Lyons v. State

• Decision Date: 12 December 1973
• Docket Number: No. 47221,47221
• Citation: 503 S.W.2d 254
• Parties: Janet Marie LYONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 254

503 S.W.2d 254

Janet Marie LYONS, Appellant, v. The STATE of Texas, Appellee.

No. 47221.

Court of Criminal Appeals of Texas.

Dec. 12, 1973.

Joe B. Goodwin, Beaumont, for appellant.

Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State's Atty., and Buddy Stevens, Asst. State's Atty., Austin, for the State.

OPINION

ODOM, Judge.

The conviction is for unlawful possession of a narcotic drug, to wit: heroin; the punishment, 5 years.

On July 11, 1971, Port Arthur police officers executed a search warrant at a house occupied by appellant and Ivory Lyons, Jr. As a result of the search sixteen papers of heroin were found. The sufficiency of the evidence is not challenged.

By her first two grounds of error appellant contends that the trial court erred in admitting into evidence the fruits of the search because the search warrant was dated March 11, 1971, whereas the affidavit for the search warrant was dated July 11, 1971, and the search was conducted on July 11, 1971.

Lt. J. E. Huebel, of the Port Arthur Police Department, testified that he prepared both the search warrant and the affidavit for the search warrant on July 11, 1971. According to his testimony, the date of March 11, 1971, which appeared on the search warrant was a typographical error on his part. Huebel further testified that after he prepared the search warrant and the affidavit for the search warrant he took them to Justice of the Peace Weldon.

Huebel swore to the affidavit before the magistrate on July 11, 1971, and the magistrate issued the search warrant on the same date.

In view of this testimony, which is undisputed, no error is shown to vitiate the warrant. See Martinez v. State, 162 Tex.Cr.R. 356, 285 S.W.2d 221 (1955).

In her fourth ground of error appellant contends that evidence of the search was inadmissible because the original search warrant was never signed. See Article 18.13, Vernon's Ann.C.C.P.

Lt. Huebel testified that he personally typed the affidavit for the search warrant and the search warrant. He then made two Xerox copies of each of the original typewritten instruments and took the original typewritten instruments as well as the Xerox copies to the magistrate. The original typewritten copy was kept by the magistrate. The magistrate signed one of the Xeroxed copies of the affidavit and one of the Xeroxed copies of the warrant. The signed Xeroxed copy of the affidavit and the signed Xeroxed copy of the warrant itself were the instruments used by Lt. Huebel to make the search. The signed Xeroxed copy of the warrant was used by Lt. Huebel to make his return to the magistrate after the search was conducted. The record contains Xeroxed copies of the affidavit and the warrant itself. Both of these instruments bear the signature of the magistrate. We perceive no error.

In her fifth ground of error appellant contends that the search warrant was invalid because the date upon which it was issued was not endorsed thereon by the magistrate as required by Article 18.15, V.A.C.C.P.

The evidence reflects that Lt. Huebel typed the date March 11, 1971, on the search warrant. However, the evidence reflects that the magistrate personally signed a Xeroxed copy of the search warrant and personally wrote in the time '12:35 P.M.' as the hour of its issuance.

The 1965 Revision of the Texas Code of Criminal Procedure in Article 18.15 added to old Article 318, Vernon's Ann.C.C.P. (1925), the requirements that the 'magistrate issuing a search warrant . . . shall endorse on such search warrant the date and hour of the issuance of the same.' In Smith v. State, 478 S.W.2d 518 (Tex.Cr.App. 1972), this Court stated that the apparent intent of the legislature in adding these requirements was to make certain that the warrant was executed within three whole days, exclusive of the day of its issuance and the day of its execution, as required by Article 18.15, Vernon's Ann.C.C.P.

In the instant case the evidence reflects that the search warrant was issued, executed, and returned on July 11, 1971. Absent a showing of injury to the appellant any error in the magistrate's not endorsing the date of its issuance of the warrant is not reversible error. See Smith v. State, supra.

In her third ground of error appellant contends that the affidavit for the search warrant did not state sufficient facts to show probable cause. The pertinent part of the affidavit is as follows:

'I have been informed by an informant whom I have known for two years and who has given me credible and reliable information in the past which I have found to be accurate, and a person whom I have found to be trustworthy and reliable, and who has given me information on at least ten occasions which has proved to be accurate, that said informant had been at the above described premesis (sic) on the night of July 10, 1971, and while at the above described premesis (sic) said informant saw the colored male, known as Tucker Lyons, in the kitchen at the above described premesis (sic), with a plastic bottle filled with small wax-paper wrapped packages, which Tucker Lyons indicated to said informant contained 'Skag', which is a slang term for Heroin. This informant also said that said informant has been on several occasions to this house, but only in the kitchen and on this last occasion saw Tucker Lyons produce the plastic bottle containing the 'Skag' from a room off the kitchen. This room appeared to be a bedroom. Informant also said that Tucker Lyons also produced a'rig' from this same room ('Rig' being a slang term for a syringe that is used to inject a solution into the body) along with a plastic bottle containing the wax-paper wrapped packages of 'Skag'. Entrance to...