Reyes v. State
| Decision Date | 24 May 1972 |
| Docket Number | No. 44902,44902 |
| Parties | Arturo Andrade REYES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Robert H. Tippins, San Antonio (On Appeal Only), for appellant.
Ted Butler, Dist. Atty., Arthur Estefan and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State's Atty., Austin, for the State.
This appeal is from a conviction for the offense of unlawful sale of a narcotic drug, to-wit: heroin. Punishment was assessed by the court at ten years.
Officer H. Rangel, of the San Antonio Police Department, testified that he first met appellant in March of 1970, at 143 Henry Street, a location in San Antonio known by the officer as a 'narcotic connection'. He knew appellant as Arturo Ortiz.
On July 15, 1970, at approximately 7:30 P.M., Officer Rangel purchased heroin from appellant in front of Poncho's Grill on the corner of 21st and Commerce Streets, in San Antonio. The officer paid appellant $3.50 for the heroin.
Officer Rangel testified that after the purchase in question he drove around until approximately 10:30 P.M. when he met his field supervisors, Detectives Harry Carpenter and Manuel Ortiz. The three then performed a field test on the contraband. The test revealed that it was some kind of heroin or opium derivative. Harry Carpenter mailed the contraband to the Department of Public Safety by certified mail. The package was received by George Taft who is a Chemist for the Department of Public Safety. Taft testified that he made spot tests of the contents which showed to be heroin.
Appellant contends: (1) that the trial court erred in not submitting to the jury a charge requested by him which included a definition of 'a quantity of narcotic drug' as 'a determinate or measurable amount'; and (2) that the evidence is insufficient to support the jury's verdict because the state did not prove what percentage of the substance sold was composed of heroin.
In Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122, this court held that a trace of a narcotic, '. . . such as may have been wiped from a needle following an injection . . .,' which had been extracted from a small piece of wet cotton, was an insufficient amount to support a conviction for unlawful possession of heroin.
In Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171, the reasoning behind the decision in the Greer case was discussed, the court stating that:
'It would be a harsh rule, indeed, that would charge appellant with knowingly possessing that which it required a microscope to identify.'
Pelham's conviction for the offense of unlawful possession of marihuana was reversed on the basis that the substance in question could only be identified by microscopic examination. 1
In a trial for the illegal possession of a narcotic drug, the basic element which the state must prove is that the accused intended to violate the law by knowingly possessing such drug, e.g. Rodriguez v. State, Tex.Cr.App., 372 S.W.2d 541; Fawcett v. State, Tex.Cr.App., 127 S.W.2d 905. Where the evidence shows that the accused knowingly possessed a narcotic drug, Pelham and Greer are inapplicable. See Blaylock v....
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King v. State
...in the indictment were true and correct. Id. Similar reasoning was applied in the sale and delivery context. In Reyes v. State, 480 S.W.2d 373, 374-75 (Tex.Crim.App.1972), we held that where the defendant represented that he was selling narcotics and the substance he was selling was subsequ......
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