Arnott v. State

498 S.W.2d 166, 1973 Tex. Crim. App. LEXIS 2252
CourtCourt of Criminal Appeals of Texas
DecidedJuly 17, 1973
Docket44824
StatusPublished
Cited by52 cases

This text of 498 S.W.2d 166 (Arnott v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arnott v. State, 498 S.W.2d 166, 1973 Tex. Crim. App. LEXIS 2252 (Tex. 1973).

Opinions

OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for the offense of possession of heroin. The jury assessed punishment at twenty-five (25) years’ imprisonment.

Christie Lou Faubian, Arnold Neal, Jr., and Ronald William Arnott, the appellant, were jointly charged as acting together in a three-count indictment for the possession of heroin, marihuana and narcotic paraphernalia. Only the charge for the possession of heroin was submitted to the jury. Christie Lou Faubian and Arnott, the appellant, were tried jointly.1 Miss Faubian was also convicted, and her case on appeal is reported at Tex.Cr.App., 480 S.W.2d 194.

The main contentions of the appellant are that the evidence is insufficient to support the conviction and that the court erred in admitting into evidence the narcotics and notebooks found as the result of a search under a warrant.

[168]*168The record reflects that on September 3, 1970, Miss Faubian, the co-defendant, using the name of Orbitt, made arrangements for the lease of the apartment where the contraband was later found. The next day, the appellant, also using the name of Orbitt, signed a lease for the apartment. Some twelve days later officers of the Austin Police Department went to the apartment where they arrested Neal, Miss Faubian and the appellant and made a search under a search warrant. Capsules of heroin were found on the table where the appellant was seated. Neal, who was apparently asleep, was in another room. The appellant and Miss Faubian had needle marks on their arms, some of which were red, indicating that they were fresh.

The officers testified to finding a large amount of heroin, marihuana, other drugs and narcotic paraphernalia.

It is shown by the testimony of the Department of Public Safety chemist who analyzed the material found in the apartment and submitted to him that State’s Exhibit No. 2 found on the table where the appellant and Miss Faubian were seated contained thirty-nine capsules or 1.61 grams of 20.5 percent heroin.

State’s Exhibit No. 5 consisted of four balloons which contained a total of 3.69 grams of 20.5 percent heroin. These were found in a closet near where Arnold Neal was found asleep. This would amount to enough heroin to make over 86 capsules, and added with the heroin found at the table, the officers found enough for a total of over 125 capsules of 20.5 percent heroin in the apartment.

In State’s Exhibits Nos. 7 and 23, traces of heroin were found in envelopes in the apartment. State’s Exhibit No. 14 contained fourteen capsules of lysergic acid diethylamide (LSD).

A small foil package containing opiate was found. The chemist described the opiate as a sort of base for heroin.

Some mescaline was also found in the apartment. Much of the contraband was found in a large duffle bag in a closet in the room where the appellant was arrested. Several other containers of contraband were in the bag. The notebooks in question were also found there.

In what was described as a large army haversack, the officers found 844.87 grams of marihuana. Other marihuana found is set out below:

A paper bag in the duffle bag contained 329.98 grams.
Thirteen “lids” or small bags contained 277.92 grams.
Two smaller bags contained 91.40 grams.
Another container had 54 grams.
Two peanut cans found in another closet contained 59.72 grams.
The contents of eleven plastic baggies were 3,635 grams.
Two paper bags contained 665.30 grams.
An envelope contained 70 grams.

The chemist testified that the average marihuana cigarette contained .2 of a gram. Based on his testimony, there was enough marihuana found to make more than 29,500 cigarettes.

Also introduced as found in the duffle bag and its containers were apparently a large number of empty plastic capsules. These were described by an officer as being No. 5 capsules, the kind used for heroin and the same kind as found on the table in front of the appellant and Miss Faubian.

One page of State’s Exhibit No. 16, a spiral notebook photocopied for the record, bears the date of August 27, 1970. It contains a column headed “Money out.” Some of the entries under this column are:

“Sam - Ft. Hood 20.00

Rooster 30.00

Clyde 100.00

Dave 380.00

Apfe 495 49r09 [Pd]”

Some of the entries under the other column, designated “Personal debts Money I owe,” are:

Hemphills o o in LO

Uncle Vans o o co i — I

[Paid]

Arnold

[169]*169The next page of Exhibit No. 16 under “money out” shows “Bill EarM-GRMS [pd]” and directly below that appears “Billy Earl $30.00” as well as other names and amounts.

The next column under “Money I owe” includes: “Arnold 130.00.” Further in the spiral notebook, the following page is found:

Then another page is as follows:

Another page lists “P2P Methalene.”

A following page lists:

“Sales Cash Profits

Aug. 26 2 Ids 40.00

Aug. 28 60 Ids 600.00

Aug. 29 7 Ids 70.00

Aug. 30 7 grms Hsh 35.00

Aug. 31 9 Ids 120.00

Ids 50.00

Total

Sept. 1 3 Combined 635.00”

State’s Exhibit 17 starts with August 29, 1970. Apparently dated September 3, the following notation is found: “find a house for rent.” (This is the date the co-defendant Miss Faubian negotiated for the lease, and the day before it was signed by appellant.)

The entry under debts September 3, 1970, shows “Mark T.” apparently another name, and “HSH $50.00” and “55+4 cps.” It also shows a telephone number and “Mr. King.” (The record shows that Miss Fau-bian first negotiated the lease and put up the deposit on September 3 with Mr. King.)

Another page is as follows:

Deposit $50.00

1 yr 40.00

Arnold 30.00

“ 35.00

N.S.C. 20.00

A following page reflects the following entry: “I owe Arnold $80.00.”

State’s Exhibit 18 contained bookkeeping entries similar to those in the other two exhibits.

State’s Exhibits 21, 21A, 21B, 21C and 21D, which were found in the front bedroom near where Neal was found, were all introduced.

The first of these exhibits was correspondence addressed to Arnold James Neal

[170]*170at 607 E Baylor in Austin. The next exhibit was a change of address card bearing the signature “Arnold Neal,” 607 E Baylor St. from 807 E 30 St., both in Austin. (This latter address was shown to have been the one where Miss Faubian had clothes and evidence was offered through her stepfather and that apartment owner in an effort to show she did not live at Baylor Street.)

State’s Exhibit 21C, apparently from a larger spiral notebook, is a photocopy of a page appearing in the record and is as follows :

The second page is as follows:

Rick $5

Mark $2

Ron $105

“ 9/8/70

1. 4 G $160

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Bluebook (online)
498 S.W.2d 166, 1973 Tex. Crim. App. LEXIS 2252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arnott-v-state-texcrimapp-1973.