Gaston v. State

• Decision Date: 12 March 1969
• Docket Number: No. 41805,41805
• Citation: 440 S.W.2d 297
• Parties: Sharland Reeves GASTON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 297

440 S.W.2d 297

Sharland Reeves GASTON, Appellant, v. The STATE of Texas, Appellee.

No. 41805.

Court of Criminal Appeals of Texas.

March 12, 1969.

Roy Q. Minton, Austin, for appellant.

Tom Blackwell, Dist. Atty., Dain Whitworth, Asst. Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The appeal is from a conviction for the unlawful possession of marihuana, a narcotic drug (Art. 725b Vernon's Ann.P.C.).

Trial was before a jury on a plea of not guilty. The jury found appellant guilty. Appellant withdrew her request that the jury assess the punishment and elected to have the court assess the punishment and pass on her application for probation. Her punishment was assessed by the court at nine years in the Texas Department of Corrections, and probation was granted. She appeals from such conviction. (Art. 42.12(8) and Art. 44.08(b) Vernon's Ann.C.C.P.)

The state's evidence reflects that on December 15, 1967, Harvey E. Gann, Captain in charge of Special Services, vice and narcotics detail of the Austin Police Department since 1955, accompanied by Sergeant Investigators Robert W. Jones, E. L. Conner and Albert Hersom, of said detail, and by Texas Liquor Control Board Agent Bert Lively, went to an apartment occupied and under the control of appellant and her twin sister to execute a search warrant issued by Justice of the Peace Frank W. McBee, at 9:10 P.M. on December 14, 1967.

Captain Gann testified that they arrived at the entrance to the apartment about 8:40 P.M. and after they knocked several times appellant opened the door and was given a copy of the search warrant.

Captain Gann further testified that he detected a heavy odor or marihuana smoke throughout the house, and that appellant was in his opinion under the influence of marihuana.

There were nine people in the apartment when the officers began their search. Six more arrived during the search.

A quantity of marihuana was found in the apartment and ashes or traces of burned marihuana were found in a pipe and tube through which marihuana was being smoked.

Appellant testified that she saw and smelled marihuana being smoked in the apartment but denied any connection with or participation in such smoking, or any knowledge of how the marihuana cigarettes and bags and a bottle containing marihuana got into the apartment or who brought them there.

The sole ground of error is:

'The court erred in admitting the marijuana into evidence inasmuch as it was seized pursuant to the execution of a search warrant based upon an affidavit which failed to state probable cause.'

The affidavit for search warrant reads:

'The State of Texas

County of Travis

'Before me, the undersigned authority, on this day personally appeared the undersigned affiants, who being be me severally sworn, upon their oaths state, that: A certain building, house and place, occupied and used as a private residence, located in Austin, Travis County, Texas described as white frame two story house located at 608 East 19 1/2 Street, Austin, Travis County, Texas, with the bottom apartment, which is to be searched, facing and being entered from 19 1/2 Street, and being the building, house or place of Sharland Elizabeth Reeves, W-F approximately 20, 5 6 , brown hair with bangs, blue eyes and other person or persons unknown to affiants by name, identity or description, is a place where we each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building, house and place has in her possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 14th day of December, A.D., 1967, Affiants have received information from a credible and reliable informant that Sharland Elizabeth Reeves is keeping and using marijuana at her residence which is located at 608 East 19 1/2 Street, Austin, Travis County, Texas. The informant has been present on numerous occasions when the subject was using and under the influence of marijuana and has seen the subject dispense marijuana to other guests in her residence. In most instances the marijuana is smoked by using a water type smoking pipe and this instrument is kept in the back or North bedroom up on a shelf, which is to the right as you enter the bedroom. Also, the marijuana is kept on this shelf a majority of the time. The informant further states that there have been several large marijuana parties thrown by Sharland Elizabeth Reeves within the past few weeks, at which time Sharland Elizabeth Reeves furnished the marijuana. The informant states that she has seen marijuana in Sharland Elizabeth Reeves' possession within the past two days.

(s) Robert Jones, Affiant

(s) E. L. Conner, Affiant

'Subscribed and sworn to before me, by the within named affiants, on this the 14th day of December, A.D. 1967.

(s) Frank W. McBee

Justice of the Peace, Precinct No. 5, Travis County, Texas.' ¹ The affidavit was made a part of the search warrant issued by the magistrate which recites:

'* * * whereas, the particular grounds and probable cause for this warrant to issue are set forth in the said affidavit, which is made a part hereof, upon examination of the same by me, I am satisfied that the grounds exist and that probable cause is shown, and I believe in its existence and do so hereby find.'

Appellant's counsel ably presents by brief and oral argument the contention that the affidvait is insufficient under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The precise contention is that the affidavit is insufficient in that it fails to inform the issuing magistrate of the facts and circumstances upon which the affiants based their conclusion that the informant, who is not named, was 'reliable and credible.'

A like contention, also presented ably, was overruled by this court in Perez v. State, 394 S.W.2d 797, and in Ex parte Gomez, 389 S.W.2d 308, cert. denied, 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810, and by the Federal District Court and Circuit Court of Appeals, 5th Circuit. Gomez v. Beto, 402 F.2d 766.

The affidavit here attacked reflects a much more detailed report of the unnamed informant than the affidavit in the cases cited, or any affidavit for search warrant which has been held insufficient by the Supreme Court to show probable cause. ²

We are not here confronted with a question of prejudice from the failure to disclose the name of the informer.

The record reflects that on cross-examination of state's rebuttal witness Constance Groos defense counsel elicited from her testimony that the water pipe belonged to John Lomax, and she had so previously informed the police; that she talked to the police prior to the raid. In addition to her testimony on direct examination, Mrs. Goods testified in part:

'Q. You were talking to the police all the time; is that correct?

'A. Yes.

'Q. And giving them information about violation of narcotics laws, or anything else that you observed; is that correct?

'A. Yes.

'Q. Now, were you with what you have called the establishment on several occasions during the two or three weeks that you were operating as an undercover agent?

'A. I wasn't operating as an undercover agent.

'Q. During the two or three weeks that you were giving information to the police?

'A. Yes.

'Q. At different locations, I suppose?

'A. No, at one main location, the one mentioned.

'Q. You think the police arrived--

'A. The police arrived around eight thirty.

'Q. All right. How long had you all been smoking marihuana prior to the time the police arrived, counting the time that the pipe was out of order?

'A. About forty minutes.

'Q. All right. Your statement that you were obliged to take your turn at the pipe, do you mean by that that you would be due for suspicion, or wouldn't be a part of the group, if you didn't take your turn?

'A. That is correct.

'Q. So you felt compelled to do so?

'A. Yes.

'Q. Even though you were not doing it for pleasure, or whatever sensation you might get; is that correct?

'A. I don't understand that question.

'Q. I am sort of asking if you were enjoying your work, or were you just smoking marihuana because you thought you had to?

'A. Well, I was not working at the time.

'Q. What were you doing--you were giving information to the police, but you were just associating with this group and enjoying yourself at the same time?

'A. I had associated with the majority of this group for two years now, and they had not smoked marihuana to my knowledge until May of last year, of '67.'

Aguilar v. Texas, supra, and later cases, including Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, decided since this appeal was submitted, do not convince us that appellant's ground of error should be sustained or that Perez v. State of Ex parte Gomez, supra, should be overruled.

We find the detailed information obtained first hand, as an eye witness or participant, sufficient to satisfy the magistrate that the information was gained in a reliable way and was reliable, is also sufficient, when coupled with the affiants' conclusions, to support the magistrate's finding that the informant was reliable and credible.

Appellant's around of error is overruled.

The judgment is affirmed.

DOUGLAS, J., not participating.

ONION, Judge (concurring).

I find myself unable to agree fully with the majority, though I am in the unenviable position of having been the trial judge in Perez v. State, Tex.Cr.App., 394 S.W.2d 797 and in Ex parte Gomez, Tex.Cr.App., 389 S.W.2d 380, cert. denied, 1967, 386 U.S. 937, 87 S.Ct. 958, 17 L.Ed.2d 810, upon which the majority relies so strongly. See now Gomez v. Beto (5th Cir.), 402 F.2d 766.

Nevertheless, I am fearful that the majority has disposed of the question without clearly delineating just how the affidavit here...