*1 Finstrom, (Court-ap- James P. Dallas pointed), TURRENTINE, Appellant, William S. Wade, Henry Atty., Wilensky Steve Dallas, Hugh Lucas, and
The STATE Atty., and David S. Appeals of Court Criminal 20, 1976. GREEN, Commissioner. 19, 1976. appellant a jury,
In a trial before of marihuana. convicted of See Punishment, Art. assessed V.A.P.C. 4476-15, under of Art. provisions Sec. (Controlled 4.05(b)(1), V.A.Tex.Civ.Stats. Act), years is five and fine of Substances $5,000.00. June record reflects that on warrant,
pursuant to a search and others went Montgomery, appellant and his wife in to the residence of knock, Dallas. wife their answered warrant, upon being and notified permitted Appellant them to enter. found asleep upstairs bedroom. In area, searching the kitchen Officer Johnson containing found a ounces vegetable marihuana in the drawer of a refrigerator box and a little black contain- cigarette ing .09 ounces of roller, pair and a cigarette papers scissors kitchen cabinet. in the and his under arrest. error, appellant In his eighth ground of prosecuting attorney contends that during reversible error his clos- committed guilt ing argument stage. to the following proceed- reflects the record argument: ings during such Now, smoke I don’t mari- “[Prosecutor]: either, you huana assume and I how much of there’s no evidence about would take to mari- stuff it you can call for it cigarette, huana I at it if want submit look from the evi- dence there’s high a man them and wife is more 1990. I submit year ever marihuana than this man *2 220 use, Department personal Division, for their own and Police
intended
Narcotics
testi-
the evi-
it’s a reasonable deduction from
fied that the sack of marihuana contained
smoking it
only
dence the are not
but
wedges
he
lemon
when
found it at
probably
away
selling
it
or
giving
appellant’s
to
apartment,
keep
used
the
marihuana fresh.
QUILLIN
Your
“MR.
Counsel]:
[Defense
Honor,
object;
completely
we
this is
out-
The
ap-
record contains no evidence that
side the record.
pellant
engaged
selling
in
Counsel,
“THE
he is
to
COURT:
allowed
Likewise,
marihuana,
away.
giving
it
deduction,
jury
the
can deter-
there is no evidence
length
to indicate the
mine—
of time it
normally
would
take to smoke
QUILLIN:
testimony
“MR.
There’s no
this quantity marihuana. We find
of
noth-
conclusion,
that,
ing
to
they meant
do
argument
inviting
in
the
appellant’s
Your
quoted
Honor.
remarks of the State.
Counsel, I’m going
“THE COURT:
to
quoted
The
above
to
argument
tended
you,
making
overrule
if he
a fact—
it
the amount
greatly exaggerate
of marihua
counsel,
state
or not
are
whether
possession,
na found in appellant’s
and even
calling it a fact or
reasonable deduction
a
though
as a “reasonable deduction
stated
from the evidence.
evidence,”
exaggeration
from the
the
toas
I believe I told
“MR. GAY [Prosecutor]:
quantity and
conclusion that “they
the
are
the
it’s
deduction from
a reasonable
it,
only smoking
not
it
giving
the evidence that
Exhibit No. 3
justified
it” were
not
any person
here more
would ever
is
than
evidence, and constituted error. See Rodri
personal
of
their own
using
conceive
778;
quez State,
v.
Tex.Cr.App., 520 S.W.2d
use,
furthermore,
gentle-
ladies and
State, Tex.Cr.App.,
Thomas v.
527 S.W.2d
men,
here that lem-
there’s no indication
567;
State, Tex.Cr.App.,
Smith v.
506
put
in
to
it fresh.
If
ons were
here
602;
State, Tex.Cr.App.,
S.W.2d
Jackson v.
freshness, you
you are worried about
544;
State,
529 S.W.2d
v.
White
Tex.Cr.
in
enough
your
wouldn’t have
marihuana
488; Berryhill
State,
492
v.
App.,
S.W.2d
possession
year consump-
or ten
a five
86; Klueppel v.
Tex.Cr.App., 501 S.W.2d
just
buy
go
tion. You
out and
572;
State, Tex.Cr.App.,
Alejan
505 S.W.2d
worry
keeping
stuff
it
enough
about
State,
Tex.Cr.App.,
dro
ever intended for *3 giving it objection was made it. After stated, “The will decide judge
the trial deduction reasonable.
whether or not this not make the did prosecutor
.”
statement as fact. ounces of mari- had .09 ounces
huana in a sack and box. If the deduction
little black unreasonable, jury prop-
prosecutor was weighed against
erly would and not for it.
State shown;
No reversible error has been be affirmed. should
GUPTON, J., joins in this dissent. McDonald, Anthony Nicholas & Terrence RICHARDSON, Hargis Appellant, Kevin Antonio, San for Butler, Atty., John William Ted Jr., Harris, The STATE of Macrae and Susan Sharon Antonio, Spruce, San Atty., and David S. Appeals Court of Criminal for 1976. 1976. ODOM, Judge. appeal
This is from conviction deliv- was as- ery of marihuana. Punishment years. sessed at five trial Appellant contends that court objection and admit- overruling erred in photograph ting police into evidence on Octo- “mug shot” of him that was taken 22, 1973, five months approximately ber allegedly the instant offense was before committed. photograph contends First, reasons. inadmissible