At trial, the defendant argued that the bottle of pills should not have been introduced in evidence because such a brief handling of the pills did not as a matter of law constitute possession. Citing Harbin v. State, 210 Ala. 55, 97 So. 426 (1923), and Sutton v. State, 170 Tex.Crim. 617, 343 S.W.2d 452 (1961), the court held that the question of the defendant's intent in accepting the pills from his companion was for the jury to determine. In Harbin, the defendant was convicted of possessing intoxicating liquor in violation of law, after having a jug of liquor in his arms.
The duration or length of time that the marihuana was under appellant's control would not determine the question of his possession. Sutton v. State, 170 Tex.Crim. R., 343 S.W.2d 452; Reed v. State, Tex.Cr.App., 472 S.W.2d 757; Kwant v. State, Tex.Cr.App., 472 S.W.2d 781. In Ochoa v. State, Tex.Cr.App., 444 S.W.2d 763, evidence that appellant received the marihuana cigarette from one smoker, 'puffed' it, exhaling deeply, and then handed it to another to do the same, was held to be sufficient to constitute possession.
This does not appear to be the fact in the Owens case. Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452, cited by the appellant, was affirmed. There the Court merely held that entrapment or agency was not shown as a matter of law. Gomez v. State, Tex.Cr.App., 461 S.W.2d 422, is also relied upon by the appellant.
In his first ground of error appellant claims the trial court erred in failing to sustain his motion to suppress the testimony of the undercover agent Roberts when the facts at the hearing on such motion showed there was entrapment as a matter of law. In Sutton v. State, 170 Tex.Crim. R., 343 S.W.2d 452, this Court said: "It is the general rule that where the criminal intent originates in the mind of an accused, the fact that the officers furnish the opportunity for or aid the accused in the commission of a crime constitutes no defense to such a prosecution.
This subjective test has been consistently followed up until the enactment of our present statute, V.T.C.A., Penal Code, s 8.06. See Redman v. State, Tex.Cr.App., 533 S.W.2d 29; Poe v. State, Tex.Cr.App., 513 S.W.2d 545; Kilburn v. State, Tex.Cr.App., 490 S.W.2d 551; Caudillo v. State, Tex.Cr.App., 462 S.W.2d 576; Gomez v. State, Tex.Cr.App., 461 S.W.2d 422; McKelva v. State, Tex.Cr.App., 453 S.W.2d 298; Sutton v. State, 170 Tex.Crim. 617, 343 S.W.2d 452. Our present statute has now codified the defense of entrapment under V.T.C.A., Penal Code, § 8.06, which statute provides:
a defense.' Haywood v. State (Tex.Cr.App.), 482 S.W.2d 855. See also McKelva v. State (Tex.Cr.App.), 453 S.W.2d 298; Sutton v. State, 170 Tex.Crim. R., 343 S.W.2d 452.' The appellant argues, however, that in determining if entrapment is shown as a matter of law this Court must consider not only the predisposition of the accused, but must weigh also the conduct of the law enforcement agents.
" Haywood v. State, 482 S.W.2d 855. See also McKelva v. State, 453 S.W.2d 298; Sutton v. State, 170 Tex.Crim. R., 343 S.W.2d 452. The testimony of Officer Gilstrap was evidence that when appellant approached him a criminal intent to possess and sell marihuana had already formed in appellant's mind.
It is also hard to understand that because the evidence might be prejudicial it should not be admitted. Relevant admissible testimony is prejudicial or there is no need for it to be introduced into evidence. If one made statements to other people that he was selling narcotics, that would be admissible. Sutton v. State, 343 S.W.2d 452. If one writes statements that he is selling narcotics, why is this not admissible? The evidence of the whole transaction should be admissible. Evidence extracted and placed in a vacuum is of little or no benefit to a jury. In Alba v. State, Tex.Cr.App., 492 S.W.2d 555, it was contended that 'this large quantity of heroin allowed the prosecution to infer that the appellants were heroin suppliers and dealers, thus prejudicing the jury.
Where entrapment has been interposed as a defense, the evidence of other transactions with marihuana, although extraneous offenses, is admissible on the issue of intent. Carr v. State, supra; Jones v. State, Tex.Cr.App.,427 S.W.2d 616; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452. A limiting instruction on the extraneous transactions was given.
However, if the criminal design originates in the mind of the officer and he induces a person to commit a crime which he would not otherwise have committed except for such inducement, such is entrapment and, in law, may constitute a defense." Sutton v. State, 170 Tex.Crim. R., 343 S.W.2d 452 (1961). See also Jones v. State, 427 S.W.2d 616 (Tex.Cr.App. 1968); Mistrot v. State, 471 S.W.2d 831 (Tex.Cr.App. 1971) and Vera v. State, 473 S.W.2d 22 (Tex.Cr.App. 1971).