Mаnuel Vargas GUADIAN and Alfredo Hernandez, Appellants, v. The STATE of Texas, Appellee.
No. 40606.
Court of Criminal Appeals of Texas.
Oct. 18, 1967.
Rehearing Denied Nov. 29, 1967.
420 S.W.2d 949
Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, and Leon B. Douglas, State‘s Atty., Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The appeal is from an order revoking probation granted in a conviction for possession of a narcotic drug, with punishment assessed at 5 years.
Sentence was pronounced May 20, 1964, and execution thereof was suspended.
One of the conditions of probation was that appellant commit no offense against the laws of this or any other state.
The motion fоr revocation of such probation alleged that appellant violated said condition in that on or about November 16, 1966, he committed the offense of shoplifting.
At the heаring on said motion, at which appellant was represented by counsel, it was stipulated and appellant confessed and also testified that he committed the offense of shoplifting as alleged.
Evidence was offered in appellant‘s behalf in the hope of obtaining a reduction of the sentence and, it being shown that the violation occurred more than two years after probation was granted, the trial judge ordered that the term assessed as punishment be reduced to three and a half years and ordered that aрpellant be confined in the Texas Department of Corrections for not less than two nor more than three and a half years.
No abuse of discretion on the part of the trial judge is shown.
The judgment is affirmed.
Barton Boling, Dist. Atty., James H. Kreimeyer, Asst. Dist. Atty., El Paso, and Leon B. Douglas, State‘s Atty., Austin, for the State.
OPINION
BELCHER, Judge.
Upon a joint trial, the appellants waived a jury, and entered pleas of not guilty to an indictment charging them with the possession of marihuana. They were found guilty by the trial court and the punishment for each was assessed at two years.
The search of the automobile the аppellant Hernandez was driving and the appellant Guadian, who was riding in the front seat, and the seizure of twelve marihuana cigarettes found in the glove compartment
For reversal it is contended that the admission of the testimony showing the results of the search of the automobile and the appellant Guadian was error on the ground that the search was illegal. This ground for reversal was first urgеd on motion to suppress, which was heard and overruled, and then on the trial on the merits.
At the time of the reading into evidence that the chemist, if present, would testify that the cigarettes contained marihuana, appellant‘s counsel stated that, “I have no objection.” This was followed by the stipulation by appellant‘s counsel that it was “the same marihuanа that was obtained from the defendants.” In light of this evidence, the appellant is in no position to complain of the search. Love v. State, Tex.Cr.App., 373 S.W.2d 242; Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199.
However, in view of the contention that the search was illegal on the grounds that it was not reasonable and without probable cause, the facts and circumstances preceding and at the time of the search will be discussеd.
Deputy Sheriff O‘Donnell, who lived in Fabens, Texas, testified that about 2 a.m., July 7, 1966, he was told by an informer in person in Fabens that he had seen the appellant Hernandez and Porfirio Martinez earlier that night, which was July 6, in Caseta, Mexico, across the river from Fabens, with marihuana cigarettes in their possession, and he saw some of the marihuana, and they would be in Fabens and leаving there about 5 a.m.—early that morning for Van Horn, and showed him the car that would be used which was then parked in the yard at the residence of Hernandez in Fabens; that he had successfully used this informer in burglary and theft cases but in narcotic cases the information had not been sufficient; that he notified U. S. Customs agents Posio and Morgan in El Paso and they arrived in Fabens about 3 a.m., July 7, whеn he gave them the information he had about Hernandez and Martinez which had come from a mutual informer, that is, one they had used before, and he then showed them Hernandez’ car рarked at his residence, and left on another assignment; that Posio already knew Hernandez, and “was working on a case relating to these particular subjects (Hernandez and Mаrtinez).”
U. S. Customs agent Posio testified that Deputy Sheriff O‘Donnell telephoned him about 2 a.m., July 7, telling him that he had confidential information that Hernandez and Martinez had been seen with marihuana сigarettes in Mexico and would be leaving Fabens early in the morning; that he knew O‘Donnell‘s informer, had used him before and knew he was reliable; that he had had previous information connecting Hernandez and Guadian with narcotics; that he and Morgan kept Hernandez and his car under surveillance until he drove alone to a service station where another pеrson entered the car and they drove to a tavern, and upon parking, Posio and Morgan, in separate cars, parked on opposite sides of Hernandez’ car; thаt the man who had entered the car at the service station and riding in the front seat was the appellant, Manuel Vargas Guadian; that he told them they were Customs officers and wantеd to make a customs search of the car, which they did, finding a package containing twelve marihuana cigarettes in the glove compartment and later found one marihuana cigarette in Guadian‘s trousers pocket; and that after informing them again of their constitutional “warnings,” “they made statements that they were their cigarettes and had purchasеd them in Pecos“; that the tavern was located about one mile straight across and about three miles by road from the Mexico border; and that Fabens was within the district officially assigned to him as a Customs officer.
The testimony of Customs agent Morgan was substantially the same as that of Customs agent Posio.
The United States Customs officers have express authority under
The evidence is sufficient to authorize the conclusion that the search and seizure were reasonable, and that the same were lawful.
Further, it is concluded thаt the evidence is sufficient to show probable cause and authorize the search and seizure under the state law. Weeks v. State, Tex.Cr.App., 417 S.W.2d 716.
Error is also urged on the ground that the evidence is insufficient to suрport the conviction of the appellant Guadian in that the one marihuana cigarette taken from him was illegally obtained, and there was no evidence conneсting him with the marihuana found in the glove compartment.
The evidence discloses a search of the car in which the appellant Guadian had been riding at the tavern along with a сursory search of the appellants and a search at headquarters a short time later during which the one marihuana cigarette was found in Guadian‘s pocket. Further, Posio testified that after giving them their constitutional “warnings” the second time “they made statements that they were their cigarettes and had purchased them in Pecos.” To the admissions of this testimony thеre was no objection. No error is presented.
The failure of the trial court to make findings of fact and conclusions of law as the appellants requested was not errоr. Such procedure is not provided for in the
The judgment is affirmed.
OPINION ON APPELLANTS’ MOTION FOR REHEARING
MORRISON, Judge.
Appellants strenuously object to that portion of our original opinion in which the Court found that the evidence was admitted without objеction. A further review of the record reveals that appellants, though agreeing to certain stipulations, did so with the specific understanding that their objections that the evidenсe was the fruit of an illegal search were not waived.
This, however, does not affect our disposition of the case, because this was clearly a border search for mаrihuana predicated upon information that the two male occupants of the automobile in question would have marihuana in their possession, and that they were headed toward a point inland, away from the border.
The motion for rehearing is overruled.