*1 Instead, petitioner over has waited been might have questions which ing- judge and the death years and after subjects were) instances (and, in several post relief reporter to seek conviction court scrutiny, appeal or other- for later by the deprived he claiming wise, pre- fact transcribed were own, a through fault of his no g., present uses consid- served-e. application for of facts. In his statement ered below. corpus absolutely alle- he makes habeas circumstances, sweeping “In these deprived ap- gation that of a full he was Amendment the Fourteenth claim that by lack pellate review of a statement must word-by-word transcript requires a facts, him other means to unavailable rejected.” present fact, In any to claimed errors. date, at this specu- even late we are left to provided Texas to Griffin Long prior errors, late as any. to the nature of trial er- presenting methods different several cases, in criminal review appellate ror Petitioner only claims that he enti- statement agreed exception, an e., bills i. tled to a statement of facts at time of transcrip- reporter’s court of facts appeal, his get did one, he is now as referred testimony entitled an out of appeal, but since were methods These of facts. statement impossible that is absence court well as defendant affluent to the available reporter’s notes, his conviction must be set did The State defendant. the destitute aside and a granted. new trial pau- claiming to be require defendant We agree cannot the allega- under effect. to that an affidavit per to file made, tions the evidence and circumstances re- indigent affluent Both the presented petitioner is entitled to the the re- making dilatory in quired not to sought. relief cer- of facts which statement quest for a right tainly to fall seems within application for writ of habeas cor- appropriate classifications state make pus is denied. ap- lay for criminal conditions down differ- peals. not sanction did The State policy rational
entiations unrelated to a re- appellate full appeals deny
criminal pover- solely
view because of a defendant’s
ty- petitioner’s case bar MATTEI, Appellant, Jose A. appeal on the utilized retained counsel present one exception formal bill of Texas, Appellee. STATE consid the court error which
ground of effort showing is made No ered. No. agreed secure an statement was made to Appeals Court of Criminal of Texas. dilatory in not though he facts. Even May 6, 1970. day filing pauper’s oath until 89th days perfect within the 90 allowed Rehearing Denied June and, appeal, though the affidavit was shown to have ever been called entered, judge’s attention or an order petitioner ap never contended on peal rehearing unjustly had been that he
deprived there were
trial errors which could not be appellate court in absence of same. *2 Killeen, A. Piperi,
Ronald Arturo C. Gonzalez, Rio, appellant. Del Kacir, Stanley Atty., Dist. Dennis C. Hollé, Belton, Asst. Dist. Atty., D. Jim Vollers, Atty., Austin, State’s State.
OPINION WOODLEY, Presiding Judge. The offense possession is unlawful marihuana; punishment, 40 years. Trial was jury plea before on a guilty. Punishment was assessed court. sufficiency to sus- of the evidence challenged. The
tain the conviction is not reflects jury evidence admitted before the Shel- E. that Detective Lieutenant Homer ac- Jr., ton and Detective Cordus companied by police officers Investiga- City of Killeen and Criminal Ft. nearby personnel Division Hood, Texas, apartment 5 of searched Ran- Apartments East Gate West Killeen, cier, Appellant rented a before. few weeks grams less than (slightly arrested and 870 following pounds) two of marihuana bags was envelopes paper described found and seized: bedroom, 51 drawer From dresser “had envelopes which small manila dollars, indicating five on them markings dollars, things of dollars, twenty ten nature.” Jackson, Jr., While paper bed- Officer bag From brown engaged searching apartment another room, envelopes; manila small appellant’s apartment when the search closet, in the bedroom suitcase From commenced, shortly thereafter arrived pound envelopes, one manila small participated in the search. bag. paper and another brown bag, *3 During the voir dire examination Of- of the first E. was Officer Homer Shelton Jackson, ficers Shelton and Cordus the testify before for state witness the to suppress connection his to “motion occa- that he had jury. Having testified objection and to introduction of marihuana the go to sion December on evidence,” permitted which he was having named Apartments, East and Gate appellant intro- during hearing, file the mem- Officers and the Killeen Police affi- duced evidence to the effect that an Ft. Section, bers the Narcotic CID of by davit for was made Cor- search warrant him, accompanied was asked Hood who and Jackson, dus on December Jr. and answered: and un- warrant issued “returned search as day introduced served” the same was your purpose going was “Q. What Also Defendant’s Exhibit No. 1. Apartment East Gate No. 5 search warrant issued December Apartments on this date ? De- thereon, introduced as return search war- “A. We went there with a inventory fendant’s Exhibit No. searching purpose rant for the at- property of the seized and schedule apartment for narcot- Number Five De- introduced as tached the return was drugs.” ic fendant’s Exhibit No. counsel, point appellant’s At who on issued The return the search warrant suppress had prepared a motion to 8, 1968, showing December seizure objection search, requested voir dire appellant, the arrest marihuana and pres- examination of the witness out of seized, property and the of the inventory jury, granted. ence of the which was signed Jackson, by Cordus Jr. appel- The search warrant introduced dire examination voir sup- lant on motion to hearing at the having disclosed Shelton witness Officer V.A.C.C.P., press complied with Art. 18.13 apartment on appellant’s search of peace any being directed to the sheriff 10, 1968, pursuant search December that an County. Bell The fact officer of on warrant December issued than the affiant affiants officer other and not Detec made Officer Shelton con- Jr., to whom Jackson, tive Cordus in the search does ducted or assisted delivered, appellant search warrant was ob seized inadmissible. render the evidence apart jected that the search of State, Tex.Cr.App., 417 S.W.2d Vojel v. illegal in violation ment was search Amendment of the Constitution Fourth States; Art. I the United Sec. 1 is overruled. error No. Ground Ann.St., Constitution of Vernon’s of error is: ground The second of the Texas and Arts. 11.01 and 18.14 Procedure. Vernon’s Ann.Code of Criminal “The appel set forth error is This claim of Jackson, to Detective issued ground of error. lant’s brief his first a sworn com- Jr., was issued without plaint being first filed with the provides that (5) 18.13 C.C.P. Justice Art. Peace, same, issued who “di- place be suspected warrant to search therefore, illegally is- was, said warrant officer any peace the sheriff rected to void.” sued and county.” proper The search warrant dated December was returned day, unserved the same 1968, introduced as Defendant’s Exhibit part: words, testified in “Q. In other 2,No. recites on its face: from the information you you weren’t sure that it (the marihuana) was “Whereas, complaint writing, under there or not? A. I was sure oath, has been made before me Cor- there said, but kind of like I I wasn’t sure dus Jr., complaint whether or not there any- have been could hereto expressly attached and made body there; lights there wasn’t on or
part hereof, complaint having and said anything to get place.” facts my opin- information ion sufficient to establish cause At the ap- conclusion of pellant’s issuance this warrant motion to suppress the court * * sup- ruled: defendant’s motion *4 press Bring jury, is denied. Mr. Also, above, as intro- Sheriff.” duced evidence Jackson, that Cordus Jr. Appellant’s made affidavit for a forcefully search warrant able counsel 5, on December in argued sup- 1968. of motion to press the affidavit made Cordus Ground of error No. 3 is: Court 5, 1968, Jackson, on December could Jr. Appellant’s erred in overruling Motion to upon not relied because search war- Suppress the of introduction the marihuana upon rant was and issued such affidavit evidence,” 4No. is: “The Court day. returned His unexecuted the same Appellant’s erred in overruling objection to principal of argument that the affidavit introduction of the evi- marihuana Jackson, meet the re- Cordus not does Jr. dence.” quirements Aguilar of 378 U.S. 1509, 723, 108, nor of S.Ct. Following the voir dire examination of S., Spinelli v. U. Officer Shelton there was a conference 584, 21 L.Ed.2d counsel, held at the bench between jury: court announced to the for The affidavit search warrant “* ** part is not a December there is a certain witness It introduced Appeal. Record on was not connection with this motion that is not motion separate at the on the He up here. at Fort some- Hood or during suppress any the trial. Killeen, at time where and it has necessi- around forty-five tated recess for un- minutes in- Appellant requested that the clerk they til can get him here because we in the record and ob- clude proceed can’t with the we motion until Appeal jected to the on because Record do, consequently so we will at recess this not contain such affidavit. He did ** *” for forty-five time minutes. Excep- presented to court his Bill recess, Following the Cordus complaining the District tion No. Jr. was as called a witness on defense Record on include in the refusal to Clerk’s voir dire and he jury absence affidavit, copy of “a which Appeal the true original “an identified of a document” attached,” excepted to the action signed which he as on December incorporating the District not Clerk an affidavit for the issuance of a warrant and original a search prepared warrant which Exception asked that the Bill of filed which the the Peace issued a part the record. Justice search warrant on December excep- which The day. judge was returned the same refused the bill tion, Bill why stating: closely was examined as to “The Defendant’s Jackson 5, Exception not recite on Number One does issued
7(¾> which to establish May the date the issuance of the that on warrant. States, affi- See jury, Castle case tried before v. United 5th was Cir. 657; not intro- warrant was 287 F.2d davit a search United States v. Burkhart, in the hear- or offered into evidence 6th Cir. 347 F.2d duced Sup- Motion to Since the ing on Defendant’s issuance of a warrant ef- was after, fectively before, established, or dur- press, burden of es- case, affi- tablishing illegal that the search trial of this is, Rogers into evidence davit introduced movant-defendant. States,
therefore, part 5th properly made F.2d Cir. Bat- case; States, ten v. Appeal Record in this Irwin United 5th Cir. F.2d Kay 441 S.W.2d Chin ([Tex.Cr.App.] 9th United hereby Defendant,
203). I
refuse such bill.”
Cir.
doubt, against he still ruled the motion agencies law enforcement bother suppress. error. We see no reversible with the formality of a warrant. Fur thermore, proba comprising evidence situa- many “As true so ble is particularly cause within the tions, persuasion burdens and of knowledge arresting control producing for the evidence in motions agencies. suppression badly evidence have persuasion confused. burden “In the case us the before defendant placed upon properly permanently had the persuasion. burden of He was party. moving the shoulders of prejudiced by judge’s the district claims the a criminal defendant When treatment to contrary. The burden exclusionary right protection under producing is never crucial evidence, prove task to rule of it is his unless certain facts in a necessary case States, his case. Nardone v. United are not aired. Here all of the salient 266, L.Ed. S.Ct. 84 60 facts were aired. Few were in dis- States, 5 307; Cir. Joseph v. United pute. defendant, therefore, was not United F.2d Wilson v. prejudiced by the order in which the evi- Unit- F.2d Cir. presented. dence was And district Walker, supra Cir. ed States [2 judge allowed counsel defendant’s to ex- Okawa, 564]; United F.2d States amine all of the witnesses as hostile. D.C.Haw.1961, In the F.R.D. There is no prejudicial error illegal of coerced confessions and areas record.” rein- rule is seizures this searches and prop- presumption of forced the usual Appellant failed to meet the burden of Criminal police er conduct. 1 Wharton’s proving that the marihuana was obtained (1955); 22A Evidence 238 the result an unlawful search. The C.J.S.Crimi- p. 589(1), nal Law overruling § trial court did not err in suppress. motion to moving party also bear *6 “The must es If the judgment The producing evidence. affirmed. burden light brought to sential true, how It is must fail.
the motion ONION, Judge (dissenting). illegal ever, arrest asserting an disposition agree majority’s I with the satisfy this burden defendant must the agree cannot of error 1 but ground I # showing was made the arrest opinion. the remainder the pur with arrest a warrant. While without facie evi prima a suant to warrant appel- the ground his second of error In cause, v. Kay probable Chin dence of complains no lant that there was 317, 1962, States, 311 F.2d 9 Cir. United complaint the issuance or filed for States, 5 Cir. 321; Batten v. United 1968, 8, search warrant on December 75, 77, prosecutor 1951, 188 F.2d on De- utilized for the search which was forced should be to come forward 10, cember 1968. ab evidence of cause disposes of such summarily v. United majority of a warrant. Plazola sence 56, 58; 1961, quoting from the States, alleged by partially F.2d 9 Cir. 291 error 1951, in- 95 U. 8 and warrant dated December Wrightson United search 390, appellant1 556. Without S.App.D.C. F.2d troduced before the court 8, COUNTY, SAID 1. search warrant December OF BELL CER 1968, entirety STATE, reads in its as follows: GREETING: writing, “Whereas, complaint THE under “THE STATE OF TEXAS TO oath, me Cordus OR PEACE OFFI- has been made before SHERIFF ANT record, particu- and ignores the rest turned “unserved” had been utilized as 10, larly testimony the basis of the search on December Officer 1968, the search here involved would then Jr. Article clearly have violation of The record reflects that an affidavit 18.15, supra. would The search warrant presented warrant to the search Jus- have officio. Holman v. been functus tice of the Peace December State, 459, 14 111 Tex.Cr.R. S.W.2d issued warrant based thereon was State, 113 Swanson v. Tex.Cr.R. day. date on the same on the same Also State, S.W.2d Glenniwinkel magistrate to the warrant was returned Cf. Fletch Tex.Cr.R. 514. S.W.2d unexecuted and was “unserved” marked er 171 Tex.Cr.R. 344 S.W.2d signed by the officer-affiant Jackson. token, if the search By the same At the trial the testified officer-affiant 8, 1968, was issued on December warrant after sur- returned the warrant unexecuted complaint at or based premises. veillance On December all, illegal. Fourth search would be appeared be- same officer-affiant Amendments, United Fourteenth requested an- magistrate fore I, Constitution; Tex Article Sec. States He admit- other search warrant be issued. 38.23, Constitution; Articles 18.01 and complaint ted that no new affidavit V.A.C.C.P. then the issuance of a search warrant was States, 287 Sgro U.S. magistrate, that he had Supreme 77 L.Ed. acquired information. additional Court wrote: requested the Whether the officer-affiant magistrate to reconsider the affidavit is a proceeding complaint magistrate on filed before such adop- Its abuse led drastic one. by the record. December 5 is not reflected Amendment, this, Fourth legislation regulating together with Nevertheless, magistrate an- issued liberally construed in process, should other search warrant dated favor the individual. pursuant and a search executed thereto on December is es- “The issue of second V.A.C.C.P., requires must proceeding sentially new search warrant be three within executed that it adequate support. The fact have issued, days
whole
after
has
exclusive
gives the commis-
is a second warrant
day
day
of issuance and
of execu-
dispense with
privilege
sioner
tion.
These cannot
*7
statutory conditions.
describing
escaped by
the action
If the search warrant issued on Decem
one,
old
is the
reissue.
If the warrant
re
ber
had been retained and not
concealing
complaint
said nar-
Jr.,
of
A.
accused
is hereto
Mattel
not,
due
expressly
part
and
return
Herein fail
cotics.
made a
here-
attached and
place
complaint
time
having
make
to me at the
and
of,
hereof
facts
and said
my opinion
above named.
sufficient
information
and
my signature
this
8th
probable
“Witness
cause for
issu-
establish
to
day December,
warrant;
of
You
are therefore
ance
place
M. Turland
A.
forthwith search
to
/s/
commanded
and described where
named
therein
Peace
Justice
alleged
drug
concealed
narcotic
Precinct No.
you
you
are
for which
County,
if
find
and
Bell
Texas”
you
will seize
to search
directed
that without
warrant
reflects
Such
Killeen,
bring
before me at
said
description
premises
and
address
Instanter, 19_;
county
the_day
executing the
the officers
some affidavit
bring
you
before
will also arrest
known what
not have
would
warrant
place they
time,
place
to search.
me,
were authorized
said
Jose
at said
revived,
sought
proceeding
to be
is a
prior
making
to the
of the affidavit.
nullity,
warrant,
and if it is a
new
Hall v.
171 Tex.Cr.R.
347 S.W.
accordingly.
commissioner must act
The
2d 262. For an affidavit which has served
requires
statute in terms
him before issu-
as the basis for issuance of one search
ing the
proof
proba-
warrant
take
warrant to be
again
again
utilized
ble
cause. This he
examin-
warrants,
must do
the issuance of future search
ing
complainant
on oath the
and his wit-
even if
subsequent
such
warrants have
requiring
ness and
their
affidavits
been obtained within
pre-
the time limits
depositions.
proof supplied
18.15,
The
must
scribed
supra,
for the exe-
appropriate
have
relation to the applica-
warrants,
cution of the
subsequent
first or
tion for
speak
the new warrant and must
there must
abe
consideration of whether
as of the time of the issue of that
such
probable
war-
affidavit states
cause based
rant. The commissioner has
authori-
on an
act or event occurring within a rea-
ty
rely
on affidavits
sole
sonable
which have
time of the execution
affi-
relation
time and have
davit which
different
will
issuance
brought
been
supple-
down
date
successive search warrants and whether
they
spirit
mented so that
can be deemed to
the very
requirements
of Arti-
grounds existing
disclose
supra,
when the new cle
have
complied
been
with.
is issued. The new warrant
The issuance of the second search war-
must rest
proper finding
being essentially
rant
proceeding
a new
did
statement
prob-
the commissioner that
adequate support
have the
required by
able cause then exists. That determina-
Reversal,
alone,
law.
for this reason
tion,
time,
as of that
cannot be left to
necessary.
thus
conjecture.
pur-
mere inference or
pose of the
if
statute would be thwarted
There is more.
In his third and fourth
simple expedient
redating,
grounds
of error
contends the af-
more,
without
the time
execution
for the
fidavit,
any, upon
which the search war-
of a warrant
be extended.”
could
rant was based is insufficient
show the
prob-
Assuming that the affidavit stated
requisite probable cause under the decision
cause,
able
after obtain-
the officer-affiant
of Aguilar
U.S.
S.Ct.
after further
warrant and
explicated
Spinelli
investigation returned the search warrant
magistrate
to the
“unserved.” On Decem- 584,
769
it
(Summer 1967).
trial
There
398
At the commencement
—
May
announced
was written:
his counsel
to take advan-
he had not been able
the court
requires
“The Fourth Amendment
court,
by the
tage
pre-trial hearings set
officers
fruits
a search conducted
to certain evi-
object
but that he would
rea-
to be
the search was
barred unless
by the
dence if it was introduced
State.
sonable.
objected to
orally
thereafter
Shortly
concerning
testimony sought to be elicited
predicate consisting
proof suffi-
“A
Ap-
and the
retired.
jury
the search
prima
cient
facie that the search
to show
parently
a
at this
he filed
“Motion to
be
before fruits
must
laid
reasonable
Objection
Suppress and
to Introduction of
be
search will
admissible.
2
in Evidence.”
Marihuana
is
laying
predicate
“The
burden
burden
prosecution.
on the
Where that
timely objection is
it is
such
made
When
interposes
is not met and defendant
facts,
State,
the
the
under
incumbent
revers-
proper objection
judge
will
a
to the court
valid
produce
exhibit
jury
tes-
ibly err if he admits before
If
fails to do so
search warrant.
State
timony showing
fruits
the search.
appellant’s objection
more
and without
permitting
is
overruled
discharge that
will
prosecution
admitted,
its
search and
fruits
revers
if,
by the
hearing held
burden
State,
ible error will
v.
Tex.
result. Vines
jury,
presence
judge
out of
State,
868;
Cr.App.,
Nunez v.
397 S.W.2d
proof
to show
there is adduced
sufficient
93;
168 Tex.Cr.R.
Brown
329 S.W.2d
pursuant
search was conducted
State,
v.
166 Tex.Cr.R.
313 S.W.2d
face,
on its
a
valid
297;
State,
Henderson v.
108 Tex.Cr.R.
# n £
»
300;
State,
1
Blackburn v.
145
S.W.2d
384, 168
662. See also
Tex.Cr.R.
S.W.2d
State, 146
Tex.Cr.R.
v.
James
State,
(Tex.Civ.
Chilla v.
434
948
S.W.2d
the State
it was held that
175 S.W.2d
Crim.Law,
App.);
Tex.Digest,
11
Sec.
predicate
the admission
proper
laid a
Tex.Jur.2d,
394.5(1); 51
Searches and Sei
proof
the search
of the fruits of
when
zures,
42, p.
Sec.
729.
reflected
affidavit and warrant
though
ap-
judge
examined
This burden on
is
the State
well ex-
instru-
such
pellate
did
contain
record
plained
Jones, “Translating
Recent Su-
produced
the State has
ments. When
preme Court Decisions Into Courtroom
support-
warrant and
exhibited the search
Baylor
Reality,”
Review,
p.
Law
No.
the trial
it will
judge,
affidavit to
suppress
found,
to the 1965
Prior
Code of Criminal Pro
motion
statutory
provision
Bosley
cedure there was
State, Tex.Cr.App.,
414 S.W.2d
suppress
for a motion to
evidence and
between such statute
the difference
denial of such motion was not error.
Crim
and Rule 41 of the Federal Rules of
State,
Dominguez
discussed,
161 Tex.Cr.R.
held
inal Procedure was
State,
suppress
275 S.W.2d
Johnson v.
that a
motion to
Texas
during
right
object
prerequisite
114. The
Tex.Cr.R.
S.W.2d
de
required
objections
statutory
fendant was
to make
motion to
While
trial.
only
pre-trial
suppress
appears
to the evidence at the trial on the merits
to be
procedural
requirements
objection
during
under
laid
motion whether
made
State, Tex.Cr.App.,
“objection”
down in Rosales v.
“motion
trial
is termed
State,
both,
suppress,”
appears
399 S.W.2d
Ramos
Tex.
im
to be
Cr.App.,
628, 629;
supra,
Nothing
395 S.W.2d
and Prit
material.
Article
change
chett v.
Tex.Cr.R.
the burden
authorizes
28.01, V.A.C.C.P.,
objection
proof
persuasion
S.W.2d
when
1965, dealing
pre-trial
recog
hearings,
long
during
from
made
only
statute
wherein
mention of
nized
this state.
and established
*9
States, 393
appeal
they
regular
Spinelli
presumed on
that
were
proof
they
by the
89 S.Ct.
L.Ed.2d
shows
were examined
U.S.
permitted
objection was overruled.
judge,
of the search
His
evidence
appear
do
in the
and such instruments
not
brief,
pointing
in
its
while
out
State
appellate
appellate
record. To secure an
introduced,
the affidavit was never
review,
the defense to
is incumbent
provisions
“its
recited to
states that
in
that such instruments are contained
see
by
the defend-
the court
the counsel for
appropriate
part
the record made
“quoted
ant” and that
the affidavit was
exception.
bill of
*
**
page
the court.” Even
Normally,
that the record
to insure
will numbers of the record where such action
support-
clearly
that the
show
by the
occurred are called to our attention
produced and ex-
affidavit have been
State.
judge,
hibited to the trial
the State will
Upon discovering that the
marked for identifi-
have such instruments
question
separate
as a
instrument was
be-
into the record
cation and introduced
record, appellant’s
ob-
part
counsel
instruments should
court. Such
fore
not,
jected
approval
of the record for the
however,
before the
be introduced
It
clerk
include the
failure of .the
same.
result in revers-
jury.
might
action
Such
appear
objection
does not
such
Tex.Jur.2d,
ible
Searches
error. See 51
hearing on
appellant
accorded a
was
Seizures,
42, p.
As earlier
Sec.
required by Arti-
same
court
noted, though,
required
State is not
40.09,
Further, ap-
cle
Sec. V.A.C.C.P.
such instruments.
introduce
sought
a formal bill
pellant
to utilize
objection
bar,
In the
at
when the
case
.
had been
exception to reflect the affidavit
removed,
jury
interposed the
was
judge.
to the trial
introduced or exhibited
waiting
lay
for the
without
State
To
Sec. V.A.C.C.P.
See
proper predicate
took one of
exception appellant
bill
attached
such
called
the witnesses on voir dire and then
copy
ques-
photostatic
il-
in an effort to
witnesses
show
reflecting
original signature of
hearing
legality of the search. At such
acting
magistrate
of the Peace
as a
Justice
complaint
question
taking the oath thereto and the exact time
iden-
handed to two officer-witnesses who
at
the search
noted on the affidavit which
presence
trial judge
tified it in the
issued.
warrant based thereon had been
as the affidavit filed
them on December
nota-
affidavit reflects the written
Such
of the search warrant
tion, “Reissue 12-8-68.”
day.
war-
issued that
Such search
judge
The trial
refused
bill of ex-
and it con-
such
rant was admitted into evidence
ques-
ception
that the affidavit
phrase
complaint
stating
is here-
tained the
“which
sepa-
tion had not been introduced at the
expressly
part
made a
attached
during the
rate
or at
com-
hereof.” Whether the affidavit or
He did
assert that the same
plaint
part of
at
trial.
was a
the search warrant
him,
him read to
not been exhibited to
the time of the warrant’s admission into
pho-
the State makes no claim
is not
record.
reflected
copy of the affidavit attached
Subsequently, the
tostatic
bill of
part
and made a
ex-
introduced
formal
ception
question.
is not the affidavit
appellant into evidence before the court.
later,
judge
the formal bill of
the The
found
Still
counsel read to
following
exception “to be incorrect
trial court from the affidavit and then
never
particulars”
the affidavit had
argued
length
the same did not
—that
anything to
requirements Aguilar
to leave
meet the
introduced. Not
chance, appellant
part
the essen-
set out
*10
Department of
He
Texas
Corrections.
in his
question
in
part
tial
post
then be able
file a
conviction
will
in the trial court.
appellate brief filed
convicting
corpus
writ of
habeas
State, Tex.Cr.App.,
S.
Doby
v.
V.A.C.C.P.,
court.
Article
See
State,
by the
the instru-
cited
W.2d
Young, Tex.Cr.
parte
amended
Ex
only to
question
in
attached
ments
al
App.,
properly
If he
S.W.2d 824.
rehearing filed in this Court
motion
leges
an ille
his conviction resulted from
In Lee
appear
did not
the record.
search,
gal
he will be returned
bench
State,
v.
167 Tex.Cr.R.
322 S.W.2d warrant
at the ex
convicting
court
noted Lee’s counsel had not
the Court
pense
taxpayers.
If he
then indi
is
perfected
exception
his bill of
transmit-
counsel,
gent
employ
unable to
ques-
ting to
instruments in
this Court the
county
same will be furnished him at
ex
State, Tex.Cr.App.,
tion, and in
Irwin
pense.
If at such
he introduces
submission,
it
original
S.W.2d
on
of the search
war
only
was noted that
instruments were
defective,
rant and
it
then the
shows
suppress.
re-
attached to a motion to
On
record will
be transcribed
for
have to
hearing in Irwin the
con-
instruments were
judge’s
warded to this
the trial
Court with
sidered,
supplemental transcript having
findings and conclusions. If the affidavit
been filed.
to be
forth
shown
the same as now set
any question
there was
as to the af
If
exception,
his formal bill of
then the
part
made a
fidavit
the formal bill of ex
submission,
be
oral
matter will
set for
ar
ception being
question,
the affidavit in
we
permitted,
guments
be
and then this
will
could,
light
question
the constitutional
opinion,
will have to write another
Court
presented, remand this cause to the trial
today
setting
aside the conviction which
court
development
for a further
nothing
This would be
more
affirmed.
if
proper
facts
the same is
for a
necessary
judicial
spinning
than
we can
wheel
disposition
Henry
this
cause. See
ill-afford.
Mississippi,
564, 13
Further, there is a
constitutional
federal
State,
Hullum
Tex.Cr.
involved,
question
if
here
this matter
App.,
merely brought properly contends it is not Therefore, considering that the affidavit forward in the record. us, I question in the record before 44.23, V.A.C.C.P., provides in be reviewed. think it should part: reads as follows: The affidavit “ * * * and no affirmance reversal X “THE OF TEXAS STATE of a case shall be determined on mere X BELL “COUNTY OF technicalities or on technical errors preparation filing undersigned of the record authori- me the “Before appeal.” appeared day personally ty, on this who, Jr., after rely upon To contention State’s says: deposes and oath duly sworn particular affirmance under the circum- to believe good reason I have That fol- bring stance would about about that on or believe and do lowing situation. 1968, in the December, day of 5th. A. county and state aforesaid After the issuance the mandate Jose possess there did then and Mattei placed case the in 'the will drug, to-wit, narcotic Marihuana and It is clear from reading the affidavit dangerous drugs. And that I have there is cause it is based *11 good reason to believe and believe hearsay any do by independent unaided drug corroboration, that said narcotic is now con- any surveillance or direct cealed by personal A. Mattei in the said knowledge or observation of the Jose county and state at 925 West Rancier affiant. Ave., Apt. Killeen, Texas which #5 Therefore, we must determine whether premises said occupied are and under question meets the two the control of A. Mattei. Jose pronged Aguilar. test of my “That belief of the foregoing Aguilar the Court wrote: is facts based information re- reliable, ceived from credible and “Although an may be based on trustworthy County, citizens Bell hearsay information and need reflect Texas, which information as fol- personal the direct observations lows, to-wit: That I have information affiant, States, v. United 362 U. Jones source, from reliable that source 725, 4 S. 80 S.Ct. being Army the United States Crimi- 233, magistrate A.L.R.2d in- must be Investigation Hood, pf nal Division Ft. formed some the underlying cir- danger- that marihuana cumstances from which the informant and/or drugs possessed, ous are stored that concluded the narcotics where by person concealed the above named they were, he claimed and some of the at the above This informa- address. underlying circumstances from which tion I believe to be true and correct. informant, officer concluded that sources the that same information paragraph son to mation mentioned above described other forthwith secreted search sources of information. “That “Wherefore, I “That because undersigned given peace believe the above issued in accordance the above said correct, has undersigned officers above illicit given ask the source does undersigned described previous and because that property information has given believe information to this has, person. a warrant and other foregoing occasions just place be that the and to infor- rea- but instead ed drawn not magistrate,’ or, formant.” whose States, supra, Otherwise, ‘the inferences from the facts Ct. Rugendorf 'credible’ or his information ‘reliable.’ ferreting out [1503] the often as in this [367] 84 S.Ct. identity lead to the at at supra, 357 U.S. [1245] v. United ‘by as the Constitution crime,’ case, by competitive enterprise need not be a neutral and detached police 92 L.Ed. U.S. at 11 L.Ed.2d Johnson Giordenello v. Unit- complaint’ an unidentified in- States, [10] officer ‘engaged disclosed, [480] [436] at 2 L.Ed.2d requires, will at 68 S. see provided. the law in such cases In 53 California Law Review the Su- preme Aguilar Court’s rule where suffi- Jr. /s/ cient corroboration is absent was discussed. before me and subscribed “Sworn ‘underlying There it was said: cir- “[T]he Dec., day this the 5 cumstances’ of both the informer’s conclu- guilt sion and the officer’s conclusion A. M. Turland_ /s/ put the informer is reliable must be THE PEACE OF JUSTICE Place_ reviewing magistrate.” forth before the Precinct No. 4 (at page 833) (emphasis supplied) County, Bell Texas.” Aguilar supported the ment combined Aguilar synthesis test must be adequate “underlying he have an circumstances.” requirement that emphasizing allegations, basis for Therefore, I were to conclude ‘underlying circumstances’ need for could, in question if it (at 844) page element.” of each cause, probable be used for the issu- (emphasis supplied) subsequent ance second or involved, agree here cannot reading the affidavit reflects I A “underlying states sufficient cause. set it fails to forth necessary to enable *12 circumstances” stated, vig- For the reasons I dissent in- independently judge the magistrate to orously Ias know how. that the narcotics formant’s conclusion nar- they said the drugs he or where MORRISON, in- J., joins in this dissent The affidavit drugs cotics and were. sofar as the third grounds and fourth infor- merely that affiant received states error concerned. are Army “the United States mation from Division, Hood, Investigation Ft. Criminal dangerous
Texas; that marihuana and/or
drugs possessed, stored and concealed are above person named at the above magistrate told
address.” The received or its
how the source affiant’s infor- alleged is it that the
information nor personally
mant observed the drugs or possession of such narcotics Redell ROGERS Allas Brown, Appellant, question and apartment had been the informant had observed the same. If The STATE Texas, Appellee. indirectly the information he or came No. 42884. explain why his relia- did not sources were ble. Jaben Appeals Court of Criminal of Texas. Spinelli 14 L.Ed.2d S.Ct. May 20, 1970. States, supra. state- United There is no setting ment forth Rehearing July 8, Denied manner information way magistrate had no gathered. The any- relying
knowing whether was
thing ru- “more substantial than casual circulating
mor underworld or merely based on an individual’s
accusation
general reputation.” Spinelli United
States, supra. then, affidavit, short falls Aguilar set it does forth since
standards prong of the test set
not meet first sufficiency
forth in that decision. The printed is not saved portion
form which asserts given
“that the above has been information undersigned peace offi-
cers and other sources of informa- ele-
tion.” This is so or each because both