Sikes v. State

• Decision Date: 23 March 1960
• Docket Number: No. 31600,31600
• Citation: 334 S.W.2d 440,169 Tex.Crim. 443
• Parties: Walton Sayon SIKES, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 440

334 S.W.2d 440

169 Tex.Crim. 443

Walton Sayon SIKES, Appellant, v. STATE of Texas, Appellee.

No. 31600.

Court of Criminal Appeals of Texas.

March 23, 1960.

Clyde W. Woody, Carl E. F. Dally, Houston, for appellant.

Dan Walton, Dist. Atty., Edward D. Michalek, Samuel H. Robertson, Jr., Asst. Dist. Attys., 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, 3 years.

Officer R. D. Smith of the Narcotics Division of the Houston Police Department testified that on the day in question he received information around 2:30 P.M. from an informant at the Sunken Gardens in the city that a pink and black Ford convertible bearing license No. S. L. 3365 would be traveling on Alemeda Street in the 'next few minutes' and would be driven by a white man who would have in his possession marijuana; that he and his two fellow officers, not having time to secure a warrant of arrest or search warrant, immediately proceeded to drive to the 6600 block on Alemeda where they stopped at a red traffic light; that while they were stopped for the light the appellant drove up in a pink and black Ford convertible bearing the license No. S. L. 3365 and stopped behind them. Officer Smith stated that he got out of the police car and as he was walking toward the appellant's automobile he observed appellant make a 'quick motion with his hands between the door of his car and the seat' 'from his mouth straight down to his side.' and observed smoke coming from appellant's mouth; that he thereupon opened the door of appellant's automobile and observed a burning cigarette on the floor board which he picked up, and then proceeded to search the appellant which resulted in his finding 4 cigarettes in the band of a cap which appellant was wearing. Officer Smith further testified that after he found the 4 cigarettes in appellant's cap, he asked appellant if that was 'all' to which appellant replied that he had some more at his apartment; that appellant then led the officers to his apartment some 15 or 20 blocks away, where after he had unlocked the door and admitted them inside, they found, pursuant to appellant's directions 6 unsmoked and one partially smoked cigarette in the pocket of a jacket in a closet.

An examination, both chemical and miscroscopic, of the cigarettes found in appellant's automobile, on his person and in his apartment by Chemist Robert F. Crawford showed that each cigarette contained marijuana.

Appellant did not testify or offer any evidence in his behalf.

Appellant insists that the court erred in admitting in evidence the testimony concerning the search of his automobile, his person and his apartment and the fruits thereof because the searches were made following an illegal arrest and without lawful authority.

The information which Officer Smith had, plus appellant's overt acts, and his seeing the burning cigarette on the floor board of the automobile which he testified he recognized to be a marijuana cigarette was sufficient to lead him to believe that appellant possessed marijuana and was committing a felony in his presence, so as to authorize the arrest of appellant and search of his person and automobile without a warrant. Art. 212, Vernon's Ann.C.C.P.; Art. 725b, sec. 15. Vernon's Ann.P.C.; French v. State, 162 Tex.Cr.R. 48, 284 S.W.2d 359; Sanders v. State, Tex.Cr.App., 312 S.W.2d 640; Bridges v. State, Tex.Cr.App., 316 S.W.2d 757. The search of...