Gomez v. State
| Decision Date | 08 November 1972 |
| Docket Number | No. 45310,45310 |
| Parties | Ronaldo Lucero GOMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Lee A. Chagra, El Paso, for appellant.
Steve W. Simmons, Dist. Atty., David R. Rosado, Asst. Dist. Atty., El Paso, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
The offense is possession of heroin; the punishment, four (4) years.
Appellant's first four grounds of error relate to the admission in evidence of the heroin over his objection that the contraband was unlawfully seized.
Officer Enriquez testified on the issue of probable cause that on the afternoon of the appellant's arrest he received a telephone call from a credible informant who stated that the appellant was, at that time, standing 'on Glenwood Street near the mouth of the alley between Beacon and Dailey' streets selling heroin from a brown paper sack. Armed with this information Enriquez secured the assistance of Detective Martinez and after borrowing an automotive wrecker proceeded to the vicinity in question. The appellant and his companion were in the act of urinating in the alley as the officers approached in the wrecker. When appellant observed the truck approaching, he tried to throw a brown paper bag over a six foot cement block wall. His first efforts to rid himself of the sack failed when it struck the wall and fell back. Appellant caught the sack while in the air and again threw it. This time it cleared the wall. Enriquez climbed up to where he could see the bag over the wall in the adjacent patio and with Martinez' help recovered it.
This court has held that when the contraband is thrown, dropped or placed away from the person of the accused in a public place, the recovery thereof does not involve a search and the evidence is admissible. See Robinson v. State, Tex.Cr.R., 458 S.W.2d 812; King v. State, Tex.Cr.R., 416 S.W.2d 823; Gamez v. State, Tex.Cr.R., 403 S.W.2d 418; McKenzie v. State Tex.Cr.R., 390 S.W.2d 281; Spriggins v. State, Tex.Cr.R., 372 S.W.2d 676; Allen v. State, 159 Tex.Cr.R. 463, 264 S.W.2d 723.
Appellant's next two grounds of error contend that the contraband was inadmissible because the State failed to show a continuing chain of custody.
Martinez testified and identified the brown bag as the one he recovered from the patio where it had landed and had marked with his initials and date and the time of the seizure. Enriquez testified that a ...
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