Garcia v. State

289 S.W.2d 766 (1956)

Cecilio Torres GARCIA, Appellant, v. The STATE of Texas, Appellee.

No. 28306.

Court of Criminal Appeals of Texas.

May 2, 1956.

*767 M. Gabriel Nahas, Jr., Houston, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is the possession of heroin; the punishment, 5 years.

Officer Shelton of the Houston Police Department testified that while cruising in a police automobile he observed four men standing in front of a grocery store, that when the men saw the police automobile they hurriedly entered the store, that he followed them into the store, that he found three of them standing near the door and told them to go outside where his partner was waiting. Shelton stated that he then saw the appellant at the back of the store some twenty feet from any other person, approached him, asked his name, address, and why he had run when he saw the police. Shelton stated that at this juncture the appellant had a box of oatmeal in his right hand, and he first observed a piece of cellophane six inches below the appellant's left hand falling to the floor. He retrieved the piece of cellophane and found it to contain two capsules, which he delivered into the custody of Chemist McDonald.

McDonald identified the contents of the capsules as heroin.

The appellant did not testify or offer any evidence in his behalf.

The court charged the jury on circumstantial evidence, and we find the evidence sufficient to support the conviction.

The only questions brought forward for review are the failure of the court to instruct a verdict of not guilty and to withdraw the testimony of Officer Shelton from the jury because of the alleged absence of probable cause to authorize the arrest of the appellant.

The finding of the piece of cellophane and its contents was not dependent upon the arrest of the appellant or a search of his person, and therefore the testimony was admissible and the motions were without merit.

The judgment is affirmed.