Dusek v. State, 43680

• Decision Date: 27 April 1971
• Docket Number: No. 43680,43680
• Citation: 467 S.W.2d 270
• Parties: Ronnie James DUSEK, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 270

467 S.W.2d 270

Ronnie James DUSEK, Appellant, v. The STATE of Texas, Appellee.

No. 43680.

Court of Criminal Appeals of Texas.

April 27, 1971.

Rehearing Denied June 9, 1971.

Mel S. Friedman, Will Gray, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and James A. Moseley, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for possession of marihuana where the punishment was assessed at five years. The imposition of the sentence was suspended and the appellant placed on probation.

In his initial ground of error appellant contends the court erred in failing to suppress evidence concerning the finding of marihuana on his person when the State, despite objection, was unable to exhibit a valid warrant for the arrest of another to the trial court.

These unusual contentions arose in this manner. Shortly after 8 p.m. on November 6, 1968, three Houston police officers went to a residence located at 4185 Elgin Street in Houston. The officers had three felony arrest warrants for one Gerald Snyder who resided there. After knocking at the kitchen door they were admitted by one Gary Holliman who informed them that Snyder was in the front bedroom. One of the officers, T. A. Bell, testified that upon entering the bedroom he saw Snyder, the appellant Dusek and two other persons; that he then observed the appellant put into his pocket a substance contained in a plastic bag which appeared to his experienced eye to be marihuana. The appellant was arrested and the search incident thereto revealed the plastic bag and it contents which were later shown by chemical analysis to be marihuana.

Article 14.01, Vernon's Ann.C.C.P., 1967, provides:

'(a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

'(b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.'

When an officer is armed with a valid felony arrest warrant he may legally enter a house for the purpose of executing the same. See Article 15.25, V.A.C.C.P.; 6 Tex.Jur.2d, Arrest, Sec. 44, p. 186. If an officer is lawfully where he has a right to be, i.e., where he has entered a house to execute a felony arrest warrant for one person, he may arrest another person in such house for an offense committed within his view. Therefore, if Officer Bell was where he had a right to be, he had the authority to arrest the appellant for the felony offense of possession of marihuana, and incident thereto search appellant's person.

We do not understand appellant to dispute this proposition of law. He does contend that upon his timely objection, before the officers testified as to the arrest and search, the State was required to produce for the court's inspection the three arrest warrants. He relies upon Vines v. State, Tex.Cr.App., 397 S.W.2d 868; Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297; Ciulla v. State, Tex.Civ.App., 434 S.W.2d 948; see also Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662; Humphreys v. State, 166 Tex.Cr.R. 304, 31 S.W.2d 631; Henderson v. State, 108 Tex.Cr.R. 167, 1 S.W.2d 300; Nunez v. State, 168 Tex.Cr.R. 455, 329 S.W.2d 93; 11 Tex.Digest, Crim. Law, Sec. 394.5(1); 51 Tex.Jur.2d Searches and Seizures, Sec. 46, p. 731. ¹

It is true that the State did not produce the arrest warrants. The officers testified they no longer had possession of such warrants and did not know their whereabouts. The clerk of the Justice of the Peace Court testified the warrants were not in the records of that court. The prosecuting attorney stated a diligent search had failed to uncover them. It may be questioned whether the State's evidence was sufficient to show that the warrants were lost and to also reflect their existence and validity by parol evidence. Be that as it may, the record of the hearing on the motion to suppress evidence reflects the following:

'MR. MOSELEY (Prosecutor): Your Honor, in an effort to resolve this the State would be willing to stipulate that three original warrants would appear to be valid on their face and be substantially the same as Defendant's Exhibit No. 4 (a standard form of an arrest warrant utilized in Harris County).

'MR. FRIEDMAN (Defense Counsel): That's all the stipulation we want, Your Honor.

'THE COURT: Then you accept the stipulation as offered by the State?

'MR. FRIEDMAN: Yes, sir.'

In light of the above, we cannot conclude the court erred in failing to require the State to produce the arrest warrants for its inspection.

Appellant further urges that the three felony arrest warrant were not based upon affidavits reflecting probable cause, and were therefore void, not authorizing the officers...