Rainey v. State

464 S.W.2d 865 (1971)

Toney RAINEY, Appellant, v. The STATE of Texas, Appellee.

No. 43630.

Court of Criminal Appeals of Texas.

March 24, 1971.

*866 Minor Pounds, Lubbock, for appellant.

Jim D. Vollers, State's Atty., Austin, for the State.

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 2/100 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.