Hooper v. State

Decision Date17 September 1975
Docket NumberNo. 49988,49988
Citation533 S.W.2d 762
PartiesFinis Weldon HOOPER, Appellant, v. The STATE of Texas, Appellee.
CourtTexas Court of Criminal Appeals

Malcolm R. Sanders, Beaumont, for appellant.

Tom Hanna, Dist. Atty., and Lawrence E. Thorne, III, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of obscene material with intent to distribute. The information alleged the offense occurred on May 28, 1973. Appellant was tried under old Penal Code Art. 527 in April, 1974, and punishment was assessed by the jury at a fine of $1,690.00.

The sufficiency of the evidence is not challenged, and the record reflects that a stipulation was entered into between appellant and the State that the films in question were obscene.

Appellant urges the court erred in admitting into evidence alleged obscene films that were illegally obtained from an unreasonable search and seizure.

The pertinent portion of the search warrant under which the films were seized recited that affiant was keeping 'obscene motion picture film' in a certain described pickup with camper, and reads as follows:

'AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT: On this date during the past twelve hours I was notified by an informant whose identity must remain undisclosed for safety and security reasons, called me and stated that a white male in his sixty's wearing a yellow shirt and yellow pants with grey receding hair, was in the downtown area trying to sell some obscene movies. I went downtown and found the subject getting into the above described pickup. I went back to my police unit and put out an attempt to locate on the truck. A uniform unit stopped the truck on Pt. Arthur Road for defective brake lights. Subject gave San Antonio address and was very nervous. He was brought to the police station and booked on the traffic charge. He had a notebook in his pocket and he tore some pages out and tried to eat them. The pages in the notebook discussed book stores, movie theatres and arcades and had some phone numbers. Checked the wanted file and found out he was wanted in Houston Texas for Pornography violation. He had a ring of keys in his possession when he was arrested but he managed to get rid of them on the way to the station. He has a metal box in the back of his truck with 2 huge locks on it and he refused us permission to look in the box. While inventorying his truck, a roll of 16 mm film was in the box. While inventorying his truck, a roll of 16 mm film was found in a silver canister in the camper of his truck. I have reason to believe my informant because during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized. I personally observed the above described subject in the same area as the Cinema X Theatre and The Action Theatre.'

The two-prong test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), requires:

'The magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed . . . was credible or his information reliable.'

Looking to the affidavit, as we must, in determining the reliability of the informer, we note the affiant recites '. . . during the past two months, my informant has given me information on several occasions and on two of offenses reported, arrests were made and contraband was seized.' We find that the affidavit furnishes sufficient underlying circumstances from which the magistrate could conclude that the informer's information was reliable. Williams v. State, Tex.Cr.App., 476 S.W.2d 300; Heredia v. State, Tex.Cr.App., 468 S.W.2d 833 (rev'd. on other grounds); Hegdal v. State, Tex.Cr.App., 488 S.W.2d 782.

In determining if the magistrate was informed of underlying circumstances from which the informant concluded that appellant was selling obscene films, we note, as appellant points out, that no statement is made that informant saw obscene films in appellant's pickup or that he heard appellant offer to sell such films. It is readily apparent, however, that the affidavit is not based solely on the hearsay statements of the informer, but contains assertions within affiant's knowledge which lend credence to otherwise unsupported conclusions and apprise the magistrate that the informer's story was not entirely out of the whole cloth. Gaston v. State, Tex.Cr.App., 440 S.W.2d 297; Williams v. State, supra. We find it unnecessary to recount all of the information within affiant's knowledge recited in the affidavit, but note that it is extensive and detailed and sufficiently supports the informer's conclusion that appellant possessed obscene films. We conclude that the search warrant was based on an affidavit which reflected probable cause for issuance of same.

While the films which were made the basis of the prosecution were seized in a search of a locked metal box in appellant's vehicle pursuant to a search warrant, appellant complains of his warrantless arrest and search of his person. Appellant also urges that testimony of officers relative to what they saw in his pickup when they removed a dog therefrom prior to the issuance of the search warrant was inadmissible.

The record reflects appellant was arrested for driving a vehicle with a defective brake light. See Art. 6701d, Sec. 124, V.A.C.S. The officer who stopped appellant was authorized to arrest him without warrant. Article 6701d, Sec. 153, V.A.C.S. Incident to the arrest for the traffic violation, the officer was authorized to search appellant's person. Merriweather v. State, Tex.Cr.App., 501 S.W.2d 887; Wallace v. State, Tex.Cr.App., 467 S.W.2d 608. A further search was conducted at the police station in which appellant was required to remove his socks and shoes. After appellant was arrested and prior to the search at the police station, the record reflects that appellant attempted to hide a ring of keys on his person and tore pages from a notebook in his possession and tried to eat them. The pages torn from the notebook contained information about 'arcades, adult movies, theaters, addresses and such as that at various places throughout the state.' A ring of keys was found in one of appellant's socks. We find that the officers' search of appellant at the police station was justified in light of appellant's actions following the initial arrest and search. The officers had a right to search appellant for weapons and items which might be used to effect escape from custody. See Merriweather v. State, supra; U.S. v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427.

The officers noted that appellant had a dog in the camper portion of his truck. When they entered the camper to remove the dog, they saw a roll of 16 millimeter film. According to Officer Waggoner, 'the film was laying there where you could see down into the box without lifting the flap.' A stipulation was entered at trial that this film was not obscene. The officers acted properly in entering the camper section of the pickup to remove the dog. See Corbett v. State, Tex.Cr.App., 493 S.W.2d 940. The officers, having made a lawful entry of the camper, could testify relative to anything they observed that was in plain view. Jackson v. State, Tex.Cr.App., 489 S.W.2d 565; Alberti v. State, Tex.Cr.App., 495 S.W.2d 236. It was after the entry of the camper to remove the dog that the officers went before a magistrate and obtained the search warrant which resulted in the search of the locked box observed in the camper. As a result of this search, the films forming the basis of this prosecution were seized.

Appellant's contention that Art. 527, V.A.P.C., in effect on the date in question, is unconstitutional in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, was answered adversely to appellant in West v. State, Tex.Cr.App., 514 S.W.2d 433.

Appellant urges several contentions which concern the overruling of appellant's objections to the court's charge.

Appellant advised the court that the motion he had filed for instructed verdict would constitute his objections to the court's charge, and appellant was allowed to reurge the grounds asserted therein. Other than a claim that Art. 527, V.A.P.C. was unconstitutional, the objections were directed to the lawfulness of his arrest, search and seizure. Appellant's objections contained therein have already been discussed and decided adversely to him.

Appellant complains of the issuance of the search warrant under which the films were seized without an adversary hearing before a magistrate.

The films in question were not being exhibited in a theater but were seized in a search of appellant's camper after appellant was arrested. No contention is advanced that appellant was prohibited from showing the films, nor is it urged that appellant was denied a post-seizure adversary hearing in accordance with Sec. 8 of Art. 527, V.A.P.C. See West v. State, supra; Bryers v. State, Tex.Cr.App., 480 S.W.2d 712. No error is shown.

Lastly, appellant urges the court erred in allowing the introduction into evidence of the affidavit and search warrant over objection that same contained hearsay statements.

The recitals in a search warrant are hearsay and are not admissible for any purpose. Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202 (see numerous cases cited therein).

Most of the recitals contained in the affidavit are statements of personal knowledge of the officer-affiant Waggoner. Officer Waggoner testified at trial, and the record reflects that the...

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