Giacona v. State

• Decision Date: 13 January 1960
• Docket Number: No. 31067,31067
• Citation: 169 Tex.Crim. 101,335 S.W.2d 837
• Parties: Anthony T. GIACONA, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 837

335 S.W.2d 837

169 Tex.Crim. 101

Anthony T. GIACONA, Appellant, v. STATE of Texas, Appellee.

No. 31067.

Court of Criminal Appeals of Texas.

Jan. 13, 1960.

Clyde W. Woody and Carl E. F. Dally, Houston, for appellant.

Dan Walton, Dist. Atty., Howell E. Stone and Morgan W. Redd, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

MORRISON, Presiding Judge.

The offense is possession of marijuana; the punishment, 15 years.

Officers Burke and Hightower of the narcotics squad of the Houston police department testified that, armed with a search warrant, they went to the vicinity of 2407 Shearn Street. Burke went around the house located on the front of the lot at such address and encountered appellant between such house and a three-apartment unit located at the rear of the lot. He there searched appellant's person and found a quantity of bulk substance, which was later shown to be marijuana, in his pants pocket. At about this time, Hightower arrived where the parties were standing and engaged appellant in conversation. Appellant reached in his shirt pocket, handed Hightower what was later shown to be a marijuana cigarette in a Camel cigarette package and, 'Buster, you might as well have these too.'

Appellant did not testify or offer any evidence in his own behalf. We have been favored with an exhaustive brief and shall discuss those of appellant's contentions which we deem controlling.

He first contends that the arrest and search were illegal because the search warrant in the officers' possession authorized a search of one of the apartments at the rear of the lot. We need not consider this contention because no evidence obtained by the search of a house was introduced. The warrant is substantially in the terms suggested in Willson's Criminal Forms, 6th Edition, Sec. 3258, and concludes with this phrase: 'And you are hereby further commanded to arrest the said Tony Giacona a white male and others unknown to affiants the person accused of the unlawful possession, sale and equipment.' Appellant argues that this is not a valid warrant authorizing the arrest of appellant and the incident search of his person because it was incorporated in a search warrant and was, under the warrant, not to become operative until the officers found some of the contraband named in the warrant. He relies upon Gattus v. State, 204 Md. 589, 105 A.2d 661. We have examined Gattus with care and have concluded that that portion of the opinion upon which appellant relies was dicta and therefore not persuasive. The court in Gattus had already held the warrant invalid because it failed to show a violation of the law before they reached the question of the effect of an arrest warrant incorporated in a search warrant. We find nothing in Article 314, Vernon's Ann.C.C.P., which authorizes the incorporation of an arrest warrant in a search warrant, indicating a legislative intent at...