Joseph v. State

• Decision Date: 27 February 1991
• Docket Number: Nos. 1369-88,1370-88,s. 1369-88
• Citation: 807 S.W.2d 303
• Parties: Charles Ellis JOSEPH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 303

807 S.W.2d 303

Charles Ellis JOSEPH, Appellant, v. The STATE of Texas, Appellee.

Nos. 1369-88, 1370-88.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 27, 1991.

Rehearing Overruled April 24, 1991.

M. Scott Stehling, Kerrville, for appellant.

E. Bruce Curry, Dist. Atty., and Susan L. Patterson, Asst. Dist. Atty., Kerrville, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

MILLER, Judge.

Appellant was convicted by a jury of two separate offenses of possession of a controlled substance, to-wit: possession of less than 28 grams of lysergic acid diethylamide (L.S.D.) and possession of less than 28 grams of cocaine. V.T.C.A. Health and Safety Code, Sec. 481.115(b). The offenses were tried in a single trial. The trial judge assessed punishment at eight years imprisonment for each offense, the sentences to run concurrently. The Court of Appeals affirmed appellant's conviction in a published opinion. Joseph v. State, 759 S.W.2d 770 (Tex.App.--San Antonio 1987). In his petition, appellant raised three grounds for review, but we granted only one ground which states: "The Court of Appeals opinion affirming the admission before a jury of incriminating statements in a letter seized by a police officer from within an envelope located while opening and reading all the appellant's mail during the execution of a warrant to search the appellant's residence for marijuana is a dangerous precedent in conflict with prior law." Tex.R.App.Pro. 200(c)(3). We will reverse and remand.

A warrant was issued authorizing the search of appellant's residence for "a usable quantity of marijuana." While executing the search on March 31, 1987, an officer discovered a letter addressed to appellant at his then current residential address. The envelope, postmarked April 22, 1986, was addressed to Charles E. Joseph, 1000 Paschal # 805, Kerrville, Texas. The envelope contained a greeting card with a short, handwritten letter. ¹ The contents of the letter are as follows:

Dear Sir Charles,

Made it alright to Oklahoma, everything went fine. I already got myself a job, I don't have anything to get high with. Send me some until I can meet me somebody up here. I hope ... not any problem with you at this time. I sure would like to get high.

Hope things are alright with you and family, I already miss the games we had at the apartment, good luck Charles whatever you decide to do. I hope you have a girl, let me know what she has when the time comes.

Hoping to hear from you real soon, next time Sir Charles.

Always, Don

During the search, officers found and seized "a usable quantity of marijuana" in a package which also contained the substances L.S.D. and cocaine. In addition, various items of drug paraphernalia were discovered during the search.

Defense counsel filed a motion to suppress all evidence seized as a result of the search on the basis that the affidavit lacked the requisite probable cause for issuance of a warrant. The trial judge overruled the defendant's motion at a pre-trial hearing. Officer Donnie Bunch of the Kerrville Police Department testified at trial that he was the officer who searched and seized the letter. Before the letter was introduced at trial, defense counsel questioned Officer Bunch outside the jury's presence, and the following exchange took place:

Q. Did you open up every envelope in the master bedroom?

A. I can't verify for sure. I looked through several boxes of letters and photographs and--

Q. Did you read them?

A. Some of them, yes, sir.

Q. Were you looking for incriminating statements at that point?

A. Some of them, yes, sir.

Q. And is that what you were doing when you read this letter?

A. That's one of the reasons I kept the letter, yes, sir. Also I kept it because it showed that Charles Joseph also lived there at the residence.

Q. Were you able to determine before you read the letter that there was no marijuana?

A. No, sir, I mean I couldn't tell whether there was marijuana in there until I looked inside.

Q. Right, and when you looked inside you could see there was no mariuana [sic]. Is that correct?

A. Yes.

Q. And after that you went ahead and read the letter?

A. Yes, sir.

* * * * * *

Q. And when you pulled out the letter you were able to look in the envelope and determine that there was no marijuana in the envelope?

A. Yes, sir.

Q. And was it after you made that determination that you then read the letter that was inside?

A. Yes, sir, I read the letter.

Q. And when you unfolded the letter before you read it, it was obvious there was no mariuana [sic] in there. Is that correct?

A. Yes, sir.

* * * * * *

Q. And do you know who this Don is, this Don Davis is that may have written this letter?

A. No, sir, I don't know the person.

Q. Does it say anything about L.S.D. or cocaine per se?

A. Doesn't mention--

Q. Those items?

A. No, sir.

Defense counsel then objected to the introduction of the letter on the grounds that it was too remote in time, having been mailed approximately one year before the search date, and had no bearing on appellant's knowledge and possession of cocaine or L.S.D., and that the appellant had no control over what was written to him by other persons. Defense counsel's objection continued in part:

We object on the basis that it's [an] attempt to introduce material that could be prejudicial against this Defendant without being beneficial in the sense that it will provide this jury with any assistance in the duty that they have to determine whether or not this Defendant knowingly possessed cocaine or L.S.D. on or about March the 31st, 1987, that the items were seized without probable cause, that a search warrant for marijuana does not authorize you to go and read everybody's mail, that it was clear that there was no marijuana at the time the officer read the mail, that under the circumstances the items should be suppressed.

The trial court overruled the objection and admitted the letter into evidence. The trial proceeded to direct examination of the witness who then read the letter in its entirety before the jury. On cross-examination, Bunch stated that he had read other letters and this letter was the only one worth keeping.

The court of appeals upheld the trial court's ruling that the seizure of the letter was proper for the purpose of showing defendant's occupancy of the premises as bearing upon the issue of his possession of marijuana and other controlled substances found therein, thus establishing a nexus between the search for marijuana and evidence of criminal behavior. Joseph, 759 S.W.2d at 773. The court of appeals upheld the seizure of both the letter and the envelope for the purpose of establishing occupancy. The envelope is clearly admissible for the purpose of showing occupancy and control of the premises. Herrera v. State, 561 S.W.2d 175 (Tex.Cr.App.1978); Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.1976). ²

Appellant contends that the court of appeals erred in upholding the trial court's admission of the contents of the letter. Specifically, appellant argues the search and seizure of this letter cannot be justified under the plain view doctrine of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct 2022, 29 L.Ed.2d 564 (1971). ³ Appellant also argues that the court of appeals' discussion regarding the fact that the warrant did not authorize a search for mere evidence is immaterial. ⁴

In answer to this contention, we note that it is well settled that general exploratory searches are illegal. Stanford v. Texas, 379 U.S. 476, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). A valid warrant based on probable cause is necessary to conduct a search unless one of the many exceptions to the warrant requirement is appropriate under the circumstances. In some instances "mere evidence" which is not specifically listed in the warrant may be discoverable. Mere evidence is evidence connected with a crime, but does not consist of fruits, instrumentalities, or contraband. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Officers may seize mere evidence when the objects discovered and seized are reasonably related to the offense under investigation and the discovery is made in the course of a good faith search conducted within the parameters of a valid search warrant. Id. at 307-310, 87 S.Ct. at 1650-1652. The scope of a search, during which "mere evidence" may be found, is restricted to the object of the search and the places in which there is probable cause to believe it may be found. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982).

The Texas Code of Criminal Procedure defines those items which may be the object of an authorized search. Art. 18.02, V.A.C.C.P. In the instant case, the search warrant was issued for "a useable quantity of marijuana." The warrant does not indicate the specific ground for its issuance, but the State asserts in its brief that the warrant was issued pursuant to Art. 18.02(7), V.A.C.C.P., to-wit: "drugs kept, prepared, or manufactured in violation of the laws of this state."

In the case sub judice, the letter seized was "mere evidence" because it contained incriminating statements potentially linking appellant with possession of illegal substances, and thus it was not fruits, instrumentalities, or contraband. Warden, 387 U.S. at 306, 87 S.Ct. at 1649-50. The warrant here does not include "written or printed material." The letter seized was clearly not described in the search warrant.

We must next determine, however, whether the letter was discoverable within the scope of the search as defined in Ross, 456 U.S. at 799, 102 S.Ct. at 2159-60. Because marijuana was the object of the search, we must determine whether the officer had probable cause to believe that the drug could be found within the letter. Although a "useable quantity of marijuana" could conceivably be found "just about anywhere," as Officer Bunch alluded in his...