Jones v. State
| Decision Date | 31 May 1972 |
| Docket Number | Nos. 45039 and 45040,s. 45039 and 45040 |
| Citation | 482 S.W.2d 194 |
| Parties | James Wains JONES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Lawrence R. Green, Dallas (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., Catharine T. Hill, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.
These are appeals from convictions for possession of heroin and marihuana. Two indictments were returned. By agreement, the cases were tried together before the same jury who returned the verdict assessing the punishment at thirty years in each case.
The sufficiency of the evidence is not challenged.
On June 15, 1970, postal inspectors had the Preston Station Post Office in Dallas under surveillance. At approximately 7:30 a.m., a car was driven into an alley and parked by the dock. The driver, later ascertained to be Jim Wells, went to the dock, took two packages and returned with them to the car. The officers converged on the car and arrested Wells and the appellant who was seated in the right front seat of the car which belonged to him.
In the glove compartment of the car, the officers found five 'penny' matchboxes filled with marihuana and a box containing 19 empty gelatin capsules. On the dash, the officers found another matchbox containing three handrolled marihuana cigarettes and 19 gelatin capsules filled with heroin. In the left pocket of appellant's shirt, the officers found a matchbox containing a capsule of heroin.
The appellant testified that he did not know the narcotics were in the car. Wells testified that he possessed the narcotics in question and had placed the box containing the heroin in appellant's pocket just before they were arrested.
If there was ever a question concerning the legality of the arrest of the appellant and the search of the car, it was resolved when Wells, a defense witness, and the appellant testified that the narcotics were in the car and on appellant's person.
The appellant, in the main issue of the case, contends: 'It was fundamental error to place appellant twice in jeopardy and inflict multiple punishment for offenses growing out of the same transaction.'
This is not a case of former conviction, because the cases were tried at the same time. As a practical matter, the two sentences of thirty years are not double punishment. The court did not cumulate the sentences or make one commence at the expiration of the other, therefore, they are concurrent. Article 42.08, Vernon's Ann.C.C.P. See 1 Branch's Ann.P.C.2d, Section 685, page 655.
May one be convicted for two offenses for the possession of narcotics at the same time and place?
Article 725b, section 2(a) Vernon's Ann.P.C., provides that it shall be unlawful to possess narcotic drugs. Heroin and marihuana, among others, are classified as narcotic drugs. This Court has held that such a classification of marihuana is not unreasonable. E.g. Reyna v. State, Tex.Cr.App., 434 S.W.2d 362. See Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631.
The prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once. 1 Branch's Ann.P.C.2d, Section 654, page 625, and the cases there cited.
A similar situation arose in Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457. There the prosecution was for misdemeanor offenses for the illegal practice of medicine under Article 741, V.A.P.C. The information contained two counts, one for publicly professing to be a physician and the other for diagnosing and treating a disorder. Convictions were had on both counts. 1
Judge Dice, speaking for the Court, noted that the record was clear that Fleming's conviction upon both counts of the information was based on the same transaction with the prosecuting witness and then wrote:
'While the state had the right to charge in separate counts of the information the two ways named in the statute Art. 741, supra, by which it was alleged that appellant did unlawfully practice medicine, only one offense was actually charged against the appellant. . . .'
It was also noted that the statute provided two ways by which a person may be regarded as practicing medicine, did not create separate and distinct offenses but only prescribed different ways of committing the same offense. There the Court held that both counts were properly submitted to the jury, but the court should have instructed the jury that a conviction could be had only on one count and...
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