Mitchell v. State, No. 45229

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtODOM
Citation482 S.W.2d 223
PartiesAndrew P. MITCHELL, Jr., Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 45229
Decision Date12 July 1972

Page 223

482 S.W.2d 223
Andrew P. MITCHELL, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 45229.
Court of Criminal Appeals of Texas.
July 12, 1972.

John D. Wennermark, San Antonio, for appellant.

Ted Butler, Dist. Atty., Arthur Estefan, John Quinlan and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ON APPELLANT'S MOTION FOR REHEARING

ODOM, Judge.

Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.

This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: marihuana. Punishment was assessed by the court at seven years.

First, appellant contends that the marihuana was obtained as a result of an illegal search and seizure.

The record reveals that on August 23, 1970, the appellant committed a traffic violation while driving his automobile within the city limits of San Antonio. Officer Harrison stopped appellant to issue a citation for disregarding a red traffic light at the intersection of Hoefgen and East Commerce Streets.

While Officer Harrison was writing out a citation, Officer Spannagel drove up and parked his patrol car behind Officer Harrison's car and walked up to the appellant. Suddenly, appellant leveled a barrage of abusive language upon Officer Spannagel, whereupon the officer placed him under arrest. Contemporaneous with the arrest, a search was conducted which revealed a matchbox in appellant's pocket which contained the marihuana in question.

The record further reveals that immediately upon stopping the appellant's vehicle, a crowd gathered upon the sidewalk at that vicinity and it appeared to the officers that there was a considerable amount of hostility toward them. One of the persons that gathered around identified himself as being appellant's cousin.

Officer Spannagel testified that he stopped to assist Officer Harrison and that it was a common practice for a policeman to cover his fellow officers in the field in case some problem should arise.

The verbal assault on the officer by appellant, coupled with the milling of the crowd, was sufficient for the officer to feel fear for his own safety and have reasonable grounds to believe that he was in danger of bodily harm or injury and authorized him to search appellant for 'weapons and other things to effect an escape from custody.' e.g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685

Page 225

(1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). See also Fry v. State, (No. 44,537, 2--23--72).

Next, the contention is asserted that there was an 'insufficiency of amount of marihuana introduced in evidence for conviction.'

The appellant argues that the transcription of the testimony shows that '.74 hundredths' gram of marihuana was introduced into evidence. He contends that such testimony shows that .0074 gram of marihuana was introduced and that such amount is insufficient.

From this state of the record, it is unclear whether the chemist was testifying concerning .74 gram or .0074 gram of marihuana. However, even accepting appellant's interpretation of the record, we hold that such amount is sufficient to support the conviction. Cf. Johnson v. State, 165 Tex.Cr.R. 158, 305 S.W.2d 361. Moreover, State's Exhibit No. 1 was introduced into evidence. The Exhibit is a matchbox which is over one-half full of marihuana. 1 (Both the arresting officer and the chemist identified this substance...

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11 practice notes
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...(1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 In ......
  • Williams v. State, No. 01-08-00936-CR (Tex. App. 6/3/2010), No. 01-08-00936-CR.
    • United States
    • Court of Appeals of Texas
    • June 3, 2010
    ...it can determine whether or not there is a usable quantity of the drug. Kimberlin, 2004 WL 1110523, at *2 (citing Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (holding that matchbox half full of marijuana, admitted into evidence, was sufficient to support A police officer m......
  • Morales v. State, No. 08-06-00067-CR (Tex. App. 1/30/2009), No. 08-06-00067-CR
    • United States
    • Court of Appeals of Texas
    • January 30, 2009
    ...State, 810 S.W.2d 160, 166-67 (Tex.Crim.App. 1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991); Mitchell v. State, 482 S.W.2d 223, 226 (Tex.Crim.App. 1972)(op. on reh'g); Potter v. State, 481 S.W.2d 101, 106 (Tex.Crim.App. 1972). We find the instruction to the jury to......
  • King v. State, No. 971-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 25, 1984
    ...grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 "In Reyes......
  • Request a trial to view additional results
11 cases
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 14, 1976
    ...(1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 In ......
  • Williams v. State, No. 01-08-00936-CR (Tex. App. 6/3/2010), No. 01-08-00936-CR.
    • United States
    • Court of Appeals of Texas
    • June 3, 2010
    ...it can determine whether or not there is a usable quantity of the drug. Kimberlin, 2004 WL 1110523, at *2 (citing Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (holding that matchbox half full of marijuana, admitted into evidence, was sufficient to support A police officer m......
  • Morales v. State, No. 08-06-00067-CR (Tex. App. 1/30/2009), No. 08-06-00067-CR
    • United States
    • Court of Appeals of Texas
    • January 30, 2009
    ...State, 810 S.W.2d 160, 166-67 (Tex.Crim.App. 1989), cert. denied, 502 U.S. 961, 112 S.Ct. 426, 116 L.Ed.2d 446 (1991); Mitchell v. State, 482 S.W.2d 223, 226 (Tex.Crim.App. 1972)(op. on reh'g); Potter v. State, 481 S.W.2d 101, 106 (Tex.Crim.App. 1972). We find the instruction to the jury to......
  • King v. State, No. 971-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 25, 1984
    ...grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and cf. Taylor v. State, 505 S.W.2d 927 (Tex.Cr.App.1974); Terrill v. State, 531 S.W.2d 642 "In Reyes......
  • Request a trial to view additional results

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