Holgin v. State
| Decision Date | 29 March 1972 |
| Docket Number | No. 44770,44770 |
| Parties | Maria Guadalupe HOLGIN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Clyde W. Woody, Marian S. Rosen, Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Henry Oncken, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is possession of marihuana; the punishment assessed by the court, three (3) years.
Appellant's first two grounds of error relate to the alleged illegality of the search, which produced the marihuana which formed the basis of this prosecution.
Testifying for the State, Police Officers Albert and O'Briant stated that appellant threw the marihuana, enclosed in a bag, out of her automobile as she drove up to her house where the officers were waiting. Officer Collins testified that although he was present at the time in question, he did not see appellant throw a bag from the automobile nor did he see Officers Albert and O'Briant retrieve a bag from the ground. He further testified, unequivocally, that nothing was found inside the house but did identify the bag, which had been introduced through the other officers, as the one found somewhere at the scene.
On the other hand, appellant and her witnesses testified that the officers entered appellant's home, searched it and proclaimed that the bag which was introduced in evidence was found in a dresser drawer inside the house. No defense witness claimed to have seen the officers find the bag. They all denied that anything was thrown from appellant's automobile.
Appellant's witness, Terry Lee Raseley, testified that he was a friend of the appellant's family and often spent the night in their home. He stated on the evening prior to appellant's arrest he had left the bag of marihuana, which was later recovered by the officers, in the appellant's home with her consent but without any knowledge on her part of its contents. He admitted, however, that he was present at the time of appellant's arrest and that when the officers exhibited the bag of marihuana as being the property of appellant, he did not claim it as his.
The State's case rests entirely upon the testimony of the officers that the bag was thrown to the ground outside the fence surrounding the house. No officer testified that he had a search warrant or that he found anything at the premises in question. This distinguishes the case at bar from those relied upon by appellant in her brief. The defense theory raised by their evidence was that Raseley had left the marihuana in the house without appellant's knowledge or acquiescence. It would appear that appellant's defense was adequately presented to the jury by the following charge:
'You are further instructed that even if you should believe from the evidence beyond a reasonable doubt that the brown paper sack introduced in evidence by the State in this case contained marijuana, but you further find from the evidence, or if you have a reasonable doubt thereof, that the same was found in the house of the defendant, Maria Guadalupe Holgin, by the arresting officers after it had been placed therein by Terrill Lee Raseley as his own property with the permission of the defendant but without her knowledge that the same was marijuana, if it was, then you will acquit the defendant and say by your verdict not guilty.'
Additionally, there were no objections to the charge and no requested charge.
The jury by their verdict accepted the State's theory of the case and the question of search passes out of the case.
Appellant's first and second grounds of error are overruled.
Appellant's third ground of error is that the court erred in permitting the State to inquire about a witness' prior conviction for the purpose of impeachment. She alleges that the witness received a probationary sentence which had been successfully served, and the conviction, thereafter, set aside. The record which supports such allegation is as follows:
'Q I see, Mr. Mendoza, have you ever been convicted of a felony in this state or any other state?
'A (By Witness) Yes, sir.
'A Forgery and passing.
'Q All right, sir.
'MR. ONCKEN: I have no further questions, Your Honor.'
Immediately thereafter, on redirect examination, the witness was questioned as...
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