Giacona v. State

372 S.W.2d 328, 1963 Tex. Crim. App. LEXIS 1015

• Court: Court of Criminal Appeals of Texas
• Decided: November 27, 1963
• Docket: 34930
• Status: Published

Opinions

BELCHER, Commissioner.

The conviction is for the possession of marijuana; the punishment, five years.

Officers Hightower and Shelton, of the narcotics division of the Houston police department, passed by the house located on the front of a lot and went between thirty and forty yards from the' street to a three-apartment unit, two of which were downstairs and one upstairs, located on the back of the lot. While on the porch downstairs and outside of th,e apartment adjacent to that of the appellant, Hightower and Shelton heard loud talking and cursing, and smelled marijuana burning. Then they moved in front of appellant’s apartment and on looking through the window of his apartment they saw the appellant smoking a handrolled cigarette, and then pass it to a male companion. From the outside the officers also saw through the window three handrolled cigarettes with the ends tucked and a quantity of green plant substance on a table.

Officer Hightower knocked on the front door of appellant’s apartment, announced he was a police officer and when no one responded, Officer Shelton unlatched the screen door after cutting the screen and the wooden door being open, they entered the apartment. Officer Hightower took the cigarette from the companion of appellant that he had seen pass between them a few seconds before.

The officers took possession of only that which they had seen from the outside of the apartment which was the partially smoked cigarette, the three other cigarettes and the loose plant substance on the table; and an analysis made by a chemist showed that they each contained and were marijuana.

The officers had no warrant of arrest or search warrant for the appellant or his apartment.

The appellant did not testify or offer any evidence.

Appellant strenuously urges that the trial court erred in admitting in evidence the officers’ testimony of what they did, saw or heard after entering on his premises on the ground that they were not at such time legally on his premises.

■Appellant .relies upon Gonzales v. State, 131 Tex.Cr.R. IS, 95 S.W.2d 972, but overlooks the opinion of this Court in Crowell v. Statej 147 Tex.Cr.R. 299, 180 S.W.2d 343, in which it was held that the contention which appellant here makes was not the basis for the reversal in the Gonzales case.

In considering a similar contention that the testimony of two officers was not admissible in evidence because they were unlawfully on the premises, this Court in Heath v. State, 161 Tex.Cr.R. 323, 276 S.W. 2d 534, 535, said:

“Appellant objected to the testimony of the Sheriff and the Ranger on the grounds that they were not armed with a search warrant and were unlawfully upon his premises.

“The State relies upon Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, and Eversole v. State, 106 Tex.Cr.R. 567, 294 S.W. 210. The rule announced in those cases seems to be that if one is foolish enough to leave his windows uncurtained he may not complain if another comes upon his property and observes an illegal act being committed therein. In the Crowell case we discussed the holdings of the Supreme Court of the United States on the question.”

See Art. 212, Vernon’s Ann.C.C.P., and the cases noted under it.

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

Opinion approved by the Court.