Opinion
No. 42654.
March 11, 1970.
Appeal from the 138th Judicial District Court, Cameron County, H. A. Garcia, J.
D. J. Lerma, Brownsville, for appellant.
Jim D. Vollers, State's Atty., Austin, for the State.
OPINION
In a joint trial, Patricio Salas, the appellant, and Rodolfo Armendariz were convicted for possessing marijuana. Appellant's punishment was assessed at confinement in the Texas Department of Corrections for a term of ten years, and he, alone, appeals.
The sole ground of error is that the evidence is insufficient to support the conviction.
The record reflects that the appellant, Patricio Salas, along with Rodolfo Armendariz, Felix Tamayo and Luis Tamayo entered the taxicab of James Green in the City of Brownsville at approximately 2:00 o'clock in the morning. Felix Tamayo got in the front seat of the taxicab with the driver and the other three passengers were seated in the back seat. While proceeding to its destination, the taxicab was stopped at a curb of a public street and Felix Tamayo and the driver got out and began to urinate. Officer Cantu saw this and arrested Green and Felix Tamayo. He then observed that appellant and the other two passengers were drunk. He asked them to get out and placed them under arrest. As they got out of the car Officer Cantu saw a bottle of run and a package on the floorboard near the spot where appellant had been seated.
After the arrest was made, all the occupants of the taxicab were taken to the police station where dustings or sweepings were made from their clothing to determine the presence of marijuana.
Edward Chaloupka, a toxicologist for the Department of Public Safety, testified that the package contained 2.2 grams of marijuana and that sweepings from the pockets of Rodolfo Armendariz and appellant contained marijuana. The sweepings taken from the pockets of Green and the Tamayos did not contain marijuana.
The evidence is sufficient to support the conviction. See Rubin v. State, 164 Tex.Crim. R., 296 S.W.2d 548.
Appellant relies upon the statement made by the taxicab driver, Green, at the time of arrest to show that Green exclusively possessed the marijuana. The record reflects that when Officer Cantu said, "Look what I found in the car,' Green said, "I guess it belongs to me." Green testified that the marijuana did not belong to him but made the statement, because he knew that no one else was going to come forward and state that it was his. The testimony of Green was not such as would require the jury to find that the appellant did not possess the marijuana.
If the statement of Green can be construed as being exculpatory there was no request for such an instruction.
The evidence being sufficient, the judgment is affirmed.