Cadena v. State

268 S.W.2d 472, 160 Tex. Crim. 206, 1954 Tex. Crim. App. LEXIS 1887

• Court: Court of Criminal Appeals of Texas
• Decided: June 2, 1954
• Docket: No. 27,014
• Status: Published

Opinion

WOODLEY, Judge.

The conviction is for possessing a narcotic; the punishment ten years in the penitentiary.

State Highway Patrolman M. R. Nugent testified that he clocked a speeding car in Gonzales County and stopped it.

Appellant was seated on the front seat with the driver and, when the driver got out, the officer observed that appellant was holding his hand down beside his leg, which aroused his suspicions. He asked appellant what he had in his hand and appellant said “Nothing, nothing.”

The officer told appellant to turn his hand over, and when appellant did so the officer saw that he had a “finger stall” fastened with a rubber band, which appellant handed over to him. The finger stall contained six capsules and two small packages, the substance in which proved to be heroin, a narcotic.

Appellant’s confession was offered in evidence in which he admitted the possession of heroin and said that he had caught a ride with the driver of the car.

By informal bill of exception the admissibility of the evidence as to the finding of the heroin is attacked, based upon the contention that the arrest and search of appellant was unlawful.

We need not here pass upon the interesting question as to whether the arrest of a speeding motorist will authorize a search of a passenger in the car, other than the driver.

In order to attack the legality of the arrest, it was incumbent upon appellant to show, by formal or informal bill of exception, that the arresting officer did not have a warrant authorizing such arrest or search. This was not done. See Pitcock v. State, 159 Texas Cr. Rep. 616, 266 S.W. 2d 389.

The evidence sustains the conviction and reversible error is not shown.

The judgment is affirmed.