Brown v. State
| Decision Date | 03 July 1973 |
| Docket Number | No. 47083,47083 |
| Citation | 498 S.W.2d 343 |
| Parties | Leon Ivan BROWN, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
L. Aron Pena, Edinburg, for appellant.
Oscar McInnis, Dist. Atty., and Walter G. Weaver, Asst. Dist. Atty., Edinburg, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
JACKSON, Commissioner.
This appeal is from revocation of probation; the punishment, three (3) years.
On May 19, 1972, appellant was convicted for destruction of public property over the value of $50, and was granted probation during his three year term, conditioned that he commit no offense against the laws of this State.
The State filed a motion to revoke probation, alleging that on September 1, 1972, appellant had in his possession a narcotic drug, to-wit, marihuana. A hearing was held on the motion to revoke probation on October 19, 1972, resulting in the revocation and sentence of appellant to serve not less than two nor more than three years in the Texas Department of Corrections.
The facts developed at the hearing showed that police officers at Mercedes, with a search warrant for a mobile home occupied by Gloria Flores, searched the mobile home in question, found three packages of marihuana containing a total of 101 grams under the sofa, saw appellant hurry into the bathroom as the officers entered the house, heard him flush the toilet, arrested Gloria Flores, appellant and another male and female in the small home, carried them to the police office, searched appellant and found small quantities of marihuana, including a marihuana seed, in his pockets. In addition, the officers before the search had the home of Gloria Flores under surveillance for three weeks, had seen a number of known marihuana users frequently go there and leave, and had seen appellant go there many times during the day and night. They had seen Gloria Flores often using appellant's car, as she had none of her own.
Chain of custody of the marihuana was proved, and Dr. H. E. Whigham, whose qualifications were admitted, identified the contraband as marihuana.
Gloria Flores testified for appellant that the marihuana found in her premises was being kept by her for a man whose name she did not know, and appellant had nothing to do with it. Appellant did not testify.
Appellant's contentions, properly preserved at the hearing, are (1) that the search warrant was not legal because the affidavit therefor did not set out sufficient facts to justify its issuance, and (2) that the search of his person at the police station was unwarranted, and, therefore, the fruits of those searches were not admissible in evidence.
The affidavit sworn to before a magistrate on September 1, 1972, upon which the search warrant was issued, stated the facts upon which affiant's belief was based that Gloria Flores possessed marihuana at the mobile home in question, which were:
'On this day an informant, whose name is with-held for security reasons, told your affiant that said suspected party is now keeping and possessing narcotic drugs at said suspected place and further stated to your affiant, as basis for said conclusion, that on August 31, 1972, such informant was at said suspected place and there saw said suspected party, keeping and possessing a narcotic drug in form of a green leafy substance known to informant as marijuana. Informant acquired a small amount of such substance and made some available to your affiant. Said suspected substance was tested by your affiant by method of smell and burn test and found to be exactly the same substance as known to your affiant as marijuana. Informant further stated that much more such substance was seen in said suspected place. 'Your affiant believes that this information given him by such informant is reliable and that such informant is credible, for the following reasons;
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Robinette v. State, 4 Div. 478
...(Me.1973) (defendant, who entered during search, was obviously under influence of drugs and his pockets were bulging); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App. 1973), overruled on other grounds, Lippert v. State, 664 S.W.2d 712 (Tex.Cr.App.1984) (defendant, present when marijuana was fou......
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Lippert v. State
...(Tex.Cr.App.1969); Guzman v. State, 461 S.W.2d 602 (Tex.Cr.App.1970); Guerra v. State, 496 S.W.2d 92 (Tex.Cr.App.1973); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973); Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974). And the cases have made clear that there can be no meaningful distin......
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Com. v. Smith
...Clay v. United States, 246 F.2d 298, 305 (5th Cir.), cert. denied, 355 U.S. 863, 78 S.Ct. 96, 2 L.Ed.2d 69 (1957); Brown v. State, 498 S.W.2d 343, 346 (Tex.Cr.App.1973), and cases cited. See also United States v. Johnson, supra at 981 & n. 5, 982 (Bazelon, C.J., concurring in part and disse......
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Lippert v. State, 13-81-176-CR
...a valid search warrant has the right and duty to search persons found on the premises during the execution of a warrant. Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973). See also Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974); Guerra v. State, 496 S.W.2d 92 (Tex.Cr.App.1973); Johnson ......