Robert O‘QUINN, Appellant, v. The STATE of Texas, Appellee.
No. 42393.
Court of Criminal Appeals of Texas.
Dec. 16, 1970.
Rehearing Denied Feb. 17, 1971.
462 S.W.2d 583
Carol S. Vance, Dist. Atty., James C. Brough and E. B. McDonough, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State‘s Atty., of Austin, for the State.
OPINION
WOODLEY, Presiding Judge.
The offense is possession of heroin; the punishment, enhanced by two prior convictions for felonies less than capital, life.
Appellant‘s first ground of error is that evidence obtained as result of an illegal search and seizure was admitted in evidence against him at the trial. Appellant specifically contends that the affidavit filed in support of the search warrant failed to state probable cause for the issuance of the same in light of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).
The affidavit contained in the record before this court reads as follows:
“STATE OF TEXAS
“COUNTY OF HARRIS
“Before me, the undersigned authority, on this day personally appeared the undersigned affiants, who being by me severally sworn, upon their oaths state, that: A certain building, house and place, occupied and used as a private residence, located in Harris County, Texas, described as a two story frame building covered with light green asbestos siding being the upstairs apartment at 438 1/2 West 21st Street, in the City of Houston, County of Harris and the State of Texas and all out buildings and motor vehicles appurtenant to the above described premises, and being the building, house or place of Robert Lee O‘Quinn, a white male and other person or persons unknown to the affiants by name, identity or description * * * is a placе where we each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building, house and place has in his possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 25 day of October, A.D. 1967, (SEE ATTACHED AFFIDAVIT) * * *.
‘On October 23, 1967, affiants rеceived information from a credible and reliable person that Robert Lee O‘Quinn (WM) was living at 438 1/2 West 21st street which is the upstairs apartment in Houston, Harris County, Texas and that Robert Lee O‘Quinn had heroin in his possession for sale and use. Although I do not wish this person who gave me this information concerning Robert Lee O‘Quinn, She has in the past, on several occasions given me information concerning people possessing Narcotics and on eаch occasion her information has proven to be true and correct. Affiants knowing Robert Lee O‘Quinn to be a user of narcotics, set up a surveillance on the 438 1/2 West 21st street address on October 23, 1967, between the hours of 2:20 PM and 4:30 PM and observed in this length of time two known users of narcotics enter the house at 438 1/2 West
21st street in the apartment upstairs and leave in about five minutes. “Affiants again resumed their surveillance at 438 1/2 West 21st street on October 24, 1967, between the hours of 6:35 PM and 9:10 PM and at approximately 7:05 PM, affiants observed a white male, whom officers know to be a user of narcotics, enter the house at 438 1/2 West 21st street in the upstairs apartment and then leave at approximately 7:12 PM. At approximately 7:50 PM, affiants observed a white female enter the unstairs apartment at 438 1/2 West 21st street and remain there for approximately 5 minutes and leave. This white female is also a known user of narcotics.
“Affiants resumed their surveillance at 438 1/2 West 21st street on October 25, 1967, between the hours of 5:30 PM and 7:15 PM and at approximately 6:10 PM officers observed a white male, whom officers know to be a user of narcotics, enter the upstairs apartment at 438 1/2 West 21st street and leave approximately seven minutes later.
J. E. Liles, affiant.
T. A. Bell, affiant.
“Subscribed and sworn to before me, by the within named affiants, on this the 25 day of October, A.D., 1967.
Milton Schwartz 8:50 P.M.
Judge of Corporation Court No. 2 of the City оf Houston, Harris County, Texas.”
It is appellant‘s contention that the affidavit is insufficient for the reason that the same failed to set forth the underlying circumstances from which the informant concluded that narcotics were being possessed by appellant at the address shown in the search warrant.
The affidavit above quoted contains factual circumstances sufficient for an issuing magistrate to make an independent finding of the existence оf probable cause. The informer was one who had, in the past, “on several occasions” given the officers information concerning people possessing narcotics, and on each occasion her information had proved to be true and correct. The affiants knew of their own personal knowledge that appellant was a user of narcotics. The affiants, by virtue of their own independent investigation, furthеr corroborated the information received of the informant by putting appellant‘s residence under surveillance on three separate occasions. Each time the officers observed known narcotics users enter appellant‘s residence and leave minutes later.
This court has held that affidavits substantially similar to the one in question were sufficient to show probable cause and to meet the requirements of Aguilar v. Texas, supra. Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935; Acosta v. State, Tex.Cr.App., 403 S.W.2d 434; Bosley v. State, Tex.Cr.App., 414 S.W.2d 468; and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435, cert. denied, 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982; Brown v. State, Tex.Cr.App., 437 S.W.2d 828, cert. denied, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782. See also Acosta v. Beto, and Gonzales v. Beto, (5th Cir.) 425 F.2d 963.
Apрellant‘s second ground of error is that the search warrant was invalid for the reason that a judge of the corporation court1 is not an official authorized in Texas to administer oaths to an affidavit in support of search warrants.
It is the established rule in Texas that an affidavit or complaint for a search warrant must be made before an officer authorized to administer the same before a search warrant may issue. Greer v. State, Tex.Cr.App., 437 S.W.2d 558; Vaughn v. State, 146 Tex.Cr.R. 586, 177 S.W.2d 59; 51 Tex.Jur.2d, Searches and Seizures, Sec. 24, p. 697. See also Wheeler v. State, 172 Tex.Cr.R. 21, 353 S.W.2d 463.
“All oaths, affidavits, or affirmations made within this State may be аdministered and a certificate of the fact given by:
(a) a judge, clerk, or commissioner of any court of record;
(b) a notary public;
(c) a justice of the peace;
(d) any member of any board or commission, created by the laws of this State, in matters pertaining to the duties thereof.”
Since the above statute fails to give the judge of a corporation court the authority to administer oaths or affidavits, such authority, if any, must be shown from the intent of the legislature as reflected in other legislation.
The legislature in the 1925 Code of Criminal Procedure (Art. 33), designated thоse officials who were “magistrates.” Included within that statute were justices of the peace and the mayor or recorder of incorporated cities, or towns.
The title “magistrate” has come to connote one having duties which are judicial in nature. As early as 1884, the Texas Court of Appeals made the following comments regarding the duties of the justice of the peace when serving as a magistrate:
“A justice of the peace is a magistrate. (
Code of Criminal Procedure, Article 42 ) When a justice sits for the рurpose of inquiring into a criminal accusation against any person, he sits not as a justice of the peace but as a magistrate, and the court which he then holds is not a justice‘s but ‘an examining court‘. (Code of Criminal Procedure, Article 63 ) When holding such a court, his functions as a magistrate are the same as those of the judges of the county, district, supreme, or court of appeals, when they sit as magistrates to hold an examining trial. The same rules govern each. (Hart v. State, 15 Tex.Ct.App. 202). Kerry v. State, 17 Tex.Ct.App. 178.”
The present
An affidavit complying with
This is also true as to an affidavit for the issuance of a search warrant under Title 6, now Chapter 18, supra, to search for stolen property; to seize the property and to require the person accused of having stolen or concealed it brought before the magistrate.
Authority for administering an oath by the judge of a municipal court is found in
That it was not the intent of the legislature to limit the authority of the judge, recorder or mayor to administering the oath to complaints charging offenses which the corporation court has jurisdiction to try is made clear by
“A magistrate may issue a warrant of arrest * * * 2. When any person shall make oath before the magistrate that another has committed some offense against the laws of the State * * *;”
and
“The affidavit made before the magistrate or district or county attorney is called a ‘complaint’ if it charges the commission of an offense.”
Attention is also directed to the portion of
Rangel v. State, Tex.Cr.App., 435 S.W.2d 143, correctly held that there was no merit in the contention that the judge of a corporation court was without authority to administer the oath to an affidavit for a search warrant.
Appellant‘s third ground of error is that the search warrant in question is void for the reason that the affidavit in support thereof was not made before the lawful authority designated thereon. As noted above, the jurat was signed by Milton Schwartz as “Judge of Corporation Court No. 2 of the City of Houston, Harris County, Texas.” It is appellant‘s contention that Milton Schwartz was not the judge of that particular court, and therefore he did not have the official capacity designated below his signature.
At the trial, it was shown by appellant that Motion No. 58-72 was passed on January 8, 1958, by the Mayor аnd City Council of the City of Houston appointing Mr. Joe Harris as Judge of Corporation Court No. 2. The Assistant City Secretary testified that she had made a thorough search of the City records and found that between January 8, 1958, and October 25, 1967, no other appointments had been made to that particular court. Appellant contends that such evidence conclusively proves that Milton Schwartz was not the judge of that court and, therefore, King v. State, 167 Tex.Cr.R. 440, 320 S.W.2d 677, applies. We do not agree.
In King, supra, the jurat affixed to the affidavit was signed by “Thomas M. Maes“, and below the signature it read “W. C. Ragan, Justice of the Peace, Precinct No. 1, Harris County, Texas.” This court pointed out that the jurat was not regular on its face, and in absence of a showing that it was sworn to before one authorized by law to administer the same, it was error to admit evidence obtained as the result of a search warrant based upon
Milton Schwartz was acting as judge of Corporation Court No. 2. The absence of a record of his appointment in the Records of the City was not a fact that would render the search warrant issued by him illegal or prove conclusively that he was not authorized to act as judge of said court or as a magistrate.
In ground of error No. 4, appellant incorrectly contends that a member of the jury who professed to know the law “made a statement to the effect that a life sentence could be served in as little as ten years with good behavior,” and that this was a misstatement of the law, to wit,
The affidavits of the jurors attached to the motion for new trial and introduced in support thereof were that during the deliberation of the jury “Someone made the statement ‘if he gets life he could get out in ten to twenty years on good behavior.‘”
The statement attributed to “someone” was not аn incorrect statement. Guillory v. State, Tex.Cr.App., 400 S.W.2d 751; Walton v. State, Tex.Cr.App., 398 S.W.2d 555.
It is a matter of common knowledge, that inmates of the Texas Department of Corrections are allowed credits in addition to calendar time and are released on parole. Graham v. State, Tex.Cr.App., 422 S.W.2d 922.
Further, the statement did not constitute jury misconduct or require reversal because (1) it was a lone incidental reference, (2) the life sentence was based upon the allegations of the indictment and findings of fact by the jury whiсh made it mandatory under
Ground of error No. 4 is overruled.
In his fifth ground of error appellant alleges error in the trial court‘s refusal to hear evidence on the reliability of the informer upon whose information the issuance of the search warrant was based. At the trial, attorney for appellant, in his cross-examination of one of the investigating officers, attempted to ascertain whether the informant: (1) was a narcotic addict, (2) was paid for his information, (3) was а man or woman, or (4) was related to the officer. In support of his contention, appellant cites Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748. In Perry, officers received information that the defendant was selling narcotics in the vicinity of a certain address. Without obtaining a search warrant, the officers went to the location and observed from a distance the defendant stop and exchange something with two narcotics addicts. On the basis of what they observed, the officеrs placed the defendant under arrest. The court held that under these circumstances, the defendant should have been allowed to inquire into the underlying circumstances from which the informant concluded the defendant was selling narcotics. The circumstances surrounding the present case are not analogous to those found in Perry v. United States, supra.
No error is shown by the trial court‘s refusal to require the officer to answer the above questions, for such would have only served to identify the informant. There is no showing that the informant was present during the commission of the offense or that he was a material witness at the trial. Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831; Cumby v. State, Tex.Cr.App., 399 S.W.2d 814; Thayer v. State, Tex.Cr.App., 397 S.W.2d 236; Lopez v. State, Tex.Cr.App., 397 S.W.2d 76; Artell v. State, Tex.Cr.App., 372 S.W.2d 944.
Appellant‘s grounds of error 6 through 10 complain of the trial court‘s admission into evidence of appellant‘s oral statement to the officer which led to the recovery of the heroin. The record reveals that upon entering appellant‘s apartment, the officers found two men and a woman. They took each of the occupants, including the appellant, into the living room and read to them the statutory warning. Appellant then called Officer J. E. Liles over to the side and told him “* * * you‘re going to find it anyway, I might as well tell you where it‘s at.”
Appellant then pointed to the bedroom and said “* * * in my room it‘s in the bed under the covers.” The officer went to the bedroom and recovered a glass vial containing six packages of what was subsequently proven to be heroin. The record reveals that between one and one-half and two hours elapsed from the time appellant was taken into custody and the time he was taken before a magistrate.
The trial court made an independent finding, out of the presence of the jury, concerning the issue of the voluntary nature of appellant‘s stаtement. In resolving the issue against appellant, the court found that appellant, only a short time before the making of such statement and at a time when he was under legal restraint, had been twice duly warned as to his constitutional and statutory rights; that the statement made by appellant to Officer Liles was freely and voluntarily made; and in making such statement, appellant had knowingly, intelligently and voluntarily waived his constitutional and statutory rights. The jury was properly charged under
This court held in St. Jules v. State, Tex.Cr.App., 438 S.W.2d 568, that it is not error to admit appellant‘s oral confession where he has been twice warned of his rights under
“The confession of a defendant may be used in evidence against him if it appear that the same was freely made without compulsion or persuasion, under the rules hereafter prescribed.”
“1. The oral or written confession of a defendant made while the defendant was in jail or other place of confinement or in custody of an officer shall be admissible if: * * *
“(e) It be made orally and the defendant makes a statement of facts or circum
stances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed.”
The oral statement was not inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Appellant‘s contention that the oral statement made during the search was inadmissible for the reason that he was not taken before a magistrate without unnecessary delay as required by
The remaining grounds of error have been examined and we find no reversible error.
The judgment is affirmed.
ONION, Judge.
I concur in the result reached, but I cannot, after long and careful delibеration, agree with the reasoning expressed in the majority opinion as to ground of error #2.
WOODLEY
Presiding Judge
There, as here, the defendant argued that once the officer entered the apartment and exhibited the warrant, the defendant was “deprived of his freedom in [a] significant way. * * *”
The Torres Court replied as follows:
“While it is quite arguable that a defendant, who is shown a search warrant covering his apartment and рerson and then questioned, even in his own home, is deprived of his freedom in a ‘significant way,’ this issue need not now be decided (cf. People v. Rodney P. [Anonymous], supra [21 N.Y.2d 1, 286 N.Y.S.2d 225, 233 N.E.2d 255]). The important point is that defendant was never questioned; rather, he volunteered the whereabouts of the contraband before the officer had asked any questions (presuming that he had intended to do so).”
* * * * * *
“Defendant‘s inculpating remark is admissible, then, unless one is to conclude thаt the mere existence of the search warrant coupled with the officer‘s presence amounted to a ‘compelling influence.’ Such an interpretation would extend the Miranda rules beyond their avowed purpose, namely, to forbid ‘custodial interrogation’ by law enforcement officials of suspects who have not been informed of certain constitutional rights. Absent interrogation, post-Miranda decisions have consistently held that voluntаry or ‘spontaneous’ statements made by suspects who were plainly in custody are admissible.”
We do not interpret the statement made by one of the officers in the instant case that “This is a search warrant for marihuana. I know it‘s here and we are going to find it” as constituting custodial interrogation under the circumstances presented.
Appellant‘s motion for rehearing is overruled.