Ortega v. State
464 S.W.2d 876
Tex. Crim. App.
1971
Check Treatment

*1 Appellant, ORTEGA, Jose T. Texas, Appellee.

The STATE

No. 43317. Appeals

Court Criminal Texas. 24, 1971.

Feb.

Rehearing April 14, 1971. Denied Killeen, Sutton, appellant.

E. Gerald Kacir, Atty., and Glenn Stanley Dist. Michalk, Belton, Atty., Dist. Asst. Jim Austin, for the Vollers, Atty., D. State’s State.

OPINION DOUGLAS, Judge. possession conviction is for the

The jury; The trial was before marihuana. assessed years of ten punishment by the court. appellant’s house

The search of finding the officers curtilage resulted of marihuana. grams of 212.16 total could cigarettes testified that five chemist gram of from a marihuana. be made legality presented The sole of the search. appellant filed a motion magis- ground to order

trate had no cause property. search of his to the attention The motion was called Appel- of the court and was overruled. any evi- attempt lant to offer made no offer dence on the motion Arti- which is authorized 40.09, (1), Vernon’s Ann. 6(d) cle Section C.C.P. merits, Hill

At the trial on the Detective Department testified of the Killeen Police *2 not planned not as are tics which do work kept others and that he and surveillance house, for appellant’s basis relief. going to watched traffic evening and that later the same he returned In Henderson v. home, appellant’s with a warrant search the was that S.W.2d and served the warrant. the the State had shown that officers pres- had a valid the testifying search warrant. In He was about the case, ent no issue of the existence of including items two flour canis- search warrant was raised. ters were removed from the house when appellant’s the objected counsel then In Blackburn 145Tex.Cr.R. grounds the foundation for the ac- S.W.2d officers told the seizure had not been shown. cused that had a search warrant. it, he When asked if wanted to see Black- sup-

When made his motion to replied that he did told the press burn not and grounds the evidence the the go magistrate ahead and search. The trial probable lacked cause to order search, the the the admitted evidence seized on he was apparently satisfied that grounds that the Blackburn consented to warrant was valid on its face. There search. This Court held that the consent challenge that the warrant was not given conducting officer valid on if its face. The issue then was search had said that he had a there was sufficient search war- cause shown be voluntarily cannot considered as affidavit the issuance of the given. The court search warrant. noted that

shown trial that a suppress motion to fact existed. cannot be construed to mean that he con- In there was challenge Blackburn tended no search warrant existed. actually the trial that a search warrant ever

Once State shows that a valid

search warrant is in existence at the time search, S.W.2d this Court stated: going burden of forward is then on a prove defendant to “ * * * (officers) At the time affidavit is insufficient as a matter of law search, testified as to the fruits and to see that the search warrant and appellant objected grounds the affidavit are included the record on that the search of appel- arrest appeal. illegal. lant were We have searched Appellant had the going burden of for- this vain and been unable ward on evidence; motion to to find where warrant was he when made on the trial on produced or exhibited to the trial merits, had already recognized inspection.” court for his existence of a search warrant. Brown, following found

This was apparently a matter of objects tactics. record: “The defendant Evidently, appellant did want the defendant itself to exhibit the search objects being warrant before the to the search ” * * * court, but wanted the State to valid search warrant. affidavit which the warrant is- stating an objection If there had been sued and to show it was sufficient as a mat- the search was and that ter of law. valid warrant was in a different existence Beto, In Williams v. problem presented. F.2d 698 (5th would Vines 1965), Cir. Court held Tex.Cr.App., that trial tac- S.W.2d was sufficient before, pres- appellant in

As stated to establish the issuance warrant. recognized the ent case States, Cir. See Castle v. United 5th search warrant. 287 F.2d United States (First In Ciulla Burkhart, 1965, 347 F.2d 772. 6th Cir. juvenile Appeals), Court Texas Civil *3 ef- was Since issuance warrant in- was There was a five-hour arrested. fectively established, the estab- burden of until terval from the time arrest illegal was lishing that the search was validity of car searched. was When Rogers Unit- on movant-defendant. challenged was the search no evidence was 535; States, 1964, Cir. F.2d ed 5th introduced that a warrant ever States, Cir. Batten v. 5th United challenged. The of a warrant was States, Kay 188 F.2d Chin United Defendant, 1962, 311 9th F.2d 317. Cir. In however, failed completely to sustain following appears: was proving that the warrant predi- “Appellant also insists illegally or Defendant issued executed. admitting was cate insufficient where public records access to the search. as result of evidence found filed; the warrant was he could was to such evidence objection When into evidence introduced the document made, county attorney presented it is- prove illegally order to that was This to the trial court. search warrant He do so. sued or executed. did not would proceeding. It was the correct complaint is truth, defendant’s introduced improper to have have been prosecution did introduce that The court jury. the warrant before are the warrant into evidence. We presump- The objection. overruled the procedure, aware no rule of inspection the trial upon is tion that or law court found the search warrant introduce search warrant into evidence sufficient, otherwise pre- are under such circumstances as If would have been sustained. in the sented There was error here. thought the warrant insufficient testimony con- judge’s allowance of in- upon face, predicated that was cerning seized at the house the evidence evidence, he should of defendant’s mother.” in a brought it forward bill order ”* * * apprise us of trouble. practice It a better to show is exhibited that the warrant was for re- upon all of relied the cases However, to the the existence court. when challenge that a search versal that awas recognized motion is in a existed, fact tes and there is uncontradicted valid, existed, timony that a warrant show valid search was insufficient case, present there is no showing that a war- (where was no there face, it is we hold that existed). necessary to show for the record present applicable The correct rule the warrant exhibited to the court. Thomp case found in United States error. The record contains reversible son, 1970), (5th 421 F.2d Cir. judgment affirmed. State, Tex. in Mattei v. which fol is as Cr.App., ’ ONION, Presiding Judge (dissenting). lows: question presented sole concerns “There uncontradicted timely objection, criminal failure of the hearing that a Louisiana judge to the trial for the and exhibit district issued warrant inspection for his the search warrant interposed “When officers, authority which testified officers evidence of the mere appellant’s had a searched home. regu no evidence that such warrant was At Her- the trial merits Detective lar on its contained recitals Department bert Hill of the Killeen Police showing compliance legal require 22, 1969, May

testified that on ments. Henderson v. 108 Tex. building surveillance of and authorities question, evening he returned same cited; Humphreys 116 Tex.Cr. about 10:30 m. “with a warrant to search R. 31 S.W.2d 631. Ortega,” forcibly the residence of Mr. entered when he discovered no one was the officers’ tes- there. No reference was made as to who timony, here the circumstances *4 thereof, warrant, had issued the the date shown, been sustained.” any other recitals or details. In the of Henderson v. case Prior to the time that Detective Hill State, 300, 1 this court wrote: S.W.2d testified about the crime, fruits of the appellant objected any testimony further perceive nothing objectionable “We until there was “shown the foundation for they in the of the officer that statement legal search and seizure.” The proof had a This search was warrant. promptly was appellant overruled and the they pos- of the were in fact duly excepted. Testimony as to the fruits ques- session of a warrant. The real of the search then followed. Nowhere is, having proved only tion that the offi- this entire any record is there indication warrant, any cers a search without had the search was showing that it was produced and exhibited trial to the predicate had the laid a state inspection. court No war- search permit as to of the result appears in the record. statutes, present the search? no- Our 727a, (1925),

It is tably clear from articles 4a ap- C.C.P. pellant place by of challenging receipt evidence secured the “foundation” private for any search residence somewhat questioning of the existence of on the same basis as the confession warrant referred to by the of- stat- by ficers the accused which is excluded or the of the same if one did ute taken under conditions in fact unless certain exist. Since 727, (article C.C.P.), 1925 which bound the officer’s mere statement to be the state which warrant, laid a search he was demand- ing production, display that the formalities or exhibi- shows tion of the search warrant claimed to be complied before the con- been the foundation of the question. search in fession becomes admissible.” State, In Blackburn v. There the concluded: court 384, “appellant ob- jected to the admission into showing evidence of that the “In the absence of a testimony showing the result of as- under which the officers premises of his not, because the State did reg- present in the case was sumed to act as a precedent condition the introduc- ular on its face and contained recitals tion of said exhibit valid re- showing compliance with the search warrant authorizing the search.” quirements, the learned fell

There admitting proof into error in evi- speaking of the through Judge Hawkins, said: complained dence of.”

880 Seizures, Humphreys Tex.Jur.2d,

And in Searches and S.W.2d court said: here, arises as did “Where the issue State, 434 S.W.2d Ciulla the mere that an affidavit was Appeals, Texas Civil First Court is not sufficient issued Associated Cole- speaking through Justice to admit result man, said: Tex.Cr. search. Henderson v. 167, 1 R. 300.” S.W.2d introduc made to the tion into evidence of the results of cases that It is clear from these required second search applied proof that even if mere a warrant satisfy the evidence sufficient was, issued or existed at the time was made the objection, uncontradicted. warrant, valid on authority of a search by evidence, In Brown v. face, or to show the officers related S.W.2d precedent to the admission condition home searched defendant’s virtue marijuana, that such evidence At the time testi- a search warrant. lawfully Lee Tex. obtained. the search there was fied as (1958); S.W.2d illegal. Tex.Cr.R. *5 produced or ex- State, No search warrant was Tex. (1958); 297 Gomez v. 163 reversing Samp hibited to the court. (1956); 293 Cr.R. S.W.2d 657 State, Morrison Brown’s conviction son 268 v. Tex.Cr.R. S.W. opinion from the above. Blackburn 2d (1953).” State, Tex.Cr.App., Further, In Vines v. 397 S.W. Tex.Jur.2d, in 51 868, prior the time the officer testi- to it is 2d written: search, “ap- fied the the the to justify the “To admission of timely ground pellant objected the that prosecution obtained a the the search was

it had not been shown that must first that the for- show objec- (emphasis supplied) Such lawful.” requisite malities to such a search were no overruled and at tion Vines was also complied production of a with. The produce the the search war- time did search warrant that is on its face to rant which the search was claimed under justify to admission of the have been made. evidence; unless, course, the ac- such of this court said: Vines cused can show the warrant affidavit, or that issued on an invalid “Upon timely objection being made other If the war- void for reasons. appellant, upon the the it was incumbent may lost, the has been state, facts, produce to and the validity by parol show its existence and exhibit a valid search war pro- if the is not evidence. But rant. failed to Having are now and contents duced and loss warrant, appellant’s objection of shown, of of the results testimony ficer’s have been su search is inadmissible.” stained. v. Tex. Henderson 300; Blackburn that the procedure State should upon timely objection 168 S.W.2d de followed well 662; scribed in Tex.Cr.R. also dis 313 S.W.2d Nunez and not be need 297.” State, 168 S. Tex.Cr.R. cussed here. Lee See also Crim.Law, @=’394.5(1); Tex.Digest, W.2d majority obviously recognizes the cation of well established rule—that a application when well established rule under but rule has discussion attempts distinguish recognized the cases in motion warrant is by saying play suppress, proof by that the is mere rule came into there only warrant, those because certain had and cases e., made, ex- were i. that the search was offered does not somehow etc., existed, pressly validity or valid warrant while refer on its face particular unproduced (which here no such neither type of court, urged. prosecutor may I do not nor defense understand then If this seen.) can invoked the utterance combination exists words, magic reasons the search majority of certain and it tests court, credulity in- any exhibited to man need not be the trial to believe that an or record, cluded in the objection to available further testimony there unless an this court. Under such fact is “shown the situation foundation for a in a accused made mere seizure” who reference is insufficient. I do not read mag- any motion to “order” cases involving the rule under recognize istrate be deemed discussion will turning upon nature warrant, invalid, particular existence of valid or words urged. of the objection later when witnesses assert strengthen highly posi- To any warrant, unrealistic questioning tion the by majority faulted right expressly to search does not challenging validity the war- include a reference to rant on its face warrant, when the same was never unproduced still face of the produced, there showing appel- is no appel- shown warrant need be never same, lant counsel ever counsel, saw lant the trial court and his nothing there is except will and it be assumed there was officer’s one even nor This never has been valid search. *6 majority appellant assumes the should be law. apparently unproduced satisfied that exists bur Much confusion between the

warrant was valid on its face because persuasion dens evi producing and of his suppress1 handwritten motion to majority Regrettably dence. adds urged that magistrate probable lacked it, disowning confusion when not cause to order though search even discussion, overruling such motion is not mentioned whether cases, says the “correct rule” as “order” such was verbal written. Fur- Thompson, burden is found United ther, States though the same could be deter- Cir., minative, th F.2d which involved again is faulted for 5 Rule Rules Proce Federal of Criminal offering sup- evidence on motion to there, however, the Even court noted press dure. 28.01, V.A.C.C.P., when Article ex- establishing that the search burden pressly governing provides such motions illegal passed “movant-defend- that a may upon determination be ant” “issuance of a warrant motion itself. effectively Actually, established.” Despite foregoing, is cases con- with earlier majority conflict Texas above, timely cludes with this qualifi- upon rather which hold that remarkable suppress alleged 1. The motion to as mari- reads: evidence dence. Said Ortega charge “Now comes Due Jose T. and makes tbe and indictment. huana in suppress by evidence, illegally a motion to reason of this motion obtained cause to order search of his all seized. made to property magistrate Jerry concerned, Sutton evidence, any, if such Counsel.” cannot Defense be connected to the defendant as the owner of said evi- bar, said demonstrate I have is to at “What such as the one objection, cases unless and until evidence obtained to exhibit upon it is incumbent State facie, is, prima upon in a search or arrest trial court satisfied, in accordance with be shown to obtained timely If the court is objection. instrument, reason- legal requirements and therefore after the exhibition of able, receipt in evidence a criminal then a on its that the warrant valid expressly prohibited and unlaw- case is (Chorn is created prima presumption facie 727a), (formerly Article 38.23 290) ful.” 298 S.W. See I, V.A.C.C.P.; Texas Con- the ac- Art. proof shifts to the burden of Amendment, stitution; Fourth United the search warrant cused see that prove his Constitution. States in the record and to included was an search. claim there Woodley And Judge Nunez Lee v. arrived This shift in-bur- S.W.2d 260. exactly at the same conclusion. den after the warrant is exhibited ignor- however, justify does interesting David- It is note upon the placed State. ing dissenting opinion the initial burden in the aforesaid ob- son comply with served that for “Translating Supreme Jones, Recent it, least the burden cast “the Reality,” Into Court Decisions Courtroom the accused is all that is or 371, 397, Review, Baylor Law No. required.” general ob- He observed that a (Summer 1967), it written: — jection would be sufficient. “The Fourth Amendment therefore, I, vigor dissent all the of a search offi- fruits conducted my disruption majority’s command to the to be barred unless the search was cers of a well settled rule. advised well reasonable. predicate consisting “A suffi- MORRISON, J., joins in this dissent. cient to that the search show fruits must be laid before reasonable

of the search will be admissible. of laying prosecution.

is on the Where bur- interposes

den met is not and defendant *7 proper reversibly judge will LOPEZ, Appellant, Raymond Garcia err if jury testi- admits before the mony showing search. Texas, Appellee. The STATE discharge will No. 43483. if,

burden, hearing held presence jury, out of the of the Appeals Texas. Court of Criminal there is adduced sufficient to show March 1971. pursuant that the search was conducted April 14, Rehearing Denied face search warrant valid on its ” * * * Davidson, opinion dissenting in Lee v. discussed length very producing There he evidence. (at 263)

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