*1
State,
Cope
(1960);
v.
(1931)
118 Tex.Cr.R.
erred appellant when it ruled that the
not allowed to Jimmy take Officer H. on voir dire examination outside
Jones presence jury.” argues of the He now he permitted
should question have been Of ficer on voir dire examination out Jones presence
side the jury of the to determine opinion
whether appellant’s as Jones’ reputation sоlely was based on discussions alleged
of the offense for which Burton
onwas requested
At the time that counsel voir witness,
dire examination of the did not he
advise the trial court as to his reasons for purpose requested
or the voir dire Furthermore,
examination. record
does not demonstrate that Burton was requested
harmed the refusal of the
voir
examination
dire
As was
Jones.
said in
Wilson v.
(Tex.Cr.App.1968), “Nothing in the record shows, however, us
before [Jones’]
testimony appellant’s reputation solely [robbery] charge here Stephens
involved.” Neither the cases of
128 Tex.Cr.R.
(1935); supra, Wilson v. nor the
concurring opinion Broadway 1967), (Tex.Cr.App.
Pogue
492 and Frison judgment is af-
firmed. approved by
Opinion the Court.
ODOM, participating. J., not
OPINION ONION, Presiding Judge. appeal
This is an from a conviction for possession punishment of heroin where the years. was assessed jury at challenge There is sufficiency no to the officers, the evidence. Austin warrant, armed with a search went Dudley Bryant trailer belonging house to a at p. Bryant, July m. on appellant Polanco and a known addict Keto Wilson found in the were front room the hоuse. A search heroin uncovered and Bryant appellant charged and the possession of such narcotics. At the outset contends admitting court erred in into evidence her- oin seized warrant which search was based which did not reflect violation Fourth and Fourteenth Amendments United also Arti- States Constitution. See I, Constitution, cle Texas Vernon’s Ann.St. affidavit, parts, omitting the formal
reads: me, undersigned authority,
“Before
personally appeared
on this
un-
day
affiants,
dersigned
me sev-
being
who
state,
sworn, upon
erally
their oaths
building,
house and
certain
that:
place,
private
occupied
used as a
and
residenсe,
Austin,
Travis
yellow and
County,
described as a
grove
ba-
a small
silver trailer with
front
growing across the
nana trees
designated as
the trailer.
Trailer
23A located
Pecan Grove
Austin,
Park,
Road,
Springs
1518 Barton
being
County,
Travis
Texas
place of
building, house or
DUDLEY
5-23-28, APD
dob
BRYANT, WM
un-
#8191 and other
Houston,
appellant.
Moorе,
for
James
name, identity or
known to affiants
place
description is a
where
Atty.,
Smith,
Lawrence
Dist.
Robert O.
do believe
have reason to believe
Lester,
Dist.
Asst.
and Phoebe
Wells
using,
occupying
so
party
said
Vollers, State’s
Austin,
D.
Attys.,
Jim
building,
residence, the said
private
as a
Austin,
for
State.
Atty.,
place
housе
possession
has in his
vations of
long
the affidavit so
as there is
therein
drugs,
narcotic
as that
term
a substantial
crediting
basis
law,
defined
and contrary to
pro-
hearsay.
See
United
Jones
law,
visions of
purpose
and for the
thereof,
unlawful sale
*3
and where
Aguilar
A.L.R.2d 233.
drugs
sold;
such narcotic
are unlawfully
108,
1509,
723,
S.Ct.
12 L.Ed.2d
madе
that on or
day
about the 11th
July,
clear, however,
cases,
that
such
“the
A.D., 1969,Affiants have received infor- magistrate must be informed of
some
mation from a reliable and
in-
credible
underlying
circumstances from which
BRYANT,
formant that DUDLEY
WM the informant
the narcotics
concluded that
5-23-28, APD#8191,
dob
keeping
is
were,
they
were where he
claimed
selling narcotics to-wit
in his
HEROIN
underlying
from
some of the
residence at 23A Pecan
Trailer
Grove
the infor-
which
officer concluded that
Park,
Road, Austin,
Barton Springs
disclosed,
mant,
identity need not be
whose
County,
Travis
Texas. The informant
Rugendorf
see
further states
people
going
up
are
to
825, 11
was
L.Ed.2d
the trailer house belonging to DUDLEY ‘credible’or his information ‘reliable.’
”
BRYANT, going
calling
inside or
them
they
outside
go
and then
to
ball
over
rule
21 L.Ed.2d
the 1500 block of Toom-
“Aguilar
prong
was
two
referred
as
ey Road and exchange objects. Based
test.”
in 53
Law Review
And
California
observations,
on thesе
was
surveillance
840,it
said:
was
maintained on DUDLEY BRYANT’S
July
from
through July
Aguilar synthesis
combined
10, 1969 and numerous people
known
requirement
be reliable
that the informer
drug
be
addicts and pushers go to
ad-
requirement that
have an
he
trailer,
BRYANT’S
stay a few seconds
empha-
equate
allegations,
his
basis for
and then
into the ball park, and an
‘underlying circum-
sizing
need for
object believed to be HEROIN was ex-
at
element.”
stances’
changed
money
and then the custom-
p. 844.
er would leave. Based
on
also
our ob-
servations, DUDLEY
keep-
BRYANT is
con-
principles
these
we
Applying
ing his narcotics in a
utility
small
shed
weight
given the informer’s
tо be
sider
belonging to
space
his trailer
and inside
from
apart
when it is considered
the trailer too.”
swore
The affiants
rest of the affidavit.
credible”
“reliable and
informant was
their
In determining
sufficiency
reason
no
and offered the
affidavit
are bound
the four
thus
is
It
support of
conclusion.
corners
I,
thereof. Art.
Tex.
was
Aguilar
prong of
clear
the second
Const.;
18.01,
Article
Vernon’s Ann.C.C.
States, supra.
Spinelli v. United
not met.
P.;
Nicol v.
Tex.Cr.App., 470 S.W.
af-
prong?
about
the first
What
893;
2d
Gaston v.
Tex.Cr.App., 440
Dud-
them
told
swore the informant
fiants
S.W.2d
(concurring
opinion), cert. den.
selling heroin
Bryant
keeping
ley
435;
address
giving the
at his residence
Ruiz v.
Tex.Cr.App.,
ball objects.” exchange Toomey search warrant аffidavit Road informer entirely showing hearsay no information and There was re- he need not reflect transactions personal the direct personally obser- observed ported by per- acquired information robórate the information contained in nor there a knowledge, hearsay rеport sonal should then be consid- well, in- that the ered. stage however, informer otherwise based At this as reliably. formation fails to Aguilar The affidavit standards enunciated in must in- by his in- explain magistrate’s how the informant came form the He decision. must formation. ask: it fairly Can be said tip, that the parts when certain of it have been dealing If we were sources, by independent corroborated alone, it would he contained trustworthy as pass a which would Aguilar insufficient test. Aguilar’s tests without independent cor- Aguilar roboration? hearsay, oth- relevant at this there are
In addition to
*4
stage
inquiry
the
well because the
er
set
obtained from a
facts
forth
tests it establishes were
to
designed
im-
surveillance.
plement
longstanding
the
principle that
State, Tex.Cr.App., 403 S.
v.
In Acosta
probable
by
cause must be determined
in
affi
forth
the
set
the
W.2d
‘neutral
magistrate,’
and detached
satisfy
prong of
failed
one
davit
to
by
not
engaged
‘the officer
in the often
test,
of a surveil
as a result
Aguilar
but
competitive enterprise
ferreting
out
tip
receipt of the
up
lance set
áfter
crime.’
333
Johnson
to
persons known
several
affiants observed
367, 369,
92 L.Ed.
ques
house
enter the
be narcotic users
436 (1948). magistrate
cannot be said
five minutes
аpproximately
tion, remain
properly discharged
to have
his constitu-
also
were
observations
and leave. These
tional duty if he relies on an informer’s
inform
in the affidavit
set forth
tip
partially
which—even when
corrobo-
upheld
this court
tip.
together,
Taken
er’s
rated—is not as reliable аs one which
based
warrant
validity
the search
passes Aguilar’s
requirements when
affidavits
upon
Similar
such affidavit.
standing alone.”
upheld in other cases. Gonzales
have been
App.,
v.
S.W.2d
S.
Ct.
925; Bosley v.
468; Aguilar v.
410 S.W.2d
S.W.2d
cert. den.
935;
State, Tex.Cr.App.,
782; O’Quinn v.
Brown
cert. den.
State, Tex.Cr.
State, 437
U.
S.
states that:
nificantly
pendent
In Gonzales v.
[*]
[*]
[*]
оbservations
buttressed
an informer’s
Beto, supra,
if either (1)
tip
affiant
can be
the court
inde
cor
sig
583;
Gonzales
roborate sufficient details of
Beto, Cir.,
to correct unsupported only An assertion remains hearsay portion.1 An informant’s assertion. prongs insufficient under of the one majority opinion finds the corrobo- Aguilar test cannot be buttressed obser- rating information sufficient to meet both merely restate the same as- vations which I, however, can find Whiteley Warden, Wyoming sumptions. nothing in the to indicate that ei- affidavit Penitentiary, 560, 91 State ther the had per- informant the affiants 306; Spinelli v. United knowledge being pos- sonal heroin was States, supra. hearsay portion sessed and sold. The case, suspicions as In the instant recites carefully sumptions been nurtured . . - over the ball have probable into cause. Toomey in the and ex- and forced to 1500block Road blossom requires objects.” independent more. It change but- The Fourth Amendment issue, but tressing only requires “that an that “no Warrants shall observations state cause, object supported Oath to be HEROIN was ex- believed affirmation, describing particularly changed money” park. in the ball searched, place persons or to be *6 The mere that contraband is assertion things to seized.” As Lord Chief be Jus being possessed is to meet the insufficient Wood, Pratt tice stated Wilkes v. prong Aguilar. of See Nicol v. (1763): 2 How.St.Tr. 1153 A warrant “ given discretionary power . . . beyond allegations which must contain their messengers to wherever search repeti suspicion or his the affiant’s mere may suspicions chance fall suspicion. Ruiz v. another’s mere tion of certainly may affect (On kingdom, property every man this ion, inference that J., concurring). An totally liberty and is subversive to narcotics addicts are who talk subject.” narcotiсs traffic of engaged the criminal opinion majority I am concerned that the inference re the sort of reasonable is not pow- granting have the effect quired support an intrusion er. security. Si personal an individual’s York, respectfully I dissent. bron v. New premises, hearsay portion Spinelli, рaraphernalia af on certain though issue, even to be insufficient warrant should not fidavit was found one, corrobo an honest Tire the belief of the officer is both oath, rating found insuffi as evidenced prong. though af- him to knows either cient intelligent attempted experienced, officer сorroborate had fiant past.” hearsay portion in in the who has been reliable two had defendant tel-. formation listings, in Entick ephones a circum decision This case and later with different type (1765), Carrington, might in the be found 19 How.St.Tr. stance which alleged. book-making operation for Fourth Amendment As the basis formed requirements. con in his Stanford White stated Mr. Justice curring opinion: avers, simply . the officer . .if gambling more, there without