Gentry v. State

• Decision Date: 27 October 1982
• Docket Number: No. 106-82,106-82
• Citation: 640 S.W.2d 899
• Parties: Michael Ray GENTRY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 899

640 S.W.2d 899

Michael Ray GENTRY, Appellant, v. The STATE of Texas, Appellee.

No. 106-82.

Court of Criminal Appeals of Texas,

En Banc.

Oct. 27, 1982.

Ross Teter, J. Thomas Sullivan, Dallas, on appeal only, for appellant.

Henry Wade, Dist. Atty., Gregory S. Long, Robert Whaley and Mike Keasler, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON DISCRETIONARY REVIEW WITHOUT PETITION

CLINTON, Judge.

The question presented is whether blood coursing through a human body is an "item" within the meaning of Article 18.02(10), V.A.C.C.P., which reads as follows:

"A search warrant may be issued to search for and seize:

* * *

* * *

(10) property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense..." ¹

The Court of Appeals concluded "that blood is an 'item' within the ordinary meaning of the word," but a concurring opinion disagreed "that 'blood' is an 'item' within the meaning" of the statute. Gentry v. State, 629 S.W.2d 77 (Tex.App.--Dallas 1981). Should it be determined that the view expressed in the concurring opinion is correct, then the question becomes whether such blood is "property" within the meaning of the statute, as the State urges in its Brief on Discretionary Review. ² Because the blood sample at issue was taken from appellant pursuant to a search warrant on or about August 1, 1979, we have occasion to address the last addition of "persons" to Article 18.02, supra, only as that may relate to legislative intent. ³

We start with the facts related to the only issue before us. As pointed out in the opinion below, a forensic analysis of seminal fluid taken from a bedsheet on which one of the rapes of complainant occurred showed the fluid came from a person who is a nonsecretor, and testimony was that 18% of the male population in Dallas are nonsecretors. An affidavit for search warrant stated, inter alia:

"8. I believe that the blood grouping type ... of the defendant would constitute probative evidence that the defendant committed the foregoing offense. In other words, if such testing of the defendant would show that he were of the non-secretor type, such evidence would constitute probative evidence that the defendant committed the foregoing offense."

The trial judge, sitting as a magistrate, issued a search warrant based on the affidavit, ordering "that a blood sample ... be obtained from the body of the said Defendant ... in accordance with accepted medical practices," and commanding a peace officer

"to search for the property and items described in the attached Affidavit and to seize the same..."

The return reports that the warrant was executed "by making the search directed therein and seizing during such search the following described property, namely, blood ... from the body of the defendant..."

Article I, § 9 of our Bill of Rights guarantees security of the people "in their persons, houses, papers and possessions" against unreasonable seizures and searches, and it mandates that "no warrant ... to seize any person or thing shall issue without describing them as near as may be, nor without probable cause..." Article 1.06, V.A.C.C.P. provides the same statutory protection. Those constitutional and statutory provisions are implemented by applicable authorizations and limitations contained in Chapter Eighteen of the Code of Criminal Procedure.

The same act that amended Article 18.02 also added subsections (c) and (d) to Article 18.01. For a subdivision (10) warrant there is a requirement in (c) that the affidavit set forth sufficient facts to establish probable cause "(3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched." Subsection (d) limits seizure through execution of a search warrant to "the specifically described property or items set forth in a search warrant issued under Subdivision (10) of Article 18.02 ... or property or items enumerated in Subdivisions (1) through (9) of Article 18.02 ...," and further forbids a second search warrant pursuant to subdivision (10) directed to "the same person, place or thing subjected to a prior search under Subdivision (10) ..."

Two contemporaneous decisions of the Court addressed this matter in 1977, but are chronologically unrelated to the legislative amendment effective May 25, 1977: Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.1977) ⁴ and Smith v. State, 557 S.W.2d 299 (Tex.Cr.App.1977). The former held that "the taking of a blood sample is a search and seizure within the meaning of Art. I, Sec. 9 of the Texas Constitution, thus the State was required to comply with the provisions of Art. 1.06 and Chapter 18, V.A.C.C.P." In doing so the Court expressly followed the lead of the Supreme Court opinion in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). ⁵ Smith v. State, supra, held that since "blood" was not listed in Article 18.02, "a search warrant may not be issued to search for this type of evidence," id., at 302. We find that the Legislature was not responding to either decision of the Court when it added "property or items" to Article 18.02. ⁶

Before being amended by enactment of Senate Bill 156 Article 18.01(a) defined a search warrant as "a written order ... commanding [a peace officer] to search for any property or thing and to seize the same ...," and it still does. Senate Bill 156 introduced the term "items," and as we have indicated nothing in the legislative history sheds any light of reason for using a word having so many different meanings. ⁷ Yet, in matters of statutory construction courts generally presume that every word in a statute is used for a purpose. Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593, 600 (Tex.Sup.1975). And we are satisfied that the purpose has been found.

The effect of amendments to Articles 18.01 and 18.02 is to authorize issuance of a search warrant to search for and seize "mere evidence" that Gouled v. United States, 255 U.S. 298, 309, 41 S.Ct. 261, 265, 65 L.Ed. 647 (1921) had held was not obtainable through execution of search warrants. See also Abel v. United States, 362 U.S. 217, 234-235, 80 S.Ct. 683, 694-695, 4 L.Ed.2d 668 (1960). Harris v. United States, 331 U.S. 145, 154, 67 S.Ct. 1098, 1103, 91 L.Ed. 1399 (1947). But Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) changed all that by rejecting the distinction earlier perceived "between seizure of items of evidential value only and seizure of instrumentalities, fruits, or contraband ..." id., at 300, 87 S.Ct. at 1646. The Supreme Court concluded:

"But if its rejection does enlarge the area of permissible searches, the intrusions are nevertheless made after fulfilling the probable cause and particularity requirements of the Fourth Amendment and after the intervention of 'a neutral and detached magistrate...' Johnson v. United States, 333 U.S. 10, 14 [68 S.Ct. 367, 92 L.Ed. 436]. The Fourth Amendment allows intrusions upon privacy under these circumstances, and there is no viable reason to distinguish intrusions to secure 'mere evidence' from intrusions to secure fruits, instrumentalities, or contraband." Id., at 309-310, 87 S.Ct. at 1651.

Soon opinions began to speak in similar terms of "items" and "items of evidence." See, e.g., Chambers v. State, 508 S.W.2d 348, 351-353 (Tex.Cr.App.1974). Indeed, it was because "blood is not one of the items for which a search warrant may issue under Art. 18.02," as then drawn, Escamilla v. State, supra, at 799, that the Court soon held in Smith v. State, supra, "a search warrant may not be issued to search for this type of evidence," id., at 302. In holding that upon probable cause it is constitutionally permissible to extract a sample of blood from a human body, the Supreme Court had discussed such a seizure and search in relation to obtaining desired evidence. Schmerber, supra, at 766-772. In that context "item" has practically acquired a technical meaning, and to become a word of art.

We are thus constrained to hold that, though "blood" is not specifically itemized in Article 18.02, it is nonetheless an item of evidence to search for and to seize which a search warrant may issue in accordance with other applicable provisions of Chapter Eighteen. ⁸

The judgment of the Court of Appeals is affirmed.

ROBERTS and DALLY, JJ., concur in result.

TEAGUE, Judge, dissenting.

I. Why This Cause Is Before This Court

A judge of this Court, acting pursuant to Tex.Cr.R. 210(a)(2), 302(e), and 303(b), filed an order for review of the record on appeal in this cause. Thereafter, this Court, acting En Banc and pursuant to Art. 44.45(a), V.A.C.C.P., and Tex.Cr.R. 303, entered an "Order Granting Review Without a Petition," to decide "the important question of whether evidence relating to appellant's blood was obtained and introduced at trial in violation of the provisions of Art. 18.02, V.A.C.C.P." Presumably, the question stated also implicated a review by this Court of the correctness of the decision of the Court of Appeals. See Gentry v. State, 629 S.W.2d 77 (Tex.Ct.App.Dallas 1981). After carefully reviewing the record of appeal and researching the law, I now find that this Court acted too hastily in entering its above order, and the cause should be dismissed from the docket of the Court. I make this suggestion and recommendation because I find that the error, if any, in the taking of appellant's blood was not properly perfected in the trial court. Therefore, as the issue was not properly preserved in the trial court for review purposes, it was not properly before the Court of Appeals. I also find that if there was error in the taking of appellant's blood, because of the facts of the case, such error was harmless error beyond all doubt. If the error was...