Frazer v. State , 1974 Tex. Crim. App. LEXIS 1508 ( 1974 )

OPINION

MORRISON, Judge.

The offense is possession of marihuana; the punishment, two (2) years.

As a sole ground of error appellant contends the trial court erred in overruling his motion to suppress evidence, which was founded on the contention that the evidence was illegally seized.

On July 3, 1971, Mr. Russell, the Chief of Security for the Dallas Market Center, noticed an automobile occupying two spaces in the Market parking area. He sought out the appellant, who admitted it was his, and drove him back to move the car.

Officer Tilton, an off-duty officer of the Dallas Police Department, who was working in the area, saw appellant flick or throw something under Russell’s car as Russell and appellant entered it. On investigation the officer found a bottle in the area that the car had occupied. The bottle contained a substance which, in the opinion of the officer, was marihuana.

The officer walked over to the area in which appellant’s car was parked, and questioned appellant concerning the bottle. Appellant denied knowledge of the bottle and gave consent to a search of the car; however, this consent was immediately revoked. Nevertheless, the officers searched the car and found two containers of marihuana in the passenger area.

Appellant cites several cases in which the “plain view” doctrine was invoked.¹ He urges that they are distinguishable for the reason that in those cases the officers who found the abandoned property were able to identify it as the identical property that fell from the defendant’s hand. If appellant’s contention be correct, it is not supported by the record. The officer testified that after the bottle was released from appellant’s hand he saw what it was and saw the cap come off. See also Gamez v. State, Tex.Cr. App., 403 S.W.2d 418.

The subsequent search of appellant’s automobile presents a different problem. It appears that Gasery v. State, Tex.Cr. App., 465 S.W.2d 377, and cases there cited are in point. In that case, the defendant was arrested for burglary when he was found prying on an air conditioner trying to get into a building. The officers searched a car parked in the immediate area, and seized a stolen bank bag, tools, and property taken in another burglary. In affirming, this Court held there was probable cause for searching the automobile. Likewise, we hold that probable cause to search the automobile existed in the case at bar. Cf. Hensley v. State, Tex.Cr.App., 494 S.W.2d 816.

If we be in error as to the validity of the search of appellant’s automobile, this conviction is nevertheless sustainable on the basis of the quantity of marihuana found under Officer Russell’s automobile.

Officer Tilton testified that, in his opinion, the bottle which he saw appellant “flip” contained marihuana. Such testimony is sufficient to sustain a conviction. Boothe v. State, Tex.Cr.App., 474 S.W.2d 219.

Also it was stipulated that the bottle contained marihuana.²

The judgment is affirmed.

1 . Miller v. State, Tex.Cr.App., 458 S.W.2d 680; Jimenez v. State, Tex.Cr.App., 421 S.W.2d 910; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841; Rodriguez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406; Nava v. State, 170 Tex.Cr.R. 355, 340 S.W.2d 955; Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781.

2 . “MR. HILL [prosecutor] : It’s further agreed and stipulated that the vegetable material Officer Tilton found was, in fact, marihuana.”

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“MR. TIME [appellant’s counsel] : No objection, with that stipulation . . . ”