Aguillar v. State, 34681

• Decision Date: 20 June 1962
• Docket Number: No. 34681,34681
• Citation: 172 Tex.Crim. 629,362 S.W.2d 111
• Parties: Nick Alford AGUILLAR, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 111

362 S.W.2d 111

172 Tex.Crim. 629

Nick Alford AGUILLAR, Appellant, v. The STATE of Texas, Appellee.

No. 34681.

Court of Criminal Appeals of Texas.

June 20, 1962.

Rehearing Denied Oct. 31, 1962.

Second Rehearing Denied Nov. 28, 1962.

Clyde W. Woody, Houston, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the possession of heroin; the punishment, twenty years.

On a former appeal this case was reversed. Aguillar v. State, Tex.Cr.App., 339 S.W.2d 898.

When officers Strickland and Rodgers announced at the front door of a house that they were police officers and had a search warrant for the house, they heard scuffling and movements inside, immediately entered, and saw the appellant run into the bath room. Strickland and Rodgers pursued the appellant into the bath room where they saw him throw a package into the commode and flush it. Rodgers pulled the appellant away, and Strickland retrieved the package from the commode.

While testifying, both Officers identified the appellant and the package which they testified he threw into the commode. The package, which contained six blue cellophane papers with a white powder in each of them, was introduced in evidence.

An analysis by a chemist of the substance in each of the cellophane papers showed that it was 36.5% pure heroin.

The appellant did not testify or offer any testimony, and no brief has been filed in his behalf.

An informal bill of exception shows that the trial court refused appellant's request that he be shown an offense report made by Officers Strickland and Rodgers. The report was not in their possession at the time each appeared as witnesses, nor was it exhibited by the state at such time. But, they had used it to refresh their memory shortly before they testified.

The offense report appears in the record. An examination of the report shows nothing therein which could have been used to impeach the testimony given by the witnesses Strickland and Rodgers. In the absence of any showing of injury or prejudice the court's refusal to require the production of the offense report is not ground for reversal. Moreno v. State, Tex.Cr.App., 341 S.W.2d 450; Perdue v. State, 350 S.W.2d 203; Hughes v. State, Harris County, Tex.Cr.App., 358 S.W.2d 386.

At the trial, appellant objected to the admission of the evidence showing the search and the results thereof for the reason that the search warrant was void. He attacks the affidavit on the ground that it is based on hearsay, did not set forth a statement of the offense in clear, plain and intelligible language, and was insufficient to authorize the issuance of the search warrant.

An examination of the affidavit shows that it recites sufficient facts and information to constitute probable cause for the issuance of the warrant. The affidavit and warrant being valid, no error is shown in the admission of the results of the search. Rozner v. State, 109 Tex.Cr.R. 127, 3 S.W.2d 441; Ruhmann v. State, 113 Tex.Cr.R. 527, 22 S.W.2d 1069.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant seriously contends that we were in error in considering the offense report which was made a part of the statement of facts by the trial court before he approved the same. During the trial, appellant made no request of the trial court that the offense report be made available to him for the purpose of perfecting his bill of exception. After the conclusion of the trial, the State declined to approve the statement of facts as it was presented to them and moved the court to include the offense report in the statement of facts so that it might be inspected by this Court. Appellant contends in his brief that he was not notified of the filing of or hearing on this motion. Certainly, he should have been given such notice, but we fail to find in this record anything which we are authorized to consider to support the assertion contained in his brief. Be that as it may, it is appellant's position that his two bills were qualified by the trial court after the expiration of 100 days following the giving of notice of appeal and contrary to the provisions of Article 760d, Vernon's Ann.C.C.P. He is mistaken in concluding that Article 760d here controls because he relies upon informal bills of exception and said Article applies to formal bills. His informal bills of exception are controlled by Article 759a; and by the terms of Section 4 of such Act, when the trial court approves a statement of facts after the time set forth in the statute, such approval shall signify that the time for filing was properly extended.

In the recent opinion of this Court in Hughes v. State, Tex.Ct.App., 358 S.W.2d 386, and the cases there cited, we held that it was error for the trial court to refuse examination of prior written statements made by a witness for the purpose of cross-examination but that the burden is upon appellant to preserve such error and, if so preserved, this Court will determine whether or not it constitutes grounds for a reversal of the conviction after we have examined the written statement and the testimony of the witness. Since the statements of the two witnesses were made available to this Court, appellant is in no...