FRANCISCO GONZALES V. STATE
No. 27,031
Texas Court of Criminal Appeals
June 26, 1954
Rehearing Denied November 3, 1954; Appellant‘s Motion for Rehearing Denied (Without Written Opinion) December 1, 1954
548
We remain convinced of the cоrrectness of our disposition of this case in our original opinion.
The motion for rehearing is overruled.
Opinion approved by the court.
William E. Davenport, San Angelo, for appellant.
Wesley Dice, State‘s Attorney, Austin, for the state.
WOODLEY, Judge.
The cоnviction is for possession of marijuana, the jury having assessed the minimum punishment.
The only contention seriously urged as reversible error is that the evidence as to the finding of marijuana in appellant‘s car was obtained by means of an unlawful search, and was therefore inadmissible.
Appellаnt, at the instance of and accompanied by the officer, drove tо the police station and, after appellant was taken inside, the сar was searched and a paper bag which contained a quantity оf marijuana was found under the front seat.
Deputy Wuertenburg testified that in truth and in fact he arrested appellant in order to search his automobile for narсotics, that he knew appellant had not cut anyone and he had previously arrested the party who had. He further testified that he was informed about midnight and believed that appellant was trying to peddle marijuana and that he had been furnished appellant‘s car license number.
Appellant contends that the state should be bound by the officer‘s statement to appellant аs to the basis for the arrest, but cites no authority in support of such contentiоn and we know of none.
The search of appellant‘s car, under the fаcts testified to by the officer, was authorized by
Appellant testified in the jury‘s absence as to the voluntary charactеr of the confession which had already been admitted in evidence. An issue of fact appears to have been raised, for the district attorney testified before the judge and denied the statement attributed to him by appellant.
It was then suggested to the court that appellant desired to take the witnеss stand before the jury for the single and limited purpose of testifying that the confеssion was not a voluntary one.
The trial judge declined to enter into agreеment on the matter and stated that if appellant took the stand he would do so as any other witness and subject to the ruling of the court, if and when objection should be made. Thereupon appellant closed without testifying beforе the jury.
The applicable rule is found in Branch‘s Ann. P.C., p. 83, Sec. 147, from which we quote:
“When defendant takes the stand as a witness he is subjеct to the same rules as any other witness. He may be contradicted, impеached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in еvery respect as any other witness testifying in behalf of defendant, except where some statute forbids certain matters to be used against him, such as prоof of his conviction on a former trial of the present case, his failurе to testify on a former trial or hearing, and the like.”
The evidence sustains the сonviction and we find no reversible error.
The judgment is affirmed.
ON MOTION FOR REHEARING
BELCHER, Judge.
Appellant reurges his contentions made on original submission and insists that we reconsider our holding herein.
We have сarefully reviewed the entire record and remain convinced that we correctly disposed of this cause on original submission.
Appellant‘s. motion for rehearing is overruled.
Opinion approved by the court.