Etchieson v. State
| Citation | 372 S.W.2d 690 |
| Decision Date | 27 November 1963 |
| Docket Number | No. 36128,36128 |
| Parties | Virgil John ETCHIESON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Clyde W. Woody, Houston, (On Appeal Only), for appellant.
Henry Wade, Dist. Atty., James H. Miller, George Milner, and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the unlawful possession of marihuana; the punishment, 20 years.
A prior judgment of conviction upon the indictment herein was reversed by this Court in Etchieson v. State, 172 Tex.Cr.R. 606, 361 S.W.2d 711.
Upon the second trial there was no evidence introduced on the question of whether the appellant was an occupant of or was in possession of the apartment, or was a guest or visitor.
The grounds for reversal of this conviction are directed to the validity of the search warrant and the admissibility of the marihuana and the evidence relating thereto.
The appellant relies upon a formal bill of exception which sets out his contention that the search warrant and affidavit therefor were illegal and void due to the fact that the same did not satisfy the requirements of the Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States as construed in the case of Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.
The bill certifies that the trial court reached the conclusion that the search warrant in question and the search which resulted satisfies the requirements of the Fourth, Fifth and Fourteenth Amendments to the Constitution, to which appellant excepted.
The formal bill of exception does not attempt to set out the objections made when the evidence was offered, nor does it certify what objection was made.
Looking to the statement of facts and the informal bills relating to the evidence and to the validity of the search, we find that the only objections that were made related to the execution of the search warrant and not to its sufficiency or the sufficiency of the affidavit upon which it was issued. We further find that evidence was admitted without objection that a 'grassy' looking substance in a plastic vial which the appellant was seen to place on the back of the commode was marihuana and that a similar substance was in the flushing commode in front of which the appellant was squatting down when the officers pursuing him broke into the bathroom.
We have examined each of the objections relating to the evidence and find none which states as ground that no probable cause was shown or that the affidavit for issuance of the search warrant was insufficient.
We agree with the state that the grounds upon which the search warrant and affidavit were attacked after verdict should have been urged by the appellant when the complained of evidence was offered. However, we need not rest our decision upon the appellant's failure to timely and properly object or to show that he had standing to question the validity of the search warrant. We find no merit in appellant's contention that the affidavit for issuance of the search warrnat is insufficient under the Supreme Court's holding in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503.
The affidavit here under attack reads:
'(We), B. M. Newman and C. R. Groves do solemnly swear that heretofore, on or about the 5 day of January A.D., 1960, in said County and State one Virgil John Etchieson and person or persons unknown to affiants at this time did then and there unlawfully possess a narcotic drug, to-wit: Marijuana and I have cause to believe and do believe that said narcotic drugs are now concealed by Virgil John Etchieson and person or persons unknown to affiants at this time in a private residence situated in Dallas County, Texas, at 2002 Kirby Street Apartment # C in the City of Dallas, Texas Dallas County, Texas which said Virgil John Etchieson and person or persons unknown to affiants at this time occupies, possesses, controls and has charge of.
'My belief as...
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Eisenhauer v. State
...mere conclusions are insufficient presaged all contemporaneous decisions in similar search warrant litigation, viz: Etchieson v. State, 372 S.W.2d 690 (Tex.Cr.App.1963), judgment vacated and cause remanded, 378 U.S. 589, 84 S.Ct. 1932, 12 L.Ed.2d 1041 (1964), on remand, 382 S.W.2d 478 (Tex.......
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Acosta v. State
...that affiant spoke with personal knowledge and failed to indicate any source of complainant's belief. The affidavit in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, recited: 'My belief as aforesaid is based on the following facts: '(A) I have been informed of the existence of the foregoi......
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Barnes v. State, 36705
...is otherwise preserved for review. See also Etchieson v. Texas, 84 S.Ct. 1932, wherein the judgment of this Court in Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, was vacated by a per curiam opinion citing Aguilar v. Texas, On Remand from United States Supreme Court. MORRISON, Judge. The......
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Mayfield v. State
...as that held sufficient by this Court to show probable cause in Giacona v. State, 169 Tex.Cr.R. 101, 335 S.W.2d 837; Etchieson v. State, Tex.Cr.App., 372 S.W.2d 690, and Aguillar v. State, 172 Tex.Cr.R. 629, 362 S.W.2d This Court must yield, however, to the majority holding of the Supreme C......