Phillips v. State

• Decision Date: 14 January 1959
• Docket Number: No. 30043,30043
• Parties: Juanita Dale PHILLIPS, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 873

328 S.W.2d 873

168 Tex.Crim. 463

Juanita Dale PHILLIPS, Appellant, v. STATE of Texas, Appellee.

No. 30043.

Court of Criminal Appeals of Texas.

Jan. 14, 1959.

Lester L. May, William O. Braecklein, Dallas, for appellant.

Henry Wade, Dist. Atty., James K. Allen, William F. Alexander and A. D. Jim Bowie, Asst. Dist. Attys., Dallas and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The offense is possession of marijuana, a narcotic drug; the punishment, fifteen years.

On the morning of October 26, 1957, J. M. Souter, Lieutenant of Detectives assigned to the Special Services Bureau of the Dallas Police Department, secured the issuance of a search warrant authorizing the search of appellant's apartment.

In the affidavit made by Lt. Souter he swore that appellant and unknown persons unlawfully possessed marijuana and that he had cause to believe and did believe that said narcotic drugs were then concealed by appellant and unknown persons in said apartment (described therein) which appellant and unknown persons occupied, possessed, controlled and had charge of.

The affidavit also contained the following: 'My belief as foresaid is based on the following facts: (A) I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas, (B) and further (9)'

Appellant's counsel diligently sought to require that Lt. Souter disclose the name of his informer, but Souter declined to name him and the court refused to require him to do so.

The ruling of the trial court finds support in the holdings of this Court. Hudson v. State, 156 Tex.Cr.R. 612, 243 S.W.2d 841, 245 S.W.2d 259, and cases there cited; Shafer v. State, 151 Tex.Cr.R. 558, 209 S.W.2d 599. See also People v. Gonzales, 141 Cal.App.2d 604, 297 P.2d 50.

Appellant insists that the affidavit shows no probable cause, in the absence of which the search thereunder was void. Judge Richburg, the magistrate who issued the warrant, was called by appellant in his effort to show that the search warrant was invalid. He testified before the court in the jury's absence that Lt. Souter made the affidavit before him and that he was satisfied and decided that there was probable cause.

The search warrant appears to be valid. Davis v. State, Tex.Cr.App., 302 S.W.2d 419; Chapin v. State, 107 Tex.Cr.R. 477, 296 S.W. 1095.

After keeping the apartment under surveillance for some hours, Lt. Souter went to appellant's apartment after 9 P.M. on October 27, 1957, where he found appellant and served the warrant. He was accompanied by Dallas Police Officers Frazier and Revill of the Narcotics Squad.

Shortly after the officers arrived, one George Owens came to the apartment. Lt. Souter then found a marijuana cigarette in the apartment.

Appellant then told the officers 'that if we would let George Owens go she would give us the rest of the marijuana she had.'

George Owens was permitted to leave, and thereupon appellant produced from her bosom a glass bottle containing marijuana. No authorities are cited in support of the contention that the officers' promise made this statement inadmissible, and we know of none. The statement was res gestae and was admissible. Sparks v. State, 161 Tex.Cr.R. 100, 275 S.W.2d 494; Smith v. State, 157 Tex.Cr.R. 637, 253 S.W.2d 665; Glaze v. State, Tex.Cr.App., 310 S.W.2d 88.

The State offered this proof through the witness Lt. Souter and the marijuana cigarette and the bottle and contents were offered as Exhibits, marked and admitted without any objection being made at that time based upon the claim that such evidence was unlawfully obtained. Under the following cases, and objection as to the results and fruits of the search were waived. Killingsworth v. State, Tex.Cr.App., 306 S.W.2d 715; Wyatt v. State, 162 Tex.Cr.R. 134, 282 S.W.2d 392, and Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356. See also Gonzales v. State, Tex.Cr.App., 320 S.W.2d 837.

The State offered further proof as to the substance in the cigarette and the contents of the bottle being marijuana, and corroborating Lt. Souter's version of appellant's possession thereof.

Appellant sought through cross-examination of the State's witnesses and her own witnesses to establish that her telephone had been tapped and that the information which was used to secure the search warrant was illegally obtained in that manner, but the State's witnesses denied tapping or intercepting any telephone conversation.

The cautious trial judge submitted to the jury appellant's theory of the law regarding wire tapping and illegal interception of any conversation conveyed by telephone, and instructed the jury to disregard any evidence admitted before them which they believed or had reasonable doubt was obtained in violation of said law 'by obtaining information that led directly or indirectly to the discovery of any of the evidence which the State introduced in this case.'

Evidence was introduced by appellant to the effect that the marijuana which appellant produced from her bosom and delivered to the officers belonged to Helen K. Smith, it having been given to her by Virginia Strom and left with appellant shortly before the officers arrived.

Appellant did not testify. Virginia Strom was called by appellant, claimed her privilege against self-incrimination and did not testify. Helen K. Smith testified that appellant agreed to her leaving the marijuana with her at her apartment after she told the appellant it was marijuana. Thus appellant's witness placed her in possession of marijuana, rendering harmless any error in the admission of testimony of the State as to her possession of that marijuana. Schaefer v. State, 121 Tex.Cr.R. 220, 53 S.W.2d 302; Haykel v. State, 158 Tex.Cr.R. 359, 255 S.W.2d 1014.

We confess our inability to find any defensive issue in this testimony. Ownership may have been in the witness Smith, but possession was in appellant. If appellant has any ground of complaint in this regard, it must be that the punishment assessed by the jury suggests that they did not accept it as a mitigating circumstance.

Motion for change of venue was filed and was controverted, and after three witnesses had been examined the trial court announced that he would take the motion under advisement. After nineteen veniremen had been examined and none disqualified, the motion was overruled and appellant excepted.

The voir dire examination of the veniremen is not before us and there is nothing to show that any objectionable juror served or that appellant exhausted her challenges.

No error is shown in the court's overruling the motion for change of venue. See Tyler v. State, 163 Tex.Cr.R. 441, 293 S.W.2d 775; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Kizzee v. State, Tex.Cr.App., 312 S.W.2d 661, and cases cited; Slater v. State, Tex.Cr.App., 317 S.W.2d 203.

Appellant complains that her motion for new trial based upon the receipt of evidence by the jury after retirement should have been granted.

The evidence heard upon said motion and allegations at most raised an issue of fact which the trial court was warranted in determining contrary to appellant's contention, and no abuse of discretion is shown.

We have examined the other propositions upon which reversal is sought and find no error which would warrant reversal.

The judgment is affirmed.

DAVIDSON, Judge (dissenting).

If the Constitution of this state and that of the United States, which guarantee that one's home is secure against an unreasonable and unlawful search and seizure, are in force and effect and are to be enforced and followed and obeyed by the courts, this conviction can not and ought not to be permitted to stand, for it was obtained in violation of those constitutional guarantees.

If the statute law of this state which says that no evidence obtained in violation of any provision of the Constitution and laws of the United States and of this state shall be admitted in evidence against the accused in the trial of a criminal case is in full force and effect in this state and which should be followed and obeyed by the courts, this conviction can not and ought not to be permitted to stand. That statute was violated in securing this conviction. Art. 727a, Vernon's C.C.P.

This conviction rests upon evidence obtained as a result of the search of appellant's home by peace officers acting under the authority of a search warrant.

There exists in this state no statute or other authority which authorizes the issuance of a search warrant to search one's home for narcotics, or marijuana. The statute in this state which attempts to authorize the issuance of a search warrant for that purpose is void and unenforceable, because it is in direct violation of the Constitution of this state and that of the United States.

I will endeavor to demonstrate the correctness of the foregoing statements:

Art. 1, Sec. 9, of the Constitution of this state says:

'The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.'

The Fourth Amendment to the Constitution of the United States reads as follows:

'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

These are not a mere mass of words or meaningless platitudes. They are solemn declarations of the people of this state and nation by which each citizen and all citizens of this state and nation are protected against unlawful arrests and searches and the use of...