleaded guilty.

The record on appeal reflects that the indictment was returned March 31, 1967. On April 17 it was noted on the docket that the case was to be reset. On May 2, 1967, it was set for trial on May 22, 1967. The case was called on that day and, according to the court’s docket, both sides were ready for trial and the jury panel of 45 were examined.

On May 23, 12 jurors were selected and sworn and testimony was heard after appellant pleaded not guilty.

The motion for continuance was filed May 22, 1967. It was not sworn to as required by Art. 29.03 V.A.C.C.P. The court did not abuse his discretion in overruling the motion for continuance. Crenshaw v. State, Tex.Cr.App., 389 S.W.2d 676; Finch v. State, Tex.Cr.App., 399 S.W.2d 544; Davidson v. State, Tex.Cr.App., 399 S.W.2d 808.

The motion for severance overruled by the trial court did not comply with Art. 36.09 C.C.P., 1965, and the trial court did not err in overruling it.

The allegations in support of such motion for severance were:

“I.

“That during the trial of these cases, the distinct possibility exists that one of the defendants will testify while the other remains silent, and the necessity of the silence of the party who does not testify would be prejudicial to such party and a burden would be placed upon the defendant that would require him or her to testify, such requirement being condemned by various constitutions and laws of the State of Texas;

“II.

“That defendant Edwin Loftis was not arrested at the same time nor place and was not in sight of the said Rosemary Servance at the time of such arrest, and that the said defendants were not acting together as allegedly indicted.”

The transcript of the evidence reflects that Rosemary Servance was the common law wife of appellant.

A search warrant was obtained for the search of the house of appellant. When the officers announced their arrival to execute the warrant they heard a scuffle inside and broke in. Rosemary, who was running toward the bathroom, was pursued and three capsules of heroin were found floating in the commode and were recovered.

While the officers were searching his house appellant arrived’ and, upon seeing the broken door, fled. He was pursued and, when overtaken, threw two match boxes to the ground. They were recovered by the pursuing officers and found to contain seven capsules of heroin.

Officer Voyles was asked and answered:

“Q. After you had seized the Defendant, saw him throw those items down, what happened?

“A. Well, the first thing he did when I caught him he said, T thought I could throw the stuff before you could catch me.’ ”

All of the evidence introduced by the state, including that which related to the heroin and paraphernalia found in appellant’s home, was admissible against appellant.

Though he did not testify before the jury, he admitted in his testimony before the court on the punishment issue, that he was guilty of possession of heroin on March 6, 1967, the date alleged in the indictment, and had seven capsules on that day which cost him about $25.00.

He also testified that he was convicted for illegal possession of heroin and sentenced to three years on April 19, 1955, and was released from the penitentiary on January 17, 1957.

In view of the record we find no merit in appellant’s contention that he was denied the effective assistance of counsel, or other constitutional rights.

Other grounds of error are without merit under the record.

The judgment is affirmed.