Cortez v. State
| Decision Date | 09 October 1957 |
| Docket Number | No. 29150,29150 |
| Parties | Frank G. CORTEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Raul Villarreal, Theo. Pat Henley, Leonard Brown, Sr., San Antonio, for appellant.
Hubert W. Green, Jr., Dist. Atty., Morris Riley Edwards, Asst. Dist. Atty., San Antonio, Leon B. Douglas, State's Atty., Austin, for the State.
The offense is possession of barbiturates; the punishment, six months in jail and a fine of $200.
Officers secured a search warrant for the purpose of searching the premises controlled by appellant, located at 816 Guadalupe Street in San Antonio, where narcotics were alleged to be unlawfully possessed.
The warrant, issued under the provisions of Art. 725b, Vernon's Ann.P.C., and the affidavit therefor appear to be regular on their face, and the validity thereof as authorizing a search for narcotics is not questioned.
As a result of the search the officers found no narcotics, but found according to their testimony a jar containing some 100 tablets, ten of which proved upon analysis to contain a derivative of barbituric acid.
Appellant, testifying as a witness in his own behalf, admitted his possession of the barbiturates and said that he acquired them in the year 1952.
If there be merit in appellant's contention that evidence as to barbiturates found during a search under a valid warrant authorizing search for narcotics was inadmissible (and we see none), it would avail appellant nothing for he testified that he possessed the barbiturates.
Appellant contends that the statute under which he was prosecuted is ex post facto as to the offense charged because he lawfully acquired the barbiturates prior to the enactment of Art. 726c, V.A.P.C.
Had the trial been before a jury and an instruction been sought in line with this contention, an interesting question might have been presented, both as to the statute being ex post facto as to the offense and as to limitation.
But the trial being before the court, appellant is in the same position he would have been had a jury rejected his defense. The trial judge was not bound to accept his testimony as true.
Under the evidence, including his own testimony, appellant was not a 'practitioner' or a 'pharmacist' as defined in Art. 726c, V.A.P.C. He was, according to his testimony, a funeral director, naturopathic physician and midwife and operated a maternity clinic.
We overrule the contention that he was...
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Fletcher v. State, 41678
...malonylurea derivatives and barbituric acid derivatives. * * *' We believe appellant's contention to be answered by Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713, a case decided under Article 726c, V.A.P.C., a forerunner of Article 726d, supra. There this Court 'The term 'barbiturate' ......
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King v. State
...that on the date and in the county named the appellant 'did then and there unlawfully possess barbiturates'. Recently in Cortez v. State, Tex.Cr.App., 306 S.W.2d 713 we held a similar allegation sufficient to charge an offense under Art. 726c, Vernon's Under the provisions of Art. 726c, sec......
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Bernard v. State, 34065
...in the car. Vogt v. State, 159 Tex.Cr.R. 211, 258 S.W.2d 795, cert. denied, 346 U.S. 901, 74 S.Ct. 221, 98 L.Ed. 401; Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713; Rodriguez v. State, Tex.Cr.App., 329 s.W.2d 282; Hudson v. State, Tex.Cr.App., 341 S.W.2d Appellant's motion for rehearin......
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Hudson v. State, 34794
...266 S.W.2d 388; Rao v. State, 160 Tex.Cr.R. 416, 271 S.W.2d 426; MacKenna v. State, 164 Tex.Cr.R. 623, 301 S.W.2d 657; Cortez v. State, 165 Tex.Cr.R. 320, 306 S.W.2d 713; 5 Tex.Jur.2d, Sec. 446, pp. The judgment is affirmed. Opinion approved by the Court. MORRISON, Judge (concurring). I con......