Elliott v. State

• Decision Date: 15 March 1984
• Docket Number: No. A14-82-777-CR,A14-82-777-CR
• Citation: 681 S.W.2d 98
• Parties: Jack Fenner ELLIOTT, Appellant, v. STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 98

681 S.W.2d 98

Jack Fenner ELLIOTT, Appellant, v. STATE of Texas, Appellee.

No. A14-82-777-CR.

Court of Appeals of Texas Houston (14th Dist.).

March 15, 1984.

Rehearing Denied April 5, 1984.

Review Granted Oct. 24, 1984.

Frank Sheppard, Houston, for appellant.

Calvin Hartmann, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and CANNON and DRAUGHN, JJ.

OPINION

CANNON, Justice.

This is an appeal from a conviction for gambling promotion in violation of Tex.Penal Code Ann. § 47.03 (Vernon 1974). Trial to a jury, punishment by the Court at seven years and a $5,000.00 fine. Appellant raises five grounds of error attacking the search warrant, the admission of sound recordings, the concealment of the informer's identity, and the prosecutor's failure to make pre-trial disclosure of an analysis of appellant's handwriting. We affirm.

Vice Officer L.E. Doreck of the Houston Police Department received information from a confidential informant that appellant was taking bets on football games. The informant told Doreck that for several months he had occasionally telephoned appellant and obtained current line information on college and professional football games, and placed bets on those games. Doreck verified the address and telephone number given to him by the informant as that of appellant. Doreck also learned that appellant had been arrested on April 12, 1977 for promotion of gambling at the same address. Based on this information, Doreck obtained a Search and Arrest Warrant for appellant. On November 22, 1981, appellant was arrested at his home. At that time, the officers seized "line" sheets, "recap" sheets, and other "gambling paraphernalia" from appellant's residence. While appellant was being arrested, vice officer Fred Medley placed recording devices on two of appellant's telephones with which he taped numerous calls from "bettors." The "bettors" inquired about the current "line" on games and placed bets.

In his first ground of error, appellant contends that his conviction was based upon "illegally seized evidence" because the affidavit supporting the search warrant "failed to state facts sufficient to constitute probable cause." He argues that the affidavit failed to comply with the requirements of: U.S. Const. Amend. IV; Tex. Const. art. I, § 9, and; Tex.Code Crim.Proc.Ann. art. 18.01 (Vernon Supp.1982-1983). Appellant relies upon Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969) in support of his attack on the search warrant affidavit. Appellant's reliance is misplaced, however, because the "two-pronged" Aguilar-Spinelli test was abandoned by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In its place the court reaffirmed the "totality of the circumstances" that traditionally has informed probable cause determinations. See United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Texas adopted the Gates analysis for search warrant affidavits in Hennessy v. State, 660 S.W.2d 87 (Tex.Crim.App.1983).

In Hennessy, the affidavit contained "multiple hearsay", and the informant Urquhart "had no personal knowledge of any illegal substances at [Hennessy's] residence." Urquhart's knowledge was based on statements made by a man known as "Barnes." Barnes told Urquhart that he "scored" his narcotics from Hennessy's residence. Urquhart learned that Barnes planned to rob Hennessy for Dilaudid. Based upon the circumstances surrounding the planning of the robbery and upon statements made by Barnes at the time of his arrest, a search warrant was obtained for the Hennessy residence.

The affidavit for the search warrant included the following instances of corroboration by police efforts:

"Jerry Carpenter, a Houston Police Officer known to your affiant, placed a transmitting device on the said Urquhart.

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"The said Carpenter monitored these conversations and overheard the individuals discuss the details of the robbery. This information was told to your affiant by the said Jerry Carpenter.

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"At the time of his arrest the said Barnes told your affiant that 'If you had waited a few more minutes, you would have gotten the Dialuaded [sic] and had me for robbery.' Your affiant asked the said Barnes what he meant by that statement and he told your affiant that his girl friend Iwona Provenzzano had just called the Doctor Hennessy's residence and had been told by Chris, the Doctor's wife, that the Dialuadid [sic] would be there shortly that it would be arriving shortly."

After finding a substantial basis for crediting each level of hearsay, the Court of Criminal Appeals found that "probable cause existed for the search based on the 'totality of the circumstances' presented in the affidavit." Hennessy at 92.

Therefore, we will evaluate the validity of the search warrant in this case under the "totality of the circumstances" standard. Illinois v. Gates, 103 S.Ct. at 2332; Hennessy v. State, 660 S.W.2d 87 at 92 (Tex.Crim.App.1983).

The affidavit in the instant case provides, in pertinent part, that:

"On October 22, 1981, your affiant was contacted by a confidential informant, who has given your affiant information on several past occasions concerning criminal activities and on each and every past occasion your affiant found this information to be true and correct. [T]he informant ... stated to your affiant that a person, known to the informant, as Jack Elliott, was currently conducting an illegal bookmaking operation. The informant stated to your affiant that he, the informant, had been personally betting with Jack Elliott for the past several months and that he would contact Elliott by calling Telephone number 462-2019 and that Elliott would give your informant current line information on both college and professional football games as well as receive and record any bets which the informant wished to place with Elliott. The informant further gave your affiant a physical description of Elliott and said that Elliott was approximately 6' tall, 220 lbs with a beer belly and was in his late 20's.

"On October 23, 1981, your affiant met with Sgt. S.D. Plaster who is the Supervising Officer of the Gambling Squad of the Houston Police Department Vice Division, and relayed the aforesaid information to Plaster. Further, your affiant requested Plaster to contact the Southwestern Bell Telephone Company in order to ascertain billing information on telephone number 462-2019. Later that same date, Plaster related to your affiant that he, Plaster, had learned from Southwestern Bell Telephone Company that telephone number 462-2019 is an unlisted number installed at 3601 Lazy Spring, Houston, Texas, and is billed to Jack F. Elliott at that address. In addition thereto, your affiant contacted Houston Lighting and Power Company and determined that the utilities at 3601 Lazy Spring, Houston, Texas, were billed to Jack F. Elliott at that address and that the records of Houston Lighting and Power Company show that Elliott's phone number was 462-2019. Further, your affiant checked the records of the Houston Police Department Vice Division and learned that Jack Elliott had been arrested on April 12, 1977 for promotion of Gambling and this arrest occurred at 3601 Lazy Spring.

"On October 25, 1981, Elliott gave the informant current line information on both college and professional football games and the informant placed several bets with Elliott. On that same date, your affiant personally went to 3601 Lazy Spring, Houston, Texas, and found this to be a beige single story residence.

"On October 26, 1981, your affiant again spoke with the informant who stated to your affiant that he again called telephone number 462-2019 and again placed a bet with Jack Elliott.

"On November 1, 1981, your affiant again spoke with the confidential informant who stated to your affiant that he, the informant, again called telephone number 462-2019 and again placed a bet with Jack Elliott.

"On November 2, 1981, your affiant again spoke with the confidential informant who stated that he had again called telephone number 462-2019 and again placed bets with Jack Elliott on football games scheduled to be played.

"On November 18, 1981, your affiant again spoke with the aforesaid confidential informant who stated to your affiant that Jack Elliott is still receiving and recording bets and can still be reached at telephone number 462-2019.

"Your affiant has related all of the aforesaid information contained in this affidavit to Sgt. S.D. Plaster. Your affiant personally knows that Plaster has been assigned to the Gambling Squad of the Houston Police Department for approximately seven years and has participated in hundreds of gambling investigations and arrests. Further, Plaster has stated to your affiant that it has been his experience that bookmaker[s] routinely keep gambling paraphernalia including, but not limited to, line sheets, recap sheets and bet slips inside of the premises where they are receiving and recording bets. Based upon the information received by your affiant and the investigation that your affiant has done in this case, coupled with Plaster's experience with gambling investigations, it is Plaster's opinion that Gambling paraphernalia is currently located in 3601 Lazy Spring, Houston, Harris County, Texas." (Emphasis added).

The instant affidavit clearly sets forth a basis for the "veracity" of the informant; he had given reliable information in the past. His information was corroborated by independent police inquiries directed to the Southwestern Bell Telephone Company and the Houston Lighting and Power Company. The affiant, officer Doreck, personally verified the description and address of...