Hernandez v. State

Decision Date14 December 1938
Docket NumberNo. 20038.,20038.
PartiesHERNANDEZ v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Bee County; W. G. Gayle, Judge.

Juan Hernandez was convicted of possessing marihuana, and he appeals.

Affirmed.

Wade & Wade, of Beeville, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is possession of marihuana; the punishment, confinement in the penitentiary for two years.

No sentence appears in the record. In the absence of sentence this court is without jurisdiction.

The appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

On Motion to Reinstate Appeal.

CHRISTIAN, Judge.

The record having been perfected, the appeal is reinstated and the case considered on its merits.

W. J. Corrigan, constable, and J. B. Arnold, sheriff, went to appellant's home on the 7th of April, 1938, for the purpose of searching for marihuana. When appellant came to the front door they advised him that they had information he was in possession of marihuana, and that they wanted to search his house. Appellant replied: "All right; enter and search it." At this juncture we quote from the testimony of the constable, as follows: "We searched the house and found marihuana. Mr. Arnold and I were both searching and Mr. Arnold is the one that found it. I was present at the time he found it stuck on the inside of the door on the left through which we entered the room, kind of back in between the lock in this envelope here and he picked them up. It was found in cigarette form inside of an envelope. I have seen this envelope before and it is the envelope that the cigarettes were found in. Mr. Arnold took the envelope and marihuana in his possession. Defendant was placed under arrest and brought down to jail. I have been an officer about 27 years, about 6 years which has been spent down here, I think since '31—five or six years and prior to that time, the rest of it was spent in New Mexico. During that time I have become familiar with marihuana and I know it when I see it. There is not much smell to it, but I can tell it from the weed, and can tell it after it has been taken from the weed and placed in cigarettes. * * * In my opinion these cigarettes (referring to the cigarettes found in appellant's home) are marihuana."

Mr. Arnold testified that he found four cigarettes in the appellant's home. He said: "If I know marihuana, that is marihuana; but I am not positive of that." Lamar Diegel, night watchman, testified as follows: "I have been an officer of some kind in this county for nearly four years. During that time and prior to that time I had opportunity and occasion to become familiar with what we know as marihuana. I have seen it growing in its natural state, and I have seen it grown in this county. I have seen it after it was made in cigarettes but have never smoked any of it except as a witness. I know what it tastes like and I know the smell of it. * * * After taking one of the cigarettes and lighting it my opinion is that it is marihuana."

Zaragosa Garcia, a witness for the state, testified that he went to appellant's home on two occasions during the month of January and bought some marihuana cigarettes from appellant. We quote from the testimony of said witness: "He brought me two cigarettes which he said were marihuana. * * * I have seen a cigarette like this one (referring to one of the cigarettes introduced in evidence) before. I saw it before when I bought it from Juan Hernandez, the defendant in this case. I was at his house at the time I bought the cigarettes from him." Further, the witness testified: "They (referring to the cigarettes) didn't have any effect on me at all."

Appellant did not testify but introduced his wife, from whose testimony we quote, in part, as follows: "Juan (appellant) and I had been working at Mrs. Ray's. Juan was cleaning some furniture at Mrs. Ray's house. When we got back to our house it was around two o'clock in the afternoon. We have never had the door to our house locked because we didn't have a lock. * * * When I left the house that morning I saw this envelope (referring to the envelope introduced in evidence) on top of the dresser. I was present when the officers were there and I saw them find the envelope behind the dresser, hid in the wall paper. The envelope was there on top of the dresser but it didn't have anything in it at the time I left the house that morning. It was not ever seen behind the dresser by me. I keep house there for my family and if it had been there that morning I could have seen it. I have never seen any marihuana cigarettes around that house and I have never seen Juan Hernandez smoke any marihuana cigarettes." She testified further that Telesfero Gomez and his wife lived in the house with witness and appellant.

We deem the evidence sufficient to support the conviction.

Appellant objected to the testimony of the officers to the effect that the cigarettes contained marihuana on the ground that they were not "qualified as experts to give such an opinion." We think the objection was properly overruled. The witnesses gave testimony showing that they were familiar with marihuana. In Miller v. State, Tex.Cr.App., 50 S.W. 704, Presiding Judge Davidson, speaking for the court, said: "While the witness Robertson was on the stand he testified that his residence in the city of Temple was burglarized on the night of the 12th of November, 1898, by some one unknown to him; that he was aroused during the night by hearing the noise, and smelled chloroform. Appellant objected to the remark of the witness with reference to chloroform, because he had not qualified himself as an expert on medicines and drugs, and it was his mere opinion. Several other objections were urged. This testimony was clearly admissible." We quote from 11 Ruling Case Law 636: "The identification of an odor as that of a certain drug or poison may be made and testified to by any person familiar with the drug in question."

Bill of exception No. 2 relates to appellant's objection to the testimony of Zaragosa Garcia to the effect that during January of 1938 he went to appellant's home and bought marihuana cigarettes from appellant. Appellant sought through the testimony of his wife to lead the jury to believe that the other occupants of the house had placed the cigarettes in his room. Also his wife testified that she had never seen marihuana cigarettes in her home. Again, it has been observed that Garcia said: "I have seen a cigarette like this one (referring to one of the cigarettes found in appellant's home) before. I saw it before when I bought it from Juan Hernandez, the defendant in this case." Thus it is seen that the testimony of the witness was to the effect that the cigarette he bought was like the cigarettes found in the appellant's home on the occasion of the search. In Nichols v. State, 97 Tex.Cr.R. 174, 260 S.W. 1050, 1052, it appears that McElroy, a witness for the state, testified that he saw Nichols and his son making whisky. Further, he testified that a few days later he saw Nichols and his son take some whisky across the river in a boat and saw Nichols return with some money and say that he had made a good haul. Nichols asserted that in the receipt of evidence of the latter transaction the rule against proving collateral transactions was transgressed. It appears that Nichols denied the transaction and introduced proof to the effect that the state's witness and his (Nichols') son possessed and operated the still in question. In concluding that such testimony was admissible, this court, speaking through Presiding Judge Morrow, used language as follows: "That the still had been operated at the place indicated by the state's witness is not seriously combatted. The identity of the operators became a question through the appellant's defensive theory that the operators were the state's witness and the son of the appellant. This was opposed to the state's position that the operators were the appellant and his son. The state's testimony to the effect that there was a quantity of whisky (the fruit of the crime of manufacturing) at hand was not controverted; nor was the fact that the appellant's son was one of the offenders. Considering the appellant's testimony denying that he manufactured the whisky and the various attacks made by him upon the credibility of the witness relied upon by the state and the other defensive evidence mentioned, was it not relevant and competent that the state show that near the time and place at which the offense was committed, the appellant, in connection with his son, one of the conceded actors in the commission of the...

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