De La Garza v. State, 36939

• Decision Date: 20 May 1964
• Docket Number: No. 36939,36939
• Citation: 379 S.W.2d 904
• Parties: Telesforo DE LA GARZA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 904

379 S.W.2d 904

Telesforo DE LA GARZA, Appellant, v. The STATE of Texas, Appellee.

No. 36939.

Court of Criminal Appeals of Texas.

May 20, 1964.

Rehearing Denied June 27, 1964

Longoria & Evins, Edinburg, for appellant.

R. L. Lattimore, Dist. Atty., Oscar B. McInnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is the possession of marihuana, the punishment, two years.

Appellant's written confession made to Beatrice Rodriguez recites that he left his home in Edinburg on the day in question in company with Velasquez, Corpus, Cardona, Uribe and Humberto Garza in Velasquez' automobile headed for a dance at Pharr, that enroute they stopped on the side of the road and that either Corpus, Humberto Garza or Uribe, who were seated in the back seat, handed him a marihuana cigarette. It continues, 'I guess that two or three marihuana cigarettes were lighted while we were there parked, all of us smoked the cigarettes, passing them around, we smoked two or three cigarettes, they were marihuana cigarettes', and that he knew that they were marihuana because he had smoked it before. The confession further recites that following the dance the same automobile occupied by the same persons, who were then on their way home, plus Oscar Mares, who was shown to be a juvenile, was stopped by the police, and its occupants were searched, but that the officers found no marihuana about appellant's person.

Police officers of the city of Pharr testified that they stopped the automobile as it left the dance because 'the driver couldn't control the car straight', and as Velasquez, who was the driver, got out they observed him attempt to place a cigarette box under the front seat. The box was shown to contain some marihuana, but predominantly marihuana seeds, and some gummed cigarette papers. A few leaves and stems of marihuana and particles and seeds thereof were recovered from the clothing of two of the occupants of the automobile, but none from appellant.

On cross examination, appellant admitted that he remembered that the confession which he had made to Beatrice Rodriguez, the secretary to the Probation Officer, contained the recitation that all the occupants of the automobile had smoked the two or three marihuana cigarettes while they were parked and that he had signed the same, but that such was not true, and, in fact, he had only taken one puff off one cigarette and handed it back when he discovered that it contained marihuana.

Appellant's principal contention on appeal is that the court erred in refusing to require the State to elect whether they would rely for conviction upon the smoking incident covered in appellant's confession or the incident which occurred when the officers made the arrest. We are not impressed with the seriousness of this contention because it would appear that both incidents were part of the same entire transaction in which appellant acted as a principal throughout. The same automobile, six of the same occupants and the same evening and venture were involved.

The real question as we see it, is whether or not the possession of marihuana by Velasquez and the other two occupants of the automobile at the time of their arrest constituted sufficiented corroboration of appellant...