Cannady v. State, 60773
| Decision Date | 20 June 1979 |
| Docket Number | No. 60773,No. 2,60773,2 |
| Citation | 582 S.W.2d 467 |
| Parties | Robert D. CANNADY, Appellant, v. The STATE of Texas, Appellee |
| Court | Texas Court of Criminal Appeals |
William H. Scott, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Alvin M. Titus, and Connie B. Williams, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.
Before DOUGLAS, TOM G. DAVIS and DALLY, Judge.
This is an appeal from an order revoking probation.
On April 4, 1977, appellant waived his right to a jury trial and entered a plea of nolo contendere to the offense of possession of a controlled substance, phentermine, an isomer of methamphetamine. Punishment was assessed at imprisonment for five years, but imposition of sentence was suspended and appellant was placed on probation. One of the conditions of his probation was that appellant commit no offense against the laws of this State.
On November 2, 1977, an amended motion to revoke appellant's probation was filed alleging that appellant had committed the offense of possession of methaqualone, a controlled substance, on two occasions: June 24, 1977, and September 30, 1977. On February 17, 1978, after hearing evidence, the trial court revoked appellant's probation and imposed sentence.
Appellant contends that the evidence on which the revocation order is based was unlawfully seized because the search exceeded the scope of the search warrant; the State failed to produce the search warrant pursuant to which the evidence was seized; and the evidence does not support the finding of a probation violation on June 24, 1977.
Officer Leo Correa testified that on September 30, 1977, he and several other Houston police officers went to 6927 Long Point Road in Houston to execute a narcotics search warrant. The building in question was a long, commercial building containing several offices and businesses. Each of these establishments, though contained in a single building, had a separate entrance and bore a separate address.
After unsuccessfully attempting to open or break down the door marked 6927, the officers looked through a plate glass window and saw several men running from 6927 into 6929 through an opening in the wall between the two offices. The officers then entered the building through the door marked 6929. During a search of the premises, a bottle containing twenty-five methaqualone tablets was found in a tool kit belonging to appellant, who was one of the persons present at the time the warrant was executed.
The testimony describing the premises at 6927 and 6929 Long Point Road is confusing, since repeated references are made to diagrams which do not appear in the record on appeal. However, it appears from the testimony of the police and of appellant that 6927 and 6929 were leased by the same person and were being remodeled at the time of the search, and that several partitions separating the various offices and storerooms at the two addresses had been removed. Appellant testified that the tool box in which the contraband was found was located within the premises numbered 6929, but conceded on cross-examination that at the time of the search 6927 and 6929 appeared to be one large room.
Where premises sought to be searched are described in the search warrant by a certain street number, such a description will not authorize a search of some other street number. Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955 (1957); Harrison v. State, 149 Tex.Cr.R. 513, 196 S.W.2d 933 (1946); Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676 (1938). However, even if we assume that appellant's tool box was located within the premises technically designated 6929 Long Point Road, and was thus outside the scope of the search warrant, the search of 6929 was lawful.
The test to be applied to searches outside the scope of a search warrant is whether the search was unreasonable, since only unreasonable searches are prohibited by the Fourth Amendment of the United States Constitution and Art. I, Sec. 9 of the Texas Constitution. Long v. State, 532 S.W.2d 591 (Tex.Cr.App.1975) and cases therein cited. 6927 and 6929 Long Point Road were not separate structures, but adjacent offices within a single building. The partitions between and within 6927 and 6929 had been removed for...
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