Acosta v. State, No. 39454

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MORRISON; MORRISON
• Citation: 403 S.W.2d 434
• Decision Date: 23 March 1966
• Docket Number: No. 39454
• Parties: Joe Givos ACOSTA, Appellant, v. The STATE of Texas, Appellee.

Page 434

403 S.W.2d 434 Joe Givos ACOSTA, Appellant,
v.
The STATE of Texas, Appellee. No. 39454. Court of Criminal Appeals of Texas. March 23, 1966.
Rehearing Denied May 25, 1966.
Second Motion for Rehearing Denied June 22, 1966.

Clyde W. Woody, Marian S. Rosen, Fred H. Dailey, Jr., John P. Farra, Houston, for appellant.

Carol S. Vance, Dist. Atty., Ted Hirtz and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Dougas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is the possession of heroin with a prior conviction for possession of heroin alleged for enhancement; the punishment, 30 years.

The evidence introduced before the jury reflects that police officers of the Narcotic Division of the Houston Police, together with a representative of the Department of Public Safety, armed with a search warrant, arrived at appellant's home, intercepted him as he and his family were backing his automobile out his driveway, and exhibited the warrant to appellant and his wife. The family re-entered the house where a search was conducted, and, finally, under a flower which appeared to have been recently transplanted, a jar was found which was shown to contain over 100 grams of heroin in two rubber containers. The chain of custody was shown and the substance was identified by expert testimony to be 48 to 50 percent pure heroin. The prior conviction was established, and appellant did not testify or offer any evidence in his own behalf.

Since almost all the matters complained about by appellant in an exhaustive brief and argument occurred in the absence of the jury, they will be discussed in the order presented.

Appellant first contends that the heroin seized was inadmissible because the probable cause recited in the affidavit for the search warrant was insufficient under the holdings of the Supreme Court of the United States in a number of cases including Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503; Etchieson v. Texas, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041; and Barnes v. Texas, 380 U.S. 253, 85 S.Ct. 942, 13 L.Ed.2d 818.

The affidavit in Aguilar, supra, recited that the affiants 'have received reliable information from a credible person and do believe that heroin * * * and other narcotics and narcotic paraphernalia are being kept at * * * (petitioner's) premises for the purpose of sale and use contrary to the provisions of the law.' The Court held that the above did not contain an affirmative allegation that the

Page 436

informant or the affiants spoke with personal knowledge.

The affiant in Giordenello v. United States, supra, recited:

'The undersigned complainant (Finley) being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code.

And the complainant further states that he believes that are material witnesses in relation to this charge.'

The Court held that the above did not contain an affirmative allegation that affiant spoke with personal knowledge and failed to indicate any source of complainant's belief.

The affidavit in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, recited:

'My belief as aforesaid is based on the following facts:

'(A) I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas,

'(B) and further from a source that we do not wish to divulge."

In a Per Curiam opinion Etchieson was reversed.

The affidavit in Barnes v. State, Tex.Cr.App., 390 S.W.2d 266, in which the writer dissented, and which was reversed by the Supreme Court of the United States in Barnes v. Texas, supra, upon their holding that the warrant for the arrest of Mrs. Barnes' husband contained no affirmative allegations that the affiant spoke with personal knowledge, did not indicate any source of complainant's belief, nor set forth any other sufficient basis upon which the finding of probable cause could be made.

We will now set forth the affidavit before us in the case at bar:

'On the 14th day of May, 1965, affiants received reliable information from a credible person that heroin was being possessed by Joe Givos Acosta, at 7515 Force Street, Houston, Harris County, Texas. Although I do not desire to name this person, on about four prior occasions he has given information to me concerning narcotics being possessed by certain individuals, and on every occasion his information has proven to be true. Based upon the information he gave to me, affiants on the morning of the 14th day of May, 1965, set up surveillance of the house located at 7515 Force Street, and from approximately 7:00 a.m. to 10:00 a.m. of that day we observed several persons whom we know to be users to narcotics, enter the house, remain for approximately five minutes each, and then leave.'

Because of the last filing of the officer's return, the court heard evidence on the issue of probable cause in the absence of the jury, and, in the course thereof, it was developed that two of the 'several people' whom the officers observed to enter appellant's house, remain approximately five minutes and then leave were Victor Valdez and Martin Damian, each of whom had narcotic charges pending against them at the time of appellant's trial and each of whom were known by the officers to be narcotic addicts. We hold that the affidavit in the instant case does set forth a sufficient basis upon which a finding of probable cause could be made. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. The cases cited by appellant do not support his contention that the trial court...