Simmons v. State , 171 Tex. Crim. 679 ( 1961 )

BELCHER, Judge.

After a plea of not guilty before the court, a jury being waived, the appellant was convicted for the unlawful possession of a dangerous drug (Art. 726d V.A.P.C.); the punishment, 30 days in jail.

Officer Herring testified that on November 27, 1960, he stopped the appellant, Beverly Ann Simmons, after having observed her driving an automobile “hap-hazardly” along a public road, and he expressed the opinion that she was either intoxicated or under the influence of some type of drug at that time, and that he did not detect any odor of alcohol about her.

The jail matron testified that on November 27, 1960, she searched the appellant, who appeared to be intoxicated, and found two prescription bottles in her brassiere, one bottle containing red capsules and the other containing white tablets. She delivered these to Officer Herring.

Officer Herring testified that the jail matron, after searching the appellant, delivered two bottles to him, one containing ten red capsules and the other, fifteen white tablets. He delivered these to Chemist McDonald for analysis.

Chemist McDonald, testifying at the trial, identified two bottles that Officer Herring had delivered to him on November 27, 1960. He testified that one of the bottles contained 15 tablets of Miltown, and that an analysis of each of the 10 capsules in the other bottle revealed that each capsule contained secobarbital, a derivative of barbituric acid.

The testimony of a physician shows that about 7 or 8 P.M., on November 26, 1960, he received a telephone call at his home from a person for a prescription, specifically requesting seconal and Miltown, and the said person stated that they were for her mother, Mrs. Mertice Pettaway. This name caused him to think that thé mother was one of his patients, and he called a pharmacist and directed him to fill the prescriptions for 20 capsules of seconal and 15 tablets of Miltown for Mertice Pettaway. The person calling said that she would pick up the prescriptions at the pharmacy. A later check - of his records by the physician showed that he had prescribed the same types of drugs for a patient named Attaway, but that she was a woman in her early fifties who had no children.

While testifying, the pharmacist identified the prescription bottles as'those he used November 26, 1960, in filling two prescriptions, one for Secobarbital and the other for Miltown, that a physician gave him by telephone for Mrs. Mertice Pettaway. He further testified that the bottles exhibited to him at the trial bore the labels he had placed on them showing that they were for Mrs. Mertice Pettaway, with the physician’s name thereon that had telephoned him. He testified that the red capsules in one of the bottles contained Secobarbital, and that they were delivered to a person at the pharmacy, but he did not know the person.

Proof was offered that seconal and secobarbital are the same thing.

The appellant did not testify or offer any evidence.

It is concluded that the facts and circumstances in evidence are sufficient to warrant the conviction of the appellant for the unlawful possession of secobarbital, a dangerous drug.

The contentions that the state failed to prove the corpus delicti of the offense and also that it failed to make out a prima facie case of illegal possession of secobarbital cannot be sustained.

The evidence of the state showing that the appellant possessed the secobarbital was sufficient to show that the possession was unlawful. If the possession was legal on any ground, the burden was on the appellant to so show. This she failed to do. Waite v. State, 334 S.W. 2d 816.

The judgment is affirmed.

Opinion approved by the Court.