Taylor v. State, 46129

• Decision Date: 27 February 1974
• Docket Number: No. 46129,46129
• Parties: Randell Ray TAYLOR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 927

505 S.W.2d 927

Randell Ray TAYLOR, Appellant, v. The STATE of Texas, Appellee.

No. 46129.

Court of Criminal Appeals of Texas.

Feb. 27, 1974.

Dunnam & Dunnam, Port Lavaca, for appellant.

Wiley L. Cheatham, Dist. Atty., Cuero, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for the offense of possession of marihuana. The jury assessed punishment at two years' confinement.

Initially, appellant challenges the sufficiency of the evidence. He contends that the evidence is insufficient to prove that he had knowledge, or the actual control, care, and management, of marihuana seeds found scattered on the carpet of his Toyota. He further alleges that the arrest and search were illegal.

The record shows that Sheriff's Deputy Raymond May, acting on information that a marihuana party was being held at Swan's Point, secreted himself in the trunk of a car driven by Mrs. Iris Coffee and Norman Boyd. By keeping the trunk partially opened, Deputy May, upon their arrival at Swan's Point, was able to smell marihuana smoke. The automobile left the scene. After they were out of sight of those at the party, the car was stopped and Deputy May got out of the trunk. He left Norman Boyd hidden in some bushes to observe the entrance and exit of cars from the party while he went to get help. Deputy May returned with Constable Jack Campbell and was met by Sheriff Homer Roberson. There is some conflict in the testimony as to the events which subsequently took place. May and Campbell both testified that appellant was seated behind the steering wheel of his white Toyota automobile. As the officers approached the vehicle, they observed several beer cans strewn about the immediate vicinity of the vehicle. A check of the cans showed them to be still cold and several of them half full of beer. Knowing that the boys were under the legal drinking age, the officers requested the boys to get out of the car.

The arresting officer testified that as he approached he observed the appellant and 'three more' in the car. All the occupants of the car got out; the officers then 'started looking.' One officer stated that as he was standing beside the automobile, on the passenger's side where the door was open, he observed, with the aid of a flashlight, One 'little bitty okra-type seed' on the carpet of the automobile. A thorough search of the interior of the vehicle was begun at this time--a total of nine seeds, later identified as being marihuana seeds, was ultimately discovered, scattered throughout the automobile. The officer testified that the total of nine seeds was obtained only after pulling up the carpet in various places, ¹ and that two seeds were found on the driver's side, at least one was found on the passenger's side, and seeds were further found on both sides in the back seat area of the car.

The search also revealed a pipe in the glove compartment, which contained a residue that the arresting officer said 'appeared to be marihuana.'

We do not reach the question of the legality of the search, as we find the evidence insufficient to support the verdict. As was stated in the case of Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 (1957), Texas' former law which dealt with marihuana, Art. 725b, Vernon's Ann.P.C., did not prescribe or limit the amount of marihuana necessary to be possessed in order to constitute the unlawful act of possession of marihuana.

'We know that the use commonly made of marihuana is to smoke it in cigarettes; it is not taken internally or by hypodermic, as are other narcotics. Such being true, we have concluded that the reasonable construction and interpretation to be applied here is that the legislature intended that to constitute the unlawful act of possessing marihuana there must be possessed an amount sufficient to be applied to the use commonly made thereof. In other words, unless the amount of marihuana possessed is such as is capable of being applied to the use commonly made thereof, if does not constitute marihuana within the meaning of the statute.' Pelham v. State, supra.

In Johnson v. State, 165 Tex.Cr.R. 158, 305 S.W.2d 361 (1957), after chemical analysis of the contents of a bottle found in the Personal possession of the accused, there remained approximately one-half of its contents, or 'at least a half a grain' of marihuana or 'something slightly less than required to make a cigarette.' This Court found the evidence sufficient to support the conviction. In Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966), a plastic box was found in the defendant's apartment. The box contained 63 milligrams of marihuana, which an expert witness stated was enough to make a very small cigarette. The conviction was affirmed. The Tuttle case, supra, was cited as authority in the case of Buntion v. State, 476 S.W.2d 317 (Tex.Cr.App.1972). That conviction was upheld in light of evidence that Cigarette stubs, recovered from the accused's automobile, contained about one-tenth of a gram of marihuana. ²

In Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972), the conviction was upheld on appeal after a matchbox was recovered from the accused's pocket, and the matchbox was over one-half full of marihuana. The record was unclear as to whether a chemist testified relating to .74 gram or .0074 gram of marihuana; the Court held it sufficient in any event, in light of the matchbox and its contents recovered from the personal possession of the defendant. See also, Williams v. State, 476 S.W.2d 300 (Tex.Cr.App.1971).

The confusion surrounding the law on what amount of a narcotic drug is necessary to sustain a conviction was clarified in Reyes v. State, 480 S.W.2d 373...