Garcia v. State, 32264
| Decision Date | 02 November 1960 |
| Docket Number | No. 32264,32264 |
| Citation | 170 Tex.Crim. 328,340 S.W.2d 803 |
| Parties | Joseph GARCIA, Appellant, v. STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Clyde W. Woody, Houston, for appellant.
Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Morgan Redd, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
BELCHER, Commissioner.
The conviction is for the possession of heroin; the punishment, five years.
The testimony of the state shows that Officers Hightower and Chavez, with other officers, went to the home of the appellant and there informed appellant that they had a search warrant for his residence which was handed to him. A search of the appellant and his residence resulted in the finding of a cellophane paper containing a white powder substance in the pocket of appellant's trousers, and in the bath room between the shower stall and the wall they found four spoons, two of them were burned on the bottom and one contained a residue and a small piece of cotton, and two boxes of No. 5 Gelatin Capsules.
Proof was offered that the cellophane paper found in appellant's pocket contained 1.7 milligrams of heroin.
Appellant did not testify, and called only his daughter who testified in the absence of the jury in order to perfect a bill of exception.
Appellant contends that the search was illegal because the affidavit for the search warrant was insufficient.
The affidavit, after sufficiently describing the house and its location, states that the house is used and occupied by an unknown Mexican male and an unknown Mexican female, and another person or persons unknown to the affiant by name, description, or identity; and that the affiants have reason to believe and do believe that they unlawfully possess narcotic drugs for the purpose of sale. It further recites that they have received reliable information from a credible person that heroin, marihuana, barbiturates, and amphetamine and narcotic paraphernalia are kept therein for use and sale.
If amphetamine was not contraband at the time of the search as appellant contends, its inclusion among other contraband named in the affidavit would not invalidate the affidavit. It is concluded that the affidavit is sufficient to authorize the issuance of the search warrant. Griffey v. State, Tex.Cr.App., 327 S.W.2d 585.
The state's testimony concerning four spoons, two of which were burned and one which contained a residue and a small piece of cotton and some gelatin capsules, shows no error as they were found during the search of appellant's residence. Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264. Appellant's complaint of the admission of Officer Hightower's opinion that the spoons ...
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