Jimenez v. State
| Decision Date | 08 November 1967 |
| Docket Number | No. 40739,40739 |
| Citation | 421 S.W.2d 910 |
| Parties | Maurice Garza JIMENEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
J. Evans Attwell, Joseph L. Bart, Jr., Houston, for appellant.
Carol S. Vance, Dist. Atty., Phyllis Bell and Allen Stilley, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the unlawful possession of heroin; the punishment, twenty years.
The record reflects that on the night in question Officer D. D. Collins, of the city of Houston police department narcotics division, received a telephone call at his home, around 8 p.m., from an informer who had proven to be reliable, in which call the informer stated that the appellant was driving in an automobile to a certain place in the city and that he would have heroin in his possession. In the conversation the officer was advised by the informant to 'hurry up and get over there or he would be gone.' Officer Collins then enlisted the aid of Officer B. E. Majors and they met at 8:30 p.m. and proceeded to the location. At approximately 9:25 the officers observed appellant driving down the street with a companion in the car. They overtook appellant and pulled him to the curb. As appellant got out of the car on the driver's side, Officer Collins grabbed him and Officer Majors approached from the other side. As Officer Majors approached, he saw a Winston cigarette package fall to the ground approximately two or three feet from where appellant was standing and bounce over near a trash can. He picked up the package, that was shown to contain .98 grams of powder which, upon analysis, was found to be fifty-five per cent pure heroin. The officers then searched the appellant, the automobile, and the other occupant in the car but found no contraband.
In his first two grounds of error, appellant insists that the court erred in denying his motion to suppress the evidence obtained by the officers and in admitting the same before the jury because, he contends, such evidence was illegally obtained as the result of an arrest and search without a warrant or probable cause, in violation of his rights under the Fourth Amendment to the Constitution of the United States and Art. 38.23 of the Vernon's Ann.Code of Criminal Procedure of this State.
We overrule the two grounds of error, as the record reflects that the cigarette package containing the heroin which Officer Majors recovered from the ground was not obtained as the result of a search. Such evidence was admissible as against the contention that it was obtained as the result of an illegal search. Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Nava v. State, 170 Tex.Cr.R. 355, 340 S.W.2d 955; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841; Ortega v. State, Tex.Cr.App., 414 S.W.2d 465. If the evidence, as contended by appellant, was obtained as the result of a search, such was legal as being incident to a lawful arrest. Clifton v. State, Tex.Cr.App., 399 S.W.2d 353; Gonzales v. State, Tex.Cr.App., 402 S.W.2d 763; Rosales v. State, Tex.Cr.App., 420 S.W.2d 717.
In his third ground of error, appellant insists that the court erred in denying his motion to require the state to disclose the identity of the informer and in sustaining the state's objections to questions seeking to ascertain the identity and address of such person. The motion alleged, in substance, that the identity and address of the informer was necessary in determining whether probable cause existed for appellant's arrest without a warrant.
The questions propounded were inquiries as to the name and address of the informer and further inquiry as to whether his name was 'Sammy.'
Reliance is had by appellant upon the holding of the Supreme Court of the United States in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 633, 1 L.Ed.2d 639, that in certain cases the name of the informer should be disclosed.
Recently, this court, in Acosta v. State, Tex.Cr.App., 403 S.W.2d 434, and Bosley v. State, Tex.Cr.App., 414 S.W.2d 468, pointed out that the name of the informer should be disclosed under the decision in Roviaro v. United States, supra, in only those cases where the informer "had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly' committed the act.'
In the present case, the informer was not shown to have been present with appellant at the occurrence of the offense or in any manner to have taken a material part in bringing about his possession of the heroin. For such reason, the court did not err in refusing to require disclosure of the identity of the informer. Still another reason exists why the court did not err in denying appellant's motion to require disclosure of the identity of the informer. As heretofore stated, the basis of the motion was for the purpose of determining whether probable cause existed for appellant's arrest without a warrant.
In the recent case of McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62, the Supreme Court of the United States held that an informer's identity need not be disclosed in a preliminary hearing to determine probable cause for an arrest or search without warrant.
Our holding that the court did not err in refusing to require the state to disclose the identity and address of the informer disposes of appellant's ground of error #4, wherein he complains of the court's action in denying his application to take the written deposition of Officer Collins or any other officer of the Houston police department who could answer the interrogatories propounded relative to the prior criminal record of the informer. The ground of error is overruled. See: Thayer v. State, Tex.Cr.App., 397 S.W.2d 236.
By his fifth ground of error, appellant complains of certain jury argument of state's counsel.
In his opening argument, counsel for the state remarked and the following transpired:
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...... See Salinas v. State, 542 S.W.2d 864, 867 (Tex.Crim.App.1976) ("I don't think I have to tell you about the problem we have in San Antonio with heroin."); Jimenez v. State, 421 S.W.2d 910, . Page 46 . 913 (Tex.Crim.App.1967) (heroin is the sort of thing that can even get in the hands of school children), cert. denied, 391 U.S. 954, 88 S.Ct. 1859, 20 L.Ed.2d 868 (1968); see also McGee v. State, 689 S.W.2d 915, 919-20 (Tex.App.--Houston [14th Dist.] 1985, ......
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