Bosley v. State

• Decision Date: 05 April 1967
• Docket Number: No. 40183,40183
• Citation: 414 S.W.2d 468
• Parties: Bruce BOSLEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 468

414 S.W.2d 468

Bruce BOSLEY, Appellant, v. The STATE of Texas, Appellee.

No. 40183.

Court of Criminal Appeals of Texas.

April 5, 1967.

Rehearing Denied May 17, 1967.

John Cutler, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Robert Floyd, Asst. Dist. Attys., and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is Possession of Heroin; the punishment is confinement in the Texas Department of Corrections for twenty (20) years.

In addition to the primary offense, the indictment alleged two (2) prior convictions of felonies less than capital apparently for the purpose of enhancement of punishment under the provisions of Article 63, Vernon's Ann.P.C. The Court granted appellant's pre-trial motion to quash that portion of the indictment alleging a prior conviction for Robbery and the case proceeded as one charging appellant as a subsequent offender under the provisions of Article 725b, V.A.P.C., since the remaining prior conviction involved a violation of the Uniform Narcotic Drug Act.

The case was tried before a jury on the question of guilt or innocence upon the primary offense alone. The appellant elected to have the judge assess the punishment. The prior conviction for the sale of marijuana as alleged in the second paragraph of the indictment was properly stipulated at the separate hearing on punishment, but it does not appear that the judge gave application to the enhanced punishment provisions of Article 725b, V.A.P.C., for the sentence pronounced reflects that the penalty imposed is for not less than two (2) nor more than twenty (20) years.

It will be necessary to summarize the facts to properly appraise appellant's grounds of error.

Officer B. E. Majors of the City of Houston Police Department testified that on December 13, 1965, he received information that one James Lyles had heroin in his possession for sale and use at his apartment at 1511 West 12th Street in Houston. He related that this information was received from a person that had given him information on previous occasions that proved to be true. Pursuant to these facts, Majors and other officers set up a surveillance of Lyles' apartment between 3 P.M. and 6 P.M. on December 13 and December 14, 1965.

Two of the three people seen entering the apartment on December 13, 1965, were known to the officers to be narcotic users. Two of the persons observed entering the following day were likewise known to the officers as narcotic users. At 8:25 P.M. on December 14, 1965, Officers Majors and Franguille obtained a search warrant from Justice of the Peace, Jack Treadway, and at approximately 11 P.M., Majors, Franguille and two other officers entered Lyles' unlocked apartment. Five minutes later the appellant Bosley and Lyles entered the apartment. When the appellant saw the officers, he dropped two 'papers' on the floor, and said, 'You got me.'; or as Officer Majors recalled, 'I'm busted. I had the stuff.'. A subsequent search of the apartment revealed two hypodermic syringes. The chain of custody of the 'papers' was properly established, and Floyd McDonald, the chemist, testified that one of the two 'papers' contained .74 grams of heroin and the other, .64 grams of heroin.

We find no merit in appellant's first ground of error that the trial court erred in its failure to hear the appellant's pre-trial motion to suppress evidence. The case at bar was set for trial and commenced on May 25, 1966, and on the same date, appellant filed his pre-trial motion to suppress. In declining to hear such motion, the trial judge clearly indicated to appellant that he could make any appropriate objection at the time the evidence sought to be suppressed was tendered on the trial on the merits. Nothing in Article 28.01, Vernon's Ann. C.C.P., or elsewhere in the Code of Criminal Procedure would have required the court to have heard the said motion to suppress. This article permits the trial judge, within his discretion, after five days notice to the accused, to set certain motions in limine and to suppress evidence. This innovation in Texas criminal procedure was designed to enable the trial judge to dispose of such matters sometime prior to trial to avoid delays after jurors and witnesses have been summoned. Unlike Rule 41 of the Federal Rules of Criminal Procedure, Article 28.01 C.C.P., is without detailed provisions for the procedure or scope of such motions to suppress. There being no specific requirement that objections to evidence resulting from arrests and searches be raised in pre-trial motions to suppress, it is clear that the defendant in Texas courts may still make such objections at the trial on the merits for the first time under the procedural requirements laid down in Rosales v. State, Tex.Cr.App., 399 S.W.2d 541; Ramos v. State, Tex.Cr.App., 395 S.W.2d 628, 629; and Pritchett v. State, Tex.Cr.App., 214 S.W.2d 623.

It is further observed that shortly after the State called its first witness at the trial, the jury was removed, and a hearing was held to determine the legality of the search here involved.

Appellant's second ground is that the affidavit to the search warrant was insufficient to demonstrate probable cause for the issuance thereof.

We observe that the search warrant affidavit attached to the record is in almost the exact language, except for names, dates, addresses, and hours of surveillance as the affidavits approved by this Court in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435.

Appellant cites Riggan v. Virginia, 384 U.S. 152, 16 L.Ed.2d 431, 86 S.Ct. 1378, as his authority that the affidavit here is insufficient as to probable cause. Appellant contends that Acosta v. State, supra, can be distinguished from the case at bar because in the Acosta case there was no comparison of the Acosta affidavit with the one in the Riggan case. That now has been done contrary to appellant's contention in Gonzales v. State, supra.

Appellant next contends that the trial court erred in refusing to permit the disclosure of the identity of the informant mentioned in the affidavit for the search warrant as well as the names of the 'users of narcotics' seen going in and out of Lyles' apartment.

In permitting the officer to withhold the informant's identity, the Court was following well established Texas law. Acosta v. State, supra; Thayer v. State, Tex.Cr.App., 397 S.W.2d 236; Artell v. State, Tex.Cr.App., 372 S.W.2d 944. Appellant sought the identity of the undisclosed informer in order to refute the existence of probable cause for the search warrant's issuance, and not on the ground that the undisclosed informer's testimony was material to, and probative of, the main issue of guilt or innocence of the appellant. When the issue is not the guilt or innocence, but as in the case at bar, the question of probable cause for an arrest or search, peace officers need not invariably be required to reveal an informer's identity. This is especially true where the trial court is convinced by evidence submitted in open court and subject to cross-examination that the officers did rely in good faith upon credible information supplied by a reliable informer.

Appellant relies upon Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, as his authority that the informant's identity be disclosed. The position of this Court relative to such a contention was stated in Acosta v. State, supra, as follows:

'Appellant...