Gaston v. State

made during counsel was waiver of for There sufficient evidence

trial. was fact trial court hold as a matter was vol- law that the confession

and of issue was waived. No

untary and counsel and none jury

thereon was submitted Appellant apparently requested. was

was court the trial with the ruling

satisfied Tex.Cr.App. State, Barnett v. at time. 19, 1969). February (No. 41,876, Delivered Austin, appellant. Roy Minton, for Q. (Deliv- See Smith Blackwell, Atty., Dist. Dain Whit- Tom 1969). April ered worth, Atty., Austin, Asst. and Dist. Jim shown; judgment error No Austin, Vollers, Atty., for D. State’s affirmed. State. MORRISON, Judge (concurring). OPINION I concur the affirmance con- of this WOODLEY, Presiding Judge. by hut not the grounds viction appeal The is from conviction my concerning brother DOUGLAS marihuana, nar- possession unlawful search of the court automobile. trial Ann.P.C.). drug (Art. cotic 725b Vernon’s qualified appellant’s Excep- formal Bill of plea jury on a of not Trial was before tion and the record reflects when appellant jury guilty. guilty. The found marijuana was ob- offered in evidence no request her Appellant withdrew jection interposed. jury punishment and elected to assess It is axiomatic that when evidence is punishment have the court assess objection any

offered without error as to pass application probation. Her on her its admissibility waived. Spencer at punishment by court was assessed State, Tex.Cr.App., 438 S.W.2d 109. Department years nine the Texas of Cor-

rections, probation granted. She 42.12 (Art. appeals from such conviction. Ann.C.C.P.) Art. (8) 44.08(b) Vernon’s De- The state’s reflects that on evidence Gann, 1967, Harvey Captain cember E. Services, charge Special vice detail Austin De- narcotics Police GASTON, Appellant, Sharland Reeves partment accompanied by since Ser- Investigators E. L. geant Jones, Robert W. Appellee. The STATE of detail, Hersom, and Albert of said Conner Agent Liquor Texas Control Board 41805. No. Lively, apartment occupied Bert went an Appeals of Criminal of Texas. appellant her and under the control March a search warrant twin sister execute W. issued Peace Frank McBee, 9:10 P.M. on December Captain arrived they Gann testified apartment entrance to 8:40 about after times P.M. and several knocked appellant opened the door and was copy of the search warrant. description, place a where that he Captain further testified or Gann and do believe marihuana smoke we each have reason to heavy detected a odor or house, occupying and appellant party and believe that said so throughout residence, the said private of opinion using, the influence as a under pos- place has her building, house and marihuana. drugs, as narcotic session therein apartment people nine There were law, contrary to by and term is defined began their search. Six when the officers law, pur- and for the provisions of during the search. more arrived thereof, and sale pose the unlawful quantity marihuana was found A unlawfully drugs are where such narcotic apartment ashes traces and or sold; day the 14th that on or about pipe a found burned marihuana were A.D., 1967, December, re- Affiants have be- through marihuana was and tube which credible and from a ceived information ing smoked. Eliza- reliable informant that Sharland mari- keeping using and beth Reeves is and that she saw Appellant testified located at residence which is juana her being smelled' marihuana smoked Street, Austin, Travis at East 19½ any with apartment but denied connection has been County, Texas. The informant smoking, or participation or in such when present numerous occasions on cigarettes knowledge the marihuana of how the influ- subject using and under containing a marihuana bags and and bottle seen the sub- marijuana ence has apartment brought them got who into or guests marijuana other dispense ject there. instances in her In most residence. ground The sole error is: a by using water marijuana is smoked mari- admitting the court erred “The this instrument type smoking pipe and as was juana into inasmuch evidence or North bedroom kept in the back pursuant execution of seized to’ the shelf, right as up which on upon an affidavit based search warrant Also, the mari- you enter the bedroom. probable cause.” which to state failed majority of juana kept on this shelf further states The informant time. warrant reads: for search The affidavit large mari- that there have been several Texas 1 “The State Eliza- by parties thrown Sharland juana J County Travis weeks, past few Reeves beth within me, authority, undersigned “Before Elizabeth Reeves time which Sharland the un- day personally appeared on this The informant marijuana. furnished affiants, being by me dersigned who marijuana in seen that she has states state, sworn, upon severally their oaths possession Elizabeth Reeves’ Sharland building, that: A certain house days. past within two private as a place, occupied and used (s) Jones, Robert Affiant Austin, residence, Travis located Conner, Affiant (s) L.E. frame County, as white Texas described story East two located house 19J4 me, to before sworn “Subscribed Street, Austin, County, Travis affiants, on this by the named within to be apartment, which is with the bottom December, A.D. 1967. day 14th searched, being entered from facing and Street, building, house being 19½ McBee (s) Frank W. Reeves, place Elizabeth of Sharland Peace, Precinct hair approximately brown 6", W-F 5' County, Texas."1 5,No. Travis eyes person bangs, blue name, to affiants persons unknown prior trial. Robert Gaston Appellant Reeves married Sharland cross-exami- The record reflects part was made The affidvait of state’s rebuttal Constance nation witness issued warrant from her defense counsel elicited Groos which recites: testimony pipe belonged “ that the water * * * whereas, particular grounds Lomax, previously and she had so John for this warrant police; talked to the informed the she affidavit, in the said are set forth issue police her prior to the raid. In addition to hereof, upon ex- part amade which is examination, testimony direct Mrs. on me, am satis- by the same I amination part: testified in Groos that and grounds exist fied that shown, I is and believe police all “Q. talking were You hereby find.” and do so existence its time; is that correct? “A. Yes. ably by brief Appellant’s presents counsel argument and oral the contention giving And about them information “Q. Aguilar v. insufficient under

affidvait laws, any- violation of narcotics 12 L.Ed. observed; thing you else that 2d 723. that correct? “A. Yes. precise

The contention is that the affi- who is based their davit and form the circumstances is insufficient issuing magistrate conclusion named, upon was “reliable that which the affiants it fails to in- informant, facts “Q. ^[*] occasions weeks called Now, ^[*] were the establishment ^[*] during you you with ^[*] were the two or what operating ^[*] on several you ^[*] three have credible.” agent? an undercover contention, ably, A presented like also operating “A. I wasn’t as an undercover by was Perez overruled court in agent. State, parte and in Ex 394 S.W.2d “Q. During three weeks two or denied, Gomez, cert. you giving were information to police? the Federal District Circuit Court “A. Yes. Appeals, 5th Circuit. Gomez locations, suppose? I Beto, “Q. At different location, No, main one “A. one here The affidavit attacked reflects mentioned. report much detailed the unnamed more cases informant than the affidavit ******

cited, for warrant “Q. police think arrived— You by the which has been held insufficient police eight “A. The around arrived Supreme show cause.2 Court to thirty. ques- you “Q. right. long All all We are not here confronted with had How prejudice smoking prior dis- tion of from the failure to been marihuana arrived, police counting time the close the name informer. he, single reasons, security The affidavit affiant be revealed reciting person did Perez his belief said reliable and credible para place place drugs to be searched narcotic narcotic see drugs paraphernalia unlawfully phernalia possessed at 730 where narcotic May unlawfully possessed, reads: Richard were Florida on St. “ * * good reason such belief of the affiant Rivera. The affidant has following informa does that narcotic founded believe and believe May 20, 1964, drugs paraphernalia are : That the affiant and narcotic tion unlawfully possessed Florida St.” information from a reliable and at 730 received person whose cannot credible was reliable finding or- that the informant out of pipe the time credible. der? Appellant’s ground error is overruled. forty minutes. About

“A. you “Q. right. statement All Your judgment is affirmed. your turn at take obliged to were by that that you mean pipe, do DOUGLAS, participating. J., not suspicion, or due you would be part group, wouldn’t be ONION, Judge (concurring). your turn? you take didn’t “A. That correct. fully myself agree I find unable to majority, though I am the unenviable so? “Q. you compelled to do felt So judge trial position having been the “A. Yes. State, Tex.Cr.App., Perez v. 394 S.W.2d doing “Q. though you were not Even Gomez, Tex.Cr.App., parte 797 and in Ex sensa- pleasure, it or whatever denied, 1967, 380, 386 U. cert. ? you might get; is that correct tion 810, 958, upon L.Ed.2d S. strongly. majority the relies so See which question. that “A. I don’t understand Cir.), 402 F.2d (5th now v. Beto Gomez “Q. asking you I am were sort of work, your you enjoying or were Nevertheless, just smoking marihuana because I the ma- am fearful you thought you jority disposed question had to? without has clearly delineating just how the affidavit Well, working at the “A. I not was here ends of the involved meets both time. Texas, Aguilar (Aguilar test “Q. you doing you were What were — particu- 1509), 12 L.Ed.2d police, the giving information to larly explication light supposedly in the you just associating but were with Aguilar Spinelli yourself group enjoying this S.Ct. at the time? same It the is difficult to determine whether majority “A. I had associated with the majority holding per- the claimed now, group years this for two sonal an unnamed inform- observations of had not smoked marihuana ant circum- “underlying are sufficient my knowledge May last to until prob- standing stances” alone to establish year, of ’67.” satisfy prongs able cause both cases, Aguilar supra, and later the Aguilar test whether or including Spinelli United 393 U. saying are suf- observations S. de- satisfy half of only ficient not the first submitted, appeal cided since this do was in- Aguilar test, if detailed and but appellant’s ground convince us that speci- criminating enough degree (to a error should be sustained or Perez v. fied) unsup- may supply the overflow to Gomez, parte supra, State or Ex should ported conclusion the affiant be overruled. informer is credible his information re- liable deficient which would otherwise be find We the detailed information ob- Aguilar view of the half latter hand, tained eye first as an witness or rule. participant, magis- sufficient gained trate the information My difficulty following majority’s reliable, way reliable and was is also reasoning gen stem from the rather sufficient, coupled when with the eral approach utilized, affiants’ reminiscent of conclusions, support magistrate’s approaches used Perez and The Gomez. out, affidavit is set precise problem present- results apparently search described (which be con ed appeal cannot this argued par- both sidered in determining probable ties cause), involves nature of the showing report held to be a more detailed must be parte proceedings made the ex Perez, of the informant than before magistrate Gomez to justify his issuance testimony of a supposed1 informer search warrant where the quoted trial is from if can cause is be used based solely upon unaid- hearsay support ed by independent needed I corroboration. (which it cannot), apparently begin my shall then upon discussion at least upon such assumption. confirmation Specifically, that the informa relying upon Amendment, Fourth tion States Consti- firsthand, majority obtained tution; Constitution, Art. Sec. Texas reaches the conclusion stated with a bow 18.01, Vernon’s Ann.St. Art. V.A.C.C.P. printed form finding of decision, appellant urges cause.2 that the affidavit was insufficient in that it failed to inform the reviewing or issu- is the rule in Nowhere ing magistrate of the facts and circum- readily that the uninformed reader can so stances which the affiants their based by this question presented determine conclusion that the unnamed informant was way appeal. Only in a does general most credible,” “reliable and majority opinion failing thus grips come appellant’s specific Aguilar test. contention. latter half of Fourth Amendment of Under the forget should not the tradi-

We Constitution a search war- United States opin- tional function an appellate court be issued in the absence rant may not precedent to to ion furnish guidelines cause, supported probable showing the bench and bar to it a has had added making such affirmation. In oath or new dimension, at least in cases. criminal consequence no determination agencies Law enforcement officers and had might have the affiant or affiants opin- have appellate vested interest in the have additional information which could day ion this age change “It issuing magistrate. been to approach prosecution. to criminal elementary passing None this warrant, could than reviewing be truer court validity of the particular field deal in the may only brought which we information consider therefore, must, case at bar. v. We magistrate’s attention.” 1, best very Texas, ability our guidelines p. set supra. 378 U.S. n. all concerned in developing this p. (em- sensitive 12 L.Ed.2d 723 84 and difficult area of v. phasis original), citing law. Giordenello nothing knowledge. 1. There before the record The utilization of Con- testimony by majority us to establish that Constance Groos stance Groos’ in fact the informer to in all the more sur- referred is rendered therefore prising. affidavit. None of the affiant-officers testified case She did at bar. page majority quoted relate that it was her from one printed that was utilized in the affidavit. of the affidavit-search war- form companion case, State, magistrate’s finding Johnson v. 440 rant as to (No. magistrate 41,750) probable 308 S.W.2d in which which the this cause companion (in same affidavit case of Johnson v. search warrant were involved, (No. 41,750) State, affiant-officer testified tes- Conner S.W.2d 308 440 “prepared” the information received from the informer out and before was filled tified used, finding reveal, presented whose he did not to him. Such it was every people present also had come from case where the be will —“bas ically facts”; printed the same in is utilized. form occupied” “lawfully former used 480, 486, magistrate have 78 S.Ct. oath which would United probable cause.4 1503; been 2 L.Ed.2d Searches sufficient reflect C.J.S. merely probable whether p. 872. See also “The test is not Seizures § Roth, Cir.). search (7th States 391 F.2d the issuance of the cause existed for warrant, all the factual under but whether everything it has held While been magistrate circumstances disclosed brought need magistrate’s attention him to determine sufficient for were appli- not be contained in the affidavit or the existence finding and make Oliveri, warrant, cation for search State v. Cadigan, State v. probable cause.” (Ia.1968) N.W.2d 1/9/69). Supreme (Maine A.2d 750 rule in Texas. Fourth established It is now well provides Our State Constitution enforced are to be prescriptions Amendment no search shall “without warrant issue through the Fourteenth the states against cause, or af- supported oath Ohio, Mapp Amendment. supra, Further, 18.01, Article firmation.” 1081, A.L.R. provides shall warrant issue “[n]o that the standard 2d purpose for any in this unless a State under warrant obtaining a search cause complaint sworn shall first be therefor by the same is to measured state laws filed issuing magistrate setting with the governs standard which constitutional magis- forth sufficient facts fed- under probable cause determination of trate that does in fact exist California, 374 U.S. law. Ker v. eral 18.02, for its issuance.”3 See also Articles 726; 18.21, au- Considering V.A.C.C.P. these State, Tex.Cr. Taylor v. supra; thorities or forerunners, their this Court Article See also App., 421 S.W.2d in Hall v. said: 38.23, V.A.C.C.P. “The conversation between the officers, spe- appellant’s the two shown background which was not With oath, to have sworn been to under could not complaint must be considered. cific proba- be the basis for the determination of contrary, Despite earlier cases for the ble cause issuance of the [search] in federal that at least it is now settled warrant.” may probable hearsay provide court Therefore, determining necessary issuance of sufficiency for the cause question basis proba- a substantial reflect warrant where search hearsay ble by presented. cause the crediting courts are bound for 257, States, four corners 80 thereof. The 362 U.S. record does v. United Jones 233; 725, not reveal and I 697, 4 L.Ed.2d A.L.R.2d do understand the 78 S.Ct. prosecution 3, 359, same pp. 364. The urge ad- A.L.R.3d, there was 10 § State, 114 actually prevails (Seale ditional v. given rule in Texas under Byars 134; interesting 168, v. 3. It to observe that the sen- S.Ct. 248, part States, 28, quoted 47 S.Ct. was made a Article United 273 U.S. tence Scanlon, (former 304), supra, 520; N.J. a State v. 84 18.01 Article as 71 L.Ed. 448; Super. 427, v. State 202 A.2d direct result decision. 435, Campbell, N.J.Super. Interpretative Special A.2d 235 See Commen- 97 Rogers v. rel. ex In United States said article. Vernon’s Anno.C. taries (2nd Prison Warden of Attica State C.P. Cir.), 221, 209, said: it was 381 “ * * * certainly Certainly late And it is too is well it established justi a can be to advocate that search cause the issuance by by produces, for if that fruit be fied search warrant cannot bolstered subsequent maxim that the discredited of a law results fruits Wong States, justifies be end the means will search. Sun v. United 371 441; 471, 407, 9 L.Ed.2d official sanction.” U.S. 83 S.Ct. States, 98, Henry United 80 v. U.S. 521, 275, 1509; reversed at Tex.Cr.R. 1250, at L.Ed.2d on grounds) majority States, and the supra, United U.S. Johnson A.L.R.3d, 3, supra. or, The im- states. at 369, 68 S.Ct. 92 L.Ed. at § case, portance as in presenting by in an affidavit inf an unidentified (emphasis warrant a substantial basis ormant.”5 supplied) any hearsay may which be credited Thus while it is recognized hearsay emphasized Aguilar. alone may proba- sufficient be to establish ble cause, it must be addi- up shored There the Court wrote: support (underlying circumstances) tional be based “Although an affidavit be a before there can finding of hearsay need not information and cause.6 the direct reflect observations States, States, recently Spinelli v. United affiant, Only v. United Jones “Agui- was referred to supra, the rule L.Ed.2d major- There the must test.”7 pronged 78 A.L.R.2d lar’s two Harlan, through Mr. underlying ity, speaking be informed some of ** “* said: Aguilar, referring circumstances informant from which the designed were where establishes concluded the narcotics the tests it were principle long-standing implement were, he claimed and some of by a determined underlying must be circumstances from which informant, magistrate’ detached officer concluded that ‘neutral com- disclosed, in the often engaged whose need not the officer crime.’ States, enterprise ferreting Rugendorf petitive out see 376 U.S. 10, 14, 333 U.S. United Johnson 367, 369, ‘credible’ or his 92 L.Ed. 436.” information ‘reliable.’ 68 S.Ct. Otherwise, ‘the facts inferences from the 840, the Review Law 53 California which lead the complaint’ will be suf- Aguilar rule Supreme where Court’s ‘by drawn not neutral and detached dis- is absent was ficient corroboration magistrate,’ requires, as the Constitution cussed. There it was said: instead, by but police ‘engaged officer “ ** competitive enterprise often ‘underlying circumstances’ ferreting crime,’ out Giordenello the informer’s conclusion of both supra, guilt and officer’s conclusion * * * * * 5. A number of law review have articles results of a surveillance Aguilar holding. discussed the See 10 would, present entirely course, an South Texas Law Journal 105 case.” different 378 U.S. at n. (1968); 21 Southwestern L.J. 242 at 1511. mean This does not (1967) ; Baylor 17 Law Review 443 independent police that a surveillance or (1965) ; 22 investigation Southwestern L.J. 211 always or work will save (1968). an affidavit which falls short of the Aguilar Spinelli standards. See v. Unit Aguilar’s pronged met, If two is test States, ed 21 393 U.S. then cause can be established L.Ed.2d 637. by hearsay observed, alone. It should be however, that an affidavit deficient 7. Earlier it had been as described respects necessarily these is requirement.” not inade- “double barreled United quate support a search Rogers warrant. Oth- rel. States ex At Warden of er facts and Prison, (2nd circumstances be at- tica State 381 F.2d (in affidavit) sup- Cir.). Perry tested the which will ply the evidence U.S.App.D.C. cause need- the F.2d support ed to the ‘underly search warrant. “both mentions kinds of Aguilar recognized itself ing Aguilar that the circumstances’ re to which bald conclusions of the affidavit there fers.” supplemented by had been fact “the put problem confronting is the us. guage informer reliable must be forth First, affiant-officers did reviewing noting before the magistrate.” 843, (emphasis claim that their supplied) attempt support their informant his information was credible or synthesis Aguilar “The combined the reliable, he wrote: requirement that the informer be reliable requirement with the that he have an “Applying principles pres- these adequate empha- allegations, basis for his case, weight ent we first consider sizing the ‘underlying need for circum- tip when it the informer’s support stances’ in of each element.” apart rest of considered from the (emphasis supplied) affidavit. It is clear that Commissioner abdicating could not credit it without Supreme supra, the Cadigan, In State v. Though constitutional function. discussing Court of Main swore that his affiant ‘reliable,’ confidant “Thus, that it is essential rule said: magistrate he no offered is made application to whom support reason in this conclusion. of some search warrant be informed for Perhaps important even more the fact from which underlying circumstances Aguilar’s that other has not test been appli- if the applicant (or the informer ” * * * satisfied. (emphasis supplied) con- knowledge hearsay) is from cant’s being or had cluded that the crime was whether issue then for decision things to be been committed and that the the source of the mere statement in a be found searched were and could hearsay and reliable” was “credible designated place; additionally, crediting basis” offered “substantial information, hearsay case of is neces- it hearsay, see Jones sary state, for the officer-affiant facts particular supra, given the enlightenment magistrate, hearing difficulty with which case at bar. The some of the underlying circumstances which the fact part we are faced is due enabled him informer to conclude need primarily on the focused and his information reliable.” credible al- support for the for factual informer’s It There was no elaboration legations. observed affidavit requirement Spinelli “underlying circumstances” the FBI had been applied belief in- which also officer’s “informed confidential reliable offer much description reliability. Spinelli formant” did not without further Certainly appear greater help. it would major- mention informer. While the conclusionary ity purely averments Spinelli concluded that accepted cases reliability in a few earlier failed to meet both Aguilar’s ends of two Eisner, (e. pronged g. test and United States v. was not saved denied, (6th Cir.) facts and cert. supply circumstances attested to are cause, (1962) now the evidence is inter- esting inadequate.8 to note Harlan’s lan- Mr. Justice question 8. This raises of whether where instances bered highly generalized Note, however, proved recitals unaided correct. supporting particulars Tex.Cr.App., which have fre- S.W. v. Acosta swearing quently appeared past he in the are now affiant after 2d the acceptable. “Previously from information reliable infor- reliable had “received mer,” “Although proven person” reliability I “informer of and stated: a credible credibility,” person, on and “informant who has do not desire to name this given past,” prior has information the occasions he are about four examples. concerning few of narcotics the These to me somewhat information individuals, vague phrases suggest being possessed or certain hint a consist- history may every reliability ent his information of be occasion but and on really ambiguous. proven The records in be The instance of in- has true.” may officers accurate indicate that Texas have outnum- this Court portion the other agree with conclusionary can I Nor purely the Unquestionably certainly an though position af- the State’s of and reliable” the “credible recital of four corners. its read from is to alone be standing at bar in the case fidavit often tongue can glib awith story A teller satisfying the mark fall short of must Such cloth. the whole weave a tale out of re- barreled half the latter of double his to assure story be used should not Aguilar test. quirement of reliability of credibility and insure State, however, vigorously contends The related events. sup- “underlying circumstances” con- says the unidentified informant’s porting informer cannot be What the narcotics were guilt (that reliability. clusion of test of his being the were), she where claimed earlier, As difficult to deter- informer, personal are observation majority’s opinion mine whether only satisfy half ample first of not agreeing with the State claimed sup- Aguilar test but are sufficient to in- observations of the unnamed any deficiency ply “underlying cir- formant standing are sufficient alone credibility relating to of cumstances” satisfy prongs Aguilar both test reliabilty the informer his informa- saying per- whether the Court is that such tion thus the second half of the meeting only sonal observations are sufficient not points test. State also out its the first half “ ** brief where the informant’s test but detailed enough incriminating information is not within the informant’s (to degree specified) overflow personal knowledge then, (i. e. hearsay) supply unsupported conclusion of then, only must facts be set out estab- the affiant the -informer is credible lishing credibility informant.” or his clearly This is wrong, information reliable which would normally, vincing showing Aguilar, have since avoided where there is cor some generalized reliability report, recitals as to roboration of the informer’s even though something strong have included more. corroboration enough Cir., independently Suarez, suggest United States v. the truth 380 F.2d the command of the information. See United States Freeman, Cir., ; was satisfied where affiant swore the 358 F.2d 459 provided extremely Cf., however, “informant had ac- Calif.Law Review 840. Perry U.S.App. curate information ‘on at occa- least 100 ” Rogers (1964). sions.’ In United States ex rel. D.C. 336 F.2d 748 Prison, Perhaps v. Warden of Attica no State set standard can or should Cir., 381 F.2d the affiant stated the be formulated for the extent of a show- previously ing reliability. supplied “informant had in- Each case must be decided formation that led to the arrest and con- on its own merits. Some factors persons.” question reliability of 3 statement relevant viction Such magis- necessary adequate apprise was held sufficient to an elaboration are: underlying length trate circumstances of time that the affiant-of- ficer which the officer concluded has known and in- dealt with the ; tips received; reliable. former the number source information was accept- accuracy Aguilar may interpreted character of the in- ing generalized received; general reputa- formation some recitals as satisfac- tory informer; since it cited Jones United States tion of the the manner (378 114-115, paid U.S. at which the informer was in- 723), approval formation, was, and the L.Ed.2d if he and whether prior cases, Jones affidavit listed one instance narcotic the informer himself was Rugendorf information, shy accurate an addict. Offieers-affiants often away 376 U.S. 887, from a detailed factual elaboration supporting decided same both the informant’s accusa- Aguilar, super- approved term as also tion and the affiant’s assertion of his re- showing liability thereby affi- ficial the basis for the for fear that clues are reliability provided identity. ant’s belief of the informer. as the informer’s Rugendorf interpret- can be Jones and ed, however, permitting a less con- 306 required. If reliability latter should be of the on be deficient view

otherwise any reliability factual recital as lacks rule. half of the informer is indication of how reliable correct, interpretation it is would If either effect, is, relying up- magistrate then un- previously informant mean an affiant that the on the conclusions appear at a police to the could known sufficiently informer reliable and is story. If the police and tell his station upon independent judicial deter- his own police believed sto- officer-affiant accepts magistrate mination. When upon his ry based of the informant was pure affiant becomes conclusion of the he accompanied personal observations stamp rubber his constitu- and abdicates might conclude specific details, then he duty. reliability import- is tional Where the informant was that basis alone reliability ant supporting facts are as information reliable. credible his any showing essential as to a others present an affidavit might Thereafter he probable cause. magistrate one in the such as the personal As to whether observations naming case at bar the informant. without per an informer are sufficient se ques- magistrate Then the without further prongs both test I finding tion would make White, note that Mr. his con- personal cause based the claimed opinion curring Spinelli, said: “If the informant and the observations upon hearsay affidavit rests inform- —an officer’s mere conclusion that the informant report necessary ant’s is under —what was credible information reliable. Aguilar things: is one of two the inform- Thus in fact rest would ant must declare has (1) either he entirely upon obser- claimed himself seen perceived the fact or facts vations of an unnamed informant whose asserted; or (2) that his identity in fact never be revealed.9 hearsay, but good there is reason for believ- ing perhaps grounds one usual it— any circum- appear that under It would for crediting hearsay information. be stances, should reviewing presents first problems: few since the bare than the conception some report, although hearsay, purports reliable affiant how conclusion observation, first-hand remaining doubt know is. He must particular informant informant, centers honesty on the belief. of that basis something of the- worry dissipated the officer’s 41, States, U.S. 290 Nathanson v. United previous experience with informant. 11, particu- This is 159. L.Ed. 54 S.Ct. 78 » * * * being a search warrant larly true where if remaining doubt there be information Would upon the informer’s based the informant were showing personal stronger observations of case a In such alone. impeach Normally such affidavit not be able on its face the accused will by showing be untruthful. the affiant the undisclosed to secure 296, State, v. 158 Tex.Cr.R. existence Hernandez to refute the informer order 219; State, Illinois, Harkey McCray 142 v. 255 S.W.2d v. cause. Piper 808; 32, 1056, 150 Tex.Cr.R. S.W.2d S.Ct. 18 U.S. 87 State, Bosley State, Tex.Cr.App., 62; v. 116 Tex.Cr.R. v. 283; Only Cordona v. 115 Tex.Cr.R. able if the accused is S.W.2d Cf., however, bring Mc 31 S.W.2d 452. rule Ro within the himself Illinois, supra; Byars Cray States, v. United U.S. v. United viaro States, 71 L. would Pearce, 520; United States Ed. need be disclosed. of the informer name 318; Boyd Cir., also See further be remembered Let corrobora informer or an affiant has no 746; King falsely, simply 29 L.Ed. there tion and swears least, Cir., way, F.2d 398. no this state may go affidavit valid behind an accused earlier, satisfy Aguilar? alone As noted the main thrust the standing to of sufficient argument parties has been not.10 both directed think I sufficiency the

to cause when true. not reverse is Apparently the soley hearsay by any based unaided to sufficient “Underlying circumstances” corroboration, surveillance, etc. test the half of satisfy the bottom A close the affidavit as reading deficiency appear supply to would whole convinces there is me more than essential “underlying circumstances” here, hearsay here involved. The affiants test. top the half Perez, unlike the one in that do not state they rely entirely upon the informant’s that Mr. Spinelli I observe hearsay. They personal swear of their own concurring said:

White that a knowledge building certain described Austin; issue the warrant located “Neither Street in should 19½ they gambling accused, there is that whom that describe the officer states detail, occupies apartment some particular apartment the bottom equipment in an in- building persons. said with other his comes from information unnamed, such acquired by since Whether information was formant, named or independent the basis honesty corroboration or surveillance of the informant would not revealed report unknown. Nor but such informa are none of sup- completely soley tion is attributed missing elements be informer. they personally the in- Since knew the plied oath location of the officer’s in- the building furnished reliable and of the existence has often formant accused story attests past. formation in the This knew informer’s entirely Agui- was informant, out honesty but whole cloth. of the requires something knowledge Such lends supra, support lar v. unsupported from their otherwise come conclusion more—did observation, in turn informant is “credible reliable.” did informant ** only The Such construction can receive another? be a from common no sense and reliability reading the informant can realistic affida past vit here for believ- involved. more furnish cause United States v. Ventres ca, 102, 108, previous report than ing his' current can L.Ed.2d 684. experience himself.” with officer Roth, supra. See also United States I Therefore concur in the result reached majority but reasons stated, bring I cannot For reasons opinion. myself agree the conclusions exists, however, my majority. There MORRISON,

opinion justifies J., joins which another basis in this concur- rence. affirmance this conviction. the Fifth Circuit stated to that narcotics were Note further who Gann Gonzales, peddled Appeals being in Texas v. at Selvera’s home and had which involved one he seen Selvera retrieve 388 police alley, package re- conducted the small from the officers who bar, liable or his tale was credible.” in the case at said: p. police case, not have F.2d at “In this did just appear any per- nar- to believe that Thus it would present Selvera sonal observations are not sufficient cotics were warrant invalid the bottom half home: The search themselves Aguilar doctrine; there was under the test. informer, nothing suggest

Case Details

Case Name: Gaston v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Mar 12, 1969

Citation: 440 S.W.2d 297

Docket Number: 41805

Court Abbreviation: Tex. Crim. App.