Elliott v. State

• Decision Date: 03 April 1985
• Docket Number: No. 609-84,609-84
• Citation: 687 S.W.2d 359
• Parties: Jack Fenner ELLIOTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 359

687 S.W.2d 359

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

No. 609-84.

Court of Criminal Appeals of Texas,

En Banc.

April 3, 1985.

Frank M. Sheppard, Jr., Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., and Winston E. Cochran, Jr., Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

THOMAS G. DAVIS, Judge.

Trial was before the jury upon a plea of not guilty to a charge of gambling promotion. V.T.C.A. Penal Code, Sec. 47.03. After the jury found appellant guilty, the trial court assessed punishment at seven years and $5,000.00. The Court of Appeals for the Fourteenth Supreme Judicial District (Houston) affirmed appellant's conviction. Elliott v. State, 681 S.W.2d 98 (Tex.App.--Houston [14th] 1984). We granted appellant's petition for discretionary review in order to examine the Court of Appeals' holding that probable cause existed for the issuance of a warrant to search appellant's residence.

The affidavit in support of the warrant ¹ in the instant case was presented by Houston Police Department Vice Division Officer L.E. Doreck to Judge Joseph M. Guarino of the 183rd District Court in Harris County on November 20, 1981.

Since it is the information contained in the affidavit that, according to appellant, falls short of establishing probable cause, we will quote at length from that document:

"I, L.E. Doreck, a peace officer employed by the City of Houston Police Department assigned to the Vice Division do solemnly swear that I have reason to believe and do believe that Jack F. Elliott, a white male, D.O.B. 1/21/52, and other persons who are unknown to your affiant, are currently in the unlawful promotion of gambling to-wit: bookmaking, and are currently in the unlawful possession of gambling paraphernalia, including but not limited to, line sheets, recap sheets and betting slips within a location commonly known as 3601 Lazy Spring, Houston, Harris County, Texas....

"MY BELIEF IS BASED UPON THE FOLLOWING FACTS:

"On October 22, 1981, your affiant was contacted by a confidential informant, who for reasons of personal safety and security shall remain unnamed throughout this affidavit, but 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. This informant stated to your affiant that he wished to meet with your affiant in order to relate to your affiant information concerning gambling activities. Based upon this request, and on the same date being October 22, 1981, your affiant personally met with the aforementioned informant who 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, your affiant again contacted the aforementioned informant who stated to your affiant that on that date, he, the informant, had called telephone number 462-2019 and talked with Jack Elliott. The informant went on to state that 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 located on the Northwest corner of Lazy Spring Street where it intersects with Colleen Street. The house faces East on to Lazy Spring Street and has an attached carport on the Northern end of the house and has a wooden fence surrounding the backyard.

"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...