Aguilar v. State

• Decision Date: 25 June 1969
• Citation: 444 S.W.2d 935
• Parties: Nick Alfred AGUILAR, Appellant, v. The STATE of Texas, Appellee. No 42130.
• Court: Texas Court of Criminal Appeals

Page 935

444 S.W.2d 935

Nick Alfred AGUILAR, Appellant, v. The STATE of Texas, Appellee.

No 42130.

Court of Criminal Appeals of Texas.

June 25, 1969.

Rehearing Denied Oct. 15, 1969.

Will Gray, Houston, for appellant.

Carol S. Vance, Dist. Atty., William W. Burge and Joe Maida, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

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

The indictment alleged two prior Federal convictions for purchasing heroin. The State elected to abandon the habitual offender part of the indictment, and he was convicted for the primary offense.

Appellant contends in the first two grounds of error that the heroin was found as the result of an invalid search warrant, not based on probable cause, and that such heroin was erroneously admitted into evidence under the case of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The record reflects that Officers Farrar, Chavez and Collins, armed with a search warrant, went to appellant's home in Houston. An officer knocked on the front door and immediately thereafter heard someone running. After forcing their way into the house, the officers saw appellant running from the kitchen to the bathroom where he dropped a yellow balloon into the commode and flushed it. Officer Chavez recovered the balloon which contained a powder, later ascertained to be .48 grams of heroin. On the kitchen table the officers found an open paper that contained 1.07 grams of heroin, a burnt spoon, a needle, eye droppers and other narcotics paraphernalia.

The affidavit in the present case recited:

'On the 23rd day of February, 1965, affiants received reliable information from a credible person that heroin was being possessed by Nick Aguilar, at 7216 Gonzales 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 me, affiants on the afternoon of the 23rd day of February, 1965, set up surveillance of the house located at 7216 Gonzales Street, and from approximately 12:00 PM to 2:00 PM of that day we observed several persons whom we know to be users of narcotics enter the house, remain for approximately five minutes each and then leave.'

Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, cert. denied 386 U.S. 1008, 87 S.Ct. 1352, 18 L.Ed.2d 449, held that a similar affidavit for a search warrant was sufficient to show probable cause and meet the requirements of Aguilar v. Texas, supra. requirements of Aguilar v. Texas, supra. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964); Crotts v. State, Tex.Cr.App., 432 S.W.2d 921; Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435, cert. denied 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982; Vojel v. State, Tex.Cr.App., 417 S.W.2d 176; Bosley v State, Tex.Cr.App., 414 S.W.2d 468; United States v. Rich, 407 F.2d 934 (5th Cir. 1969), cert. denied 394 U.S. 993, 89 S.Ct. 1473, 22 L.Ed.2d 769.

Appellant relies upon Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. That case is distinguishable because there the statement regarding the informer was.

'The Federal Bureau of Investigation has been informed by a confidential reliable informant that William Spinelli is operating a handbook and accepting wagers and disseminating wagering information by means of the telephones (in the apartment) * * * .'

The Supreme Court, in Spinelli, noted: 'Though the affiant swore that his confidant was 'reliable,' he offered the magistrate no reason in support of this conclusion.'

In the case at bar the affiant swore that his informant was reliable and had given information to him concerning narcotics being possessed by certain individuals that on every occasion had proven to be true. The officers (affiants in the application for the search warrant) swore that they kept a surveillance on the house between 12:00 PM and 2:00 PM of February 23, 1965, observed several persons known to them to be narcotic users enter the home and remain approximately five minutes each and then leave.

In Spinelli the only circumstances except the tip from an informant were seemingly innocent movements made by the appellant and telephone company records, none of which suggested criminal misconduct.

The affidavit in the present case contained sufficient facts for the magistrate to find probable cause for the search and the issuance of the search warrant.

The first and second grounds of error are overruled.

In the third ground of error, complaint is made because the trial court would not require the disclosure of the names of the three known narcotic addicts, one being the informer, seen entering and leaving appellant's home before the arrest.

The record shows that the informer was not present at the time the search warrant was executed. Officer Collins was at the back part of the house and saw appellant seated at the kitchen table '* * * either in the process of fixing...