Lopez v. State

• Decision Date: 20 April 1976
• Docket Number: No. 51237,51237
• Citation: 535 S.W.2d 643
• Parties: Benny Gomez LOPEZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 643

535 S.W.2d 643

Benny Gomez LOPEZ, Appellant, v. The STATE of Texas, Appellee.

No. 51237.

Court of Criminal Appeals of Texas.

April 20, 1976.

Dennis W. McGill, Lubbock, for appellant.

Alton R. Griffin, Dist. Atty., and Charles Bailey, Asst. Dist. Atty., Lubbock, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder where the jury assessed the punishment at life imprisonment.

The record reflects that on the night of January 13, 1974, the appellant and Ricky and Jesse Rivera were at the La Fiesta Dance Hall in Lubbock. Appellant was placed there by the testimony of his ex-wife and a security guard, Carlos Perez. Jesse Galvan testified that the 26 year old deceased, Arthur Luna, Jr., was also there that night and was looking for a ride when the dance ended about 12:30 a.m.

The body of the deceased was discovered on January 16, 1974, in a field near a school by a Lubbock school district employee. When the police arrived, they found the badly beaten body of the deceased with his underwear pulled down below his buttocks. Trousers were found in a tree nearby.

Dr. John Ray testified the deceased was killed by blows with some instrument to the head and that the left side of the skull had been fractured. While the doctor could not be positive about the fact of a sexual assault, he did testify he discovered acid phosphate, an enzyme produced by the prostate gland of a male, and blood in the rectal area of the deceased.

Appellant was arrested for the murder of Luna after he was found in a house at 1803 Bates Street in Lubbock where the officer executed a search warrant on January 27, 1974. The deceased's shoes, bloody clothing and other items were discovered there.

A number of warnings were administered to the appellant both by magistrates and peace officers. On January 28, 1974, in midafternoon, he gave a written confession, admitting killing Luna. Subsequently, he took officers where he had buried a car jack used in the assault and pointed out the area and the officers were able to uncover the buried jack. Later that evening he gave another written confession in more detail acknowledging that he had not told the 'whole truth' when he gave the earlier written confession.

This last confession reflects that the appellant and Rivera brothers has given the deceased Luna a ride from the dance, and that an argument ensued when money for gas was requested of Luna and he said he had only enough for cigarettes. They drove to a field and pulled Luna from the car and all three began to hit Luna with their fists and a car jack. Appellant acknowledged he pulled 'Luna's pants down and laid on him for a while and then got off.' Luna was dragged into the bushes and the jack was buried near the edge of the field.

First, we shall consider appellant's contention that the court erred in permitting the introduction of State's Exhibits 18 (deceased's shoes) and 20 (jack head) for the reason they were obtained by an illegal search and seizure at the 1803 Bates Street address because the search warrant was predicated upon insufficient affidavit.

The affidavit reads as follows:

'AFFIDAVIT IN SUPPORT OF ANY SHERIFF OR PEACE OFFICER OF LUBBOCK COUNTY, TEXAS, For a Search Warrant to search a white frame triplex apartment, said apartment being located on the extreme east end of the triplex apartment unit with the front door facing south and located at 1803 Bates Avenue, Lubbock, Lubbock County, Texas, being occupied and controlled by Rickey Riveria, a Mexican male, approximately 19 years of age, and person or persons whose names and descriptions are unknown, and a Chevelle automobile bearing the license number CLJ 298 and a Chevrolet automobile bearing the license number CDF 886, and all other automobiles and outbuildings located on or appurtenant to the premises.

'I, Mike Cooper, of the Lubbock Police Department, have reason to believe and do believe that certain items, to-wit: 4 bumper jacks, are presently located at a white frame triplex apartment, said apartment being located on the extreme east end of the triplex apartment unit with the front door facing south, located at 1803 Bates Avenue, Lubbock, Lubbock County, Texas, being occupied and controlled by Rickey Riveria, a Mexican male, approximately 19 years of age and person or persons whose names and descriptions are unknown. Affiant has reason to believe and does believe that the above described items are items that were used to beat to death Arthur Luna, Jr., on or about January 16th, 1974, and it is necessary to search the above described premises in order to seize any evidence in the murder, to-wit: tire tools, bumper jacks, articles of clothing worn by the victim, tires, and bloodstains.

'I, Mike Cooper, believe the above statement is true for the following reasons: within the past twenty-four (24) hours the Affiant has received information from an informant that the morning of January 16th, 1974, the informant personally observed four Mexican males remove four bumper jacks from a blue Chevrolet automobile. Said bumper jacks were covered with blood and the clothing of the four Mexican males were covered with blood. Informant further observed bloodstains on the tires of the automobile. I, Mike Cooper, further believe that the above statement is true for the following reasons: the deceased, Arthur Luna, Jr., was beaten to death by an instrument or instruments which make marks resembling a bumper jacks, and affiant personally observed these marks on the body of the deceased. Also, the informant lives across the street from the apartment described in this affidavit and the information he has given is through his personal observations. Furthermore the informant is gainfully employed. The informant's name is Jimmy Huerta.'

It is appellant's contention that the affidavit does not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), wherein the court states that '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 . . . was 'credible' or his information 'reliable'.'

Appellant asserts that the affidavit fails to reflect sufficient underlying circumstances from which the informant concluded that the property was where he claimed it to be. Appellant argues that while the informant supposedly observed four Mexican males remove bumper jacks and clothing covered with blood from a blue Chevrolet automobile he did not state that the persons he saw were on the property described (1803 Bates) or went into the apartment or what they did with the jacks and clothing; that while the informant lived across the street from the apartment in question, there is no showing from the facts of the affidavit that the informant was at home at the time of his observations.

It is true that in determining the sufficiency of a search warrant affidavit to reflect probable cause this court is bound by the four corners thereof. Article I, Sec. 9, Tex.Const.; Article 18.01, Vernon's Ann.C.C.P.; Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1975); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.1975). However, in interpreting affidavits for search warrants courts must do so in a common sense and realistic manner. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Carvajal v. State, supra; Powell v. State, 505 S.W.2d 585 (Tex.Cr.App.1974). Further, a magistrate, in assessing probable cause, may draw inferences from the facts, Johnson v. United States, 333 U.S. 10, 13--14, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and probable cause exists when the facts and circumstances shown in the affidavit would warrant a man of reasonable cautin in the belief that the items to be seized were in the stated place, Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

The test is whether the facts submitted to the magistrate were sufficient to justify a conclusion by him that the property which is the object of the search is probably on the person or premises to be searched at the time the warrant is issued. See Durham v. United States, 403 F.2d 190, 193 (9th Cir. 1968). And if 'in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' United States v. Ventresca, supra, 380 U.S. at p. 109, 85 S.Ct. at p. 746.

In United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), the court said:

'Although there was no direct evidence that any evidence from the burglary was inside Dinsio's residence, there was sufficient evidence from which the magistrate could use his common sense to infer that the loot and tools, if not buried, were probably in the house. United States v. Ventresca, supra, 380 U.S. at 108, 85 S.Ct. 741. . . .

'Because 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,' Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), we conclude that the affidavit contained a sufficient constitutional basis for a finding of probable cause.'

In United States v. Lucarz, 430 F.2d 1051 (9th Cir. 1970), the search warrant affidavit, among other things, stated a male postal employee (Lucarz) had received custody of a mail pouch and later reported it to be cut and the mail inside missing and that he had been absent from the office for 35 minutes on the day in question. The court concluded the affidavit demonstrated theft of matters one would expect to be hidden in a residence. It reflected that appellant had the time to take the materials to his home...