Boothe v. State, 44180
| Decision Date | 09 November 1971 |
| Docket Number | No. 44180,44180 |
| Citation | 474 S.W.2d 219 |
| Parties | Michael C. BOOTHE, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Stone, Luther & Dyer, by Max J. Luther, III, Corpus Christi, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction by a jury for the possession of marihuana. The court assessed the punishment at five years.
The sufficiency of the evidence is challenged.
On January 25, 1970, Officer Pflueger of the Corpus Christi Police Department and his partner in answer to a call went to a residence where the father of a young boy showed the officers what appeared to be marihuana that the boy had found in a portion of a new shopping mall then under construction. The officers were taken to the construction site. They were shown a room which had brick walls, a ceiling, but only a dirt floor that was partly muddy. On a wooden platform in this secluded room were three blue plastic bags each weighing approximately five pounds and containing a weed-looking substance. The substance in the bags appeared to Officer Pflueger to be marihuana. He immediately called for the narcotics squad.
Officer A. A. Schonvogel of the Narcotics Division went to the shopping center where he met the other two officers. They took him to the three blue plastic bags. He testified that he inspected the substance inside them and that he was of the opinion that it was marihuana.
A stake-out was immediately set up. Officers Schonvogel and Otis Bell set up a cardboard blind inside the building while another officer waited outside. Around 7:00 p.m. a car drove up. The motor and lights were turned off. Two persons got out of the car. The driver, appellant, went to the trunk of the car and opened it. The passenger (a juvenile) went directly into the building. The appellant entered the building and was some five to fifteen feet behind when the passenger picked up one of the blue plastic bags.
At this point the officers told the two to freeze and identified themselves as narcotics officers. Appellant stated: The two were placed under arrest, handcuffed and taken outside. One officer flashed a flashlight into the car. On the front floorboard of the car he saw a black suitcase with a blue plastic bag sticking out of it. This fourth blue plastic bag was examined and it was the opinion of both Officers Bell and Schonvogel that it contained marihuana. The fourth bag was taken from the scene by a narcotics agent from the State Department of Public Safety. It was not introduced into evidence. The other three bags were taken to the police station.
Appellant challenges the 'chain of custody' asserting that the substance admitted into evidence at the trial and stipulated to be marihuana from the chemist's test was not properly identified as being the same substance found at the scene of the arrest. The contention need not be ruled upon, since two officers from the narcotics division testified that the substance found inside the building and that found inside the car appeared to them to be marihuana. Officer Bell had a total of nine years experience on the police force with three of them in the narcotics division. He testified that he was trained with regard to the recognition and physical appearance of various narcotic drugs including marihuana. He further...
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...could not question the sufficiency of the evidence. The explanation came in the next case to take up the question, Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971). Although we considered the merits of the appellant's contention that the evidence was insufficient, we also It would be an ex......
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