Hernandez v. State

• Decision Date: 10 December 1952
• Docket Number: No. 26090,26090
• Citation: Hernandez v. State, 255 S.W.2d 219, 158 Tex.Crim. 296 (Tex. Crim. App. 1952)
• Parties: HERNANDEZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 219

255 S.W.2d 219

158 Tex.Crim. 296

HERNANDEZ v. STATE.

No. 26090.

Court of Criminal Appeals of Texas.

Dec. 10, 1952.

Rehearing Denied Feb. 25, 1953.

Thomas, Thomas & Jones, George T. Thomas, Big Spring, for appellant.

George P. Blackburn, State's Atty., Austin, for the State.

MORRISON, Judge.

The offense is the possession of marijuana; the punishment, five years.

Appellant's guilt is made to depend upon the fact that, as a result of a search of his private residence by peace officers operating under the authority of a search warrant, there was found a quantity of marijuana.

The principal question before this Court is the sufficiency of the affidavit and search warrant to authorize the search as against the contention that the name of the owner or occupant of the premises to be searched was not in keeping with the provisions of applicable statutes.

Under the provisions of Section 16 of Article 725b, Vernon's Ann.P.C., a search warrant to search for narcotics is authorized to be issued under and in accordance with Title 6 of the Code of Criminal Procedure, Vernon's Ann.C.C.P. art. 304 et seq.

Article 310 is a part of said Title 6. In construing the provisions of that article in Naulls v. State, 115 Tex.Cr.R. 44, 27 S.W.2d 180, 181, we said:

'By the express terms of the quoted article the search warrant may be issued when the owner of the premises is unknown. If his name is known, it must be stated, but, if unknown and his identity known, he must be described; but, when neither his name nor identity is known, he may be described as unknown.'

The instant affidavit and search warrant states that the 'name or names and description or descriptions' of the occupant or person in charge or control of the residence were unknown to the affiant.

Under the statute and authority mentioned, Naulls v. State, supra, such was a sufficient description of the owner or occupant of the premises to be searched. Rathert v. State, 126 Tex.Cr.R. 484, 72 S.W.2d 276.

Upon the trial of this case, however, one of the affiants to the affidavit testified that at the time of the making of the affidavit he knew that the appellant lived in the house sought to be searched.

Appellant insists that the knowledge of the name and identity on the part of the affiants to the affidavit at the time of the signing of the affidavit vitiates and renders invalid the search warrant issued upon such false affidavit. In support of that contention, he relies upon the cases of Tillery v. State, 114 Tex.Cr.R. 106, 24 S.W.2d 844, and McDonald v. State, 127 Tex.Cr.R. 526, 77 S.W.2d 685.

The State calls attention to the well-established rule that a trial court may not go behind the affidavit and search warrant to determine the falsity of the facts stated therein in order to invalidate a search warrant valid upon its face.

This rule was given effect by this Court in the case of Ware v. State, 110 Tex.Cr.R. 90, 7 S.W.2d 551, and Bird v. State, 110 Tex.Cr.R. 99, 7 S.W.2d 953. A reference to Sheppard's Citations will show how consistently these cases have been followed, not only by this Court but by the civil courts. See Coleman County Country Club, Inc., v. State, Tex.Civ.App., 236 S.W.2d 558, writ refused.

Applying the rule stated to the instant case, it is apparent that the proof, in contradicting the terms of the affidavit and search warrant as to the name of the owner or occupant of the premises, should not have been received and, having been received, could not destroy or invalidate the affidavit and search warrant.

In this connection, attention is called to the fact that the instant affidavit and search warrant were valid and sufficient upon the face of such instruments, because the name of the occupant and a description of him were both stated as unknown.

Insofar as the Tillery and McDonald cases are susceptible of the construction that testimony may be received upon the trial of the case to contradict facts stated in an affidavit and search warrant, those cases are hereby overruled, and the rule announced by the Ware and Bird cases, supra, is hereby expressly reaffirmed.

The instant search warrant being valid upon its face, the trial court did not err in receiving in evidence the facts showing the result of the search thereunder.

The judgment of the trial court is affirmed.

BEAUCHAMP, Judge (dissenting).

I am of the opinion that under the plain provisions of Title 6, Article 316, Vernon's Ann.C.C.P., the evidence discussed in the majority opinion rendered invalid the affidavit and the search warrant issued under it. The cases of Tillery v. State, 114 Tex.Cr.R. 106, 24 S.W.2d 844, and McDonald v. State, 127 Tex.Cr.R. 526, 77 S.W.2d 685, hold in accordance with my view and should not be overruled at this time.

I do not deem it important to go into detail in a dissenting opinion. Under our Constitution and the laws passed in pursuance thereof for safeguarding against unreasonable search and seizure of privately owned property, particularly the private residence, the rule should not be relaxed to any degree. The officers in this case knew the party and knew that he was the occupant of the house searched. There is no excuse for their failure to make the allegation and they admitted that their statement in the affidavit was not true. I cannot join in condoning their action. I respectfully dissent.

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