Dawson v. State, 44461

• Decision Date: 02 February 1972
• Docket Number: No. 44461,44461
• Parties: Billy J. DAWSON and Lois Mae Ervin, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 277

477 S.W.2d 277

Billy J. DAWSON and Lois Mae Ervin, Appellants, v. The STATE of Texas, Appellee.

No. 44461.

Court of Criminal Appeals of Texas.

Feb. 2, 1972.

Rehearing Denied March 22, 1972.

J. Robert Sheehy, Waco, for Billy Joe Dawson.

Ted Fair, Waco, for Lois Mae Ervin.

Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

These are appeals from convictions for the possession of heroin where the jury assessed the punishment for each at thirty years.

Officers of the Texas Department of Public Safety and local police officers went to 808 North 5th Street in Waco armed with a search warrant. The search warrant included an order for the arrest of the two appellants. The officers arrived in several unmarked cars and saw the appellants leave the above address, get in Dawson's car and drive away. Dawson drove and Miss Ervin sat on the passenger's side in the front seat. The officers followed. The appellants turned off North 5th Street onto Waco Drive and then spotted the officers. They sped off in excess of 80 miles per hour but were stopped by the officers about a quarter of a mile away. Two officers went to the driver's side of the car and arrested him. They observed a pistol in his belt and removed it. They also found a matchbox in his pocket which contained 'three rubber fingerstalls with some kind of soft substance' later identified as heroin.

Miss Ervin was placed in one of the unmarked cars, informed about the warrant, returned to 808 North 5th Street, and searched by two female officers. They found on her a matchbox containing heroin.

The sufficiency of the evidence is not challenged.

Both appellants complain in their first ground of error of the trial court's refusal to suppress evidence found on their persons because the arrest was illegal. The State argued at the hearing on the motion to suppress principally on the basis of Article 14.04, Vernon's Ann.C.C.P., but also argued that the search warrant itself ordered an arrest of both appellants. Article 725b, Section 16, Vernon's Ann.P.C., provides for the issuance of search warrants for narcotic drugs, and Articles 18.10 and 18.11, V.A.C.C.P., provide that a warrant to arrest may issue with a search warrant and that a search warrant may order an arrest. Hence, a search warrant properly issued on the basis of probable cause for the search of certain premises for narcotic drugs may also order the arrest of those persons, named or unnamed, for whom probable cause exists to believe are in possession of the narcotic drugs, Olivia Garza v. State, Tex.Cr.App., 456 S.W.2d 374; Doby v. State, Tex.Cr.App., 363 S.W.2d 286; Giacona v. State, 169 Tex.Cr.R. 101, 335 S.W.2d 837. In each of the three cited cases the person arrested was not inside the premises stated in the warrant when arrested. In Mosse v. State, 332 S.W.2d 383 (Tex.Civ.App.), relied upon by appellant, no mention was made as to whether the search warrant also ordered the arrest of the defendant. We assume it did not. The contention that the arrests were illegal is overruled.

Dawson complains that the trial court erred in denying his motion to sever, especially on the question of punishment. Both appellants received the same punishment of thirty years. No prior felony convictions were shown for either. Both had bad reputations according to the State's reputation witnesses. The bad reputation of Dawson was only for the past nine months to a year; that of Appellant Ervin was not so limited and included complaints of prostitution and a charge on felony theft. Ten reputation witnesses testified that Dawson's reputation had been good up until six months prior to the alleged offense. No reputation witnesses appeared on behalf of Ervin. Both appellants applied for probation.

Article 36.09, V.A.C.C.P. (1972 Supp.), providing for severance of two or more defendants, makes severance discretionary with the trial court unless one defendant has an admissible prior conviction while the person seeking the severance does not. Holbert v. State, Tex.Cr.App., 457 S.W.2d 286; Younger v. State, Tex.Cr.App., 457 S.W.2d 67; Robinson v. State, Tex.Cr.App., 449 S.W.2d 239; Sonderup v. State, Tex.Cr.App., 418 S.W.2d 807. No abuse of discretion has been shown. The trial court might see fit to grant a severance in the event of another trial.

Both appellants complain that the trial court (after a hearing on the motion to suppress wherein the court determined that probable cause existed to support the warrant for search and arrest) allowed, before the jury, testimony of probable cause by Dick Nelson, Narcotics Agent for the Texas Department of...