Powell v. State
505 S.W.2d 585
Tex. Crim. App.
1974
Check Treatment

*1 OPINION Burtis Lloyd POWELL, Appellant, Jr., DOUGLAS, Judge. appeal This is an from a conviction for The STATE Texas, Appellee. the offense of heroin. No. 47625. jury punishment assessed years. two Appeals Court of Criminal of Texas. papers Officers found three of heroin on 20, Feb. person appellant. sufficiency of the is not evidence

challenged.

Appellant’s sole contention is that search through warrant which the evidence was obtained was invalid because the affi- davit which it was executed was in- argues sufficient. He that the affidavit did not state cause for issu- ance of the search warrant the af- because fiant did not recite the time the informer saw the heroin where the appellant was arrested. interpreting for affidavits warrants, magistrates

search and courts must do so a common sense and realistic usually fashion. The drafters are non-law yers usually and their work is done investigations haste of criminal and “Tech requirements specificity nical of elaborate pleadings enacted common law once under place proper no in this United have area.” Ventresca, States v. (1965). Frazier 13 L.Ed.2d 684 See State, Tex.Cr.App., State, Tex.Cr.App., 478

Cummins v. S.W. 2d 452.

The affidavit reads: “I, solemnly do swear Jackson, B. D. heretofore, day 10th on or about the September, City in the A. D. Houston, one County, Harris there unlaw- did then and time un- fully possess and does at this drug and lawfully possess a narcotic DeGuerin, Percy Foreman and Dick pri- ain dangerous drug, Heroin to-wit: Houston, appellant. for described residence vate yellow building Vance, two-story as a Atty., Carol C. S. Dist. James brick, Bodiford, Attys., located at Cleburne Brough, Asst. Dist. Jack in the upstairs located Houston, Vollers, apartment # Atty., and D. State’s Jim in the Austin, from street Stevens, building furtherest Buddy Atty., Asst. State’s City Apartments Manor Cleburne the State. *2 ** * Houston, seen Heroin County, of Harris Texas which addicts surveillance * * * possessed, was established private said is occu- on numer residence and of ous pied, charge under occasions known Heroin addicts was the control and * * * mostly observed the Taylor. Nikki between p. midnight

hours 6:00 and each m. day.” “MY BELIEF OF THE AFORE- SAID ON STATEMENT IS BASED This Court stated that from the above

THE FOLLOWING FACTS: magistrate information the not ascer could the tain closeness time sufficient to is talked “On affiant independent the sue warrant based on an an that to informer who stated Nikki judgment probable required by cause as Street, in Taylor at 2214 lived Cleburne States, 206, Sgro United v. 53 S. 3, had heroin apartment # and that she 138, 260; State, Ct. 77 L.Ed. Odom v. of sale purpose for the 209, 1103; Tex.Cr.R. and Garza they and Informer further stated use. 120Tex.Cr.R. 48 S.W.2d 625. apart- inside the were at this location Also, undated, jurat the was in itself which Negro male ment an when unknown complaint. vitiates the apartment to and asked Nikki came this Taylor Taylor Nikki for some heroin. Nicol, supra, Then in we held the affida- bedroom, re- then into the back went insufficient as to be- vit period of time with after a short turned top cause Nicol was not mentioned the paper pack- a small of small wax bundle portion only an the affidavit but that powder ages containing brown a apartment being one Bruce rented male, Negro gave to the unknown being for the unlawful Ledger was used un- gave her an Negro the male and drugs. Further, possession and use of we money. Nikki paper known amount of portion in- held the of the affidavit lower Negro Taylor then told the unknown hearsay sufficient because it was based on male, wants anyone else who you ‘If see showing of a sub- information without a heroin, to me.’ send them buy to some crediting hearsay. stantial basis for the before stated that The informer also distinguish- Both Heredia Nicol are Taylor they apartment left the present from able the case. small wax informer several showed the powder containing packages brown The recitations in the affidavit Taylor stated was heroin. which Nikki the had stated that informer bar pack- placed these Nikkie then actually where been inside the Taylor also purse. ages her appellant and others were arrested informant, ‘If told provided information the informer had that heroin, bring wants to who past and that on several occasions has infor- to Affiant received them me.’ prov- had each the information occasion by certain concerning violations mation Thus, pronged test be the two en to true. previous occasions individuals on several Aguilar 378 U.S. on each occasion this informer and from met. has been 12 L.Ed.2d proven be true.” to the information has State, supra. Heredia v. Appellant holdings this relies on Court’s case as this The issue thus becomes State, Tex.Cr.App., 468 S. in Heredia v. or not the as to whether Heredia State, Tex.Cr.App., and Nicol v. W.2d probable cause enough show definite Heredia, In we held 470 S.W.2d warrant. the search the issuance of merely it cit affidavit insufficient because Ann.C.C.P., 18.01, re- received ed that “Information Article Vernon’s * * * independently magistrate fact us quires that Cruz DeLao was * * * actually heroin was belief that ing selling judge had the affiant’s possessed Taylor’s and sold in Nikki only but that said “wrapped it was at 2214 Cleburne cellophane red packages, approximate apartment being Number 3. size of a question brick.” The affidavit in here recites that “Nikki showed the Heredia, date contained paper packages several small wax the affidavit was alleged the date containing brown which Nikki offense occurred. There no *3 was mention Taylor stated was heroin.” This is not the of date on which the the affiant had talked hearsay on hearsay condemned in Nicol. to his informer nor did the affidavit con- Here, the personally informer was shown tain the or date dates that the surveillance the heroin by person pos- and told the in was conducted. session that it was heroin. Nicol, In again the affidavit mentions We hold that the affidavit in the instant apartment the date the being was used for case sufficient that it does contain drugs the unlawful of use probable sufficient information to show and a certain frame in which the cause for the search warrant to issue. drugs dispersed. Again, would be as Heredia, there was no mention of the date shown, No reversible error the on in- which the affiant had talked to his judgment is affirmed.

former. ODOM, Judge (dissenting). complained The of before affidavit following proposed opinion pre- was us contains today alleged the date of the pared by I Quentin Commissioner Keith. offense, 10, 1971, September top fully agree therewith and would reverse portion as well as the date the affiant the conviction for reasons the set out. spoke informer, his to Therefore, adopt opinion my I the as dis- portion. in the lower As con stated the sent to the affirmance this cause. curring opinion in Gaston v. Tex. Cr.App., denied 396 cert. “Appellant Taylor and one Earlean were 452, 24 L.Ed.2d jointly felony indicted with the offense affidavit, determining sufficiency the anof possession of heroin. The accusation by we are bound the four corners of that against his co-defendant was severed and Thus, document. for the affidavit to be appellant put jury was to trial first. sufficient, by the affidavit itself must be guilty charged found him as and assessed support independ able magistrate’s to the punishment period his at confinement for a probable ent does determination that years. of two exist to issue a search It is not warrant. sufficiency is not “The of the evidence an unreasonable deduction for magis challenged appellant comes forward to suf trate ascertain the closeness of time ground single contending with a that the ficient to conclude from this affidavit search warrant was invalid because the affi- probable cause did exist the offense since davit which it insuf- was based ‘was alleged was to have been committed on the to the issu- ficient state cause for his spoken had to day same the affiant as ance the search warrant.’ informer.

Further, this case differs from Nicol Police the Houston “Officer Jackson Department, not information was armed with a search warrant informer’s Nicol, the hearsay. accompanied- by police other hearsay based several officers, apartment Bruce Earlean informer stated that he had seen entered the con- Ledger possess Taylor City Nicol “what he of Houston. No and Charles given affidavit did the officers to enter was told—marihuana.” The sent was apartment they or that the entered after say not told the informer who breaking open. Upon entry, the actually had the marihuana door seen persons apart- they Taylor found three left officers appellant, Taylor, and the informer small wax ment: Miss another showed several Taylor cigarette packages containing Miss had a brown male. attempted Taylor to hide behind her which Nikki stated was heroin. placed pack- such ma- back and the officers observed Nikkie then these purse. packets ages small of a sub- also neuver. -Three informant, later identified as heroin were told the “If stance heroin, bring offi- found in then told the who wants to the case. She heroin was secreted them me.” Affiant has in- cers where other received and it likewise seized. formation cer- concerning was violations previous tain individuals on several occa- produce “Appellant then asked to sions from this informer and oc- on each identification; and, when some written proven casion the information has to be the re- opened comply his billfold *4 true.’ packets saw three quest, Officer Jackson appearance in therein which were similar “Appellant places primary now reliance just possession of taken from the those upon opinions this Court’s in Heredia v. packets appel- in Taylor. Miss seen State, (Tex.Cr.App.1971), 468 S.W.2d 833 appellant lant’s billfold were seized State, (Tex. and Nicol v. 470 S.W.2d 893 placed was shown under arrest. It Cr.App.1971). packets found

the trial that the three given only is specific “A date or time appellant’s possession contained heroin. affidavit, he place in appro- one Officer Appellant’s timely and made counsel Jackson’s September on 10. with the receipt evi- talked priate objections to the of this any as to other instance, objection is no time indicated dence; but, There in each For contained therein. testify. bit of information Appellant did not was overruled. have aught appears, the events could portions quote the of Offi- relevant “We any September or at occurred on issu- supporting cer affidavit Jackson’s In order for date anterior thereto. other ance of the search warrant: adequate probable to show an affidavit “ 10, 1971, affiant cause, ‘On ‘must set forth facts which it must informer who stated talked to an is closely related to the time of the be so 2214 Cleburne lived at Nikki justify a find the warrant as to suance of that she # Here at the time.’ ing of pur- possession 835); had heroin State, supra (468 dia v. further pose Informer of sale use. State, Tex.Cr.R. S.W. Hall v. inside this location they were at case, stated just as Garza 2d In our Negro apartment when an unknown State, 48 S.W.2d 120 Tex.Cr.R. asked Heredia, to this length male came quoted at (1932), Nikki Taylor for some heroin. conveys any def ‘Nothing in the statement bedroom, back into the Taylor then went he de the incident idea as to when inite period of short after a place.’ returned the authorities Under scribes took paper wax of small a small bundle Heredia, in this the affidavit cited containing a brown packages the issuance insufficient to warrant Negro to the unknown gave search warrant. an gave male her male, Negro and the that Nik- in the affidavit money. Nikki “The statement amount

unknown the informer several Negro Taylor showed ki then told the unknown pow- containing brown packages wax who wants small else male, “If heroin’ Taylor stated was to me.” der ‘which send them heroin, ruled case is facet of the hearsay. This that before stated informer also State, by supra, Nicol v. wherein the Court

said:

“ ‘In case, the instant language portion

the lower of the affidavit re- hearsay hearsay,

flects the affiant

having been told by the informant that

appellant possessed (the what infor-

mant) was told was marihuana. While appellant pos- informant had seen

session of packages, certain which the

informant had been contained mari- told

huana, the affidavit shows neither that possessed personal

the informant knowl-

edge of the packages contents of these

nor that the informant’s source was reli- (470

able.’ 894). S.W.2d at have authority

“We examined the State, Christopher

cited

489 S.W.2d (Tex.Cr.App.1973), *5 point

and do not find it the case at

bar. trial error in

“The court fell into admit-

ting the evidence under the seized invalid

search warrant.”

I dissent.

ONION, J., joins P. in this dissent. MURRAY, Wayne Appellant,

Allan Appellee.

The STATE

No. 47417. Appeals of Texas. of Criminal

Court 13, 1974.

Feb.

Rehearing March Denied