Rodriguez v. State

• Decision Date: 27 June 1962
• Docket Number: No. 34683,34683
• Citation: 172 Tex.Crim. 540,360 S.W.2d 406
• Parties: Lee Martinez RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 406

360 S.W.2d 406

172 Tex.Crim. 540

Lee Martinez RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.

No. 34683.

Court of Criminal Appeals of Texas.

June 27, 1962.

Rehearing Denied Oct. 10, 1962.

Massey LeRoy Peavy, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Gus J. Zgourides, Asst. Dist. Atty., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for the unlawful possession of marijuana; the punishment, enhanced under Art. 62, Vernon's Ann.P.C., by reason of a prior conviction for an offense of like character, life imprisonment.

A conviction of appellant for the primary offense was reversed by this court in Rodriguez v. State, Tex.Cr.App., 340 S.W.2d 61, and subsequent thereto the indictment under which he now stands convicted was returned against him.

The indictment, in charging the primary offense, alleged that on or about the 22nd day of March, A. D. 1959, the appellant did unlawfully possess a narcotic drug, to wit: marijuana, and, in charging the prior conviction, alleged 'that prior to the commission of the aforesaid offense by the said LEE MARTINEZ RODRIGUEZ, to wit, on the 4th day of May, A. D. 1956, in the United States District Court for the Southern District of Texas, Houston Division, the said LEE MARTINEZ RODRIGUEZ was duly and legally convicted, in said last named court, of an offense of like character and of the same nature as that hereinbefore charged against him in this cause, to wit, the offense of knowingly acquiring, buying and facilitating the transportation and concealment of, after importation, a narcotic drug, towit: heroin, upon an indictment then legally pending in said last named court and of which the said court had jurisdiction, and said conviction was a final conviction,'

M. B. Hightower, a witness for the state and narcotics officer with the City of Houston Police Department, testified that on March 22, 1959, as he was in the vicinity of 75th and Harrisburg Streets in Houston, Harris County, Texas, he received reliable information from a credible person to the effect that Lee Rodriguez (appellant) and Adam Guerra, along with some other Mexican males, were in a Pontiac automobile and that Lee Rodriguez and Adam Guerra had narcotics in their possession; that he did not have time to secure a warrant for their arrest because he feared that they would escape; that in approximately five minutes he observed the automobile, which had been described to him, pass; that appellant, whom he recognized, was riding as a passenger in the front seat; that he and his fellow officers stopped the automobile and he immediately went to the passenger's side, opened the door, and asked the appellant and Guerra to remove themselves from the car. He further testified that as the appellant and Guerra alighted from the automobile, he observed the appellant drop a penny match box from his right hand to the ground and Guerra drop a small piece of brown wrapping paper; that he retrieved both articles and upon examination found the penny match box (State's Exhibit No. 3) contained a 'loose, green substance,' and the small piece of brown wrapping paper (State's Exhibit No. 4) contained 'there number five gelatin capsules with white powder in each capsule.'

State Narcotics Agent Scholl, who was with Officer Hightower on the occasion in question, corroborated his testimony concerning the dropping of the two exhibits and their recovery.

Floyd E. McDonald, a witness for the state and stipulated by the appellant to be a qualified expert witness in the field of chemistry and toxicology, testified that after examination of the plant substance in the penny match box (State's Exhibit No. 3), he determined that it was approximately one and one-half grams of marijuana, a narcotic drug.

Robert F. Crawford, a witness for the state and stipulated by the appellant to be an expert witness in the field of chemistry and toxicology, testified that after an examination of State's Exhibit No. 4, he determined that each of the three gelatin capsules contained heroin, a narcotic drug.

Proof was made by the state of appellant's prior conviction and on cross-examination appellant admitted that he had been so convicted, as alleged in the indictment.

Appellant, testifying in his own behalf, denied that the marijuana was his or that he dropped it as testified to by the police officers.

Appellant insists that his conviction in federal court under the single-count indictment charging the offense of knowingly acquiring, buying, and facilitating the transportation and concealment of a narcotic drug, after importation, cannot support the enhancement of his punishment under Art. 62, V.A.P.C., because such conviction is not for an offense denounced as a felony offense in this state.

Reliance is had by appellant upon the decisions of this court in Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117, and Ex parte Scafe, Tex.Cr.App., 334 S.W.2d 170, which hold that a conviction in federal court, to be available for enhancement of punishment in this state, must be for an act denounced by the laws of this state.

Appellant insists that under the...