Haynes v. State
| Decision Date | 02 June 1971 |
| Docket Number | No. 43756,43756 |
| Citation | 468 S.W.2d 375 |
| Parties | Walter Ronald HAYNES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Alfano, Dailey, Tindal & Hearn by Fred H. Dailey, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Edward B. McDonough, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.
This is an appeal from a conviction for possession of marihuana. After waiver of trial by jury the appellant entered a plea of not guilty before the court.
Appellant contends that his arrest was without probable cause and that the fruits of the search incident thereto were inadmissible in evidence.
The record reflects that Officer Dunlap, Houston Police Department, Narcotic Division, received a call from a woman at 9 p.m. on June 23, 1967, and went to the caller's address, a duplex. There the woman pointed to a hole inside a closet which permitted a view into the dining room of the adjoining apartment.
Over objection the officer testified the woman related to him that she had seen through this hole her neighbor, a man whom she did not know, rolling cigarettes with a 'green looking tobacco.' She told the officers of the large number of people going to and from the adjoining apartment.
After returning to the police station and after apparent further investigation, Officer Dunlap pulled the appellant's 'mug shot,' and also discovered that the appellant had a prior misdemeanor conviction for possession of barbiturates.
The next morning, June 24th, the woman again called announcing the suspect's return. By the time the officers arrived the 'suspect' had gone, but the woman identified a 'mug shot' of the appellant as the man she had seen through the hole in the wall. Later that afternoon while at the police station the officers received a call from an informer who had previously given reliable information concerning narcotics. Such informer told the officers merely that the appellant lived at the duplex in question and would be leaving for Brownsville 'in a short time.'
During the course of their investigation the officers had learned there were four outstanding felony arrest warrants for appellant.
Officers Dunlap and Gonzalez then proceeded to the duplex in question. As they arrived they observed the appellant and a companion walking empty-handed towards a nearby car which they entered. The officers approached and identified themselves and the appellant attempted to drive off but was foiled when Officer Gonzalez leaned through the window and grabbed the car keys.
A search of appellant's person revealed 'a blue and red capsule.' In the front seat of the car was found a brown paper sack containing ten smaller sacks which were later shown by chemical analysis to contain marihuana.
Officer Gonzalez on this day made a return on each of the four felony arrest warrants showing them duly executed.
It is appellant's contention that independent of the arrest warrants there was not sufficient evidence to reflect probable cause to authorize a warrantless arrest and a search incident thereto, and that the arrest warrants were void since they were based on affidavits or complaints which did not reflect probable cause.
As to his contention that the arrest warrants were void, appellant relies upon Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 1035, 28 L.Ed.2d 306, where the Supreme Court said:
* * *'
And appellant contends that the complaint in Whiteley which was held insufficient to reflect probable cause is almost identical to the affidavits or complaints in the case at bar.
We need not determine whether either one of appellant's contentions is correct.
If the appellant desired to attack the legality of his arrest and subsequent search upon the basis that the affidavits for arrest warrant did not reflect probable cause, it was incumbent upon him to see that the affidavits were properly in the appellate record. Without such affidavits the legality of the arrest and subsequent search is not presented for review. Dusek v. State, Tex.Cr.App., 467 S.W.2d 270. See also Lee v. State, 167 Tex.Cr.R. 608, 322 S.W.2d 260; Irwin v. State, Tex.Cr.App. 441 S.W.2d 203; Doby v. State, Tex.Cr.App., 383 S.W.2d 418.
The record reflects that the four felony arrest warrants were introduced into evidence. They are valid on their faces. Therefore it was incumbent upon the appellant to show that the affidavit upon which each warrant was based did not reflect probable cause as he contended. He did introduce three of the affidavits which are markedly similar to one held insufficient in Whiteley v. Warden, Wyoming State Penitentiary, supra. The fourth affidavit was not introduced. At the hearing on the motion to suppress when it was determined that the affidavit or complaint was not among the papers offered, the following transpired:
'By Mr. Dailey: (defense counsel)
'Q. Judge Treadway (then Justice of the Peace), would you have any way of knowing where we might acquire a copy of the complaint in Cause No. 306940, to determine whether or not probable cause was stated therein or not?
Subsequently, without recalling Judge Treadway, the...
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...who was present at the time of a defendant's conviction and identifies him as the person so previously convicted. In Haynes v. State, 468 S.W.2d 375 (Tex.Cr.App.1971), cert. den. 405 U.S. 956, 92 S.Ct. 1180, 31 L.Ed.2d 233, it was held that record evidence of the conviction introduced the p......
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