Mason v. State, 13-91-574-CR

• Decision Date: 30 July 1992
• Docket Number: No. 13-91-574-CR,13-91-574-CR
• Citation: 838 S.W.2d 657
• Parties: Thomas O. MASON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 657

838 S.W.2d 657

Thomas O. MASON, Appellant, v. The STATE of Texas, Appellee.

No. 13-91-574-CR.

Court of Appeals of Texas Corpus Christi.

July 30, 1992.

Discretionary Review Refused

Dec. 23, 1992.

Richard L. Manske, Manske & Manske, El Campo, for appellant.

Daniel W. Shindler, Dist. Atty., Bay City, and Robinson C. Ramsey, Wharton, for appellee.

Before FEDERICO G. HINOJOSA, Jr., KENNEDY and SEERDEN, JJ.

OPINION

FEDERICO G. HINOJOSA, Jr., Justice.

Thomas O. Mason appeals his probation revocation. By five points of error, he complains that the trial court erred in failing to suppress evidence obtained pursuant to a search warrant. We affirm the trial court's judgment.

The AppleTree grocery store on Boling Highway in Wharton, Texas has a drop off point for United Parcel Service. On August 21, 1991, Donald Janik, an AppleTree employee, contacted the Wharton police and told them that he suspected appellant had dropped off a parcel containing illegal drugs. The parcel indicated that it was from Tommy Mason, # 26 Bernstein Dr., Wharton, Tx. Officers Guin and Kueker arrived at the AppleTree store ten minutes later, at 4:00 o'clock p.m. Janik took the package and some other boxes to the back of the store and lined them up against a wall. Some of the boxes contained grocery items while others were empty. Janik told Kueker that Mason's former wife was his first cousin, that he knew Mason had been convicted of possession of methamphetamine, that this was the seventh package Mason had forwarded to the same address in Oklahoma since May 19, 1991, and that Mason claimed each package contained an automobile alarm.

During this time period, the UPS driver arrived to collect the day's parcels. Since AppleTree has the option to hold suspicious parcels, Janik instructed an AppleTree employee to tell the driver that no packages were to be sent that day.

Five minutes later, Officer Lynch arrived with Bo, a narcotics dog. Bo alerted on appellant's package, and the police seized it. Officer Kueker completed an affidavit for a search warrant, stating:

1. THERE IS IN WHARTON COUNTY, TEXAS A SUSPECTED PLACE DESCRIBED AND LOCATED AS FOLLOWS: A brown paper package, completely wrapped in cellophane tape, measuring approximately 14 inches in length, five and one half inches in height, and six inches in width. The package is addressed to Judy Hulsey[,] 9208 South Hillcrest[,] Oklahoma City, Oklahoma. The package is addressed from Tommy Mason[,] # 26 Bernstein Dr. [,] Wharton, Tx., and labeled UPS Next Day Air, and has a reference number of 10814698.

2. SAID SUSPECTED PLACE IN CHARGE OF AND CONTROLLED BY EACH OF THE FOLLOWING NAMED PARTIES (HEREINAFTER CALLED "SUSPECTED PARTY" WHETHER ONE OR MORE) TO-WIT: Donald Janik white male date of birth 03-12-57.

3. IT IS THE BELIEF OF AFFIANT, AND AFFIANT HEREBY CHARGES AND ACCUSES THAT SAID SUSPECTED PARTY INTENTIONALLY AND KNOWINGLY HAS POSSESSION OF AND IS CONCEALING AT SAID SUSPECTED PLACE THE FOLLOWING DESCRIBED PERSONAL PROPERTY, TO-WIT: Unknown quantity of Controlled Substance believed to be Methamphetamine.

4. AFFIANT HAS PROBABLE CAUSE FOE [sic] THE SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO-WIT: Affiant is a Police Officer as described in Article 2.12 of the Texas Code of Criminal Procedure. Affiant has been employed as a Peace Officer for 10 years and is currently assigned as a Narcotics Investigator with the Wharton Police Department. Affiant has received specific training in the investigation of Narcotic related crimes. On August 21, 1991[,] affiant was contacted by Donald Janik, manager of the AppleTree Store located at 115 E. Boling Highway. Mr. Janik stated that the store is a UPS Express Shipping Center. Mr. Janik stated that a white male personally known to him as Tommy Mason, brought in a package to be shipped UPS. Mr. Janik stated that this was the seventh package Mr. Mason has shipped to the same person at the same address since May 19, 1991, and each time the items was [sic] said to be an Automobile Alarm. Mr. Janik stated that he knows Mr. Mason has reputation on being involved in drug related activities and has been convicted of possession of Methamphetamine. Mr. Janik stated that as he knows Mr. Mason's last occupation was a truck driver. Mr. Janik stated that based on this information, he believes Mr. Mason is shipping narcotics by way of UPS. Affiant went to the AppleTree Store and met with Mr. Janik. The package was labeled, from Tommy Mason to Judy Hulsey, for next day air delivery. Affiant checked the shipping records and found that Mr. Mason had shipped six other packages to Judy Hulsey on April 19, 1991, May 1, 1991, May 16, 1991, May 28, 1991, June 12, 1991, and June 23, 1991. Mr. Janik has no known criminal record. Affiant has personal knowledge of Mr. Janik[']s reputation in the community as a law abiding and trustworthy citizen. Mr. Janik took the package to the back room of the store where it was placed on the floor with five other similar packages. Officer Terry Lynch and Narcotics Detector canine "Bo" were called to the store. Officer Lynch instructed "Bo" to sniff the public air around the six packages. "Bo" alerted on the suspected package, [sic] Mr. Mason left at the store to be shipped. Affiant has personal knowledge that Mr. Mason was arrested on October 3, 1989, for Possession of a Controlled Substance, to wit: Methamphetamine. A search warrant was issued on Mr. Mason's home, at # 26 Bernstein Dr. [,] Wharton, Texas. A subsequent search resulted in the seizure of chemicals, glassware, and other paraphernalia used in the manufacture of Methamphetamine. Mr. Mason was subsequently convicted of possession of a controlled substance. Officer Terry Lynch and "Bo" are both certified by the National Narcotic Detector Dog Association, Inc., in the detection of Marijuana, Cocaine, and Methamphetamine.

At 7:34 p.m. of August 21, 1991, Judge Baker issued a warrant, to which the affidavit was attached, which commanded officers

to enter the suspected place described in said Affidavit and to search for the personal property described in said Affidavit and to seize same and bring it before me and to arrest and bring before me each suspected party named in said Affidavit.

Officer Kueker then opened the package and found sealed glass jars containing methamphetamine. On August 27, 1991, the State filed a petition to revoke appellant's probation, alleging possession of methamphetamine with intent to deliver. The court issued a capias on that date.

Appellant moved to suppress the evidence obtained pursuant to the warrant, alleging that 1) the affidavit failed to establish probable cause, 2) the issuing...