Gentry v. State

cant has failed to sustain his burden

proof regard allegation with to his prose-

cutorial vindictiveness. The record simply change

reflects in prosecutor’s charg-

ing decision made in a pretrial setting

which the prosecutor uncovered additional suggested

information which a basis prosecution.

further Applicant has not

shown that his conviction pos- for unlawful

session aof firearm a felon came about

aas result of a process. violation of due

Applicant alleges further that his possession

conviction for unlawful of a fire

arm process felon violates due of law charge

because the had been dismissed speedy

lack of a trial. As with applicant’s

previous contention, he has failed to sustain proof

his burden of regard to this

allegation. Prosecutor Poole testified that

the unlawful carrying weapon’s charge

was dismissed on June as a result applicant’s incarceration in the Texas

Department of Corrections an unrelated driving

conviction for while intoxicated.

Under circumstances, County Dallas

had no going interest through the ex

pense trying applicant on the misde

meanor charge. Therefore, the misdemean-

or offense was dismissed upon the State’s

own motion applicant’s and not motion for

a speedy trial. sought

The relief is denied.

IT IS SO ORDERED. Sullivan, Teter, Dallas, J. Thomas

Ross appeal only, for appellant. Wade,

Henry Atty., Gregory Dist. S. Keasler, Long, Whaley Robert and Mike Ray GENTRY, Appellant, Michael Huttash, Attys., Dallas, Asst. Dist. Robert Austin, Atty., for the State’s State. Texas, Appellee. The STATE of

No. 106-82. Court of Criminal Texas, ON OPINION DISCRETIONARY En Banc. WITHOUT PETITION REVIEW Oct.

CLINTON, Judge. question presented is whether blood through coursing human nonsecretor, was that 18% of meaning testimony “item” within the of Article and 18.- 02(10), V.A.C.C.P., nonsecre- which reads as follows: male in Dallas are population the stat- for search warrant tors. An affidavit to may “A search warrant be issued ed, inter alia:

search for seize: and grouping “8. that the blood believe would consti- type ... of the defendant items, (10) except the property or the defend- probative tute accused, personal writings the by con- offense. foregoing ant committed the stituting evidence of offense con- words, the testing of de- if such tending stituting evidence to show that he were of the fendant would show a of- particular person committed an evidence would type, non-secretor fense ...”1 the evidence that de- probative constitute foregoing The Court of concluded “that blood of- fendant committed the ordinary of meaning is an ‘item’ within the fense.” word,” concurring the opinion but a disa- sitting magistrate, judge, as The trial is greed “that ‘blood’ an ‘item’ within the on the affi- warrant based issued Gentry meaning” of the statute. ... davit, sample be ordering “that blood 1981). (Tex.App. S.W.2d 77 —Dallas the said Defend- body from the of obtained the view ex- Should it determined medi- accepted ... ant in accordance correct, is pressed concurring opinion commanding peace of- practices,” cal then question the becomes whether such ficer blood the of “property” is within items property “to search for statute, urges as its Brief the State Affidavit and to in the attached described Discretionary Review.2 Because the seize the same...” sample appel- at issue was taken from the warrant was reports return pursuant lant to a search warrant on or making the search directed “by executed 1979, 1, August about we have occasion to such search seizing during therein and to “persons” address last addition property, namely, blood following described 18.02, may supra, only Article as that relate defendant...” . .. from the legislative to intent.3 guar- I, Rights our Bill Article § We the facts related to the start with per- their “in security people antees only pointed before us. As out in issue houses, possessions” sons, papers below, of seminal opinion analysis a forensic searches, seizures against unreasonable fluid from a bedsheet on which one taken ... that “no warrant and it mandates occurred showed rapes complainant without any thing shall issue person' person Who is a the fluid came from a obtaining purposes significant indigent paragraph, found 1. That it will become n note, 1977, Leg., p. record, appellate not favored us with was added Acts 65th 25, 1977, ch, 640, 237, 2, May advocacy effective on our discre- § in behalf (All however, day signed See, Ayala 156. tionary Senate Bill Governor review. opinion emphasis is added the writer of As a mat- indicated.) discretionary granted unless otherwise fact, review was ter of course, we its initiative. Of this Court on own question impres- one first 2. Not .of initially to submitted brief majority of the court sion in this but the transferred the cause was Court before “any other state or below was unable find no re- Appeals, has been but there requires federal statute that construction of presently relied on sponse to the brief scope permissible term ‘item’ to define the State.- 80, According- Butler, supra, n. 2. search.” granted ly, seeking proffered we all aid p. Leg., ch. 67th 3. See Acts Attorney file a brief leave to Criminal District September effective § Alas, ap- appellate counsel for the State. try appears pellant, case did appointed, have been since be, as describing them near thing subjected prior nor search under (10) without ...” Subdivision cause...” Article provides Y.A.C.C.P. statutory the same pro- contemporaneous Two decisions of tection. Those statutory constitutional and this matter in Court addressed but provisions are implemented by applicable legislative chronologically unrelated to authorizations May limitations contained in amendment effective 1977: State, Eighteen (Tex.Cr.App.1 Escamillav. 556 796 Chapter S.W.2d Code of Criminal 977)4 State, 557 and v. S.W.2d Smith Procedure. (Tex.Cr.App.1977). The held that former The same act that amended Article 18.02 sample a taking “the search also added (c) (d) subsections and to Article I, meaning and seizure within Art. 18.01. For a (10) subdivision warrant there Constitution, Sec. of the Texas thus requirement is a (e) in that the affidavit set to with the required comply pro State was forth sufficient facts to establish probable 18, Chapter visions 1.06 and of Art. V.A.C. “(3) cause the property or items consti- doing so the fol expressly C.P.” Court tuting evidence to be searched or seized Supreme lowed the lead of the opin are located at or on particular person, California, 757, ion in Schmerber 384 U.S. place, thing be to searched.” Subsection (1966).5 1826, 16 86 S.Ct. L.Ed.2d 908 Smith (d) limits seizure through State, execution of a supra, held that was since “blood” 18.02, to “the specifically not listed in Article “a search describ- war ed property or rant not be items set issued to search for this forth in a search evidence," id., type of at 302. We find issued under (10) Subdivision the Legislature responding was not to ei Article 18.02 ... or property items enu- ther decision of the Court when it added merated in (1) (9) Subdivisions through or items” to “property Article 18.02.6 ...,” Article 18.02 and further forbids a second search warrant pursuant to subdivi- Before amended enactment (10) sion directed to person, “the same place 18.01(a) Senate Bill 156 Article defined a misleading 4. officially There is a kept by Legislative statement on this score Senate Bill 156 in Bell (Tex.Cr.App. Library perused 582 S.W.2d 800 and Reference original both 1979). Referring making to Escamilla’s it im bill Bill introduced Senator Meier possible finally to obtain a valid search warrant be and was the committee substitute that listed, enacted, cause blood was not “one the items” as well as other related materials. remarks, time, 18.02, principal “Since that Art. contribution made com supra, 156, (d) has been amended.” Senate Bill mittee was inclusion of its subsection and amending 12, finally May passed specified “may Article insistence that material 1977; May Compare Escamilla was handed down seized.” Oubre rehearing (Tex.Cr.App. 1976), and originating was denied November in cause personal 1977. County, Tarrant in which seizure of photographs letters and not mentioned in the approved “[C]ompulsory search the Court on 5. administration a blood test legitimately ground that “it within the plainly broadly the scope ... involves a conceived reach pur of the affidavit and warrant issued of a search and seizure under the Fourth opinion in suant Oubre was de reasonably thereto.” Amendment... gued It not could be ar livered November 1976—some two months ... that the administration the blood County before the senator from Tarrant intro test in this case was free of the constraints of Nothing duced Senate Bill 156. in Oubre nor testing proce the Fourth Amendment. Such taking the file on Bill 156 alludes to plainly Senate dures ‘persons,’ constitute searches of any seizing particularized piece depend blood or antecedently upon ‘per seizures of evidence. sons’ within the of that Amendment.” (Tex.Cr. See also Aliff v. 627 Analysis accompanying report A Bill App.1982) recognized in which a Court Panel Jurispru- the House Committee Criminal applies but did not decide whether law, Schmerber existing dence under then state notes that taking sample to a blood without warrant in constituting evidence of an offense are “OQtems order to test for warrant,” alcoholic content. permissible subjects of adding language opines in of sub- parties strongly dispute (c) (10) (d) paragraph Because the the bill what the sections mean, truly expanding designated “by terms we have examined the file on sections amends af- Amendment and ments of Fourth search warrant as “a written order ... ‘a neutral and commanding peace intervention of ter the [a officer] thing the same Johnson any property magistrate...’ detached Bill 156 States, ...and it still does. Senate U.S. S.Ct. United [68 “items,” the term and as we introduced Amend- The Fourth 92 L.Ed. 436]. nothing legislative have indicated in upon privacy un- ment allows intrusions light using sheds history of reason for circumstances, there is no der these having many meanings.7 word so different distinguish intrusions reason to viable Yet, statutory in matters of construction from intrusions secure ‘mere evidence’ generally presume every courts word fruits, instrumentalities, or contra- secure . purpose a statute is used for a Jessen 309-310, Id., at 1651. 87 S.Ct. band.” Associates, Bullock, Inc. began speak similar opinions Soon (Tex.Sup.1975). And we are satisfied of evidence.” terms “items” and “items of purpose that the has been found. See, State, 508 e.g., Chambers , The effect 18.- of amendments Articles Indeed, it 351-353 348 01 18.02 is to of and authorize issuance not items “blood is one of the was because search warrant and seize under may issue for which a search United “mere evidence” that Gouled v. drawn, 18.02,” as Escamilla Art.- then 298, States, 309, 261, 265, 255 41 U.S. S.Ct. at the Court soon supra, (1921) 65 L.Ed. 647 had obtain held “a supra, held in Smith through able execution of search warrants. issued to search may not be States, See also Abel v. United 362 U.S. id., evidence,” at 302. In hold type this of 683, 694-695, 234-235, 80 4 L.Ed.2d S.Ct. it is probable cause constitu upon States, (1960). 331 Harris United a sample to extract of tionally permissible 145, 154, 1098, 1103, 91 L.Ed. U.S. S.Ct. Supreme body, blood from a human (1947). Hayden, But Warden and such a seizure Court had discussed 18 L.Ed.2d 782 U.S. S.Ct. obtaining desired evi search in relation to (1967) rejecting the changed all that In Schmerber, supra, at 766-772. dence. perceived distinction sei earlier “between practically acquired that context “item” zure of items of evidential value and to become a word meaning, a technical instrumentalities, con fruits, seizure of art. of id., traband ...” at 87 S.Ct. at 1646. that, Supreme The concluded: thus to hold Court We are constrained specifically itemized though is not “blood” rejection if its enlarge “But does the area intrusions, an item of it is nonetheless in Article searches, permissible of seize which to search for fulfilling made nevertheless after issue in accordance require- cause and particularity Dictionary Third International Webster’s New the current laws relative issuance “an that “items” denotes search warrants.” at and found sum, history thing” legislative of house- is availa- as an article In such individual suggest any singled goods something ble to us fails to intent that blood out from a cat- hold — id., “property kind, things egory considered to be of items” like 712. either examples given by within the statutes. Web- court omitted other object apparel, art in an article of ster’s: an use, Though varied common in “item” has collection, library, as well as other a book in a Dictionary (Re- See Black’s Law connotations. object, meanings: an individual relevant 966-967; Edition) vised Fourth 22A Words and commodity. product piece .goods Phrases 655 and 1982 Pocket Part Cumulative sure, more, including many to be There are C.j.S. 113; 787; diction- standard unspecified.” finally “something Co., ary. Brugioni Maryland Casualty (Mo.1964) court resorted to I also find that applicable Chapter Lastly, lant’s blood. provisions seizing of prohibits the Eighteen.8 Texas Constitution item, blood, which is intangible such as judgment Appeals surface. body’s skin located beneath affirmed. Properly Pre- Was Not Why II. The Issue And There- The Trial Court served In JJ., DALLY, ROBERTS concur in Before the Properly fore Not Was result. Re- Appellate For Court of view, Properly In Turn Is Not And TEAGUE, Judge, dissenting. Re- Appellate Before Court For This I. This Cause Is Why Before This Court Purposes view Court, acting A judge pursuant 210(a)(2), 302(e), 303(b), Introductory Tex.Cr.R. Comment filed A. an order for review of the record on opinion Based of the Court Thereafter, Court, in this cause. acting I am naturally assumed, sure Appeals, pursuant En Banc 44.45(a), to Art. V.A. did, that for other members C.C.P., and Tex.Cr.R. entered an “Or- of forci- appellate purposes review the issue der Granting Petition,” Review Without a bly thing from a taking such as blood live important to decide “the question wheth- pre- had being’s properly human been er evidence relating find served the trial court. I now was obtained at trial introduced in vio- erroneous; my assumption was the decision provisions lation of the of Art. V.A.C. predicated of the was Presumably, C.P.” question the stated also Conse- imperfect trial record. implicated a review this Court of the have on its quently, this Court should not correctness of the decision of the Court of granted own a review of cause. motion Appeals. Gentry See B. The Proceedings Pre-Trial And 77 (Tex.Ct.App.Dallas 1981). After careful- Issuance Of Search Warrant ly reviewing appeal the record of and re- 18, 1979, in- the On June law, searching the I now find that committing dicted for the offense of bur- hastily entering acted too in its above glary intent of a habitation the order, and the cause should dismissed rape. Ap- commit the offenses theft and from the docket of the I Court. make this pellant pleaded charge. “Not the Guilty” to suggestion and recommendation because I prior A felony committing conviction for error, find that the if the any, taking the of a felony burglary offense vehicle appellant’s blood was not properly perfect- was also in the indictment for en- alleged Therefore, ed in the trial court. as the punishment purposes. hancement of issue was properly preserved in the trial appellant pleaded allegation “true” to that review, court for purposes, it was not prop- to a jury indictment. After a trial erly the before Court of I Appeals. also guilt, on the which trial commenced issue of find that if there taking was error in the August 1, on the jury found blood, the because of facts of guilty subsequently punish- assessed his case, such error was harmless error ment at life imprisonment. beyond all doubt. If the error was not error, harmless then I find July affida- On court conduct- trial vit for the search hearing pretrial appel- warrant was insufficient ed a motions state appel- cause to take the lant’s attorney previously trial had filed. Accordingly, “(11) persons” 8. we need to the not address alterna- list of Article 18.02 bear question posed “property” question tive at whether blood on the to the first answer opinion. within the of the statute. Nor does outset of this Legislature the fact in 1981 the added the search defendant,” the affidavit Because the search warrant issued in reflects, among things, until August this cause not issued other why a pre-trial it is understandable following. suppress motion to the search with Ms. personally I have talked 6.... affidavit for the search and the (an employee Benita Harwood [the pertaining return to the search warrant Laboratory]) Forensic County Dallas trial attorney was not filed by appellant’s fluid was detected told me that seminal to that prior date. states affidavit bed sheets. such [The from the were removed that bed sheets However, the record on does not complainant.] She residence of [Har- at any August reflect that time on me that she conducted further told either any suppress, wood] motion oral or writ- deter- tests on such fluid and additional ten, made, presented, was ever filed it was of the non-secretor mined that his trial either counsel. On type. 1, 1979, A.M., ap- August at 10:00 O’clock shortly parently prior to the commencement time, I do not present 7. At the dire parties of the voir examination the blood regarding any information jury panel, jury panel which presum- of the de- type or secretor group typing cause, ably had been for this empaneled obtain have been unable to fendant.

investigator with the Dallas District County from other source. such information Attorney’s prepared office affi- presented type grouping I believe that and a prepared davit for search warrant would type the defendant secretor presiding trial court de- that the probative evidence constitute acted, record, judge, who thereafter offense. foregoing fendant committed magistrate, the capacity both see words, testing such 2.09, V.A.C.C.P., “Judge presid- Art. he were of would show that defendant ing”. type, non-secretor states, alia, The search warrant inter probative evidence would constitute following: foregoing the the committed defendant [Emphasis offense. Added]. August, this the the day

On 1st presented attached ‘Affidavit’ was to this war- the search judge approved is, by Court. Such Affidavit this refer- follows: rant it as signed ence, incorporated for all purposes. herein Judge presiding! Kirbv Vance f on hearing A was conducted this date Texas, Magistrate, County, Dallas Defendant, Ray Gentry, with the Michael investigator that it issue. The ordered being present. and his pur- counsel thereafter, with shortly the assistance hearing was to pose of determine Harwood, the executed search probable whether existed for the cause some in the courtroom. location warrant. issuance this search At such the Affidavit intro- record concern- hearing appeal, attached I find that the for the duced into for this Court’s con- of the affidavit ing presentation the Added). (Emphasis sideration. and the almost the is judge by investigator, the trial this IT THE FINDING of Court that IS cupboard.” “Mother Hubbard’s as bare as facts, out the verified as set in the at- affidavit, tached cause establish the transcription My reading for the issuance of this warrant. proceed- trial past decisions, objection whether the way of proceedings, by or is in the record upon based either the Federal or Con State or, exception, formal or informal bill stitutions; both; whether chal he was evi- though not offered and admitted into lenging search and on seizure the basis dence, by parties has been treated that it was a warrantless and sei search evidence, though it been into had admitted zure; claiming whether he was that it oc State, see 565 59 Humphreys S.W.2d nonconsent, Thus, curred as a result of etc. State, (Tex.Cr.App.1978); Richardson v. 475 complying without regarding rule parte (Tex.Cr.App.1972); S.W.2d 932 Ex specificity in making objection, another Reagan, (Tex.Cr.App.1977), 549 204 S.W.2d reason why exists there should not be it part is not a of the official record review by E.g., of this cause this Court. appeal by cannot be considered State, White v. (Tex.Cr.App. S.W.2d 366 appel- of this if the appellate courts State 1976). concerning on lant raises a contention same State, appeal The record on Turner clearly unequiv- appeal. Compare ocally (Indictment reflects that (Tex.Cr.App.1946) neither the affidavit for S.W.2d includ- judgment, although to have these instruments accompanying record, expects

record on were hot if he them to be appeal, properly before ed in the Court); State, omit- by this Jones v. this Court.” 478 S.W.2d reviewed [Citations 938, fn. 1 (Tex.Cr.App.1972) (Statements ted]. exhibits, fact and contained in appellate warrant, an arrest see In reference to brief, and on accompanying thus the record State, (Tex.Cr. Dusek v. 467 S.W.2d 270 Court); appeal, properly not before this at “If desired App.1971) Surety v. State, Ins. Co. of Cal. 556 S.W.2d of his arrest and subse legality tack (Exhibits (Tex.Cr.App.1977) attached ..., search incumbent quent pa a brief these cannot be considered “as properly were him to see that the affidavits record”); of the pers part not official This not appellate record. he has Schoen, parte (Tex.Cr. Ex 460 S.W.2d 923 done; therefore,'the legality of his arrest App.1970) papers (Supporting pertaining to presented is not for subsequent search cause, docu an extradition attached to a State, 468 Haynes also review.” See appeal, properly ment the record of not they before this Court review because above, concerning my discussion during were not pro introduced the habeas was a failure why there ceeding); State, et al. v. 157 Tex. Morgan timely put and properly trial counsel to 94 (1952) (Failure Cr.R. into the official record the above documents judgment into State introduce evidence a prop appeal, timely and to State, nisi fatal judgment); to its Kessler v. trial, during if he objected to them erly (CÍerk (Tex.Cr.App.1974) appeal in his about complain desired exhibit, read from was not a State’s which documents, is rule of buttressed another evidence, Held, offered or admitted in this In law, ago by this Court. long announced date proved proof regarding fatal to State’s 761, 769-770 455 S.W.2d Mattel committed). an enhancement offense was Mattel, see also Ex (Tex.Cr. App.1970), parte point, the cases For cases on this see Presid (Tex.Cr.App.1970), 458 S.W.2d 1128(2). Key collated under Criminal Law stated ing Judge Onion of As to an for a affidavit following, long judge after he became return, and the Mullane see produc Court: “When the State has of this 924 (Tex.Cr.App.1972). sup and exhibited a search warrant ed There, complained appeal the defendant judge, the trial it will affidavit porting had to allow trial court refused regu were presumed they

him to into an arrest introduce were they shows examined proof lar and search warrant. This stated judge...” contention response to his contention: “The (Tex. Ortega 464 S.W.2d 876 ... is not the record. Our supported former Judge Douglas, a Cr.App.1971), examination of the record not reveal does Court, stated: “Once member into any such instruments were offered shows that a valid search State evidence. The record does not show search, the time of the in existence at the such instruments were even marked a de is then on going forward burden Appel- the court reporter. identification insuf prove that the affidavit is fendant to witness,' counsel'merely a lant’s asked the a of law and to see ficient as matter office, magistrate’s clerk from and the affidavit warrant the search If the in her instruments were records. appeal.” on in the record included was re- appellant felt that trial court (Tex. State, 468 S.W.2d to him to the in- In Walsh v. fusing permit introduce Court, in of this Judge Odom perfect Cr.App.1971), struments did not to attempt he follow stated the a bill style, his usual succinct offering record instruments'for into not introduced “The was exceptions. upon ing: is It incumbent evidence and there no is in the ma facie evidence of a lawful search evidence record which reflects that the warrant was seizure is established. See Townsend probable State, issued (Tex.Cr.App.1972); without cause or that it was S.W.2d warrant, State, (Tex.Cr. invalid on its face. being Ortega 464 S.W.2d 876 part case, a McAlpine State, the record in this cannot be App.1971); C.J.S., considered on (Tex.Cr.App.1970). review.” See also 79 Seizures, 98, pp. Sec. 917-918. Searches C. The Appeal Ground of Error Is On It fundamental law in this State that is also Not The Same As Raised objects “When a defendant to the court Trial Court admitting ground on the it There is yet another and further reason unlawfully was seized relies State why appellant contention the raised be warrant, on a search absence of fore the Court of Appeals, but has not waiver, will result unless reversible error personally Court, raised in this should not the record reflects that warrant was be reviewed Court. As reflected However, judge... exhibited to the trial decisions, this Court’s many past it is axio if defense counsel desires a review of the matic in this any ground State that of error is appeal, search warrant and affidavit on raised in his brief on him on necessary for to offer for the record must been first raised in the trial exception copies a bill of of the search war See, court. for example, Bouchillon v. Cannady affidavit.” rant State, 540 S.W.2d 319 (Tex.Cr.App.1976); State, Reece v. (Tex.Cr.App. If a criminal defendant on appeal claims 1975). previously shown, demonstrated, As that his which exist to an rights pursuant doubt, beyond established all no conten exclusionary rule of evidence were violated concerning tion the affidavit for the search during proceedings, the trial for example, warrant, warrant, the search return because there was a seizure of evidence was ever expressly raised in the trial court. pursuant to a search which evi Therefore, any complaint concerning these dence was thereafter admitted into evi documents, either directly or is indirectly, dence, it upon is incumbent him have the not before this Court for review. Valdez v. clearly on appeal record reflect his com State, 472 S.W.2d 754 (Tex.Cr.App.1971). plaint. Thus, in order for to have the appellant The burden in this overcome, among other things, pre present complete cause to as record on sumption of validity, it was incumbent pre-trial appeal, proceed and trial him do more merely than state the fol as ings, possible appellate order for the lowing, when the evidence obtained as adequately dispose courts to consider and result of the search warrant was offered present appeal; the issues he desired to into evidence: instance, challenge in this to the search Honor, “Your object this time I will Thus, warrant which issued in this cause. any evidence a result of introduced as counsel for have seen trial should that test being violation —as affidavit, the search illegal result of an search and seizure and pertaining properly the return thereto were I ask such evi- exclude into evidence either before or introduced dence.” But, during trial. he did Furthermore, legal respon he had the not. Summary D. sibility objection that his trial show a legally It therefore fundamental law in this sufficient those documents issued, objection. State that once search Bradley See Rogers supported by affidavit which recites 730 (Tex.Cr.App.1978); cause, Cir.1964), facts sufficient to cert. de- pfl- (5th find 330 F.2d 535 908

nied, 916, 265, of the and blood from body appellant 85 S.Ct. 13 L.Ed.2d 379 U.S. 4, (1964);. 186 Vol. Matthew-Bender’s Texas that appel- mere only suspicion states body, Guide, Criminal Practice Sec. 90.09[2][c]. of the of- blood constituted evidence lant’s official record of of cause of the habitation of the burglary of fense documents, or, does if not contain the above the intent commit complainant with does, argued that it the record can be the rape, appellant’s or or that blood theft reflects clearly totally that tend to that he committed would show timely properly per failed to show he with the offense of of habitation burglary error, any, fected his in the trial court. rape, theft either of intent to commit or III. Harmless Error is condition which necessary I find which event, In if there any properly per a search warrant must be shown before error, fected trial it was harmless error 18.- the statute. Art. may issue under See beyond a reasonable doubt. Without detail V.T.C.A., Penal 02(10), V.A.C.C.P. See also brutal, terrible, horrible, savage, Code, out The facts as set Sec. 30.02. abominable, nauseating, revolting, despica supra, see search affidavit ble, and heinous acts which were committed possibil- more than a mere nothing manifest person on the of the fe somehow ity that complainant, male if there ever error in An either the above conditions. satisfied blood, the taking appellant’s under predicated affidavit a search warrant cause, I of this find such error was facts hunch, suspicion mere inarticulate upon the at best error all doubt. beyond harmless officer is insufficient faith of the good 21-24, California, 18, v. Chapman 386 U.S. Ohio, Terry cause. probable constitute 824, 826-827, 17 (1967); 87 705 S.Ct. L.Ed.2d 889 88 20 L.Ed.2d 392 U.S. S.Ct. Smith, (Tex. Ex 843 parte (1968). Even after the execution of State, Cr.App.1974); Wilder S.W.2d Haney obtaining (Tex.Cr.App.1979); search warrant and (Tex.Cr.App.1979); 914-915 S.W.2d we still body, are appellant’s blood from (Tex. through Clemons only possibility, left with a mere Ferguson Cr.App.1980); gen- blood within a appellant’s inclusion Fergu blood-type non-se- classification eral son, Id., that pointed this Court out even cretors, blood was connect- illegally where blood has been obtained burglary ed habitation defendant, from the the admis compar- elementary It is complainant. sion be may into evidence the blood more represents nothing ison of blood types error a reasonable doubt. beyond harmless ap- generally probability than a statistical IV. The Affidavit For population. random plicable large-scale Search Warrant 604, 148 Henkel, Cal.App.3d Dodd A. The Fourth Amendment and Art. (Calif.Ct. First App., Dis. Cal.Rptr. 780 I, Section majority of this Court 1978). If the holding implicitly expressly find the affidavit for the also issue, that search seizing may of the warrant now when as to the houses, papers possessions, from all unrea- Federal The Fourth Amendment Con- searches, right provides and no “The seizures and stitution as follows: sonable houses, any person people persons, place, be or to secure their to search effects, against describing papers, thing, unreasonable without them shall issue seizures, violated, cause, be, probable searches and shall not nor near as without issue, anyone no shall but supported and Warrants As or affirmation." oath affirmation, cause, supported by concede, Oath or knowledgeable above words will particularly describing place to be vintage, but indeed are not of ancient searched, things persons to be and the persons powerful expressions those seized.” respective constitutions. wrote the I, Sec. 9 of Texas states: Art. Constitution persons, people in their “The shall be secure to blood is based reflect- could not issue affidavit ing nothing probabili- being. more than statistical from a human live ties, me down as a put strong dissenter to unlawful for a live human 3.It is not such action. being to possess blood.

V. THE LEGISLATURE Texas, Thus, until there today, at least Judge majority Clinton states in his opin- possible legal- blood way one could “We find the Legislature ion: was not ly be from a human who being obtained live responding [prior] to of custody of enforce- decision[s] was in the lawful law Court when it items’ to ‘property added officials, It ment and that was consent. Article 18.02.” He be correct. How- Legis- should be to apparent anyone, ever, and as shown clearly transcrip- silence, 18.02 lature’s when it Art. amended hearings of tions held on amend- au- expressly specifically and did 18.02, supra, ment to Art. before Senate from a live thorize the seizure of blood Jurisprudence Criminal Subcommittee and being, human can silence lead Subcommittee, the Criminal Matters as well only one conclusion: the amendment hearings as the held before the Criminal nothing expression more than a mere of Jurisprudence Committee of the House of concrete, Legislature intent that only Representatives, leaves me to conclude that tangible, eye visible to the naked items thing the last in the minds of the members vir- property lawfully could be seized of the committees was to permit law en- tue The Legislature’s of a search warrant. forcement officials to obtain a search war- expression lack on the of explicit subject rant a magistrate from of this State in into injection foreign object forcible forcibly order to remove from the body of a a live body of human order live human being his or her If any- blood. remove the inside a body from thing, transcriptions, which contain only thing as blood indicates me that passing short comment by a former assist- Legislature members of the had no desire ant attorney contrary, district implic- to allow search to be intention warrants itly reflect that at no time was it the inten- purpose. used for that committees, or, tion of the members I believe that the was meant amendment matter, for that with the excep- one noted to do more than a means to nothing provide tion, all of those persons who addressed the law, existing fill a in our gap previously committees, to passage seek of a law that to allow enforcement officials to law would authorize a court order for the draw- as, example, and seize such things of blood from live being. human records, records, bank type administrative Prior the Legislative amendment films, photographs, magazines, keys, movie 18.02, by Art. the addition of Sec. notes, buttons, cards, clothing, credit driv- Court, in cases, a series of see Escamilla v. books, licenses, er’s “trick” smoking para- State, 556 S.W.2d 796 (Tex.Cr.App.1977); phernalia, carpets, envelopes, fingerprints, Smith v. (Tex.Cr.App. maps, slips; provided that none policy 1977); and Ferguson these items could be construed to be (Tex.Cr.App.1978), handed down several personal writings by the defendant. rulings regarding the forced non-consensual taking blood from the body a live I unequivocally state that closing, being: human persons cannot believe that those 1. The taking of blood from live hu- Rights wrote the to the Federal Bills being is man a search and seizure within State Constitutions could envisioned I, of Art. Sec. 9 of Texas day majority of this when Honorable Constitution. sanction a Court would forced invasion being, a live as Because human well not one of the items listed stamp approval under Art. on authoriz- putting its being into one human an intrusion rights privacy, of all the most sacred the adminis- body, by

privacy of another’s object into that foreign

tration of a To- thing such a as blood. order to obtain Glass, Houston, appel- Gregory James what recent plain decision makes day’s lant. for- reported: We have news stories have which oc- quickly The gotten too Holocaust Holmes, Jr., Dist. El- Atty., Ray John B. many years Germany Nazi not too curred in Henderson, Jr., Speece vin and Keno M. be a will forever past, and which Houston, Dist. Robert Hut- Atty’s., Asst. West of East and blight on the countries tash, Austin, for the Atty., State’s State. Germany. free, limits of the This within

applicable provisions constitutional Constitution, per- to determine the

Texas and seizures scope

missible of searches of a live integrity before us. The kind RE- THE OPINION ON CONCURRING person’s human and an individual FOR THE PETITION OF FUSAL value of our right of is a cherished privacy WITH- REVIEW hold DISCRETIONARY society. This Court should forbids the issuance OPINION Texas Constitution OUT WRITTEN be- mere n body’s low the surface. ONION, Presiding Judge. must, stated rea- for all of the above I. petition for dis- majority The refuses

sons, majority’s dissent to the respectfully opinion. review without written cretionary opinion. opinion panel I write because published opinion is a Appeals

14th Court of petition of said and this court’s refusal approval of all interpreted could well be I, one, opinion. is written said written. with all that was agree cannot indictment in one charged Appellant aggravated counts separate with two February robbery. On plea and entered jury trial waived He the court. count before to each guilty Article required admonished as duly JAMES, Jr., Appellant, Bruce pun- court assessed V.A.C.C.P. imprisonment (8) years’ eight ishment count. each Texas, Appellee. STATE there was contends On No. 721-82. support his convictions no evidence of Texas. Criminal n that this is so argues He guilty pleas. formally the trial court did because Oct. the sworn into evidence receive admit or confessions judicial containing stipulation support was no evidence and thus there court notes the reporter’s hereby verified adopted Such facts any express to reveal therein ings yet findings. the Court’s affidavit, war- the search the reference to his rant, or the return why investigator As to wanted to mistaken, I I am body obtain “a blood from the trial Unless sample counsel. am, warrant, do not I following warrant, believe is the sole the search the search nor objection appellant’s that trial made counsel ever evi return was introduced into during the proceedings trial prior during “search trial. dence for” or of” “seizure blood from the object, Nor prior did the ever the appellant, objection which occurred dur- trial, during to the form or substance Harwood, testimony the forensic of either the affidavit for the search war serologist. Harwood had testified that she warrant, rant, the search or the return. had had occasion to take blood from the (Tex. See Gonzales v. appellant’s body, “Yesterday morning here Cr.App.1973). in the Courtroom.” The attor- prosecuting I, therefore, this believe that ney then asked Harwood whether she had establishing precedent by implicitly bad analyzed blood, responded and she that that and suffi- holding properly she had. The record then fol- reflects the preserved error, in the ciently any, lowing: that, proverbial trial I predict court. like MR. SHAVERS Your [Defense Counsel]: bad in penny, very this decision will Honor, at I object this time will to any principle near future come back in to cause evidence introduced as a result of day implicitly Court to rue the held test as being violation —as appellant properly that the preserved illegal result of an search and seizure and concerning validity trial issue court the I ask that the Court exclude such evi- of the search warrant issued dence. cause. THE COURT: Overruled above Although acknowledge MR. excep- SHAVERS: Please note our included in “transcript” documents are tion. portion of the record on neverthe- appeal, seen, easily As trial counsel for appellant, less, they are record part not the official when objection, he made his express never appeal. appeal Neither the record on ly mentioned anything about the af either nor the official record reflects fidavit for the search the search just got how the documents into record he, or the return. Nor did also They merely accompany the appeal. seen, easily specifically articulate rea his on appeal. part record A document sons making general objection appeal, by very record on its inclusion there illegal was an search and seizure. therein, but if such document has been For example, objection in his he did not timely properly offered and introduced specify, as required by many this Court’s during into evidence the course of trial

Case Details

Case Name: Gentry v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 27, 1982

Citation: 640 S.W.2d 899

Docket Number: 106-82

Court Abbreviation: Tex. Crim. App.