## Facts

- Albert Rodriguez was prosecuted for unlawful possession of a barbiturate and sentenced to six months in county jail.
- The State’s evidence showed Rodriguez possessed capsules that were later determined to contain a barbiturate.
- Rodriguez testified he saw his young nieces playing with red pills/capsules at his mother’s house.
- Rodriguez stated he picked up and carried the capsules away to keep the children from playing with them.
- Rodriguez testified he did not know what was in the capsules and had never taken a barbiturate.
- At trial, Rodriguez sought an affirmative jury instruction requiring acquittal if the jury believed he innocently picked up the capsules to protect the children and lacked knowledge they contained a barbiturate; the trial court refused.

## Issues

1. Whether the trial court committed reversible error by refusing an affirmative jury instruction submitting Rodriguez’s defensive theory that he temporarily possessed the capsules for a protective purpose and did not know they contained a barbiturate.

## Decision

- The Texas Court of Criminal Appeals reversed the conviction and remanded for a new trial.
- The court held Rodriguez was entitled to an affirmative instruction submitting his defensive theory raised by the evidence.
- The court ruled the jury should have been instructed to acquit if it found Rodriguez picked up the capsules to keep his nieces from playing with them and did not know they contained a barbiturate.

## Legal Principles

- When evidence raises a defensive theory, the defendant is entitled to have that theory submitted to the jury in an affirmative instruction.
- The truth of a defendant’s defensive explanation, once supported by some evidence, is a fact question for the jury.
- In a possession prosecution, a defendant’s evidence of temporary, protective possession coupled with lack of knowledge of the contraband nature can require an instruction directing acquittal if the jury so finds.

## Conclusion

Because evidence supported Rodriguez’s claim of temporary, protective possession without knowledge of the capsules’ barbiturate content, the trial court’s refusal to instruct the jury affirmatively on that defense required reversal and remand for a new trial.


Rodriguez v. State, 372 S.W.2d 541 (Tex. Crim. App. 1963)