Rainey v. State

Court of Criminal Appeals of Texas

Rainey v. State

464 S.W.2d 865, 1971 Tex. Crim. App. LEXIS 1819

CourtCourt of Criminal Appeals of Texas

DecidedMarch 24, 1971

Docket43630

StatusPublished

Cited by5 cases

This text of 464 S.W.2d 865 (Rainey v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rainey v. State, 464 S.W.2d 865, 1971 Tex. Crim. App. LEXIS 1819 (Tex. 1971).

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Opinion

OPINION

MORRISON, Judge.

The offense is sale of marihuana; the punishment, five (5) years.

Appellant contends that the amount of marihuana shown is not sufficient to support the conviction and relies upon Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 and Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122. In Pelham, supra, dustings taken from the pocket of appellant’s trousers were shown to be marihuana. The chemist who analyzed these dustings could not express any opinion as to the amount or weight of marihuana present in same; he would not express the opinion that they contained as much as a grain of marihuana. In Greer, supra, a small piece of wet cotton containing a trace of narcotics was found.

In the case at bar, the undercover informer testified that she purchased a cigarette from the appellant, pretended to smoke the same, and at the first opportunity extinguished the cigarette and turned it over to an officer. The chemist who analyzed this unconsumed portion of the cigarette testified that %oo of a gram of marihuana were contained therein.

In this case, sale of a whole cigarette was proven; by the time the unsmoked part of that cigarette got to the chemist, only a small weighable and identifiable quantity remained. In Tuttle v. State, 410 S.W.2d 780, this Court held that 63 milligrams was sufficient to make a very small cigarette and was sufficient to support the conviction for the possession of marihuana.

Finding the evidence sufficient to support the conviction, the judgment is affirmed.

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OPINION

MORRISON, Judge.

The offense is sale of marihuana; the punishment, five (5) years.

Appellant contends that the amount of marihuana shown is not sufficient to support the conviction and relies upon Pelham v. State, 164 Tex.Cr.R. 226, 298 S.W.2d 171 and Greer v. State, 163 Tex.Cr.R. 377, 292 S.W.2d 122. In Pelham, supra, dustings taken from the pocket of appellant’s trousers were shown to be marihuana. The chemist who analyzed these dustings could not express any opinion as to the amount or weight of marihuana present in same; he would not express the opinion that they contained as much as a grain of marihuana. In Greer, supra, a small piece of wet cotton containing a trace of narcotics was found.

In the case at bar, the undercover informer testified that she purchased a cigarette from the appellant, pretended to smoke the same, and at the first opportunity extinguished the cigarette and turned it over to an officer. The chemist who analyzed this unconsumed portion of the cigarette testified that %oo of a gram of marihuana were contained therein.

In this case, sale of a whole cigarette was proven; by the time the unsmoked part of that cigarette got to the chemist, only a small weighable and identifiable quantity remained. In Tuttle v. State, 410 S.W.2d 780, this Court held that 63 milligrams was sufficient to make a very small cigarette and was sufficient to support the conviction for the possession of marihuana.

Finding the evidence sufficient to support the conviction, the judgment is affirmed.

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464 S.W.2d 865, 1971 Tex. Crim. App. LEXIS 1819, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rainey-v-state-texcrimapp-1971.

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