Beeler v. State, 36372

• Decision Date: 15 January 1964
• Docket Number: No. 36372,36372
• Citation: 374 S.W.2d 237
• Parties: John D. BEELER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 237

374 S.W.2d 237

John D. BEELER, Appellant, v. The STATE of Texas, Appellee.

No. 36372.

Court of Criminal Appeals of Texas.

Jan. 15, 1964.

R. Richard Thornton, Galveston (court appointed counsel), for appellant.

Jules Damiani, Jr., Dist. Atty., Raymond E. Magee and Thomas L. Douvry, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for possession of marihuana with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

The testimony of the La Marque City Officers Stroud, Gassaway, and Odom reveals that about 3 a. m., March 25, 1962, while riding in a patrol car, they observed the appellant who was seated between Samuel Cooper and Margie Justice in the front seat of a four door Pontiac that belonged to Justice who was driving. The appellant looked back, and then turned and moved forward in the car. Because of defective headlights and the Pontiac being driven astride the center stripe on the right side of a four lane highway, upon a signal from the patrol car the Pontiac was stopped. Cooper and the appellant got out of the Pontiac on the right hand side and Justice from the left side. Cooper appeared to have something in his right hand when he got out of the Pontiac, and as he stood up he threw something under the car which made a noise. Underneath the car the officers found 1 capsule, 5 1/2 tablets in a package, another package with five cigarettes in it, and a bottle containing some loose plant material. Particies of marihuana were found in the pockets of a jacket which the appellant was wearing when arrested.

A search of the Pontiac revealed a .38 revolver in the glove compartment, a .25 automatic pistol under the right front floor mat, three red capsules and one cigarette butt under the rear seat.

Chemist McDonald testified that an analysis showed that the bottle contained 1.4 grams of marihuana, each of the five cigarettes contained about three grains of marihuana, the jacket pockets contained particles of marihuana, the capsules contained barbituric acid and the tablets contained amphetamine.

Proof was offered by the state of the two prior non-capital felony convictions alleged and that the appellant was the same person so convicted. Further, the appellant while testifying admitted the prior convictions alleged.

Testifying in his own behalf, the appellant stated that Margie Justice was the owner and driver of the Pontiac, that she was taking him to Houston, and Cooper was accompanying her. Cooper had previously borrowed appellant's jacket which he returned about 1 A.M. before their arrest at 3 A.M., and he never examined the pockets for their contents. Appellant denied that he had seen or that he possessed or owned the marihuana, barbiturates, or pistols; and also testified that he never saw Cooper throw anything as they got out of the Pontiac.

The court charged the jury on the law applicable to principals.

Appellant contends that the trial court erred in refusing his motion to require the district attorney to produce the statements and reports of Officers Stroud and Gassaway in order that he could properly cross-examine them.

This motion was presented on December 28, 1962, refused on January 2, 1963, and re-urged at the beginning of the trial on March 18, and before the witnesses had testified.

No further requests were made, during or after the witnesses had testified on direct examination, for the statements and reports; and there is no showing of the contents of such statements or reports. Therefore no error is presented. Johnson v. State, 172 Tex.Cr.R. 224, 355 S.W.2d 529; Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936; Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467.

Appellant contends that his arrest was unlawful because the La Marque City officers were outside their jurisdiction as the arrest took place beyond the city limits of La Marque. Therefore their testimony about the marihuana was not admissible in evidence.

While testifying on direct examination the appellant first identified the jacket exhibited to him that had been introduced in evidence by the state as the one his companion Cooper had returned to him shortly before their arrest. However, he later testified...