Daniels v. State, 55673
| Decision Date | 13 December 1978 |
| Docket Number | No. 2,No. 55673,55673,2 |
| Citation | 574 S.W.2d 127 |
| Parties | John Luke DANIELS, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
James M. Murphy, Dallas, for appellant.
Henry M. Wade, Dist. Atty., William M. Lamb, C. Wayne Huff and Paul D. Macaluso, Asst. Dist. Attys., Dallas, for the State.
Before ODOM, PHILLIPS and DALLY, JJ.
This is an appeal from a conviction for the possession of cocaine; the punishment is imprisonment for twenty years.
Although the appellant timely offered a specially requested charge that was sufficient to apprise the court of the omission of a circumstantial evidence charge, the trial court did not submit a charge instructing the jury on the law of circumstantial evidence. In one of several grounds of error the appellant asserts that the failure to instruct the jury on the law of circumstantial evidence was reversible error. We agree.
The conviction is for possession of a minute quantity of cocaine which the officers found in a plastic bag in the kitchen cabinet on the premises occupied by the appellant and his wife. The expert witness testified that a qualitative analysis proved the powdered substance he found in the plastic bag included lidocaine, methapyriline, and cocaine. This witness further testified the cocaine was neither a quantity that could be quantitatively measured nor a quantity for which a pharmacological effect could be obtained.
The minimum quantity of marihuana that will sustain a conviction for its possession is a usable quantity, Controlled Substances Act, Sec. 4.05(a), but the minimum quantity of any other controlled substance that will sustain a conviction for its possession is not specified. Controlled Substances Act, Sec. 4.04(a); see also Reyes v. State, 480 S.W.2d 373 (Tex.Cr.App.1972); Cantu v. State, 546 S.W.2d 621 (Tex.Cr.App.1977).
However, when the quantity of a substance possessed is so small that it cannot be quantitatively measured there must be evidence other than its mere possession to prove that the defendant knew the substance in his possession was a controlled substance. See Reyes v. State, supra; Cantu v. State, supra. Reyes sold a substance which he represented to be heroin and his conviction was upheld even though only a trace of heroin was found in the substance. His representation that the substance was heroin was held to be evidence of a knowing possession of the trace of heroin. Although he possessed only traces of heroin, Cantu was found to have a knowing possession of heroin because he pled guilty to the offense and admitted under oath that he knowingly...
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King v. State
...judgment of the Court. McCORMICK, P.J., and MANSFIELD, J., join in this opinion. BAIRD, Judge, concurring. Under Daniels v. State, 574 S.W.2d 127, 128-129 (Tex.Cr.App.1978), and Shults v. State, 575 S.W.2d 29, 30 (Tex.Cr.App.1979), when the amount of the controlled substance is so small tha......
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Joseph v. State
...of cocaine which was invisible to the naked eye, any sufficiency of the evidence analysis requires our consideration of Daniels v. State, 574 S.W.2d 127 (Tex.Cr.App.1978), and Shults v. State, 575 S.W.2d 29 (Tex.Cr.App.1979). When they are considered, I agree the Court of Appeals erred in r......
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Brooks v. State, 56288
...evidence charge. See Ransonette v. State, 550 S.W.2d 36 (Tex.Cr.App.1977, Opinion on Appellant's Motion for Rehearing); Daniels v. State, 574 S.W.2d 127 (Tex.Cr.App.1978). Moreover, the circumstantial evidence charge is a defendant's charge; in effect, it increases the State's burden of pro......