Heredia v. State

• Decision Date: 09 June 1971
• Docket Number: No. 43856,43856
• Citation: Heredia v. State, 468 S.W.2d 833 (Tex. Crim. App. 1971)
• Parties: Roberta HEREDIA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 833

468 S.W.2d 833

Roberta HEREDIA, Appellant, v. The STATE of Texas, Appellee.

No. 43856.

Court of Criminal Appeals of Texas.

June 9, 1971.

Rehearing Denied July 28, 1971.

Bobby L. Sanders, William B. Smith, Midland, for appellant.

James A. Mashburn, Dist. Atty., and Jerry Buckner, Asst. Dist. Atty., Midland, and Jim. D. Vollers, State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: heroin. The punishment, enhanced under Article 63, Vernon's Ann.P.C., life.

The record reflects that on November 5, 1969, at approximately 10 P.M., five or six Midland Police Officers went to room number 17 of the Frontier Motel in Midland to execute a search warrant. The officers were apparently 'spotted' as they approached the said room and they 'took off in a run' for the door. When they reached the door, they observed several males and females inside the room. The appellant was seen near the bed and he rushed to the bathroom where he attempted to flush a brown paper sack, a needle and an eye dropper down the commode. The said contraband was retrieved and admitted into evidence at the trial.

Appellant contends the affidavit on which search warrant was based is defective, in that: (1) there are no underlying circumstances supporting the affiant's conclusion that the informant was reliable or the information credible; (2) it is indefinite as to time the occurrences happened to show probable cause; and (3) the jurat on the affidavit is undated. Therefore, he contends, admission of evidence thereunder was error.

The affidavit for search warrant is herein set out, as follows:

'THE STATE OF TEXAS

COUNTY OF MIDLAND

'James K. Maynard and _ _ do solemnly swear that heretofore, on or about the 5th day of November A.D., 1969, in said County and State, one CRUZ DeLAO did then and there unlawfully possess a Narcotic drug, to-wit: Heroin and I have cause to believe and do believe that said Narcotic drugs are now concealed by, Cruz DeLao in a motel room number 17 at the Frontier Motel, this motel room faces the west and is of stucco construction, white in color, with the actual motel facing the south, wings running north and south, situated in Midland County, Texas, at 1409 East Front Street in Midland County, Texas which said Cruz DeLao occupies, possesses, controls and has charge of.

'My knowledge of the foresaid is based on the following facts: Information was received by James K. Maynard from a reliable and credible informer who has furnish_ _ truthful and reliable information in the past, that Cruz DeLao was in fact using and selling Heroin from his motel room, numbe_ _ed 17 at the Frontier Motel at 1409 East Front Street in Midland, Texas. This informer further stated he had actually been inside this room and purchased papers of Heroin from Cruz DeLao and actually had seen Heroin addicts also purchase Heroin and then use the Heroin, or inject it into their arms. This informer also stated that Cruz DeLao would furnish the paraphernalia to anyone purchasing Heroin from him if they wanted to take a fix or inject the Heroin at that time. A surveillance was established by members of the Detective Division of the Midland Police Department of the Frontier Motel at 1409 East Front Street in Midland, Texas and on numerous occasions known Heroin addicts Was observed entering and leaving room 17 at that motel. Through the surveillance Detectives learned that the known Heroin addicts entered and left the motel room above stated mostly between the hours of 6:00 P.M. and 12 midnight each day.

'Wherefore, I ask that a warrant to search for and seize the said Narcotic drugs be forthwith issued in accordance with the law in such cases provided.

(s) James K. Maynard

'Sworn to and subscribed before me by James K. Maynard and _ _

(s) John H. Biggs

Justice of the Peace, Precinct No. 1, Place No. 1, Midland County, Texas.'

We note the recitations in the said affidavit that information 'from a reliable and credible informer who has furnish_ _ truthful and reliable information in the past' and 'This informer further stated he had actually been inside this room' and had purchased heroin. Thus, the two pronged test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, has been met. This ground of error lacks merit.

However, a much more serious question arises as to the definite time of the occurrences to show probable cause for the issuance of the search warrant. Article 18.01, Vernon's Ann.C.C.P., states in part:

'No search warrant shall issue for any purpose in this State unless a sworn complaint therefor shall first be filed with the issuing magistrate setting forth sufficient facts to satisfy the magistrate that probable cause does in fact exist for its issuance.'

So, in order for the affidavit to show adequate probable cause it must set forth underlying circumstances necessary to enable the magistrate independently to judge the validity of the affiant's belief that heroin was being used and sold in motel room number 17 at the Frontier Motel. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, supra.

The facts attested to must...