Sutton v. State

Decision Date11 January 1961
Docket NumberNo. 32694,32694
Citation170 Tex.Crim. 617,343 S.W.2d 452
PartiesThelma SUTTON, Appellant, v. STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

C. C. Divine, Houston, for appellant.

Dan Walton, Dist. Atty., Carl E. F. Dally, Carol S. Vance, 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 a narcotic drug, to wit: heroin; the punishment, 2 years.

The State's evidence shows that on the date alleged in the indictment the State's witness, Everett Armstrong, while working undercover in the capacity of special employee for a Federal Narcotic Agent, went to the appellant's apartment in the City of Houston. The witness testified that upon arriving at the apartment he asked appellant if she could 'score' for him which meant that she would pick up some heroin for him; that appellant replied that she could, but would have to make a telephone call; that they then went downstairs and walked to a telephone booth which appellant entered and placed a call; that after appellant came out of the booth, he asked her, 'How is everything', to which she replied, 'Okay.' 'He'll be here in a few minutes.' The witness stated that he then returned to the apartment and appellant remained downstairs; that in some 15 or 20 minutes appellant came up to the apartment and asked him for $21 which he gave her; that after appellant left, he looked out of the window and saw a Mexican man drive up in an automobile and in some 2 or 3 minutes appellant returned to the apartment with a Mexican woman; that the Mexican woman then gave the appellant a piece of paper and, after the woman left, appellant handed the witness a red cellophane package which contained 3 capsules.

An analysis of the contents of the 3 capsules by Chemist Kenneth Anderson of the Alcohol and Tobacco Tax Division of the U. S. Treasury Department showed that they contained heroin.

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

Appellant's main contention on appeal is that the evidence is insufficient to sustain the conviction.

Appellant insists that the evidence is insufficient because it shows (1) that she was acting as an agent for the State's witness, Armstrong, in the transaction; (2) that she was entrapped in committing the offense; (3) that the witness Armstrong was shown to be an accomplice, as a matter of law, and whose testimony was not sufficiently corroborated; and (4) that the evidence is insufficient to show that she possessed the capsules of heroin.

The court submitted the issue of entrapment to the jury in his charge, defined the term 'accomplice', and also submitted the issue as to whether the State's witness was an accomplice with an appropriate instruction as to the corroboration required to convict upon accomplice testimony.

Under the record presented, we find the evidence sufficient to sustain the conviction.

Proof that appellant was acting as an agent for the State's witness Armstrong in the transaction did not render the evidence insufficient to sustain the conviction for unlawful possession of the heroin. While the indictment charged the appellant in separate counts with both an unlawful sale and possession of the heroin, the court submitted only the issue of unlawful possession to the jury.

We are unable to agree that the evidence shows entrapment of appellant, as a matter of law, in commission of the offense. It is the general rule that where the criminal intent originates in the mind of an accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution. However, if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense. Stevens v. State, 13 Tex.Cr.R. 333, 110 S.W.2d 906; Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, 86 A.L.R. 249; Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762; and Viley v....

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39 cases
  • State v. Gilman
    • United States
    • Rhode Island Supreme Court
    • June 9, 1972
    ...Peachie v. State, 203 Md. 239, 100 A.2d 1 (1953); Commonwealth v. Harvard, 356 Mass. 452, 253 N.E.2d 346 (1969); Sutton v. State, 170 Tex.Crim. 617, 343 S.W.2d 452 (1961). In considering the conspiracy indictment, it must be kept in mind that the gist of a conspiracy is the unlawful combina......
  • Arnott v. State
    • United States
    • Texas Court of Criminal Appeals
    • February 28, 1973 be introduced into evidence. If one made statements to other people that he was selling narcotics, that would be admissible. Sutton v. State, 343 S.W.2d 452. If one writes statements that he is selling narcotics, why is this not admissible? The evidence of the whole transaction should be......
  • State v. Allen
    • United States
    • Maine Supreme Court
    • June 16, 1972
    ...drug by the appellant to the witness, although an extraneous offense, was admissible on the issue of intent. Sutton v. State, 1961, 170 Tex.Cr.R. 617, 343 S.W.2d 452, 454. See also, People v. Aldridge, 1960, 19 Ill.2d 176, 166 N.E.2d 563, The appellant was indicted on April 3, 1969 for the ......
  • Kwant v. State, 44218
    • United States
    • Texas Court of Criminal Appeals
    • November 16, 1971
    ...possession of the sacked marihuana. The monentary actual possession, under the facts of this case, is sufficient. See Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452. The evidence is also sufficient to show the appellant guilty of the offense as a principal or that he had a joint possess......
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