Powers v. State
| Decision Date | 11 March 1970 |
| Docket Number | No. 42386,42386 |
| Citation | 456 S.W.2d 97 |
| Parties | James A. POWERS, Appellant, v. The STATE of Texas, Appellee. Lawrence P. DION, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Davis Bragg, of Curtis, Duncan & Bragg, Killeen, for appellant.
Stanley Kicar, Dist. Atty., Bruce Bangert, Asst. Dist. Atty., Belton, and Jim D. Vollers, State's Atty., Austin, for the State.
In a joint trial, James A. Powers was assessed sixteen years and Lawrence P. Dion twenty years for possessing marijuana.
The record on appeal does not include sentence pronounced by the court as required by Article 40.09(1), Vernon's Ann.C.C.P.
The appeals are dismissed.
OPINION
Sentence has been pronounced and another notice of appeal has been given. The appeal is reinstated.
In a joint trial, James A. Powers was assessed sixteen years and Lawrence P. Dion twenty years for possessing marihuana.
The record reflects that the marihuana introduced into evidence was obtained as a result of a search under a warrant.
Appellants contend that the search warrant was based upon an affidavit that did not show sufficient facts to constitute probable cause. The affidavit made before the justice of the peace by Thomas Vernon Wadkins, omitting the formal parts, is as follows:
'* * * That I have good reason to believe and do believe that on or about the 22 day of November, 1968, in the county and state aforesaid David R. Dion, James A. Powers & Derusso did then and there possess a narcotic drug, to-wit, Marijuana And that I have good reason to believe and do believe that said narcotic drug is now concealed by David R. Dion in the said county and state at 1021 1/2 S. Pearl, Belton, Texas which said premises are occupied and under the control of David R. Dion.
'That my belief of the foregoing facts is based upon information received from reliable, credible and trustworthy citizens of Bell County, Texas, which information is as follows, to-wit: that there is marijuana in the house located at 1021 1/2 S. Pearl, Belton, Texas.
'That the above information has been given to the undersigned and ot other peace officers by this and other sources of information.
'That because the source of information mentioned in the foregoing paragraph has given information to the undersigned on previous occasions that was correct, and because this same information is given by other sources the undersigned has just reason to believe and does believe that the above described illicit property is being secreted in the above said Person.'
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, the Supreme Court of the United States wrote:
'Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, * * * the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were * * *.'
The recitations in the affidavit that the affiant had been informed by reliable, credible and trustworthy citizens that appellants possessed marihuana are not sufficient.
There are no underlying circumstances shown in the affidavit in the present case to inform the magistrate 'from which the informant concluded that the narcotics were where he claimed they were,' as required by the Supreme Court in Aguilar. For this reason, the marihuana seized by virtue of the search warrant based upon the affidavit should not have been admitted into evidence. 1
The State contends that the case should be affirmed, because there was...
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