Gonzales v. State

320 S.W.2d 837, 167 Tex. Crim. 433, 1959 Tex. Crim. App. LEXIS 1861

• Court: Court of Criminal Appeals of Texas
• Decided: January 14, 1959
• Docket: 30106
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is the possession of marijuana; the punishment, 10 years.

Lieutenant Gann of the narcotics detail of the Austin police force testified that, armed with a search warrant and accompanied by other officers, he arrived at the appellant’s home and knocked, that the appellant came to the front door and when the witness stated that they were the police the appellant slammed and locked the door. Gann stated that he forced his way in the house, where he found the appellant in the custody of other officers who had entered by the rear door, saw a number of loose cigarettes on the floor, and placed the appellant under arrest. Following this, Gann told the appellant that he had a search warrant, and the appellant directed the officers to where they found bulk marijuana in different containers at different places throughout the house.

Officer Scott, who entered from the rear, testified that as he opened the door the appellant threw 27 marijuana cigarettes and that they fell on the kitchen floor, but were later recovered by his fellow officers.

The appellant and his wife were alone at home at the time of the search.

A chemist identified both the cigarettes and the bulk substance found in the house as marijuana.

The appellant did not testify in his own behalf but offered witnesses as to his good reputation and the testimony of a doctor to the effect that marijuana was not as dangerous to the human system as tobacco or alcohol.

The only questions briefed relate to the legality of the search. During the testimony of the officers as to what they found in appellant’s home, the appellant leveled objections on the grounds that the affidavit for the search warrant was defective. However, when the 27 marijuana cigarettes were offered in evidence no objection was made, and when the bulk marijuana was offered the only objection made was that it had not been shown to be in the appellant’s possession. Stated again, the only objection which was made at the time the contraband itself was offered in evidence was that it was not shown to have been in the possession of the appellant. The fact that the appellant told the officers where it might be found in his home would make it admissible. Glaze v. State, 165 Texas Cr. Rep. 626, 310 S.W. 2d 88.

Under the rule set forth in Killingsworth v. State, 165 Texas Cr. Rep. 286, 306 S.W. 2d 715; Outley v. State, 162 Texas Cr. Rep. 314, 284 S.W. 2d 356; and Wyatt v. State, 162 Texas Cr. Rep. 134, 282 S.W. 2d 392, the questions as to the sufficiency of the affidavit for the search warrant were waived when the fruits of the search were introduced either without objection or over an objection setting forth another ground.

Finding no reversible error, the judgment of the trial court is affirmed.