Lee v. State

• Decision Date: 08 October 1958
• Docket Number: No. 29701.,29701.
• Citation: 322 S.W.2d 260
• Parties: Curtis Richard LEE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

322 S.W.2d 260

Curtis Richard LEE, Appellant, v. The STATE of Texas, Appellee.

No. 29701.

Court of Criminal Appeals of Texas.

October 8, 1958.

John Cutler, Houston, for appellant.

Dan Walton, Dist. Atty. Thomas D. White and Monroe Northrop, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Upon a trial before the Court without a jury, appellant was convicted of unlawfully possessing policy paraphernalia and his punishment assessed at a fine of $500.

Vice-squad Officer B. G. Bond of the Houston Police Department testified that on the day in question, he observed the appellant driving alone in a 1957 Ford Automobile on Holman Street in the City of Houston; that he followed the appellant and after he stopped, proceeded, under the authority of a search warrant, to search the automobile which appellant was driving; and in the search he found in the glove compartment fourteen T & L policy books, various "days plays", report sheets and cash in the amount of $230.21. After qualifying as an expert he further testified that the items found in the glove compartment of the automobile were adaptable for use in connection with a policy game.

It was further shown that the license number on the automobile which appellant was driving was issued to a person by the name of C. R. Lee.

Appellant did not testify or offer any evidence in his behalf.

In his brief and in oral argument appellant contends that both the complaint and information are invalid because they did not set out the written instruments that constituted the policy plays which he was charged with having possessed. While appellant filed no exception or motion to quash in the trial court we have examined both the complaint and information and find the allegations therein sufficient to charge the offense. The failure to set out the written instruments that constituted the policy plays did not render the pleadings insufficient to charge an offense. Cagle v. State, 147 Tex.Cr.R. 354, 180 S.W. 2d 928.

Appellant next insists that the search of the automobile was illegal because of certain claimed defects in the affidavit for the search warrant and the warrant itself. The record reflects that both the search warrant and the affidavit were produced by the State, marked for identification purposes only and in making his objection thereto, counsel for the appellant read certain portions thereof from the affidavit to the Court and secured the Court's ruling on such objections. Though appellant's counsel had these in his hand he has not perfected his bill of exception by transmitting them to us. Neither instrument appears in the record before us. therefore the question of the legality of the search is not presented for review. Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Williams v. State, 159 Tex. Cr.R. 487, 264 S.W.2d 731 and DeLeon v. State, Tex.Cr.App., 297 S.W.2d 140. This is so because the validity of a search warrant is a question of law. Having secured a ruling from the trial court that they were valid, the State made out a prima facie case authorizing the search. In order to defeat the prima facie case so made out, it became incumbent upon the accused to bring the warrant and the affidavit to this Court so that we may pass upon the correctness of the trial court's ruling. It should be remembered that this is not a case where the officers merely said they had a search warrant but failed to produce the same. Here, they produced the warrant and secured a ruling from the trial court that the warrant was a legal warrant. If the court was in error in such ruling, then it became incumbent upon the appellant, as in any other case, to bring the warrant before this Court so that we might pass upon the question so raised.

The State had no burden in the trial court to establish to the satisfaction of this Court that the search was lawful. The burden on the State was to satisfy the trial judge of such fact. It is the well-established rule of appellate review in this Court, if not all appellate courts, that the ruling of a trial judge is presumed to be correct and the burden rests upon the appellant to establish the contrary.

Without the search warrant and affidavit or evidence of their contents we are in no position to say that the trial court erred in admitting evidence obtained by the search under such warrant.

We find no error in the Court's action in permitting Officer Bond to explain the game of policy and to describe how the various items taken from the automobile driven by appellant were used in the game. The Officer was shown to be qualified as an expert and, as such, was authorized to give such testimony. Grigsby v. State, Tex.Cr.App., 298 S.W.2d 595.

Appellant contends that Art. 642c, sec. 2, Vernon's Ann.P.C., under which he is prosecuted, is invalid and unconstitutional because it does not define a policy game and delegates legislative power to police officers or experts to determine what is "adaptable for use in any policy game". With this contention we cannot agree. Whether or not a "writing, paper, print," etc., was "designed or adaptable" for such use would be a question of fact, like any other question of fact, upon which proof might be offered.

Finding the evidence sufficient to support the conviction and no reversible error appearing;

The judgment of the trial court is affirmed.

Opinion approved by the court.

DAVIDSON, Judge (dissenting).

According to their testimony, the officers searched appellant's automobile by reason and under authority of a search warrant. The evidence upon which this conviction rests and without which no conviction could legally result was obtained as a result of that search.

Appellant objected to the evidence obtained as a result of the search because of the illegality of the search warrant.

Neither the search warrant nor the affidavit upon which it was issued was offered in evidence and neither is a part of this record. But the contents of these instruments are not shown, nor is it otherwise shown that the affidavit and the search warrant complied with statutory requirements or were sufficient—upon their face—to authorize the search.

The majority opinion overrules appellant's objection and admits the evidence obtained as a result of the search because appellant did not bring before this court the affidavit and the search warrant and evidence the correctness of the objection leveled thereto. In other words, it is the holding of the majority that the burden is upon the accused to show that a search of his property or the arrest and search of his person are unlawful before he can claim that such search was unlawful and that the evidence obtained was illegal. Stated another way: the holding of the majority is that evidence obtained by officers as a result of the search of one's person or property is admissible and so remains until and unless the person attacking the admission of the evidence shows that the search was without authority of law, thereby casting upon the accused the burden of proving that said evidence was not admissible.

To such conclusion I cannot agree.

It is my opinion that when the state seeks to introduce evidence obtained as a result of a search of one's person, property, or possessions the burden is upon the state, as a condition precedent to the admission of such testimony, to show that it was lawfully obtained and therefore admissible in evidence. For the state to comply with that burden, the least objection by the accused is all that is or should be required. Stated another way: it is my view that when the state seeks to introduce evidence which upon its face is ordinarily not admissible and becomes admissible only by reason of some exception, the burden is upon the party offering the evidence to show a compliance with or existence of the exception as a condition precedent to the admission of the evidence.

A general objection on the part of the accused requires a showing that the exception exists which renders admissible the otherwise inadmissible testimony.

Here are the reasons why my view is correct and that of the majority incorrect:

The Constitutions of this state (Art. 1, Sec. 9), Vernon's Ann.St., and of the United States (Fourth Amendment) guarantee that the people of this state "shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches." Only such searches and seizures (arrests) as are reasonable are authorized. All others are therefore prohibited as unreasonable.

The framers of the Constitution did not undertake to define what searches and seizures are reasonable. The legislature, however, has provided by statute for the issuance of search warrants and for the arrest, with a warrant of arrest, of individuals. In addition to these statutes, this court, by construction, has authorized search of certain properties upon what is known as probable cause.

A search or arrest made in compliance with these statutes or which comes within the rules stated is reasonable, within the meaning of the Constitution. It follows, therefore, that searches and arrests which are made without lawful authority are unreasonable and are prohibited by the Constitution.

What constitutes an unreasonable search or seizure, as I understand it, is very aptly stated in 47 Am.Jur., Searches and Seizures, Sec. 52, p. 533, as follows:

"The decisions appear to warrant the generalizations that every unlawful search and seizure is unreasonable, and that a search and seizure is unreasonable where it is not authorized by statute; or where the statute under which the warrant is issued does not conform to the conditions under which the constitutional guaranties permit such warrants to issue; or where the conditions prescribed by the statute have not been met * * *."

The legislature of this state was not content, however, to rest the admission of evidence alone upon the constitutional provision...