Parson v. State

• Decision Date: 16 September 1968
• Docket Number: No. 41350,41350
• Citation: 432 S.W.2d 89
• Parties: Rex Eugene PARSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 89

432 S.W.2d 89

Rex Eugene PARSON, Appellant, v. The STATE of Texas, Appellee.

No. 41350.

Court of Criminal Appeals of Texas.

Sept. 16, 1968.

Rehearing Denied Oct. 23, 1968.

Maloney, Milner & McDowell, by Pat McDowell, Dallas, for appellant.

Henry Wade, Dist. Atty., Douglas Mulder, Joe M. Hendley, Kerr P. FitzGerald, Camille Elliott, and Malcolm Dade, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

DICE, Judge.

The conviction is for the unlawful possession of a narcotic drug, to-wit: marihuana; the punishment, fifty years.

It was shown by the state's testimony that on the day in question Officer Green, of the Dallas police department, placed a certain residence in the city under surveillance. The officer observed a 1959 Chevrolet automobile parked in front of the residence and ascertained that it bore a license plate which was issued to Hertz-Rent-A-Car for a 1966 Plymouth. The following day he returned to the address with Officer Zapata and they observed the automobile, bearing the same license plate, parked in front of the residence. They proceeded past the car and, as they were driving around the block, met the vehicle being driven by appellant. They then pulled to the middle of the road and attempted to stop appellant with their red lights. Thereupon, appellant stopped his vehicle, dropped himself down to the floorboard, put the vehicle in reverse, and started backing up. After the vehicle jumped the curb, ran across some lawns, and hit some trees, appellant got out and ran. The officers gave chase and which in pursuit they observed appellant throw vial, a 'prescription bottle,' in a flowerbed. Officer Zapata retrieved the bottle while Officer Green caught appellant.

Following his arrest, appellant was searched and also the car which he had been driving. In the search, some sweepings were taken from the floorboard of the car. The vial thrown by appellant and sweepings taken from the car were identified by the officers at the trial as state's exhibits 2--A and 2--C, which they put in an envelope and placed in a locked box of the crime scene search section at the city hall following appellant's arrest.

It was shown by the testimony of Dr. Morton F. Mason, director of the Dallas City County Criminal Investigation Laboratory, that a scientific analysis of the material contained in the two exhibits showed that the vial (state's exhibit 2--A) contained 1.41 grams of marihuana and the scrapings taken from the car (state's exhibit 2--C) contained 'a very small amount of marihuana.' Dr. Mason testified that the total weight of the material in state's exhibit 2--C was 1.112 grams, of which a small portion could be positively identified as marihuana.

Testifying in his own behalf, appellant swore that he thought the car he was driving belonged to his girl friend and denied having any knowledge about marihuana or having thrown any away on the occasion in question.

On cross-examination, appellant admitted having been three times convicted of forgery, twice for burglary, once for attempted burglary, once for murder with an automobile, and also for violation of the federal postal laws.

We first overrule appellant's contention (grounds of error five and six) that the court erred in overruling his motion for a new trial because the evidence was insufficient to show that the material recovered was marihuana in an amount sufficient to constitute an offense or that it was in fact a narcotic drug.

The state's proof that the vial contained 1.41 grams of marihuana was sufficient to show an offense. Tuttle v. State, Tex.Cr.App., 410 S.W.2d 780.

Dr. Mason testified that marihuana is a narcotic drug. It is so defined by statute: Art. 725b, Secs. 13 and 14, P.C. Gonzales v. State, 163 Tex.Cr.R. 432, 293 S.W.2d 786; Gonzalez v. State, 168 Tex.Cr.R. 49, 323 S.W.2d 55; Locke v. State, 168 Tex.Cr.R. 507, 329 S.W.2d 873.

We also overrule the contentions (grounds of error seven and eight) that the court erred in admitting state's exhibits 2--A and 2--C in evidence because (1) it was not shown that appellant "possessed" the material and (2) it was not shown that it remained in the same condition throughout the chain of custody.

The evidence as heretofore stated is amply sufficient to support the jury's finding that he possessed the marihuana in question.

The chain of custody of the marihuana (state's exhibits 2--A and 2--C) was shown. We do not agree that besides proving the chain of custody it was incumbent upon the state to show that the marihuana was in the same condition as when seized by the officers.

Washburn v. State, 167 Tex.Cr.R. 125, 318 S.W.2d 627, relied upon by appellant, is not here applicable, because in that case tires were offered to show that they could not have withstood a certain high-speed trip and there was not only insufficient identification but a failure to fully account for their usage and treatment after the alleged trip.

Ground of error nine presents the contention that the marihuanan in question was recovered as the result of an illegal arrest and search of appellant and the automobile.

We find no merit in the contention, as the marihuana in the vial thrown to the ground by appellant was not recovered as the result of a search. Ortega v. State, Tex.Cr.App., 414 S.W.2d 465; Jimenez v. State, Tex.Cr.App., 421 S.W.2d 910. The operation of the vehicle by appellant upon a public highway with fictitious license plates was unlawful (Art. 807b, Sec. 5, P.C.) and authorized his arrest without a warrant. Consequently, the search of the automobile incident to the lawful arrest was legal. Piland v. State, 162 Tex.Cr.R. 362, 285 S.W.2d 230. The...