*2 ESQUIVEL, and CAN- Before BUTTS TU, JJ.
BUTTS, Justice. This appeal is an from a conviction heroin. After offense of having tried guilty, appellant been found The punishment the issue of to the court. paragraph court found the enhancement true, punishment of ten and assessed (10) sufficiency The years’ confinement. challenged. A brief the evidence is not ticipant in the offense. The necessary, discussion of the facts is how- ever, police possession of the heroin when the disposition appellant’s for a proper him. trial court’s re- grounds stopped error. officers prosecution to disclose the fusal to order the po- The record reflects that San Antonio was not error. The name of the informant phone Clyde lice detective Gentle received a *3 ground of error overruled. from an Au- call undisclosed informant on 24, error, ground appellant gust 1977. He was told a white In his second that male, old, six approximately thirty years the court committed complains trial two, one to and a his motion to light denying foot with brown hair error in reversible mustache, shirt, wearing long allowing a tan sleeved in the introduction suppress, and driving and a a tan pursuant illegal maroon Pontiac with to an of evidence seized top bearing plates in California license was not based on and seizure warrantless search quantity a of heroin. He was disagree. We probable cause. informed that was suspect located at a whether war- question of Leona South in San Antonio and Street valid constitutionally can rantless search that he would in the leaving be location the concrete in terms of only be decided very near and future. Gentle two other each individ presented factual situation police officers They drove to the location. 434, State, v. 589 S.W.2d ual Nastu case. saw a man de- matching the informant’s State, Rivas v. (Tex.Cr.App.1979); 438 scription getting matching into a car also 233, (Tex.Cr.App.1974). In 235 506 S.W.2d He subse- description. informant’s was search to warrantless arrest order for a quently stopped, followed and and the auto- the exist show justified, must State was mobile searched. Several balloons the ar ence of cause in were found of the the automobile. Five made, well as the as rest or search chemically balloons were tested and were procuring of which made circumstances found to contain heroin. State, v. Brown impracticable. a warrant error, In his first ground appellant 106, (Tex.Cr.App.1972). 109 481 S.W.2d failing asserts that trial court erred in where exists search Probable cause to require identity to disclose State within the and circumstances facts of the informant. The rule is well estab the scene and of the officer knowledge partici lished unless the informant trustworthy in reasonably he has which pated offense, in the present reasonable lead a man formation would offense, time of the or was otherwise shown he will believe prudence caution and to be a material witness to the transaction Brit to a crime. pertaining find evidence knowingly or as to whether the defendant 685, (Tex.Cr. State, 689 578 ton v. S.W.2d committed charged, identity the act S.W.2d, at Brown, 481 App.1978); supra, State, Rodriguez need not be disclosed. “reasonably trust requirement 110. The 448, 614 (Tex.Cr.App.1981); S.W.2d 449 Et there when information” is satisfied worthy State, (Tex. chieson 574 S.W.2d 757 from underlying are circumstances State, Cr.App.1978); Varela v. 561 S.W.2d the undis conclude officer could 186, 188 (Tex.Cr.App.1978); Hardeman v. providing the closed informant State, 552 439 (Tex.Cr.App. reliable. or his information credible 1977); Carmouche v. 540 S.W.2d 108, 114, 84 S.Ct. Texas, 378 Aguilar v. U.S. also, 703 (Tex.Cr.App.1977); Roviaro v. See (1964). This 1509, 1514, 723 12 L.Ed.2d S., 353 U. U.S. 77 1 L.Ed.2d affirms the officer standard is met when (1957). 639 from the that he has received information occasions case, previous
In the none of these undisclosed informant on instant proved present. was no information has elements were There that such 607 showing that present the informant true and correct. Carmichael Gon (Tex.Cr.App.1980); stopped the time the appellant (Tex.Cr. arrested, par- nor zales v. that the informant was a App.1979). pellant’s In assessing Appellant’s trial. second sufficiency ground the probable suspect, cause search a of error is overruled. court also accuracy consider the next asserts that the trial court Appellant information supplied by as the informant grant erred in failing a mistrial after officer, verified speci- well as the witness that he had become ac- stated S., ficity of that Draper information. v. U. quainted past particular ad- 307, 313, 329, 333, U.S. detec- capacity dress as a narcotics ease, (1959). L.Ed.2d instant appellant’s tive. The trial court sustained Gentle hearing testified at the suppression objection testimony to the elicited and the that he phone received a call from an undis- prosecutor tes- proceeded to elicit the same closed informant who detail the timony again. Appellant again objected, appellant and the car he driving, would be objection and the court sustained the as well as the fact had “disregard instructed last jury *4 heroin in his and would be leav- question attorney of the State’s and disre-
ing the location soon. He further testified gard given by the that the answer that the informant knew the police that witness.” wanted information only upon based the will a con This court not reverse by observation the of informant solely improper question viction because an the subject in possession heroin, that the propounded. To cause reversal the informant had provided Gentle with reliable Walk question obviously must be harmful. and credible concerning information narcot- (Tex.Cr.App. er v. ic traffic in past, and that several other 1974); Hartman heroin possession cases had been in made (Tex.Cr.App.1974). Generally an error in past on the basis of provid- information cured asking improper question may an by ed the informant. by or rendered harmless a withdrawal Gentle also testified that it was his expe- an disre testimony such and instruction to rience that it takes him at least 45 minutes same, gard except cases in extreme type up to a search warrant and affidavit appears clearly it that the is question where and a judge’s signature obtain on it. jury calculated to inflame the minds light of that fact and the fact that suggest and to such character as suspect leaving would be a known location withdrawing opinions impossibility of time, any sought Gentle had not to ob- Walker, supra, produced on their minds. tain a prior search warrant to search of S.W.2d, questioning in at 42. While the appellant. viola present improper and in Since the record indicates that the undis- nevertheless, order, in tion of the court’s closed proven informant had reliable in the in ruling view of the trial court’s and its past and the information provided by him no reversible jury, structions to the we find proved to be accurate and sufficiently spe- over ground error is error. third cific, we find a sufficient showing proba- ruled. ble to cause ap- warrant the search of the error ground of Appellant’s fourth pellant care, and the area within his custo- committed complains that the trial court dy and Rangel control. in his denying motion reversible error (Tex.Cr.App.1969). S.W.2d 924 prob- Since an that mistrial when a witness testified able did cause exist and the record indicates as other the balloons officer had described that impracticable it was to obtain search saliva, such appearing to be covered with circumstances, warrant under there testimony prejudicial that was so were exigent circumstances to alleviate the disregard could necessity to court’s instruction obtain a search warrant. We appellant. Appellant’s find cure arresting the harm to officers were enti- authority tled to and is a search the brief offers no citation of without war- Therefore, rant and that a general allegation. evidence obtained as we consider result search was ap- admissible at it to merit overrule it. be without foot, Garza, alley went in an La on De
Appellant pro has filed a se brief which where he could see grounds some of two houses duplicate of error those between Doyle Gentle and by directly raised to 915 Leona. counsel. We have reviewed all S. vehicle detective contentions and find remained the unmarked them without a location they parked merit. The at such judgment affirmed. had the scene. observe were unable CANTU, Justice, dissenting. there were sev- De La Garza testified suspect’s vehicle standing men near the eral agree I majority cannot with the opinion suspicious in nothing that there was but supplied undis- to believe that area which lead him would closed informant constituted sufficient occurring. illegal activity facts which a neutral and detached magistrate could base conclusion that eight minutes seven or Approximately probable cause to search existed. suspicious without spent scene De La Garza noticed when being pre-trial
At hearing appellant’s coming out suspect motioned that suppress, police motion San Antonio offi- then turned of the house. De La Garza Clyde cer Gentle testified that he received a The three vehicle. ran to detective’s call telephone approximately 10:30 a.m. suspect’s vehicle come officers observed the August 1977. The call was from an Streets, informant, Leona and Colima the corner of who was never identified on Leona proceed north make a u-turn and name but from whom Gentle testified he time Gentle had received This was the first information several times Street. *5 reliable, at suspect. The officers past proven Doyle the which had be had seen the suspect’s car credible and to follow the point began accurate. this Street, Guadalupe on turned west which morning the The information received on on El Paso and east north on Frio Street August subject of was a was that there Street. at 915 a South Leona Street described as male, old, circle white the would approximately thirty years Thinking suspect two, opposite six the light-colored proceed feet one to block back the and mustache, Street and wearing brown hair a the turned on Frio way, and a tan officers Guadalupe long-sleeved The Street. shirt. informant further started back towards time, not suspect’s car was subject During stated to Gentle this the would suspect The driving sight a tan the officers. maroon-colored Pontiac with a within of SSM, top, plate intercepted the intersection of Gua- license number 582 and that quantity dalupe he be in a of Frio Street. of Street and would leaving heroin and would be location basis for the sole testified Gentle any minute. informant’s stopping suspect no violation had been Because of the of the circum- There exigency information. nothing re- stances, and regulations Gentle testified that he of traffic did seen. activity had been sembling have time to had criminal procure warrant. It experience been his took approxi- it walking towards The officers J.he mately 45 minutes to obtain a warrant. “He out is swal- yelled when vehicle Gentle Gentle recruited Detective De La Garza and went it,” time De La Garza lowing at which Sergeant Doyle immediately pro- Otis and grabbed and immediately suspect to the by ceeded to the location indicated the in- be- ensued struggle A by him the throat. formant. suspect. The and the officers tween con- between the driving past suspect’s the location iden- went down While head the vehicle. side of passenger’s tified the car the informant sole and the of taken and out parked suspect at The was subdued which was in front of house car, advised of and They proceeded placed Leona. to an area under arrest S. on balloons rights. found some Doyle Street close to the location of 915 Colima point of the seat. up S. Leona and set' of surveillance. the console side Nevertheless, The impounded car was must be and inventoried determination presented De La Garza and a total of five balloons made from the evidence as found the car. The balloons con- examining court. powder tained a which was later identified The trial court overruled motion as heroin. of suppress allowed the introduction and During the hearing sup- during the motion to the evidence was seized press, attempted posses- defense Appellant counsel learn search. was convicted of (10) the name of the informer. The State ob- of to ten sion heroin sentenced jected inquiry to this line years’ Depart- court confinement in the Texas Appellant’s ground sustained. Gentle infor- ment of testified that Corrections. mant had not been present validity issue of error raises the subsequent surveillance or the arrest. of the “fruit” of admissibility arrest and the things the suppression Several about hear- this that arrest in evidence at trial. ing special deserve paint prop- mention to Amendment, purpose of the Fourth er scenario. corresponding as well as of the State consti- I,
At no time
(see
on direct
provision,
examination did
tutional
Texas
Art.
§
prosecutor inquire of Gentle
regarding
Constitution),
protection
of innocent
reliability
guilty
source
his information.
or
alike from arrest
search based
fact,
it
apparent
prosecutor
upon
rumor and
suspicion
common
intentionally
inquiry
avoided
into this
report
area.
than
upon proof
rather
reasonable
has
or is
grounds
believing
a crime
been
On cross-examination
counsel
defense
committed,
being
through
evi-
either
direct
delved into the source of the information
through
dence or
reasonable inferences
received from the informant and Gentle
suspicious acts.
Wilson v.
from
See
answered that he knew the informant
opinion
(Tex.Cr.App.),
Almost without I as- but without received from an therefore objection, all of the testimony probable applying of Gentle cause sess in evaluating magistrate we must examine in aby same standards used existence probable determining nonexistence of cause cause the issuance is us before in the form affirmative and an search warrant. Colston arrest or negative responses (Tex.Cr.App.1974). leading questions. 10 case, yet urged 1. not Defense counsel the court to recall rested volunteered to recall prosecutor, noting Gentle and that he had officer as the State’s witness. purpose Supreme indicated that Court, Court Aguilar, in held that Supreme knowledge test” “basis of Aguilar warrant be of the an affidavit for a search statement of without a need not could be fulfilled hearsay based on information and the infor- from which the affi- the circumstances reflect the direct observations of that in ant; however, mant derived his information magistrate must be in- detailing the man- underlying circum- of a statement of some of the absence formed gathered, based his ner in which the stances on which the informant tip de- especially important underlying cir- it conclusions and some of in suf- activity the accused’s criminal cumstances from which the officer conclud- scribe may know magistrate informant, detail that the identity ed that whose need ficient something more sub- disclosed, relying his infor- that he is on not be was “credible” or circulating U.S., casual rumor mation at stantial than a “reliable.” 378 S.Ct. based court, or an accusation holding at 1514. The the underworld reputa- general merely evidence obtained as a result of the search on an individual’s at 589. inadmissible, U.S., 89 S.Ct. Aguilar warrant in stat- tion. 393 at ed: about the instant is remarkable What petitioner Here the ‘mere conclusion’ cases where there is that unlike other possessed was not even that of narcotics the information no mention of how himself; the affiant it was that of an obtained, admission positive here a we have affidavit unidentified informant. The how his no idea that he has from the officer here only ‘contains no affirmative information. informant obtained allegation spoke the affiant with underly- sufficient presume If we are to matters con- personal knowledge of the sketchy infor- from the ing circumstances therein,’ tained it does not even contain effect have we would in supplied mation allegation’ ‘affirmative that the affi- an Spinelli. language in disregard the clear per- ant’s ‘spoke unidentified source that a Spinelli was made The assertion knowledge.’ appears, sonal For all that “self-verify- be so detailed as to tip may here be- merely suspected, source extensive detail ing,” ground lieved or concluded that there were nar- has based his the informant may imply that petitioner’s possession. cotics in observation. conclusion U.S., at at 1513. U.S., 416, 417, Thus, Aguilar two-pronged test in- supplied to Gentle What details were (1) requires: underlying disclosure of cir- evidence activity? What dicating criminal on which the informant based cumstances was corroborated of criminal (2) knowledge, disclo- his conclusions or investigation or sur- through independent circumstances from underlying sure *7 veillance? which the officer that the infor- concluded unqualified to be an The answer has mant was credible or that his information “none.” U.S., 114, at was reliable. 378 at 84 S.Ct. appear- person’s Details of an unknown car’s de- particular with a together ance (“basis of knowl- dealing
In with the first with inno- totally consistent scription are test, edge”) prong Aguilar the evi- in- even contrast We need not cent facts. hearing on pre-trial dence adduced at the criminal versus nocent conduct suppress motion to illustrated that the nor supplied neither the given a de- since informant had Officer Gentle any- reveal surveillance descrip- gained facts from scription suspect, of an unknown conduct. driving thing but innocent tion of the car he would be and had heroin in his stated that he would have sup- single fact rely any If we are to possession. informant, must do so we by the plied States, allegation that conclusory Spinelli In v. United 393 U.S. But the of heroin. (1969), to be in going
89
21
637
S.Ct.
L.Ed.2d
947
as a user
the officer knew
defendant
requiring underlying
test
circumstances
that the de-
tip
informant’s
narcotics. The
con-
designed specifically
to test such
marijuana
particu-
at a
selling
fendant
clusory allegations and affidavits contain-
independent sur-
location, together with
lar
ing nothing more were condemned as unac-
consistent with
veillance of an event
U.S.,
ceptable
Spinelli,
89
393
requisite proba-
tip,
supply
held to
S.Ct. at 593.
ble cause.
Spinelli
allega-
In
the affidavit contained
State,
234
In Rivas v.
506 S.W.2d
tions
in effect
that surveillance had been
supplied
(Tex.Cr.App.1974), the informant
days
five
and reflected detailed move-
cars,
events
names and
extreme details of
reflected
ments
accused. It further
investigation which,
corresponding
independent
numerous instances of
investi-
corroboration,
to be sufficient.
were held
gation
revealing
addition
independent
included
corroboration
But the
the affi-
personally
accused was
known to
“kilos”
shaped like
packages
observation
gambler,
ant as a
bookmaker and associate
marijuana.
gamblers
The affida-
and bookmakers.
(Tex.
519
467
vit
was en-
In Buitron v.
S.W.2d
finally
Spinelli
concluded that
overheard
Cr.App.1975),the informant
gaging
wagering operations
using
deliver a
say
going
he was
defendant
phones
previously investigated.
marijuana to be trans
large quantity
case,
inAs
our
all of the information
camper
with a
ported
pickup
in a
truck
supplied, except
conclusory
charg-
one
and cor
investigation
Independent
shell.
violation,
ing the
was consistent with inno-
activity supplied
roboration of the criminal
cent conduct. The conclusory allegation
cause.
requisite probable
with nothing more has
insuffi-
been held
(Tex.
In Powell
Aguilar
cient to
cause.
establish
cor
tip was
Cr.App.1973),the informant’s
U.S.,
at 1513.
independent observation
through
roborated
Had the informant in the instant case
transaction.
drug
with a
of acts consistent
given
premises,
detailed accounts of the
indistin-
practically
case is
The instant
persons
therein, names,
located
source of
State, 506
Brunson v.
guishable from
heroin,
prior dealings,
fact
other
(Tex.Cr.App.1974), where
which would
examining
have aided the
speaking
Appeals,
Court
Criminal
concluding
court in
that such facts could
was called
Judge Douglas,
through
only have
been obtained
someone inti-
statement
whether an informant’s
declare
mately
transaction,
connected with the
then
that heroin
to believe
that he had reason
States,
perhaps the test in Draper v. United
together with other
being possessed,
358 U.S.
In Anderson v. at 1512. the instant Brunson and (Tex.Cr.App.1971),both the ence between informant Aguilar Texas, supra. is that in Brunson the informant’s informa- v. The information questionable tion is because of the lack adequately failed to describe the appellant’s verifiable means and in the instant case the sufficient criminal detail to allow testimony questionable affiant’s for the Gentle to that the informant was conclude same reason. The results should be the relying Spinelli on substantial information. same. v. Robey, See also State 577 P.2d Furthermore, States, v. supra. United 1226 (Mont.1978). there was corroboration insufficient produce probable officers to cause to search
I feel tip that the the instant case does Ventresca, v. appellant. United States su- not contain a sufficient statement of the pra. underlying circumstances from which
hearing court
conclude
appellant
Therefore,
Aguilar
I
hold that the
would
illegal
activity.
involved in
See Bazan test has not
met
been
there
v.
224 (Tex.Cr.App.1975).
probable
insufficient
cause for the search.
Ventresca,
Thus,
United
States
illegal
U.S.
the search was
and the fruits
(1965),
formant’s tip. up The officers set a surveil- only
lance which eight lasted seven to min-
utes. They nothing suspicious observed
the scene. They merely able to cor-
roborate innocent factual data received
from the (description informant of the sus-
pect car). and his nothing There was YBARRA, Appellant, A. scene to illegal indicate that activity was occurring. 14.04, Crim.Pro., Article Tex.Code pro- SALDANA, Miguel Saldana, and Carlos
vides: Saldana, Appellees. Antonio Where it is shown satisfactory proof 16674. No. officer, peace to a upon representa- tion person, felony Appeals of a credible Court of committed, has been and that the offend- Antonio. San er is escape, about to so that there is no Nov. warrant, time to procure peace such warrant, officer may, pursue without
arrest the accused.
I fail to see how information supplied
by the was “satisfactory proof informant
. .. that a been felony has committed ...” required 14.04, by Article Tex.Code Crim.
Pro.
Since there was insufficient evidence in-
forming as to underlying Officer Gentle
circumstances which the informant
based his conclusions that
going heroin, be in there no cause for the search.