Giacona v. State, No. 34930

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtMcDONALD; MORRISON; McDONALD; MORRISON
Citation84 S.Ct. 92,372 S.W.2d 328
Docket NumberNo. 34930
Decision Date07 November 1962
PartiesPete GIACONA, Appellant, v. The STATE of Texas, Appellee.

Page 328

372 S.W.2d 328
Pete GIACONA, Appellant,
v.
The STATE of Texas, Appellee.
No. 34930.
Court of Criminal Appeals of Texas.
Nov. 7, 1962.
Rehearing Denied Jan. 30, 1963.
Certiorari Denied Oct. 14, 1963.
See 84 S.Ct. 92.
On Motion to Withdraw Mandate and Abate Appeal Nov. 27, 1963.

Clyde W. Woody, Houston, for appellant.

Frank Briscoe, Dist. Atty., Carl E. F. Dally and James M. Shatto, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the possession of marijuana; the punishment, five years.

Officers Hightower and Shelton, of the narcotics division of the Houston police department, passed by the house located on the front of a lot and went between thirty and forty yards from the street to a three-apartment unit, two of which were downstairs and one upstairs, located on the back of the lot. While on the porch downstairs and outside of the apartment adjacent to that of the appellant, Hightower and Shelton heard loud talking and cursing, and smelled marijuana burning. Then they moved in front of appellant's apartment and on looking through the window of his apartment they saw the appellant amoking a handrolled cigarette, and then pass it to a male companion. From the outside the officers also saw through the window three handrolled cigarettes with the ends tucked and a quantity of green plant substance on a table.

Officer Hightower knocked on the front door of appellant's apartment, announced he was a police officer and when no one responded, Officer Shelton unlatched the screen door after cutting the screen and the wooden door being open, they entered the apartment. Officer Hightower took the cigarette from the companion of appellant that he had seen pass between them a few seconds before.

The officers took possession of only that which they had seen from the outside of the apartment which was the partially smoked cigarette, the three other cigarettes and the loose plant substance on the table; and an analysis made by a chemist showed that they each contained and were marijuana.

The officers had no warrant of arrest or search warrant for the appellant or his apartment.

The appellant did not testify or offer any evidence.

Appellant strenuously urges that the trial court erred in admitting in evidence the officers' testimony of what they did, saw or heard after entering on his premises on the ground that they were not at such time legally on his premises.

Appellant relies upon Gonzales v. State, 131 Tex.Cr.R. 15, 95 S.W.2d 972, but overlooks the opinion of this Court in Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, in which it was held that the contention which appellant here makes was not the basis for the reversal in the Gonzales case.

In considering a similar contention that the testimony of two officers was not admissible in evidence because they were unlawfully on the premises, this Court in Heath v. State, 161 Tex.Cr.R. 323, 276 S.W.2d 534, 535, said:

'Appellant objected to the testimony of the Sheriff and the Ranger on the grounds that they were not armed with a search warrant and were unlawfully upon his premises.

'The State relies upon Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343, and Eversole v. State, 106 Tex.Cr.R. 567, 294 S.W. 210. The rule announced in those cases seems to be that if one is foolish enough to leave his windows uncurtained he may not complain if another comes upon his property and observes an illegal act being committed therein. In the Crowell case we discussed the holdings of the Supreme Court of the United States on the question.'

See Art. 212, Vernon's Ann.C.C.P., and the cases noted under it.

Page 331

The evidence is sufficient to support the conviction and no error appearing, the judgment is affirmed.

Opinion approved by the Court.

ON MOTION FOR REHEARING

McDONALD, Judge.

In his Motion for Rehearing and by well-prepared brief and forceful oral argument appellant's very able counsel requests this Court to specifically pass on the federal issues raised in this Court and in the trial court. It is appellant's position that we have wholly overlooked many of his objections taken to the search in question and that we have not seen fit to so much as give him the benefit of our views on these objections and exceptions raising the federal constitutional issues. Appellant further takes the position that we have only considered the limited question of whether or not trespassing is a violation of the laws of the State of Texas and that we have not considered the right of privacy and the right to be left alone. We shall attempt to fully state and clarify our position on these various matters.

Without adverting to a restatement of the facts, which are rather fully related in our original opinion, we reiterate that this is not a case of evidence obtained as a result of an illegal search. It is clearly a case of an arrest being made by officers without a warrant for the felony offense committed in their presence and to seize as an incident to this legal arrest, the marijuana found in possession of appellant.

Appellant seems to take the position that the two officers were initially upon private premises illegally. We entertain no doubt that the two officers had a perfect, legal right to be upon the premises, the front porch. 'Neither under the common law nor by virtue of any general statute, is a mere invasion of private property indictable in Texas.' 41A Tex.Jur., page 500, section 44.

Whether the officers had obtained a search warrant, or by what authority they went on the premises occupied by the several apartments, is not shown, appellant having objected when such questions were propounded to the State's witness Shelton, and the objection having been sustained. Suffice it to say that, as we view the record, it does not show that the officers were unlawfully on the porch when they heard loud talking and cursing, smelled marijuana and looked in and saw appellant and Lewis smoking a marijuana cigarette.

Appellant cites us: Brock v. United States, 5 Cir., 223 F.2d 681; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; Bynum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465; McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153; and Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, in support of his contention that the evidence was obtained by the officers after an illegal entry into appellant's home, and he excerpts from these cases cited pertinent portions to sustain him, but he does not give us the factual basis for these various cases. In our judgment, it is necessary to fully analyze the cited cases to see if they are in point or may be distinguished from the case at bar. To us, it is clear that in all of the cases cited by appellant the evidence admitted was obtained as a result of an illegal search and not as an incident to a lawful arrest without a warrant.

Brock, supra, was a case from Florida involving an illegal still. It was reversed because the government had violated petitioner's rights under the Fourth and Fifth Amendments to the United States Constitution, which respectively avail the citizen against unlawful searches and seizures and also insure him against self-incrimination.

Appellant insists that Brock, supra, is on a parallel with the case at bar because the federal agents looked through the window and then made the search without a warrant. He overlooks the fact that these federal agents had observed an illicit still for

Page 332

TWO DAYS before they made the raid, without first attempting to obtain a search warrant.

In Mapp, supra, the Ohio officers went to Miss Mapp's home pursuant to information that a person was hiding out in the home, who was wanted for questioning in connection with a recent bombing, and that there was a large amount of policy paraphernalia being hidden in the home. The officer first knocked on the door and demanded entrance, but Miss Mapp, after telephoning her attorney, refused to admit them without a search warrant. The officers advised their headquarters and undertook a...

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19 practice notes
  • Crittenden v. State, No. 576-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 17, 1995
    ...Yet, lawful police conduct may not always be reasonable. Art. I, § 9 prohibits unreasonable searches and seizures. Giacona v. State, 372 S.W.2d 328, 333 (Tex.Cr.App.1962). The determination of whether a search is constitutionally reasonable should not depend not upon judicial convenience, b......
  • Autran v. State, No. 869-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 21, 1994
    ...similarities of the two provisions, and because the two provisions embody the same basic protections. See, e.g., Giacona v. State, 372 S.W.2d 328, 333 (Tex.Cr.App.1962) (op. on reh'g); Crowell v. State, 147 Tex.Crim. 299, 180 S.W.2d 343 (1944); Cagle v. State, 147 Tex.Crim. 354, 180 S.W.2d ......
  • Wheeler v. State, Nos. 59804-59806
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 21, 1982
    ...to leave his windows unsecured he may not complain if another observes an illegal act being committed therein. See also Giacona v. State, 372 S.W.2d 328 (Tex.Cr.App.1963), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70, and Crowell v. State, [147 Tex.Cr.R. 299, 180 S.W.2d 343 (Tex.C......
  • State v. Simmang, Nos. 04-95-00967-C
    • United States
    • Court of Appeals of Texas
    • April 9, 1997
    ...869, 872 (Tex.App.--Fort Worth 1995, pet. ref'd). The same is true of article I, section 9 of the Texas Constitution. Giacona v. State, 372 S.W.2d 328, 333 (Tex.Crim.App.1962), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70 (1963); see also Alvarez v. State, 857 S.W.2d 143, 145-46 (......
  • Request a trial to view additional results
19 cases
  • Crittenden v. State, No. 576-93
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 17, 1995
    ...Yet, lawful police conduct may not always be reasonable. Art. I, § 9 prohibits unreasonable searches and seizures. Giacona v. State, 372 S.W.2d 328, 333 (Tex.Cr.App.1962). The determination of whether a search is constitutionally reasonable should not depend not upon judicial convenience, b......
  • Autran v. State, No. 869-92
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • September 21, 1994
    ...similarities of the two provisions, and because the two provisions embody the same basic protections. See, e.g., Giacona v. State, 372 S.W.2d 328, 333 (Tex.Cr.App.1962) (op. on reh'g); Crowell v. State, 147 Tex.Crim. 299, 180 S.W.2d 343 (1944); Cagle v. State, 147 Tex.Crim. 354, 180 S.W.2d ......
  • Wheeler v. State, Nos. 59804-59806
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • July 21, 1982
    ...to leave his windows unsecured he may not complain if another observes an illegal act being committed therein. See also Giacona v. State, 372 S.W.2d 328 (Tex.Cr.App.1963), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70, and Crowell v. State, [147 Tex.Cr.R. 299, 180 S.W.2d 343 (Tex.C......
  • State v. Simmang, Nos. 04-95-00967-C
    • United States
    • Court of Appeals of Texas
    • April 9, 1997
    ...869, 872 (Tex.App.--Fort Worth 1995, pet. ref'd). The same is true of article I, section 9 of the Texas Constitution. Giacona v. State, 372 S.W.2d 328, 333 (Tex.Crim.App.1962), cert. denied, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70 (1963); see also Alvarez v. State, 857 S.W.2d 143, 145-46 (......
  • Request a trial to view additional results

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