Avery v. State, 52239

• Decision Date: 19 January 1977
• Docket Number: No. 52239,52239
• Citation: 545 S.W.2d 803
• Parties: James AVERY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 803

545 S.W.2d 803

James AVERY, Appellant, v. The STATE of Texas, Appellee.

No. 52239.

Court of Criminal Appeals of Texas.

Jan. 19, 1977.

Rehearing Denied Feb. 9, 1977.

Tom Upchurch, Jr. and V. G. Kolius, Amarillo, for appellant.

Tom Curtis, Dist. Atty., Bruce P. Sadler, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State's Atty. and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ROBERTS, Judge.

This is an appeal from a conviction for keeping a gambling place. The jury assessed punishment at seven years' confinement in the Texas Department of Corrections.

The record reflects that on November 3, 1974, several law enforcement officials entered appellant's apartment in Amarillo, armed with a search warrant. While inside, they arrested the appellant and searched the apartment pursuant to the warrant. They seized items of gambling paraphernalia and tape recorded incoming phone calls while they were there. This evidence formed the basis of appellant's conviction.

Appellant challenged the admissibility of this evidence by a motion to suppress and by objections at the trial, the basis of the motion and objections being that the search warrant was issued without probable cause. The motion and objections were overruled.

Appellant contends that the affidavit upon which the search warrant was issued did not constitutionally satisfy the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), because it failed to state sufficient facts from which a neutral magistrate could determine that the affiant correctly concluded that the informant 'was 'credible' or his information 'reliable." Id., at 114. In short, appellant hangs his hat on the 'second-prong.'

The affidavit, in pertinent part, reads as follows:

'4. AFFIANTS HAVE PROBABLE CAUSE FOR SAID BELIEF BY REASON OF

THE FOLLOWING FACTS, TO-WIT: Within the last 24 hours of this date, November 3, 1974, two confidential informants, whose names are withheld for security reasons, told affiant, Dan Self, Intelligence Agent with the Texas Department of Public Safety that the suspected parties are in control of and are knowingly possessing gambling paraphe_ _rHAlia with the intent to further gambling at the said suspected place. Both informants were present when James Avery removed the gambling paraphernalia from the above described suspected vehicle and took it into the suspected place. Affiant Self believes that this information given by such informants is reliable and that such information is credible for the following reason, such informants have both given information on numerous occasSIons in the past in reference to violations of the gambling laws of this state, to affiant Self.'

In order to determine whether an affidavit states facts which are sufficient under Aguilar to establish the credibility and reliability of the informant, it is necessary to focus on the type of informant relied upon.

If the informant is named, the affidavit satisfies Aguilar when it also contains the information given by him, and such information is sufficiently detailed so as to suggest direct knowledge on his part. Lopez v. State, 535 S.W.2d 643, 648 (Tex.Cr.App.1976).

If the informant is unnamed, the minimal requirement is that the affidavit recite that the informant has no criminal record, and enjoys a good reputation among his associates and in the community. Compare, Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975), Cert. denied, 424 U.S. 926, 96 S.Ct. 1139, 47 L.Ed.2d 336 (1976) With, Caldarera v. State, 504 S.W.2d 914 (Tex.Cr.App.1974) (and cases there cited). This is true even though the informant has not given information before, because an affidavit in support of a warrant to search need not recite that the affiant's informant has given information in the past. See, Barnes v. State, 504 S.W.2d 450, 454 (Tex.Cr.App.1974).

However, when an unnamed informant is relied upon, his credibility may be established under Aguilar simply 'by allegations to the effect that the informer ha(s) proven reliable on prior occasions.' Gonzales v. Beto, 425 F.2d 963, 968 (5th Cir.), Cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970); 400 U.S. 1001, 91 S.Ct. 476, 27 L.Ed.2d 452 (1971). This is accomplished when the affiant swears that the informant has 'given information in the past which has proven to be true and correct in every instance,' Curtis v. State, 519 S.W.2d 883, 886 (Tex.Cr.App.1975); that the informant has given information on 'prior occasions and on each occasion the information has proven to be reliable,' Morgan v. State, 516 S.W.2d 188, 190 (Tex.Cr.App.1974), Cert. denied, 420 U.S. 947, 95 S.Ct. 1330, 43 L.Ed.2d 426 (1975); that the informant has given information 'on several previous occasions . . . and on each occasion the information has proven to be true,' Powell v. State, 505 S.W.2d 585, 586 (Tex.Cr.App.1974); that the informant 'has given information on numerous occasions in the past . . . and on several occasions the informant has proven to be reliable, true and correct,' Barnes, supra, at 454; that the informant has given information 'many times in the past and the information has always been true and correct,' Sessions v. State, 498 S.W.2d 933, 934 (Tex.Cr.App.1973)- ; that the informant has given information ...