Miller v. State
| Decision Date | 11 November 1959 |
| Docket Number | No. 30539,30539 |
| Citation | 330 S.W.2d 466,168 Tex.Crim. 570 |
| Parties | Larry Joe MILLER, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Charles William Tessmer, Bill Jones, Dallas, for appellant.
Henry Wade, Dist. Atty., Homer Montgomery, William F. Alexander and Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
On April 4, 1958, appellant was convicted upon a plea of guilty in Criminal District Court No. 3 of Dallas County, of the offense of unlawfully possessing a narcotic drug and his punishment assessed at confinement in the penitentiary for 10 years.
Execution of sentence was suspended and appellant was placed on probation upon certain terms and conditions; among them being that during the term of probation 'The defendant shall: (a) Commit no offense against the laws of this or any other state or the United States; (c) Avoid persons or places of disreputable or harmful character and (g) Remain within a specified place, to-wit: Dallas County, Texas.'
Thereafter on September 19, 1958 and September 22, 1958, an original and supplemental written report was filed with the Trial Judge by the probation officer of said court setting out that appellant had violated the said terms and conditions of probation.
On October 3, 1958, the Trial Judge, after notice and hearing, entered his order revoking the probation and imposed sentence upon appellant upon a finding that he had violated the said terms and conditions of probation.
From such order appellant has prosecuted this appeal.
At the hearing the State called the probation officer as a witness who testified that in a conversation with the appellant during the last week in April, 1958 the appellant told him that he had gone to Fort Worth and was arrested and charged in Tarrant County on April 24, 1958, with being drunk and that he paid his fine. The officer further stated that in the same conversation appellant told him that he had been arrested in Highland Park and charged with vagrancy and that a fine was paid. It was shown by the testimony of a deputy sheriff that appellant's arrest and conviction for vagrancy in the Corporation Court of the City of Highland Park was on April 19, 1958. It was further shown that on September 17, 1958, the appellant stopped on a road in Dallas County at a place which was under surveilance by certain officers and there took possession of a fruit jar containing a substance which one of the officers testified he observed and that in his opinion it was marijuana. It was further shown that on September 21, 1958, appellant was arrested under a warrant charging him with violation of the Uniform Narcotic Drug Act, Vernon's Ann.P.C. art. 725b.
Appellant called as a witness Dr. Sidney Lee, a chemist who testified that a visual examination of a substance was insufficient to determine whether it was marijuana and that the proper test was by chemical analysis. Appellant also called both his father and mother who testified in substance that he was not a vagrant during the time he was on probation.
Appellant insists that the trial court abused his discretion in revoking the probation because the evidence was insufficient to justify such action.
With such contention we do not agree.
The evidence clearly shows that during the period of appellant's probation he possessed the fruit jar which the officer testified contained marijuana. Before expressing his opinion that the substance which he observed in the jar was marijuana the officer testified that he had been with the Naroctics Bureau of the Dallas Police Department for eighteen months and that he was acquainted with and had seen much marijuana and could recognize marijuana when he saw it. The officer's testimony was sufficient to show his qualifications to testify as an expert and the opinion expressed by him was sufficient to show that appellant did possess marijuana. Hernandez v. State, 137 Tex.Cr.R. 343, 129 S.W.2d 301, and Alcala v. State, 163 Tex.Cr.R. 453, 293 S.W.2d 645. Such evidence was sufficient to support the trial court's finding that appellant had violated condition 'a' of the probation which provided that he could 'Commit no offense against the laws of this or any other state or the United States.' The evidence of appellant's convictions in Tarrant County for being drunk and in Dallas County for vagrancy after he was granted probation was also...
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