Guajardo v. State

329 S.W.2d 878, 168 Tex. Crim. 503, 1959 Tex. Crim. App. LEXIS 2632

• Court: Court of Criminal Appeals of Texas
• Decided: October 28, 1959
• Docket: 30927
• Status: Published

Opinions

MORRISON, Presiding Judge.

• ' The 'offense is. the possession of-marihuana; the punishment, 30 years.

Officer Martinez, a San Antonio policeman who was on detached service with the Texas Department of Public Safety working undercover in the city of Kingsville during the course óf a narcotic investigation,, testified that as he was seated in a pool hall, and after he had let it be known that he was in the market for marihuana, the appellant approached him and asked, “Are you looking for some griefer (marihuana) ?” and that the two of them stepped outside where some teenage boys motioned the appellant to come to their automobile. He testified further that as the appellant returned from the automobile he stated that he had made a sale to the boys and then proceeded to sell two cigarettes to the witness for one dollar. Appellant was not arrested until some two weeks later when a number of men were rounded up on narcotic charges. It was shown by expert testimony that the two cigarettes in question contained marihuana.

The appellant, testifying in his own behalf, claimed that he had made a written confession because of police brutality, denied that he had sold anything to Martinez and, in addition, was asked by his own counsel the following question, “Have you ever sold marihuana?” to which he replied, “No sir.”

The officers were called in rebuttal and denied the brutality assigned to them, though the confession was never introduced.

Appellant called two reputation witnesses.

We find the evidence sufficient to support the conviction and shall discuss the contentions advanced in appellant’s brief.

The witness Martinez was called in rebuttal on the question of brutality but was also asked if he had other meetings with the appellant besides the one which occurred on the day charged in the indictment, and he replied that he had and gave the dates. He was then asked if he had purchased marihuana from the apppellant on such dates. Appellant’s objection to such question was sustained, and the jury was instructed not to consider the question. The witness was then asked if a warrant had been issued for the arrest of the appellant as a result of such meetings, and he answered in the affirmative. The court stated that he was admitting such evidence and limiting the same to the question of the credibility of the appellant, who had testified that he had met the appellant only once, and that on the day of his arrest, and so limited the same in his charge.

We have concluded that, though not admissible originally,the appellant is in no position to complain of the evidence under the holdings of this court in Orozco v. State, 164 Texas Cr. Rep. 630, 301 S.W. 2d 634, and that of the Supreme Court of the United States in Waelder v. U. S. 347 U. S. 62, 72 Sup. Ct. 354, 98 L. ed. 503, when he testified on his direct examination that he had never sold or used marijuana.

The testimony concerning the teenage boys was clearly admissible as part of the res gestae, was admitted without objection, and we find no error in its admission.

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