Tuttle v. State, No. 39702

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMORRISON
Citation410 S.W.2d 780
PartiesDonald David TUTTLE, Appellant, v. The STATE of Texas, Appellee.
Docket NumberNo. 39702
Decision Date08 June 1966

Page 780

410 S.W.2d 780
Donald David TUTTLE, Appellant,
v.
The STATE of Texas, Appellee.
No. 39702.
Court of Criminal Appeals of Texas.
June 8, 1966.
Rehearing Denied Oct. 19, 1966.
Second Motion for Rehearing Denied Nov. 30, 1966.
Third Motion for Rehearing Denied Feb. 15, 1967.

Emmett Colvin, Jr., of Waldie, McDowell & Colvin, Dallas (on motion for rehearing only), for appellant.

Henry Wade, Dist. Atty., Harryette Bercu, Curtis Glover, and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

Page 782

OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, twelve years. Notice of appeal was given December 29, 1965.

Officer Cavender testified that on the night in question, armed with a search warrant, he searched appellant's apartment and found a plastic box which contained a substance which appeared to be marihuana. The chain of custody was properly established and Dr. Morton F. Mason, Director of the Dallas City and County Criminal Investigation Laboratory, testified that he conducted a test on a portion of the substance in the plastic box introduced as State's Exhibit No. 1, and found it to be marihuana.

There was testimony concerning the giving of a written confession by appellant, but none accompanies the record, and we find it unnecessary to discuss the same.

Appellant did not testify, but called his wife, who stated that the officers found the plastic box in her child's toy box. She stated that she had inspected the child's box on the day preceding and State's Exhibit No. 1 was not in it. She further stated that on the day of the search one J. H. Whitman had spent an hour in their apartment during which time he asked her if she wanted to smoke some marihuana, but that she had declined.

No formal bills of exception accompany the record, and an examination of the informal bills fail to reflect error.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

OPINION ON APPELLANT'S MOTION FOR REHEARING.

BELCHER, Commissioner.

It is now contended that the marijuana found in the apartment was not sufficient in quantity to support a conviction.

Dr. Mason testified that the marijuana in the plastic box, State's Exhibit No. 1, weighed 63 milligrams, which was sufficient to make a very small cigarette. This quantity was sufficient to support the conviction for the possession of marijuana.

For the first time, it is now insisted that appellant's written statement was erroneously admitted in evidence in violation of the due process clause in that it is undisputed that he signed it after the officer taking it promised he would release appellant's wife who was then in custody; and that the trial court again erred in not resolving the issues on the voluntary nature of the statement following an independent hearing.

The written statement is not contained in the record, its contents are not revealed, and there is no showing that the jury ever knew its contents. In the absence of the written statement, the above contentions cannot be appraised. However, the record shows that following the independent hearing, the court concluded that from the testimony said statement was voluntarily made and was admissible in evidence.

Error is urged by the trial court's failure to grant a mistrial when the state asked a question which amounted to an assertion of fact that appellant remained silent while under arrest in face of a statement that appellant had committed a prior offense.

This matter arose during the state's examination of Officer Cavender, to-wit:

'Q What did she (appellant's wife) say to you detective Cavender?

'A She wanted to give a statement saying the marijuana was her's, because she could get probation and he couldn't.

'Q Did she say anything else?

'Appellant's Attorney: We object to any further statement.

Page 783

'The Court: Sustain the objection.

'Q Was there anything else said as part of that sentence you have just told us?

'Appellant's Attorney: Your Honor, we object to that.

'The Court: I think he can finish the sentence that she said.

'Q At any rate, Donald David Tuttle here, did not give a statement?

'Appellant's Attorney: We object to that and move for a mistrial and ask that the jury be instructed not to consider it.

'State's Attorney: Thank you, that's all.

'The Court: I will sustain your objection, and instruct the jury not to consider that last question and overrule your Motion for a mistrial.'

From the record as presented, the refusal of appellant's motion for a mistrial was not error.

The motion for rehearing is overruled.

Opinion approved by the Court.

OPINION ON APPELLANT'S SECOND MOTION FOR REHEARING

DICE, Commissioner.

...

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11 practice notes
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 14 Julio 1976
    ...amounts of marihuana were involved, e.g., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968) (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and ......
  • Aranda v. State, No. 47441
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Marzo 1974
    ...presented and were in sufficient compliance with Jackson v. Denno, supra, and Article 38.22, V.A.C.C.P. See Tuttle v. State, Tex.Cr.App., 410 S.W.2d 780 (on motion for rehearing); Ex parte Gomez, Tex.Cr.App., 389 S.W.2d 308. No error is shown. Appellant contends that the court erred in refu......
  • King v. State, No. 971-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 25 Abril 1984
    ...amounts of marihuana were involved, i.e., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968)(1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and c......
  • White v. The State Of Tex., NO. 01-09-00903-CR
    • United States
    • Court of Appeals of Texas
    • 9 Diciembre 2010
    ...App. 1976) (1.48 grams or 0.05 ounces); Mitchell v. State, 482 S.W.2d 223, 225 (Tex. Crim. App. 1972) (0.0074 grams); Tuttle v. State, 410 S.W.2d 780, 782 (Tex. Crim. App. 1966) (op. on reh'g) (0.063 grams). The introduction the marijuana at the hearing provided sufficient evidence for the ......
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11 cases
  • Lejeune v. State, No. 49404
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 14 Julio 1976
    ...amounts of marihuana were involved, e.g., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968) (1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and ......
  • Aranda v. State, No. 47441
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 6 Marzo 1974
    ...presented and were in sufficient compliance with Jackson v. Denno, supra, and Article 38.22, V.A.C.C.P. See Tuttle v. State, Tex.Cr.App., 410 S.W.2d 780 (on motion for rehearing); Ex parte Gomez, Tex.Cr.App., 389 S.W.2d 308. No error is shown. Appellant contends that the court erred in refu......
  • King v. State, No. 971-83
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 25 Abril 1984
    ...amounts of marihuana were involved, i.e., Parson v. State, 432 S.W.2d 89 (Tex.Cr.App.1968)(1.41 grams of marihuana); Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams of marihuana); Mitchell v. State, 482 S.W.2d 223 (Tex.Cr.App.1972) (.0074 grams of marihuana). See also and c......
  • Andrade v. State, No. 13-83-090-CR
    • United States
    • Court of Appeals of Texas
    • 8 Diciembre 1983
    ...(.00074 grams of marihuana); Buntion v. State, 476 S.W.2d 317 (Tex.Cr.App.1972) (a tenth of a gram of marihuana); and Tuttle v. State, 410 S.W.2d 780 (Tex.Cr.App.1966) (63 milligrams). The evidence is, therefore, sufficient to establish that appellant possessed a "useable quantity" of marih......
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