Botello v. State, 34749

• Decision Date: 21 November 1962
• Docket Number: No. 34749,34749
• Citation: 362 S.W.2d 318,172 Tex.Crim. 634
• Parties: Raul BOTELLO, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 318

362 S.W.2d 318

172 Tex.Crim. 634

Raul BOTELLO, Appellant, v. The STATE of Texas, Appellee.

No. 34749.

Court of Criminal Appeals of Texas.

Nov. 21, 1962.

Johnson, Hester, Jenkins & Toscano, Harlingen, (On Appeal Only) for appellant.

F. T. Graham, Dist. Atty., Brownville, Joel William Ellis, Asst. Dist. Atty., Harlingen, Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Judge.

The conviction is under Art. 725b, Vernon's Ann.P.C., as a second offender, for the unlawful possession of a narcotic drug; the punishment, twenty years in the penitentiary.

The state's evidence shows that on the day in question Customs Officers Donald J. Hauff and Steward Adams received information that the appellant was to take delivery of a quantity of marijuana near a cafe in the city of Harlingen. The information was received by them in the city of Brownsville during the afternoon. After receiving the information, they proceeded to Harlingen, traveling in different automobiles, where they contacted certain city officers. From the police station they drove to the vicinity of the cafe, in separate automobiles, being accompanied by city officers, Eastin, Parker, and Esparza. Shortly after the officers arrived in the vicinity, appellant was seen to get out of his automobile, go into a cafe, and, in approximately five minutes, return to the automobile and drive away. He was next seen in his automobile at a street intersection, where he was stopped by Officer Parker. At such time, appellant was alone in the automobile and when Officer Parker went to the driver's side of the vehicle he observed a brown paper sack on the seat beside appellant. Officer Parker then asked appellant what it was and appellant replied, 'It is a sack of marijuana. Here it is. I just got it.' Thereupon, appellant was placed under arrest and taken to the police station, where, after being duly warned, he signed a written confession in which he admitted possessing the paper sack lying beside him on the seat and also admitted that it contained marijuana. The paper sack was found to contain seventeen cartuchos, which is a term used among peddlers of marijuana for packages or rolls of marijuana. An examination of their contents by State Chemist Charles Smith, of the Department of Public Safety, disclosed that they contained 79.4 grams of marijuana.

Proof was made and appellant admitted that he had been convicted in the year 1959 in the 138th Judicial District Court of Cameron County of the offense of unlawfully possessing marijuana.

As a witness in his own behalf, appellant denied any knowledge of the presence of the marijuana in his automobile, repudiated his written confession, and testified that he signed the same under an agreement with the officers that it was a consent for the search of his residence without a warrant.

The court submitted to the jury the question as to whether appellant, after being duly warned, voluntarily and freely made and signed the written confession introduced in evidence by the state. By their verdict the jury resolved the disputed issues against appellant, and we find the evidence sufficient to sustain their verdict.

Appellant's first contention is that the court committed...