Gomez v. State, 43992
| Decision Date | 23 September 1971 |
| Docket Number | No. 43992,43992 |
| Parties | Gilbert GOMEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Herrington, Levbarg, Weeks & Jones by T. Allen Herrington, Austin, for appellant.
Robert O. Smith, Dist. Atty., Lawrence Wells, and Harold Jaquet, Asst. Dist. Attys., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for possession of heroin enhanced under the provisions of Art. 63, Vernon's Ann.P.C.; trial was before a jury and the court assessed the mandatory punishment of life.
Captain Harvey E. Gann of the Austin Police Department testified that on May 1, 1969, he observed the appellant riding in an automobile with two other persons on First Street and Willow Street in Austin. He and other officers stopped the vehicle at the intersection of First and Clara Streets. Other occupants of the vehicle were Gloria Olivio and Seferino Torres. The appellant and Torres and the purse of Olivio were searched on the scene. All three, plus the automobile, were taken to the police station, whereupon the car was searched. He further testified that Sgt. Taylor recovered a package from the vehicle.
Sgt. W. J. Taylor testified that on the morning in question he observed the appellant, Olivio, and Gomez, come out of a house at 2002 Holly Street, get in the automobile, and leave. He followed the vehicle to the intersection of First and Clara Streets, where it had been stopped by Captain Gann and Sgt. Hersom. He further testified that upon searching the vehicle at the police station, he found three small packages which were introduced as State's Exhibits 1, 2, and 3.
A chemist for the Department of Public Safety testified that all three packages contained heroin.
Sgt. Hersom was also present when the appellant was apprehended. He testified that he observed the appellant at the police station and that the appellant had infected needle marks on his left arm, which was common among heroin addicts.
The appellant contends that the heroin was inadmissible as the fruit of an unlawful search. First, he complains that there was no probable cause for the search. A hearing on this issue was held outside the presence of the jury. No search warrant or arrest warrant was issued. On the morning before the appellant's arrest, Gann received a call from an unidentified informant to meet the informant in the 2000 block of East First Street. The informant told Gann that Torres and the appellant were preparing heroin for distribution at 2002 Holly Street. Gann had known the informant for a long period of time and the informant was proven to be reliable and his information had always been credible. Gann also testified as follows:
'Q Officer, state the conversation with the informant, as fully as you can recall it, sir.
'A He stated that Seferino and Gilbert were at 2002 Holly, and they were preparing heroin; a large shipment had come in, that they were preparing it and would be leaving there to distribute it to pushers that were working for them; said they should be leaving there within just a few minutes.
'Q Did he say how they would be leaving there?
'A In Seferino's car.
'Q Did he describe the car?
'A We knew the car, a '60 Pontiac, blue and white.'
The informant described the automobile with particularity, knew where the appellant and his companion would be, was himself only a few blocks from the vicinity. Thus, 'There would appear to be some indication that the informer spoke with personal knowledge or had gained his information in a reliable way.' Almemdarez v. State, Tex.Cr.App., 460 S.W.2d 921. At the point of interception every fact related by the informer except the presence of the heroin was verified. Captain Gann had received previous reliable information from the informant and 'there was therefore underlying circumstances as to the officer's conclusion that the informer was credible and his information reliable.' Almendarez v. State, supra. A very similar fact situation existed in Almendarez, and this Court held that Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, was applicable. Under Almendarez and Draper, there was probable cause for the search.
The appellant also complains that the search of the automobile was illegal because the search was conducted without a warrant at the police station later, and not immediately at the site...
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