Olivas v. State, 08-81-00035-CR

Citation631 S.W.2d 553
Decision Date17 March 1982
Docket NumberNo. 08-81-00035-CR,08-81-00035-CR
PartiesManuel Alex OLIVAS, Jr., alias Manuel Vasquez Olivas, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas

Law Offices of Gerald R. Lopez, Gerald R. Lopez, Odessa, for appellant.

Wm. M. Holmes, Dist. Atty., Odessa, for appellee.

Before STEPHAN F. PRESLAR, C. J., and WARD and SCHULTE, JJ.

OPINION

WARD, Justice.

This is an appeal from a conviction for possession of heroin, alleged to have occurred in Odessa, Texas, on June 14, 1979. The indictment was enhanced by allegation of two prior felony convictions for possession of heroin. The jury found the Appellant guilty and found "true" as to the prior convictions. Appellant was sentenced to life imprisonment. We affirm.

Prior to trial, the court heard and overruled the Appellant's Motion to Suppress, challenging the sufficiency of the warrant to support the search of his premises.

The State presented the testimony of Detective Jim Dodson, Odessa Police Narcotics Service. Dodson testified that he and other officers, acting upon an informant's tip, set up surveillance at the rear of Appellant's mobile home at 8:00 p. m., June 13, 1979. At 9:52 p. m., the Appellant exited his trailer and went to the rear corner of his fenced back yard. He bent down and picked something up. After several minutes of looking up and down the alley, he left his enclosed yard and proceeded to a vacant strip between his rear fence line and the alley proper. Evidence at the suppression hearing clearly demonstrated that this was still on his leased property.

He again bent down, dug a hole with his hands, placed an object in the hole and covered it up. He then returned to the trailer. Detective Dodson testified that throughout this action, the Appellant acted nervously, watching up and down the alley.

Dodson left and secured a search warrant for the premises. During his absence, Officer Phil Hopkins maintained surveillance. He testified that no one approached the area where Appellant was seen digging.

No challenge was made to the sufficiency of the affidavit or warrant with regard to establishing probable cause. The challenge was based upon a variance in the address specified in the warrant and the actual address of the Appellant. Dodson testified that he had known the Appellant for four or five years. He had executed a warrant involving the Appellant at the same premises in July, 1978. That warrant did not specify the street address, but gave directions to its location and described the mobile home as having light brown panelling with a dark brown band around the middle. At the time of the 1978 arrest, Appellant indicated that his address was 1213D West Ada Street. His driver's license, a copy of which was introduced at the suppression hearing, also indicated an address of 1213D West Ada.

Detective Dodson used the same information to obtain the search warrant in this case. The defense produced testimony and photographic evidence that, at the time of the search, the premises bore an address of 1307 West Ada.

Bill Kirkendoll, Odessa City Planning Department, testified that on August 16, 1978, Appellant's mobile home lot was officially redesignated from 1213D West Ada Street to 1307 West Ada Street. Notices had been sent to the property owners, the post office, the utility companies and the various tax offices.

Mike Frambro, owner of the mobile home lots, testified that he personally changed the numbers on the Appellant's mail box after the Planning Department notice. Mr. Frambro, Mr. Kirkendoll, and Private Investigator Bill Barker testified that to their knowledge there was no longer any such address as 1213D West Ada. Kirkendoll and Frambro testified that anyone trying to locate 1213D and asking for their assistance would be directed to 1307 West Ada. Defendant's Exhibit No. 14 was introduced to show two frame houses, numbered 1211 and 1215 West Ada. Presumably, the vacant lot between the houses is destined to bear the 1213D address.

Investigator Barker testified that Appellant's mobile home matched the physical description contained in the warrant. He also indicated that three mobile homes on the 1300 block and one mobile home on the 1200 block could be described in a similar manner.

Detective Dodson returned to the Appellant's premises with the warrant. The Appellant was brought from the trailer. After a ninety-minute hands-and-knees search, Dodson located a plastic bag, wrapped in brown paper, buried one and one-half inches in the ground. The location corresponded to the place where the Appellant was previously observed digging. Subsequent chemical analysis revealed that the bag contained 4.83 grams of heroin.

Attorney Warren Heagy was present during the search, in a capacity adverse to the interests of the Appellant. He testified that, each time Dodson came near the ultimate heroin site, the Appellant would engage Dodson in conversation. As Dodson moved away, the Appellant would resume discussion with Heagy and another officer. It appeared to Heagy that the Appellant was attempting to distract Detective Dodson from the heroin location.

Appellant presents three grounds of error, the invalidity of the search warrant and two grounds challenging the sufficiency of the evidence.

Despite the challenge to the search warrant, neither the warrant nor the affidavit were introduced for the record. The Appellant does not raise this issue on appeal. The record of the suppression hearing does reveal that the trial court examined the warrant. Sufficient uncontested evidence as to the contents of the warrant is present in the record to enable us to resolve the merits of this ground of error.

The warrant specified an address of 1213D West Ada. It also contained an appropriate physical description of the mobile home. Dodson knew the Appellant for four or five years. He had searched the same premises and arrested the Appellant there eleven months prior to this search. He observed the Appellant there one hour before securing the search warrant. The record does not directly address the occupant-possessor averments of the affidavit and warrant. No challenge was made to this feature of the warrant. It may, therefore, be presumed that Appellant Olivas was so identified by name on the warrant.

An examination of Texas case law from 1938 to the present discloses eighteen cases bearing on this issue. Of those cases, three involved failure to specify the city or county in which the premises were located. Thirteen involved discrepancies between the street name or address number indicated in the warrant and the premises actually searched.

It is now well-settled that technical discrepancies in the descriptive portions of a search warrant will not automatically vitiate the warrant's validity. Bridges v. State, 574 S.W.2d 560, 562 (Tex.Cr.App.1978); Smith v. State, 478 S.W.2d 518, 521 (Tex.Cr.App.1972); McCormick v. State, 169 Tex.Cr.R. 53, 331 S.W.2d 307, 308 (1960).

For many years, the Texas test for the sufficiency of the description was whether the officer executing the warrant could, with reasonable effort, locate the premises and distinguish it from others in the community. Rhodes v. State, 134 Tex.Cr.R. 553, 116 S.W.2d 395, 396 (1938); Etchieson v. State, 574 S.W.2d 753, 759 (Tex.Cr.App.), cert. denied, 440 U.S. 936, 99 S.Ct. 1282, 59 L.Ed.2d 495 (1978).

While this continues as an element of search warrant review, the test has been fleshed out by later opinions addressing the goals of the warrant requirements. The first of these is to insure an adequate showing of probable cause. The second is to protect the privacy of innocent parties from mistaken execution of a defective warrant. Bridges at 562; Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971).

The present constitutional test in federal court is the same. Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757, 760 (1925); United States v. Avarello, 592 F.2d 1339, 1344 (5th Cir. 1979); United States v. Darensbourg, 520 F.2d 985, 988 (5th Cir. 1975); United States v. Melancon, 462 F.2d 82, 93-94 (5th Cir. 1972). If the warrant is sufficient to enable the executing officer to locate and identify the premises intended to be searched, and the deficiencies in the description do not give rise to a reasonable probability that mistaken execution will take place at an unintended site, then the warrant is valid.

The Appellant relies exclusively upon the opinion in Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955, 955-956 (1957), one of the eighteen cases noted above. In Ervin, the search warrant specified an address of "611 Ute, Lubbock, Texas, occupants unknown." In fact, the defendant's residence was not numbered-no 611 Ute existed. The site which might ultimately hold such a numbered structure was a vacant lot. The officers had relied on a prior arrest statement of the defendant that his address was 611 Ute. Nonetheless, the warrant was held invalid.

The facts in Ervin bear a striking, but superficial, resemblance to those of the present case. The distinction, however, is the same line of demarcation which separates the reversals and affirmances in the Texas warrant cases. In Ervin, there was no actual relationship, historical or otherwise, between the 611 Ute address and the premises searched. The earlier claim to that address by the defendant had been false. Only the officer previously acquainted with the defendant could have effectively located the premises he intended to search. This is not sufficient under the Texas and federal standards set out above. The warrant must be sufficient on its face to enable any executing officer to locate and distinguish the property, avoiding a reasonable probability of mistaken execution. The validity of the warrant cannot depend upon the individualized, supplementary knowledge of one officer.

A similar lack of relationship between the warrant address and the search site led to reversal...

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