O'Quinn v. State

• Decision Date: 16 December 1970
• Docket Number: No. 42393,42393
• Citation: 462 S.W.2d 583
• Parties: Robert O'QUINN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 583

462 S.W.2d 583

Robert O'QUINN, Appellant, v. The STATE of Texas, Appellee.

No. 42393.

Court of Criminal Appeals of Texas.

Dec. 16, 1970.

Rehearing Denied Feb. 17, 1971.

John J. Browne, Louis Andrews, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and E. B. McDonough, Jr., Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., of Austin, for the State.

OPINION

WOODLEY, Presiding Judge.

The offense is possession of heroin; the punishment, enhanced by two prior convictions for felonies less than capital, life.

Appellant's first ground of error is that evidence obtained as result of an illegal search and seizure was admitted in evidence against him at the trial. Appellant specifically contends that the affidavit filed in support of the search warrant failed to state probable cause for the issuance of the same in light of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

The affidavit contained in the record before this court reads as follows:

'STATE OF TEXAS

'COUNTY OF HARRIS

'Before me, the undersigned authority, on this day personally appeared the undersigned affiants, who being by me severally sworn, upon their oaths state, that: A certain building, house and place, occupied and used as a private residence, located in Harris County, Texas, described as a two story frame building covered with light green asbestes siding being the upstairs apartment at 438 1/2 West 21st Street, in the City of Houston, County of Harris and the State of Texas and all out buildings and motor vehicles apurtenant to the above described premises, and being the building, house or place of RobertLee O'Quinn, a white male and other person or persons unknown to the affiants by name, identity or description * * * is a place where we each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building, house and place has in his possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 25 day of October, A.D. 1967, (SEE ATTACHED AFFIDAVIT) * * *. 'On October 23, 1967, affiants received information from a credible and reliable person that Robert Lee O'Quinn (WM) was living at 438 1/2 West 21st street which is the upstairs apartment in Houston, Harris County, Texas and that Robert Lee O'Quinn had heroin in his possession for sale and use. Although I do not Wish this person who gave me this information concerning Robert Lee O'Quinn, She has in the past, on several occasions given me information concerning people possessing Narcotics and on each occasion her information has proven to be true and correct. Affiants knowing Robert Lee O'Quinn to be a user of narcotics, set up a surveillance on the 438 1/2 West 21st street address on October 23, 1967, between the hours of 2:20 PM and 4:30 PM and observed in this length of time two known users of narcotics enter the house at 438 1/2 West 21st street in the apartment upstairs and leave in about five minutes.

'Affiants again resumed their surveillance at 438 1/2 West 21st street on October 24, 1967, between the hours of 6:35 PM and 9:10 PM and at approximately 7:05 PM, affiants observed a white male, whom officers know to be a user of narcotics, enter the house at 438 1/2 West 21st street in the upstairs apartment and then leave at approximately 7:12 PM. At approximately 7:50 PM, affiants observed a white female enter the unstairs apartment at 438 1/2 West 21st street and remain there for approximately 5 minutes and leave. This white female is also a known user of narcotics.

'Affiants resumed their surveillance at 438 1/2 West 21st street on October 25, 1967, between the hours of 5:30 PM and 7:15 PM and at approximately 6:10 PM officers observed a white male, whom officers know to be a user of narcotics, enter the upstairs apartment at 438 1/2 West 21st street and leave approximately seven minutes later.

J. E. Liles, affiant.

T. A. Bell, affiant.

'Subscribed and sworn to before me, by the within named affiants, on this the 25 day of October, A.D., 1967.

Milton Schwartz 8:50 P.M.

Judge of Corporation Court

No. 2 of the City of Houston,

Harris County, Texas.'

It is appellant's contention that the affidavit is insufficient for the reason that the same failed to set forth the underlying circumstances from which the informant concluded that narcotics were being possessed by appellant at the address shown in the search warrant.

The affidavit above quoted contains factual circumstances sufficient for an issuing magistrate to make an independent finding of the existence of probable cause. The informer was one who had, in the past, 'on several occasions' given the officers information concerning people possessing narcotics, and on each occasion her information had proved to be true and correct. The affiants knew of their own personal knowledge that appellant was a user of narcotics. The affiants, by virtue of their own independent investigation, further corroborated the information received of the informant by putting appellant's residence under surveillance on three separate occasions. Each time the officers observed known narcotics users enter appellant's residence and leave minutes later.

This court has held that affidavits substantially similar to the one in question were sufficient to show probable cause and to meet the requirements of Aguilar v. Texas, supra. Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935; Acosta v. State, Tex.Cr.App., 403 S.W.2d 434; Bosley v. State, Tex.Cr.App., 414 S.W.2d 468; and Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435, cert. denied, 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982; Brown v. State, Tex.Cr.App., 437 S.W.2d 828, cert. denied, 393 U.S. 1089, 89 S.Ct. 850, 21 L.Ed.2d 782. See also Acosta v. Beto, and Gonzales v. Beto, (5th Cir.) 425 F.2d 963.

Appellant's second ground of error is that the search warrant was invalid for the reason that a judge of the corporation court ¹ is not an official authorized in Texas to administer oaths to an affidavit in support of search warrants.

It is the established rule in Texas that an affidavit or complaint for a search warrant must be made before an officer authorized to administer the same before a search warrant may issue. Greer v. State Tex.Cr.App., 437 S.W.2d 558; Vaughn v. State, 146 Tex.Cr.R. 586, 177 S.W.2d 59; 51 Tex.Jur.2d, Searches and Seizures, Sec. 24, p. 697. See also Wheeler v. State, 172 Tex.Cr.R. 21, 353 S.W.2d 463.

Article 23(18) Vernon's Ann.Civ.St. defines 'affidavit' as a statement in writing of a fact or facts signed by a party making it, and sworn to before some officer authorized to administer oaths, and officially certified to by such officer under his seal of office. Article 26 V.A.C.S. sets forth those persons given the authority to administer oaths, affidavits, and affirmations. Section 1 of that statute reads as follows:

'All oaths, affidavits, or affirmations made within this State may be administered and a certificate of the fact given by:

(a) a judge, clerk, or commissioner of any court of record;

(b) a notary public;

(c) a justice of the peace;

(d) any member of any board or commission, created by the laws of this State, in matters pertaining to the duties thereof.'

Since the above statute fails to give the judge of a corporation court the authority to administer oaths or affidavits, such authority, if any, must be shown from the intent of the legislature as reflected in other legislation.

The legislature in the 1925 Code of Criminal Procedure (Art. 33), designated those officials who were 'magistrates.' Included within that statute were justices of the peace and the mayor or recorder of incorporated cities, or towns.

The title 'magistrate' has come to connote one having duties which are judicial in nature. As early as 1884, the Texas Court of Appeals made the following comments regarding the duties of the justice of the peace when serving as a magistrate:

'A justice of the peace is a magistrate. (Code of Criminal Procedure, Article 42) When a justice sits for the purpose of inquiring into a criminal accusation against any person, he sits not as a justice of the peace but as a magistrate, and the court which he then holds is not a justice's but 'an examining court'. (Code of Criminal Procedure, Article 63) When holding such a court, his functions as a magistrate are the same as those of the judges of the county, district, supreme, or court of appeals, when they sit as magistrates to hold an examining trial. The same rules govern each. (Hart v. State, 15 Tex.Ct.App. 202). Kerry v. State, 17 Tex.Ct.App. 178.'

The present Vernon's Ann.Code of Criminal Procedure (Art. 2.09) sets forth those officials who are magistrates and includes both justices of the peace and the mayor, recorder and judges of the city courts of incorporated cities or towns. Although the corporation court is not a court of record under Art. 26 V.A.C.S., clearly the judge of the corporation court has the authority to issue a search warrant under Article 725b, Vernon's Ann.P.C.

Article 18.01 V.A.C.C.P. defines a search warrant as 'a written order, issued by a magistrate, and directed to a peace officer' and provides 'No search warrant shall issue for any purpose in this State unless a sworn complaint therefor shall first be filed with the issuing magistrate setting forth sufficient facts to satisfy the magistrate that probable cause does in fact exist for its issuance.'

Art. 725b, Sec. 16, V.A.P.C., provides for the procuring of a search warrant upon affidavit of a peace officer that any person has in his possession any narcotic drug contrary to the Uniform Narcotic Drug Act, the application and proceedings to conform as near as may be to the provisions of Title 6 (no...