Opinion
No. 36020.
November 20, 1963.
Appeal from County Court, Howard County, Lee Porter, J.
George T. Thomas, Big Spring, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the unlawful possession of a dangerous drug (Art. 726d Vernon's Ann.P.C.); the punishment, 60 days in jail and a fine of $100.
We adopt the brief of our able State's Attorney as the opinion of the Court reversing the conviction.
"The State's testimony reflects that Robert C. Smith and another officer went to the Caballero Cafe in Big Spring on Sunday afternoon; that several people were there; that three people were sitting at a booth; that appellant got up after the officers arrived and went behind a booth and sat back down at his place; that the officer later found a bottle which contained amphetamine and barbiturate drugs; that the officer did not know what appellant had in his hand; that he did not see him possess anything.
"Appellant testified that he was drinking beer; that the owner of the place was serving beer on Sunday afternoon in paper cups; that appellant thought it was illegal to sell beer on Sundays; that he ran to the door and poured his beer out; that he did not possess any capsules.
"Among other things, appellant objected to the trial court's charge for failure to instruct on circumstantial evidence, which the court should have done, as shown by appellant's brief. For this error, the State does not seek an affirmance.
"There is a serious question as to the sufficiency of the evidence to sustain the conviction. See Brock v. State, 162 Tex.Crim. 339, 285 S.W.2d 745."
The judgment is reversed and the cause remanded.