Young v. State

298 S.W.2d 176, 164 Tex. Crim. 234, 1957 Tex. Crim. App. LEXIS 2077

• Court: Court of Criminal Appeals of Texas
• Decided: February 6, 1957
• Docket: No. 28,735
• Status: Published

Opinions

MORRISON, Presiding Judge.

The offense is the possession of heroin; the punishment, 25 years.

Officers Gannaway and Slovak of the narcotics squad of the Dallas police testified that, in company with detective Rose, they went to St. Paul Hospital on the morning in question and there picked up one Howard Duane Miller, a narcotic addict, searched him for narcotics, gave him two ten dollar bills, the numbers of which they retained, drove him in a panel truck to the neighborhood of 2420 N. Washington Street in the city of Dallas and instructed him to go to the appellant’s room in the boarding house at such address and purchase some narcotics. The officers did not know how many doors there were in the rooming house but stated that they had been there before and that the appellant’s room had a door opening out on the front porch and another door which opened into a room to the rear of the appellant’s room. There was no showing as to whether or not this second room behind that occupied by the appellant had another door leading into other parts of the rooming house. They stated that they watched Miller as he presented himself at the appellant’s door and saw the appellant admit him, that Miller remained in the house for approximately three minutes, and that they then saw the appellant let Miller out the same door. Miller joined them soon thereafter, they again searched him, found the money missing, and Miller delivered to them the heroin which constitutes the basis of this prosecution.

It was shown that Miller had died prior to the trial.

The only other evidence which tended to connect the appellant with the possession of the narcotics in question came from the witness Biggio, the custodian of the property room of the police department. He testified that officers Moore and Sinkle brought him the two ten dollar bills in question, that he inventoried them in his record as being the property of the appellant, and that on the afternoon of the day in question the appellant signed for the money and it was released to him.

Neither officers Moore or Sinkle was called as a witness.

It must be borne in mind that the record is barren of any proof as to who was in the appellant’s room or the room behind it or in the rooming house during Miller’s visit or as to where Miller went in the house. The officers merely testified that they saw no one enter or leave during the short time they had the rooming house under observation. It must be further remembered that the only way the money was ever placed in the appellant’s possession was by the testimony of the custodian who said he delivered it to the appellant; it was never shown to have been taken from the person of the appellant. There is an entire absence of any showing that the appellant at the time he signed for the money at the property room was asserting any claim to the identical bills delivered to him as distinguished from any other currency.

We have concluded that the state has here failed to disprove the outstanding hypothesis that Miller could have secured the narcotics from some person other than the appellant or that the money could have been taken from someone else and mistakenly delivered to the appellant.

Finding the evidence insufficient to support the conviction, the judgment is reversed and the cause remanded.