Albitez v. State

• Decision Date: 09 December 1970
• Docket Number: No. 43307,43307
• Citation: 461 S.W.2d 609
• Parties: Antonio Reyes ALBITEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 609

461 S.W.2d 609

Antonio Reyes ALBITEZ, Appellant, v. The STATE of Texas, Appellee.

No. 43307.

Court of Criminal Appeals of Texas.

Dec. 9, 1970.

Rehearing Denied Jan. 27, 1971.

Filemon B. Vela, Brownsville, for appellant.

F. T. Graham, Dist. Atty., Menton Murray, Jr., Asst. Dist., Atty., Brownsville, and Jim B. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is possession of dihydrocodeinone, a narcotic; the punishment, five (5) years.

Appellant's first ground of error attacks the sufficiency of the affidavit for the search warrant. We set forth the affidavit omitting the formal parts.

'I, Detective Roy Zepeda of the Brownsville Police Department, recently received information leading to the arrest of a subject and the subsequent seizure of a small amount of heroin. Prosecution in this case is still pending.

'This reliable and credible informant has given me further information that within the past two weeks, she has been the witness to the administration of heroin shots to at least one subject in an apartment which is #4 at 830 E. Elizabeth Street in Brownsville, Cameron County, Texas. The informant has further revealed that the shots have been administered by ANTONIO REYES ALBITEZ, whom I know as a narcotics violator and who has been previously convicted of violating the U.S. Narcotics Laws, and who resides at said apartment.

'I have good reason to believe and do believe that there is stored in said apartment or on said premises a certain amount of heroin.

'My belief is further strengthened by the fact that the suspect arrested in connection with the above mentioned information told Detective Sgt. Andy Vega that an amount of heroin similar in size to that found on him is today being held by Antonio Reyes Albitez in his apartment. This information was given by the arrested subject after he had been properly warned of his Constitutional rights.

'Wherefore, I ask that a warrant to search the above mentioned apartment and premises at #4 apartment at 830 E. Elizabeth in Brownsville, Cameron County, Texas, and seize the said heroin mentioned above be issued in accordance with the law in such cases provided.

's/ Rogerio Zepeda

'ROGERIO ZEPEDA

'Sworn and subscribed to before me by Rogerio Zepeda on this the 11th day of August, A.D., 1969.

's/ Juan E. Gavito

'Justice of the Peace'

On the issue of probable cause, the following evidence was adduced. The witness, Jim Tatum Moore, testified that he met the appellant at a bar and the appellant asked him if he wanted some 'stuff.' Whereupon the two repaired to the appellant's apartment. When they arrived at the apartment, the appellant furnished him a quantity of heroin and he shot the same into his arm. More left appellant's apartment with enough heroin for one or two shots and he was arrested just after leaving the apartment within one-half block of the apartment between 2:30 p.m. and 4:00 p.m. At the time of his arrest, he made a statement to Officer Lonnie Florence.

Officer Zepeda testified that he received a call on the day in question. From the all he received information that there were some narcotics in the apartment. Upon receipt of this information, Officer Zepeda, in the company of Officer Florence, went to a department store directly across from appellant's apartment and looked through the open window into the apartment, where he saw appellant and Moore. He then began typing an affidavit for a search warrant, while still in the department store. When Moore left the apartment Zepeda and Florence followed him and arrested him, finding heroin on his person. Zepeda then went back to the department store, where he continued to prepare the affidavit.

Thereafter, he went to Justice of the Peace, Juan E. Gavito, where he tendered the affidavit which he had prepared. Judge Gavito issued the warrant. Officer Zepeda in the company of Officers Florence and Vega and another officer, then went to the appellant's apartment. They knocked on the door and received no response. Noticing that the apartment was locked with a padlock on the outside, they procured a key from a fuse box, outside the apartment, in the hallway. In the apartment they found narcotic paraphernalia consisting of syringes, needles, and a powder which was later shown by the testimony of the chemist to be dihydrocodeinone.

Officer Florence testified that he accompanied Officer Zepeda in the surveillance that was conducted from the department store and in the arrest of Moore. He and Officer Zepeda searched Mr. Moore, placing him under arrest, and Officer Florence took him back to headquarters and made a more thorough search. As a result of that search, heroin was found in his possession. Although Officer Florence did not testify what Moore told him at the time of his arrest, he did testify that he interviewed Moore; that Sgt. Vega was there during this interview; and that the information that Moore told them was passed on to Detective Zepeda, who was at the courthouse by his time. Officers Florence and Vega then went to the appellant's apartment, where Officer Zepeda showed them the search warrant which he had procured, and they searched the apartment.

Appellant contends that the affidavit, on its face, does not state probable cause for the issuance of a search warrant. Although the affidavit is not a model one, ¹ we conclude that it states probable cause and is sufficient.

Also, in connection with appellant's first point of error, we find that Officer Zepeda took the affidavit which he prepared in the department store to Justice of the Peace Juan Gavito and Judge Gavito found this affidavit to be insufficient to show probable cause. The Justice of the Peace then helped him prepare a second affidavit, which appears in the record, and which was the basis for the issuance of the warrant in this case. Surely such assistance on the part of the magistrate is not to be condemned but is to be commended. It was his duty to see that the affidavit was sufficient to reflect probable cause before he issued the warrant.

Appellant's second ground of error is that the following questions were propounded to the arresting officer, and the court sustained the state's objection hereto. They are as follows:

'Q. Do you know whether or not she, to your knowledge, has been in the apartment of the Defendant?

'Q. Can you tell us whether or not this person who gave you this information could be a witness for or against the Defendant in this cause?

'Q. Is this person who gave you this information a heroin addict?

'Q. Is this person who gave you this information in any way related to Jim Tatum Moore?

'Q. Do you know of your knowledge why you don't want to disclose the name of this informer?'

There is nothing in the record that would indicate that the informer was present at the time of the arrest, and there is no showing that the informer participated in any offense for which the defendant was being tried, nor that she was present at the time of this offense, nor that she was a...