Guerra v. State, 46328
| Decision Date | 13 June 1973 |
| Docket Number | No. 46328,46328 |
| Citation | 496 S.W.2d 92 |
| Parties | Joe GUERRA, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James A. Walters and Reid A. Rector, Lubbock, (Court-appointed), for appellant.
Blair Cherry, Jr., Dist. Atty., Bob D. Odom, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of possession of heroin. The jury assessed punishment at forty years.
Appellant challenges the validity of the search conducted of his person. He contends that the search warrant did not unconditionally authorize his arrest and only authorized a search of the premises and did not extend to his person. He also attacks the affidavit upon which the warrant was issued, contending that it did not show sufficient probable cause.
The sufficiency of the evidence is not challenged.
We affirm.
This Court has held that an officer executing a valid search warrant has the right and duty to search persons found on the premises in the execution thereof. See Guzman v. State, Tex.Cr.App., 461 S.W.2d 602; Johnson v. State, Tex.Cr.App., 440 S.W.2d 308, and Hernandez v. State, Tex.Cr.App., 437 S.W.2d 831. When the officers knocked on the door and identified themselves, appellant observed them through a small window and then moved away. The officers knocked once more but were denied entrance. They saw a woman moving hurriedly to the bathroom and then heard a commode flush. Officers then used force to gain entrance and handcuffed the appellant.
The evidence shows that appellant had attempted to kill a Lubbock police officer once before and that he had been charged with assault on a police officer in connection with previous narcotics raids. After the premises were searched without result, the handcuffs were removed from appellant so that he could be thoroughly searched. When the paper of 'heroin' was found in the watchpocket of appellant's trousers, he attempted to grab it from the officer and swallow it. The handcuffs were again placed on him. There was probable cause to search appellant even if such was not authorized by the warrant. See Article 14.03, Vernon's Ann.C.C.P., and Thompson v. State, Tex.Cr.App., 447 S.W.2d 175.
We hold this to have been a valid search. The officers were in the process of executing a valid search warrant based on probable cause and with it...
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Lippert v. State
...Johnson v. State, 440 S.W.2d 308 (Tex.Cr.App.1969); Guzman v. State, 461 S.W.2d 602 (Tex.Cr.App.1970); Guerra v. State, 496 S.W.2d 92 (Tex.Cr.App.1973); Brown v. State, 498 S.W.2d 343 (Tex.Cr.App.1973); Martinez v. State, 504 S.W.2d 897 (Tex.Cr.App.1974). And the cases have made clear that ......
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