Martinez v. State

246 S.W.2d 633, 157 Tex. Crim. 91

• Court: Court of Criminal Appeals of Texas
• Decided: December 19, 1951
• Docket: 25563
• Status: Published

Opinions

WOODLEY, Judge.

The conviction is for possession of a narcotic drug; the punishment, 10 years in the penitentiary.

Appellant and a female companion, who appeared to be drunk, were followed by two police officers of Corpus Christi and were seen to enter a “flop house.”

Upon entering the building, the officers were directed to the room assigned to appellant and his companion, and through cracks in the door they saw them undress and engage in an act of sexual intercourse. Appellant was seen to remove some object from his pocket and place it under his pillow.

The officers then knocked and after informing appellant that they were officers, entered the room at the invitation of appellant, arrested both the occupants, and found, under the pillow, three marijuana cigarettes.

The bills of exception relied on for reversal complain of the search and the fruits thereof, the complaint being that the search was unlawful.

In Limbrick v. State, 117 Tex. Cr. R. 579, 36 SW(2) 1026, this court, speaking through Judge Christian, said:

“Bill of exception No. 3 relates to appellant’s objection to the testimony of the injured party and of the sheriff touching the result of the search of appellant’s smokehouse. It is merely stated in the bill, as a ground of objection, that the sheriff had no search warrant. The bill is insufficient. A mere statement of a ground of objection in a bill of exception is not a certificate on the part of the trial judge that the facts which form the basis of the objection are true; it merely shows that such an objection was made. * * *”

The bills here are deficient for a like reason; there is no certification by the trial judge that the arrest was not authorized without warrant, nor is it shown that the officers did not have a search warrant authorizing the search. These are merely stated in the bill as a part of the objection.

Further, as in the Limbrick case, the results of the search are in evidence from another source.

Appellant’s confession was properly admitted in evidence wherein he confessed that he had acquired a pound of marijuana in Mexico which he had rolled into 300 cigarettes, three of which were those found by the officers under his pillow.

The bills show no reversible error, and the evidence is sufficient to sustain the conviction.

In pronouncing sentence, the trial court failed to apply the indeterminate sentence law.

The sentence is reformed so as to read not less than 2 years nor more than 10 years in the penitentiary.

As so reformed, the judgment is affirmed.

Opinion approved by the court