Herrera v. State
| Decision Date | 25 January 1978 |
| Docket Number | No. 53544,53544 |
| Parties | Roberto HERRERA and Mellie Aguilar, Appellants, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
These are appeals from convictions for possession of more than four ounces of marihuana. The appellants waived a trial by jury and entered pleas of not guilty before the court. The trial judge assessed appellant Herrera's punishment at ten years probated, and appellant Aguilar's 1 punishment at five years, probated.
The appellants contend that the trial judge erred by admitting State's Exhibits Nos. 2 through 12, and that the evidence was insufficient to support the trial judge's findings of guilt. We affirm.
The record reveals that at approximately 2:00 p. m., on May 30, 1974, Officer Shaw of the Austin Police Department responded to a reported collision in the 1200 block of Tinnin Ford Drive. When he arrived, Shaw learned that someone in a Plymouth had backed into a parked Fiat and then left the scene of the accident. Shaw investigated the damaged Fiat and found that the trunk had been knocked open.
As Shaw inspected the damage, he noticed two gallon jars which appeared to contain marihuana. Shaw summoned Sergeant Dowdle of the narcotics section. Dowdle arrived and together Shaw and Dowdle removed the substance from the Fiat. Shaw also checked the registration of the Fiat and was informed that the car was registered by one Frederico Herrera from Corpus Christi. Shaw asked the bystanders if anyone knew a person named Frederico Herrera and Shaw was informed that a Manuel Herrera lived in an apartment complex immediately adjacent to the scene of the collision. Someone pointed out the window of apartment # 322 in which Manuel Herrera lived. Shaw and Dowdle saw two marihuana plants in the window.
Dowdle subsequently obtained a search warrant for apartment 322, Consul Apartments, 1201 Tinnin Ford Drive. Shaw, Dowdle and Officer Huckabee executed the search warrant at 4:15 p. m. on May 30, 1974.
When the officers entered the apartment, no one was present. Their search revealed the following contraband: (1) 1.72 pounds of manicured marihuana in the hall closet; (2) 2.31 pounds of marihuana seeds in a bag in the hall closet; (3) 1.89 ounces of loose marihuana in the hall closet; (4) two marihuana plants weighing 1.11 ounces growing near the window overlooking the scene of the collision; (5) 4.78 ounces of marihuana seeds in the hall closet; (6) 2.14 ounces of marihuana "flowering tops" in the refrigerator; (7) .94 ounces of marihuana seeds in the center top dresser drawer in the northwest bedroom; (8) .83 ounces of marihuana "roaches" and seeds on the top of the bar in the kitchen; (9) 2.06 ounces of marihuana seeds on top of the bar in the kitchen; (10) 2.28 ounces of loose marihuana in a metal tray in the northeast bedroom; (11) 1.92 ounces of manicured marihuana in the top right-hand dresser drawer in the northeast bedroom; and (12) 1.05 ounces of loose marihuana on the nightstand in the northeast bedroom. During the search, the officers also seized personal papers and photographs found throughout the apartment.
The appellants' first contention is that the personal papers and photographs seized during the search were inadmissible as the product of an illegal search and seizure. Specifically, the appellants assert that the seizure of State's Exhibits Nos. 2 through 12 was not authorized by the search warrant and that these items constituted mere evidence.
State's Exhibit No. 2 was an envelope, seized in the kitchen, addressed to Mr. and Mrs. Manuel Herrera, 1201 Tinnin Ford Road # 332. State's Exhibit No. 3 was a receipt from Brackenridge Hospital. It indicated that Manuel Herrera had paid a bill for Mellie Herrera on November 6, 1973. It was found in the northeast bedroom of the apartment. State's Exhibit No. 4 was a City of Austin utility statement addressed to Roberto Herrera, c/o Mems Herrera, 1201 Tinnin Ford # 322. The due date on the statement was May 21, 1974. This statement was seized in the kitchen. State's Exhibit No. 5 was a City of Austin utility statement which indicated that Roberto Herrera was the customer located at 1201 Tinnin Ford # 322. The due date on the statement was March 21, 1974. This statement was seized in the northeast bedroom. State's Exhibit No. 6 was an envelope addressed to Mr. or Mrs. Mems Herrera, 1201 Tinnin Ford Road, apartment 32 . The envelope had been torn open in such a manner that it was impossible to ascertain if there had been a third letter designating the apartment number. It was postmarked March 9, 1974, and seized in the northeast bedroom. State's Exhibit No. 7 was an envelope addressed to Manuel Herrera, 1201 Tinnin Ford # 322. It was found in the northeast bedroom and it was postmarked on May 18, 1974. State's Exhibit No. 8 was a copy of a contract for the rental of apartment 322, 1201 Tinnin Ford. It was dated May 3, 1974, and the lease began on June 1, 1974. It also indicated that the resident of the apartment would be Manuel Herrera. It was seized in the bar in the kitchen. State's Exhibit No. 9 was a carbon copy of the lease introduced as State's Exhibit No. 8. It was also seized in the kitchen. State's Exhibit No. 10 was an envelope containing a statement from Brackenridge Hospital. It was addressed to Manuel Herrera, 1201 Tinnin Fork # 322. It indicated that Mellie Herrera was the patient. It was dated August 9, 1973, postmarked August 23, 1973, and was seized in the northeast bedroom. State's Exhibit No. 11 was a photograph of a male subsequently identified as the appellant Roberto Herrera. It was seized in the top left dresser drawer of the northeast bedroom. State's Exhibit No. 12 was a photograph of a female subsequently identified as the appellant Mellie Herrera Aguilar.
The appellants' contention that State's Exhibits Nos. 2 through 12 were mere evidence and not subject to seizure because there was no "nexus . . . between the item(s) . . . seized and (the) criminal behavior," Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), is without merit. In Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971), the defendant contended, inter alia, that an envelope found during a search of his apartment was the fruit of an illegal search. The envelope, which was addressed to the appellant, had been seized from a cardboard box in which marihuana had been found. This Court there stated:
More closely in point is Phenix v. State, 488 S.W.2d 759 (Tex.Cr.App.1972). There, a search of the defendant's apartment yielded an insurance company "Member's Identification Card," a note bearing the defendant's initials, and the defendant's motor vehicle operator's license. The insurance company "Member's Identification Card" and the note were found on top of a desk in plain view, and the license was found in a billfold next to a tobacco pouch that contained marihuana. We there held the exhibits admissible. See also Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.1976).
In the present case, State's Exhibits Nos. 2 through 12 were seized pursuant to the execution of a valid warrant. Some of the items were in plain view. Marihuana was found in every...
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