Ortega v. State, 43317

• Decision Date: 24 February 1971
• Docket Number: No. 43317,43317
• Citation: 464 S.W.2d 876
• Parties: Jose T. ORTEGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 876

464 S.W.2d 876

Jose T. ORTEGA, Appellant, v. The STATE of Texas, Appellee.

No. 43317.

Court of Criminal Appeals of Texas.

Feb. 24, 1971.

Rehearing Denied April 14, 1971.

E. Gerald Sutton, Killeen, for appellant.

Stanley Kacir, Dist. Atty., and Glenn Michalk, Asst. Dist. Atty., Belton, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The conviction is for the possession of marihuana. The trial was before a jury; the punishment of ten years was assessed by the court.

The search of appellant's house and curtilage resulted in the officers finding a total of 212.16 grams of marihuana. The chemist testified that five cigarettes could be made from a gram of marihuana.

The sole question presented is the legality of the search.

The appellant filed a motion to suppress the evidence on the ground that the magistrate had no probable cause to order a search of his property.

The motion was called to the attention of the court and was overruled. Appellant made no attempt to offer any evidence on the motion and made no offer of proof which is authorized under Article 40.09, Section 6(d)(1), Vernon's Ann.C.C.P.

At the trial on the merits, Detective Hill of the Killeen Police Department testified that he and others kept surveillance and watched traffic going to appellant's house, and that later the same evening he returned with a warrant to search appellant's home, and served the warrant.

He was testifying about the search and that some items including two flour canisters were removed from the house when appellant's counsel then objected on the grounds that the foundation for a legal search and seizure had not been shown.

When appellant made his motion to suppress the evidence on the grounds that the magistrate lacked probable cause to order the search, he was apparently satisfied that the warrant was valid on its face. There is no challenge that the warrant was not valid on its face. The issue then was if there was sufficient probable cause shown in an affidavit for the issuance of the search warrant.

The objection in the motion to suppress cannot be construed to mean that he contended no search warrant existed.

Once the State shows that a valid search warrant is in existence at the time of the search, the burden of going forward is then on a defendant to prove that the affidavit is insufficient as a matter of law and to see that the search warrant and the affidavit are included in the record on appeal.

Appellant had the burden of going forward on his motion to suppress evidence; when the made the objection on the trial on the merits, he had already recognized the existence of a search warrant.

This was apparently a matter of tactics. Evidently, appellant did not want the State to exhibit the search warrant before the court, but wanted the State to produce the affidavit upon which the warrant was issued and to show it was sufficient as a matter of law.

In Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), the Court held that trial tactics which do not work as planned are not basis for relief.

In Henderson v. State, 108 Tex.Cr.R. 167, 1 S.W.2d 300, the objection was that the State had not shown that the officers had a valid search warrant. In the present case, no issue of the existence of a search warrant was raised.

In Blackburn v. State, 145 Tex.Cr.R. 384, 168 S.W.2d 662, the officers told the accused that they had a search warrant. When asked if he wanted to see it, Blackburn replied that he did not and told the officers to go ahead and search. The trial court admitted the evidence seized on the grounds that Blackburn consented to the search. This Court held that the consent given after the officer conducting the search had said that he had a search warrant cannot be considered as voluntarily given. The court noted that it was not shown at the trial that a search warrant in fact existed.

In Blackburn there was a challenge in the trial that a search warrant ever actually existed.

In Brown v. State, 166 Tex.Cr.R. 322, 313 S.W.2d 297, this Court stated:

'* * * At the time they (officers) testified as to the fruits of the search, the appellant objected on the grounds that the search and the arrest of appellant were illegal. We have searched this record in vain and have been unable to find where the search warrant was ever produced or exhibited to the trial court for his inspection.'

In Brown, the following is found in the record: 'The defendant objects to the search warrant itself and the defendant objects to the search warrant as being a valid search warrant. * * *'

If there had been an objection stating that the search was illegal and that no valid warrant was in existence a different problem would be presented. See Vines v. State, Tex.Cr.App., 397 S.W.2d 868.

As stated before, appellant in the present case recognized the existence of the search warrant.

In Ciulla v. State, 434 S.W.2d 948 (First Court of Texas Civil Appeals), a juvenile was arrested. There was a five-hour interval from the time of arrest until the car was searched. When the validity of the search was challenged no evidence was introduced that a warrant ever existed. The existence of a warrant was challenged.

In James v. State, 146 Tex.Cr.R. 456, 175 S.W.2d 966, the following appears:

'Appellant also insists that the predicate was insufficient in admitting the evidence found as a result of the search. When objection to such evidence was made, the county attorney presented the search warrant to the trial court. This was the correct proceeding. It would have been improper to have introduced the warrant before the jury. The court overruled the objection. The presumption is that upon inspection the trial court found the search warrant regular and sufficient, otherwise the objection would have been sustained. If appellant thought the warrant insufficient on its face, or that it was predicated upon insufficient evidence, he should have brought it forward in a bill in order to apprise us of the trouble. * * *'

In all of the cases relied upon for reversal that was a challenge that a search warrant in fact existed, that the search warrant was not valid, or that the predicate was insufficient to show a valid search (where there was no showing that a warrant existed).

The correct rule applicable to the present case is found in United States v. Thompson, 421 F.2d 373, 377 (5th Cir. 1970), which was quoted in Mattei v. State, Tex.Cr.App., 455 S.W.2d 761, 765, and is as follows:

'There was uncontradicted testimony at the hearing that a Louisiana criminal district judge issued a warrant for the search, and this testimony was sufficient to establish the issuance of the warrant. See Castle v. United States, 5th Cir. 1961, 287 F.2d 657; United States v. Burkhart, 6th Cir. 1965, 347 F.2d 772. Since the issuance of a warrant was effectively established, the burden of establishing that the search was illegal was on movant-defendant. Rogers v. United States, 5th Cir. 1964, 330 F.2d 535; Batten v. United States, 5th Cir. 1951, 188 F.2d 75; Chin Kay v. United States, 9th Cir. 1962, 311 F.2d 317. Defendant, however, completely failed to sustain his burden of proving that the warrant was illegally issued or executed. Defendant had access to the public records where the warrant was filed; he could have introduced the document into evidence in order to prove that it was illegally issued or executed. He did not do so. In truth, defendant's only complaint is that the prosecution did not introduce the warrant into evidence. We are aware of no rule of procedure, evidence or law that requires the prosecution to introduce a search warrant into evidence under such circumstances as are presented here. There was no error in the trial judge's allowance of testimony concerning the evidence seized at the house of defendant's mother.'

It is a better practice to show in the record that the warrant was exhibited to the court. However, when the existence of the warrant is recognized in a motion to suppress and there is uncontradicted testimony that a warrant existed, as in the present case, and there is no objection to its validity on its face, we hold that it is not necessary for the record to show that the warrant was exhibited to the court.

The record contains no reversible error. The judgment is affirmed.

ONION, Presiding Judge (dissenting).

The sole question presented concerns the failure of the State, upon timely objection, to produce and exhibit to the trial judge for his inspection the search warrant by which authority the officers testified they searched appellant's home.

At the trial on the merits Detective Herbert Hill of the Killeen Police Department testified that on May 22, 1969, after an earlier surveillance of the building in question, he returned the same evening about 10:30 p.m. 'with a warrant to search the residence of Mr. Ortega,' and forcibly entered when he discovered no one was there. No reference was made as to who had issued the warrant, the date thereof, or any other recitals or details.

Prior to the time that Detective Hill testified about the fruits of the crime, the appellant objected to any further testimony until there was 'shown the foundation for a legal search and seizure.' The objection was promptly overruled and the appellant duly excepted. Testimony as to the fruits of the search then followed. Nowhere in this entire record is there any indication that the search warrant in question was ever produced and exhibited to the trial court for its inspection. No search warrant appears in the record.

It is clear from the objection that the appellant was challenging the 'foundation' for any search, questioning the existence of a search warrant referred to by the officers or the validity of the same if one did in fact exist. Since the appellant was not bound by the officer's mere statement he had a search warrant, he was demanding the production, the display or exhibition of the search warrant...