From Casetext: Smarter Legal Research

Sheridan v. State

Court of Criminal Appeals of Texas
Nov 8, 1972
485 S.W.2d 920 (Tex. Crim. App. 1972)

Summary

holding defendant waived right to contest lawfulness of search on appeal after he had admitted guilt at punishment phase of trial

Summary of this case from Post v. State

Opinion

No. 45165.

September 25, 1972. Rehearing Denied November 8, 1972.

Appeal from the 182nd District Court, Harris County, Lee Duggan, Jr., J.

Haynes Fullenweider, by Richard Haynes, Michael Ramsey, Robert B. Wallis, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and john B. Holmes, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Robert A. Huttash, Asst. State's Atty., Austin, for the State.


OPINION


This is an appeal from a conviction for possession of marihuana. Punishment was assessed by the jury at three years.

The record reflects that officers recovered a quantity of marihuana from appellant's residence in the 2300 block of Nicholson in Houston, on July 14, 1970.

Appellant contends the officers lacked probable cause to search his house and that without a showing of consent or pursuit and arrest, the Fourth Amendment precludes the search of a dwelling place without a warrant.

At the penalty stage of the trial, appellant took the stand in an apparent attempt to mitigate the circumstances of the offense, and on direct examination, testified:

"Q Do you deny the possession of the marihuana?

"A No sir."

"Q And you haven't denied it?

"A No sir."

The appellant, having voluntarily taken the stand at the penalty stage and on direct examination admitted having marihuana in his possession, cannot question the lawfulness of the search wherein the marihuana was seized. Palmer v. State, Tex.Cr.App., 475 S.W.2d 797. See also Boothe v. State, Tex.Cr.App., 474 S.W.2d 219; Richardson v. State, Tex.Cr.App., 458 S.W.2d 665. In Bradley v. State, Tex.Cr.App., 478 S.W.2d 527, it was said, "This Court has held many times that the legality of the search need not be considered when the defendant testifies to or otherwise produces evidence of the same facts or if such facts are in the record without objection." See Jones v. State, Tex.Cr.App., 484 S.W.2d 745 (6/28/72).

The judgment is affirmed.

Opinion approved by the Court.


Summaries of

Sheridan v. State

Court of Criminal Appeals of Texas
Nov 8, 1972
485 S.W.2d 920 (Tex. Crim. App. 1972)

holding defendant waived right to contest lawfulness of search on appeal after he had admitted guilt at punishment phase of trial

Summary of this case from Post v. State
Case details for

Sheridan v. State

Case Details

Full title:Johnny William SHERIDAN, Appellant, v. The STATE of Texas, Appellee

Court:Court of Criminal Appeals of Texas

Date published: Nov 8, 1972

Citations

485 S.W.2d 920 (Tex. Crim. App. 1972)

Citing Cases

Leday v. State

The Court did not explain how Richardson and Boothe supported its statement or why the appellant could not…

Washington v. State

Appellant having taken the stand in both the guilt-innocence and penalty stages of the trial and having…