Hernandez v. State
| Decision Date | 16 March 1960 |
| Docket Number | No. 31555,31555 |
| Citation | 169 Tex.Crim. 418,334 S.W.2d 299 |
| Parties | Carlos Gonzales HERNANDEZ, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Garcia & Warburton, Brownsville, O. B. Garcia, Brownsville, of counsel, for appellant.
F. T. Graham, County Crim. Dist. Atty., by Joe W. Walsh, Asst. County Crim. Dist. Atty., Brownsville, and Leon B. Douglas, State's Atty., Austin, for the State.
This is a conviction for possessing marihuana; the punishment, five years in the penitentiary.
This case presents some unusual aspects.
Scholl, undercover agent for the Texas Department of Public Safety, testified that about the 16th day of March, 1957, he was in company with an informer, whom he did not further identify, when appellant '* * * stopped the informer and [him], and he [appellant] talked to the informer briefly in Spanish which [Scholl] couldn's understand, and then [Scholl] was introduced to the defendant by the informer.' Scholl falsely represented that he and the informer had worked on a shrimp boat on several occasions.
Appellant asked Scholl if he was interested in some 'jive,' which he explained was marihuana. Scholl replied that he was and would like to have some. Appellant left and later returned with three cigarettes which he represented as being marihuana, for which Scholl paid him $2. The transaction occurred about eleven o'clock the night of March 16, 1957.
Scholl, together with the informer, went to the 'bridge,' some six or eight blocks away, where the cigarettes were delivered to Dompier, U. S. Customs agent. Before delivering the cigarettes, Scholl placed the date and his initials on each for identification purposes.
The trial court was of the opinion that Scholl was not shown to be sufficiently qualified to express an opinion as to the contents of the cigarettes being marihuana.
After placing his identifying marks thereon, Dompier, the Customs agent, delivered the cigarettes to Mrs. Hughs, Customs seizure chief. Mrs. Hughs sent one of the cigarettes to Hodapp, the U. S. Customs chemist at New Orleans, and retained the other two cigarettes in her possession.
Hodapp testified that he made a microscopic as well as a chemical analysis of the contents of the cigarette and found such to be marihuana. He returned the cigarette which he had examined to the U. S. Customs Service.
Upon the trial, Hodapp identified the cigarette as the one he had examined, and Scholl identified the same cigarette as one of the three he received from appellant.
We are unable to agree with the appellant that no sufficient predicate was laid to authorize the testimony of the chemist that the cigarette contained marihuana.
Testifying as a witness, appellant denied the transaction and insisted that Scholl's identification of him as the seller of the marihuana cigarettes was one of mistaken identity.
One of the unusual aspects which appellant points out is that notwithstanding the fact that Scholl knew and positively identified him he made no effort to file any accusation against him or to arrest him at the time of the sale.
Scholl admitted that he saw appellant on two or three occasions thereafter and talked with him. No mention was made of the alleged sale of the cigarettes, and appellant at that time made no effort to again sell him any marihuana cigarettes.
It was not until December, 1958, or approximately a year and nine months after the alleged transaction in March of 1957 that appellant was placed under arrest by Scholl and Officer Garcia and charged with this offense. The indictment in this case was returned January 7, 1959.
The state elected to prosecute appellant for the unlawful possession of marihuana and not for the sale thereof to which Scholl testified.
Appellant insists that Scholl's admitted conduct at the time of and subsequent to the sale was such as to brand him an accomplice witness as a matter of law, in that he was an accessory after the fact.
Inasmuch as the state's case depended solely upon Scholl's testimony, appellant insists that the evidence is insufficient to support the conviction.
Appellant calls attention to the fact that Sec. 22 of Art. 725b, Vernon's Ann.P.C., the Uniform Narcotic Drug Act, enjoins all peace officers--especially the agents of the Department of Public Safety--to 'enforce all provisions of this...
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