Bridger v. State

• Decision Date: 09 January 1974
• Docket Number: 46988,Nos. 46910,s. 46910
• Parties: Bobby Joe BRIDGER, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 801

503 S.W.2d 801

Bobby Joe BRIDGER, Appellant, v. The STATE of Texas, Appellee.

Nos. 46910, 46988.

Court of Criminal Appeals of Texas.

Jan. 9, 1974.

Rehearing Denied Jan. 30, 1974.

James S. Moss (court appointed), Mesquite, for appellant.

Henry Wade, Dist. Atty., and James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The convictions in trials before separate juries are for felony theft and for robbery; the punishment for theft seven years' imprisonment and for robbery enhanced by a prior conviction, life imprisonment.

The same grounds of error are presented in both appeals and may be considered in one opinion. The appellant alleges that evidence was acquired in a unlawful search and seizure in violation of his rights under the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 9 of the Texas Constitution, Vernon's Ann.St., and he urges that its admission in these trials was reversible error.

Dallas police officers, armed with a search warrant, searched the appellant's residence on November 7, 1971, and obtained two ski masks, a coil of blue wire, a money bag, $306.00 found in the bag (including three two-dollar bills), a number of rounds of .22, .32 and .38 caliber ammunition, and some silver coins which were introduced in evidence before the jury in the trial of the robbery case. Only the two ski masks and the coil of blue wire were admitted at the trial of the theft case. Appropriate objections in each of the trials raised the issues here presented.

One specific complaint is that the allegations of the affidavit made to support the issuance of the search warrant are insufficient to show probable cause for the issuance of the search warrant in view of the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The pertinent part of the affidavit reads as follows:

'I, T. C. Sewell, do solemnly swear that a certain place in Dallas County, Texas, described as 601 North Ewing, the Geneva Apartments, a two story white brick building, in apartment #107 and being the premises under the control and in charge of Boddy Joe Bridger is a place where implements are kept for the purpose of aiding in the commission of an offense as defined by the Penal Code of the State of Texas, to-wit: Robbery with Firearms. This affidavit is based on information given in the form of a voluntary statement by Gary McCall, an accomplice of Bridger in the robbery of the First Federal Savings & Loan, 3924 S. Polk, on 11--3--71, McCall gave me $800.00 taken in the robbery and stated Bridger had the gun, a .38 cal revolver, and two ski masks that were used in the commission of the offense. The listed items are hidden in this apartment.' ¹

As we read the affidavit the affiant did not assert that he had personal knowledge of any of the facts stated therein. The facts and circumstances stated in the affidavit are hearsay information. They are based solely upon the voluntary statement of an accomplice. The statement of the accomplice McCall was not attached and incorporated into the affidavit. If it had been it might have supplied the deficiencies which we find in the affidavit.

In Aguilar v. Texas, supra, it was said:

'Although an affidavit may be used on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were . . .'

We do not intend to be overly strict or technical in our interpretation of affidavits supporting search warrants, recognizing that they must be written by working officers having limited time. We adhere to the 'common sense' interpretation of such affidavits, but in doing so we must stay within the boundaries of constitutional requirements. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Even if we liberally construe the affidavit to mean that McCall said the .38 caliber revolver and the two ski masks that were used in the commission of the robbery were hidden in the appellant's apartment, such a statement would not meet the above requirements of Aguilar. The magistrate issuing the warrant was not informed of the underlying circumstances from which the informant concluded that the named implements kept for the purpose of aiding in the commission of the robbery were where he claimed they were. The affidavit liberally construed shows no more than a suspicion on the part of the informer that these implements were kept where the appellant resided. ² The affidavit does not relate that the informer had been on the described premises and seen the implements there or that the appellant had told him the implements were there, nor are any other underlying facts or circumstances provided to give credence to the informant's statement that the implements were on the premises described. See Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Nicol v. State, 470 S.W.2d 893 (Tex.Cr.App.1971); Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970); Powers v. State, 456 S.W.2d 97 (Tex.Cr.App.1970) and compare Hegdal v. State, 488 S.W.2d 782 (Tex.Cr.App.1972); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.1972); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1970); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1971); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972).

We find that the search and seizure were unlawful because the affidavit supporting the search warrant is insufficient as it does not meet the first requirement of Aguilar v. Texas, supra. Therefore, we need not further consider the appellant's contentions that the second requirement of Aguilar concerning the reliability of the informer was not satisfied, and that the affidavit is insufficient because the description of the premises to be searched does not include the name of the city in Dallas County where the premises were located.

Since we are holding the search and seizure to be unlawful we must further inquire whether admission of the fruits of the search at his trials was harmful to appellant. If found to be harmless beyond a reasonable doubt, their admission would not require reversal. Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.1972); Ex Parte Slaton, 484 S.W.2d 102 (Tex.Cr.App.1972); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Holcomb v. State, 484 S.W.2d 929 (Tex.Cr.App.1972); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

To determine whether the admission of the unlawfully obtained evidence was harmless error beyond a reasonable doubt we must consider the other evidence in the record. The witnesses who were present when the robbery occurred at the First Federal Savings and Loan Association were unable to make a positive identification of the appellant because the two robbers both wore ski masks. The witnesses did observe that one of the robbers was short, stocky, and about forty years of age. This description fitted the appellant. The robbers took some old silver coins and approximately $2,900.00 in currency including four two-dollar bills. The employees of the savings and loan association saw the robbers escape in a late model Ford automobile which was maroon with a black vinyl top and bore license plates with letters and numbers LKL 247.

Although the record is not as precise as it might be in respect to distance and time, shortly after the robbery a repairman who was working on the roof of a two-story apartment building heard the 'squeaking' of tires. When he looked in the direction of the noise he saw two men, one of whom he identified at the trial as the appellant, emerge from a late model Ford automobile which was maroon with a black vinyl top and bore license plates with letters and numbers LKL 247. The appellant was carrying a briefcase. After appearing to wipe something off from...