Doescher v. State, 54865

• Decision Date: 27 September 1978
• Docket Number: No. 1,No. 54865,54865,1
• Parties: John Douglas DOESCHER, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 385

578 S.W.2d 385

John Douglas DOESCHER, Appellant, v. The STATE of Texas, Appellee.

No. 54865.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 27, 1978.

Rehearing Denied March 21, 1979.

John C. Hendrik (court appointed on appeal only), Dallas, for appellant.

Henry M. Wade, Dist. Atty., William M. Lamb, David Schick, and John Ovard, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 75 years' imprisonment.

Appellant complains in his first ground of error that the trial court's findings of fact and conclusion of law to the effect that the State's witnesses' identification of appellant as the armed robber was not irreparably tainted by a suggestive pretrial photograph lineup were erroneous.

The testimony of the two State witnesses [who subsequently identified appellant at the trial] at the pretrial hearing demonstrated that their identification of appellant was based primarily on their observations of him on the night of the robbery and not on the photograph presented to them in the photographic array consisting of seven mug shots. Both eyewitnesses testified that the detectives presenting the photographic arrays made no effort to influence their choice of photographs and both detectives denied attempting to influence the witnesses in their selection of any photograph. Our review of the photographic array utilized in the identification process reflects that seven mug shots were utilized, none of which carry any specific distinguishing marks that would impermissibly suggest which photograph was to be selected. Appellant's complaint that his photograph is the only one taken in front of a height indicator is of little consequence since no other photograph gave the respective heights of the other subjects in the photographic display. Therefore, all subjects could have been of the same approximate height. Our review of the facts of this case and the totality of surrounding circumstances demonstrates that the photographic display was not impermissibly suggestive and did not "give rise to a very substantial likelihood of irreparable misidentification." White v. State, 496 S.W.2d 642, 647 (Tex.Cr.App.); Atkinson v. State, 511 S.W.2d 293 (Tex.Cr.App.); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant's first ground of error is overruled.

Appellant complains of certain deficiencies in the securing and execution of the search warrant upon which police officers searched appellant's home and seized various items admitted into evidence against him. Five particularized issues are raised by appellant in support of his contention that the search warrant and its execution were deficient. Certain basic principles control our disposition of appellant's Ground of Error No. 2. First, the affidavit given in support of securing a search warrant controls over the search warrant. Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.); Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.). Second, as appellant recognizes, the determination of the legal adequacy of an affidavit in support of a search warrant is to be made within the four corners of the document involved. Jackson v. State, 365 S.W.2d 935 (Tex.Cr.App.); Aubre v. State, supra; Riojas v. State, supra.

Appellant complains that the affidavit in support of the search warrant is insufficient for failing to present the reviewing magistrate sufficient surrounding circumstances upon which to conclude that the unnamed informants relied upon by affiant were reliable or credible or that the informants could conclude that the items sought by the search warrant were where they were purported to be. The pertinent portion of the affidavit reads:

"MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:

I Officer D. H. Pfeifer, a police Detective for the city of Grand Prairie, have been investigating the aggravated robbery of the Buddies Supermarket on N. Carrier in Grand Prairie.

During the investigation officers found a white pick-up truck used in the robbery and positively identified by an eyewitness to the robbery as being used in the robbery.

A witness who knows John Doescher personally has stated to the affiant that, he observed Doescher drive up and park the pick-up used in the robbery where it was found. This witness saw this the night of the robbery and shortly thereafter. Two eyewitnesses of the robbery did positively identify John Doescher's photograph as being the robber. This identification occurred on this date of 1-9-75. The address to be searched is the address of John Doescher and Doescher has even listed this as his address with his parole officer. Doescher is presently on parole for robbery and has been seen by the affiant entering and leaving 2038 Fort Worth Street on several occasions within the past two weeks. The license plate on the pick-up used in the robbery is registered to a man named Taggert at 2038 Fort Worth Street and the affiant knows Taggert to be a friend of Doescher.

On 1-9-75 person or persons unknown called the affiant by phone and stated 'that John Doescher robbed the Buddies store and has the gun and bag used in the robbery at 2038 Fort Worth Avenue at this time.'

Mrs. John Doescher, after being arrested and warned of her rights by officers, stated that part of the money taken in the robbery is at 2038 Fort Worth Street, Grand Prairie, Texas."

The implements identified in the affidavit and search warrant for seizure were "a yellow money bag and blue steel revolver pistol."

It is clear from a review of the affidavit that, aside from appellant's wife, none of the informants upon whom the affiant relied are named or in any other way characterized as credible or reliable by the affiant. See Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.). Nevertheless, the failure to allege prior reliability is not necessarily a fatal defect in the affidavit. Adair v. State, supra; Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.). Affidavits in support of search warrants are to be interpreted in "a commonsense and realistic fashion." U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Of significant relevance to the determination of whether probable cause exists for the issuance of the search warrant is any corroboration by the affiant of the hearsay declarations which are presented to the magistrate in the affidavit. Spinelli v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As stated in Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.):

"In order for an affidavit to show probable cause, it must set forth sufficient circumstances to enable a magistrate to judge, independently, the validity of the affiant's belief that contraband is at the place to be searched." Id. at 379.

Although the above excerpt from Frazier refers to contraband, it is clear that a search warrant is appropriate to seize "property acquired by theft or in any other manner which makes its acquisition a penal offense" (Article 18.02(1), V.A.C.C.P.) or "implements or instruments used in the commission of a crime" (Article 18.02(9), V.A.C.C.P.). ¹

A distinction has always been recognized between the hearsay statements of unnamed confidential informants who are regularly involved in nefarious activities with the criminals upon whom they inform and citizen eyewitnesses to a crime, when an assessment of their credibility and/or reliability is involved. This Court has never stated that the distinction is sufficient to eliminate the necessity of either naming the eyewitness or presenting some statement to the magistrate that would allow him to determine that the eyewitness informant is credible and/or reliable. Avery v. State, supra; Frazier v. State, supra; United States v. Bell, 457 F.2d 1231 (5th Cir., 1972).

The affidavit in this case shows that the affiant's knowledge about the presence of a bag and gun and their location was obtained by an anonymous telephone tip. Nothing in the affidavit reflects that the affiant's investigation of this robbery up to the time of the tip or afterwards established that a gun and/or bag was used in the course of the robbery. Although the magistrate was apprised that the crime being investigated was aggravated robbery, we note that aggravated robbery can be committed without the necessary involvement of a deadly weapon. It can be committed with the causation of serious bodily injury in the course of committing robbery. The affiant's investigation and corroboration of other hearsay information provided him from eyewitnesses to the robbery do not cure the deficiency that exists in this affidavit with respect to the actual items identified in the affidavit and search warrant for seizure. Thus, the magistrate was not apprised of any fact, information, or "underlying circumstances" to permit him to conclude that the "yellow money bag and blue steel revolver pistol" were connected with the aggravated robbery or at the location identified for search in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

However, the State contends there to be no error since the searching police officers had also obtained the consent of appellant's wife to search the same premises prior to the search. Appellant's third ground of error alleges that his wife's consent to the police officers to search their residence was legally insufficient and that any items seized pursuant thereto should have been suppressed by the trial court. We agree with the appellant.

Whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances surrounding the giving of that consent. Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.). That Mrs. Doescher could give consent...