Gonzales v. State, No. 39873

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MORRISON; WOODLEY
• Citation: 410 S.W.2d 435
• Decision Date: 16 November 1966
• Docket Number: No. 39873
• Parties: Adiel F. GONZALES, Appellant, v. The STATE of Texas, Appellee.

Page 435

410 S.W.2d 435 Adiel F. GONZALES, Appellant,
v.
The STATE of Texas, Appellee. No. 39873. Court of Criminal Appeals of Texas. Nov. 16, 1966.
Rehearing Denied Dec. 31, 1966.
Second Rehearing Denied Feb. 1, 1967.

John J. Browne, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Presiding Judge.

The offense is possession of heroin with two non-capital felony convictions alleged for enhancement; the punishment, life.

In order to properly appraise appellant's grounds of error presented in his brief, we will briefly summarize the facts. Narcotic police officers armed with a search warrant appeared at appellant's apartment, announced their identity and purpose, and when the occupants of the apartment 'panicked' and began to run around inside the apartment, entry was forced. As they entered appellant told a woman occupant to pick up the heroin from the table. She ran from the bathroom, picked up a cellophane

Page 437

package from the table and ran toward the back door where she was intercepted by other officers who were entering through that door. When they demanded to know if she had anything, she reached in the pocket of her blouse or pajama top and handed the cellophane package to one of the officers. At this juncture appellant spoke to the officers and stated 'that the heroin was his and that his wife did not know what she picked up and nobody else in the house knew what was in the package.'

The chain of custody was proven as adequately as was done in Ray v. State, 170 Tex.Cr.R. 640, 343 S.W.2d 259, and we find the same sufficient. The capsules contained in the cellophane package were shown to contain heroin.

Appellant did not testify in his own behalf.

After the jury found appellant guilty of the primary offense, he elected to have the Court set the punishment. Appellant's identity and the successiveness of the prior convictions were established by the testimony of J. C. Roberts in person and by a fingerprint expert and by careful questioning by the trial judge.

We shall discuss the contentions advanced by appellant. He first alleges that the affidavit for the search warrant was insufficient to establish probable cause. The affidavit is identical, except for names, date and addresses, to the affidavit set forth in our opinion in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434. Appellant contends that we were in error in Acosta and cites as authority Riggan v. Virginia, 384 U.S. 152, 86 S.Ct. 1378, 16 L.Ed.2d 431. The affidavit is set forth in haec verba in Riggan v. Commonwealth, 206 Va. 499, 144 S.E.2d 298, and is as follows:

'The material facts constituting probable cause for issuance of the warrant. $5r$ Personal observation of the premises and information from sources believed by the police department to be reliable. $5r

A comparison of the affidavit in Acosta, which will not be again set forth in this opinion, with the Riggan affidavit demonstrates that the Acosta affidavit clearly states probable cause, while there is room for a difference of opinion as to the sufficiency of the Riggan affidavit.

Appellant also relies on the opinion of the United States Court of Appeals, D.C.Circuit in Perry v. United States, 118 U.S.App.D.C. 360, 336 F.2d 748. It would appear from the more recent case of United States v. Freeman, 358 F.2d 459, from...