Rumsey v. State, s. 67958

• Decision Date: 06 June 1984
• Docket Number: 67959,Nos. 67958,s. 67958
• Citation: 675 S.W.2d 517
• Parties: Joyce Ann RUMSEY, Appellant, v. The STATE of Texas, Appellee. Richard Emil RUBAC, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 517

675 S.W.2d 517

Joyce Ann RUMSEY, Appellant, v. The STATE of Texas, Appellee.

Richard Emil RUBAC, Appellant, v. The STATE of Texas, Appellee.

Nos. 67958, 67959.

Court of Criminal Appeals of Texas En Banc.

June 6, 1984.

Rehearing Denied Sept. 26, 1984.

Melvyn Carson Bruder, Dallas, for appellants.

Henry Wade, Dist. Atty., Jeffrey B. Keck and Esther Eggleston, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

McCORMICK, Judge.

This is a direct appeal of appellants' convictions for possession of marihuana under Article 4476-15, Section 4.05 of the Controlled Substances Act. Each appellant was assessed punishment of thirty days' confinement and a $200 fine, probated.

Department of Public Safety agents Troy Braswell, Jesse Hooper and other law enforcement officers went to 4017 Prescott, Apartment A, in Dallas on April 13, 1980, for the purpose of executing two arrest warrants issued in Williamson County for appellant Rubac. Agent Braswell knocked on the door of the apartment and after a few seconds Rubac opened the door. The agents smelled the odor of burning marihuana when the door opened, and when Rubac saw the officers he attempted to close the door but Braswell pushed it open and secured appellant Rubac.

As one of the other officers took Rubac into custody, Braswell and Hooper conducted a "sweep search" of the apartment to determine if anyone else was present who might prove to be a danger to the safety of the officers. As the agents climbed a flight of stairs to the second floor they noticed that the smell of marihuana grew stronger. When they reached the second floor they discovered appellant Rumsey standing in the doorway of a bedroom. As Agent Braswell looked into the bedroom he observed a marihuana cigarette burning in an ashtray on a bed about four to five feet from where appellant Rumsey was standing.

The agents took Rumsey downstairs and asked appellant Rubac for consent to search the apartment. When Rubac declined the invitation the agents secured a search warrant. Under appellant Rubac's bed they discovered a brown plastic container with a baggie of marihuana and two hand-rolled marihuana cigarettes.

Initially, the appellants attack the validity of the arrest warrants issued from Williamson County and argue that, as a result of those warrants' invalidity, the police action in knocking on the door of appellants' apartment violated the Fourth Amendment of the United States Constitution. Indisputably, the record shows that the officers went to the apartment for the sole and express purpose of arresting appellant Rubac on the authority of the two warrants. If either warrant is valid, however, the officer's conduct at the apartment was undoubtably proper.

"Defendant's Exhibit number 3" is an arrest warrant for Rubac upon the charge that he possessed a controlled substance: lysergic acid diethylamide (LSD). The warrant was issued by a county judge upon the complaint introduced in evidence as "Defendant's Exhibit number 2," which reads in pertinent part:

"I, Troy G. Braswell, ... state ... that I have personal knowledge and I charge that ... on or about the 4th day of April A.D. 1980, ... Richard Emil Rubac did then and there intentionally and knowingly, unlawfully possess a controlled substance to-wit: lysergic acid diethylamide."

The complaint or affidavit recites that the affiant officer had personal knowledge that the appellant, Rubac, possessed LSD. See and compare Evans v. State, 530 S.W.2d 932 (Tex.Cr.App. 1976). However, no facts are alleged in support of the averments to establish that the officer had personal knowledge of what he swore to. For example, it is not alleged that the officer saw Rubac in possession of LSD. The officer's "personal knowledge" is but a conclusion which, like any other conclusion stated in an affidavit supporting a warrant must be supported by facts.

A mere conclusion is insufficient for a magistrate to satisfy himself that the affiant is possessed of facts that legally justify the conclusion that a crime has been committed and that the accused has committed it. Giordenello v. United States, 357 U.S. 480, 486, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503, 1507 (1958). As the State concedes, the warrant which was a product of this complaint was improperly issued and a search incident to its execution would be constitutionally impermissible. Evans v. State, supra; Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App. 1973). See also, Knox v. State, 586 S.W.2d 504 (Tex.Cr.App. 1979).

"Defendant's Exhibit number 4," a warrant of arrest for appellant Rubac issued by Justice of the Peace Bill Hill, presents an entirely different problem. The warrant appears regular on its face and was admitted into evidence. No affidavit in support of the warrant was introduced at trial.

The record reveals that during the bench trial of this case defense counsel asked each of the State's witnesses if they had the affidavit with them, and that they replied that they did not. At the close of the trial the following exchange took place between defense counsel and the court:

MR. BRUDER: "Your Honor, I have a touch of concern because there are some cases where the Court of Criminal Appeals says it's my responsibility to be sure that the record contains all the necessary documentation upon which I predicate my claim and to the extent that I have been unable to secure from Williamson County the documentation supporting the arrest warrant which we have referred to as the defective bond warrant (Defendant's Exhibit number 4), it would be my request that I be given the opportunity to get that. Now I personally believe it's the State's responsibility. I think the Supreme Court decisions say that the State has got to show, you know, legitimate search and I think under the warrant in this case, they would have to show that the arrest warrants were valid. Both of them. If that's true then, you know, I can care less whether they are in evidence or not. Unfortunately before you get to the Supreme Court, you have got to go through Austin, and their cases are a little bit more confusing.

"I'm prepared to argue. I would like the opportunity to get those documents. I was hoping the District Attorney's Office would have them. I think Mr. Topletz may be in possession of them. I have no live testimony to present. I'm only going to stand on the record as it is, with that one exception."

JUDGE MILLER:

"It's my understanding of the law, Mr. Bruder, that once you challenge the sufficiency of an affidavit in support of a warrant, search or arrest, either one, which to the Court's mind you have clearly done, that it does become the State's burden to report that warrant. That being the case, your request for a continuance to secure that affidavit, whatever, in support of the warrant or the original copy of the warrant is denied."

Defense counsel's touch of concern was certainly warranted, as contrary to the understanding of the trial judge the burden is on the defendant to include a contested affidavit supporting an arrest warrant in the record. Dusek v. State, 467 S.W.2d 270 (Tex.Cr.App. 1971). See also, Swain v. State, 661 S.W.2d 125, 126 (Tex.Cr.App. 1983); Cannady v. State, 582 S.W.2d 467 (Tex.Cr.App. 1979); Ortega v. State, 464 S.W.2d 876 (Tex.Cr.App. 1971) (rule applies equally to contested search warrants and supporting affidavit). As Presiding Judge Onion stated in Dusek:

"If the appellant desired to attack the legality of his arrest and subsequent search ..., it was incumbent upon him to see that the affidavits were properly in the appellate record. This he has not done; therefore, the legality of his arrest and subsequent search is not presented for review. See also Haynes v. State, 468 S.W.2d 375 (Tex.Cr.App. 1971)." Dusek, 467 S.W.2d at page 272.

Notwithstanding the trial court's misunderstanding of the law, no evidence appears in the record to suggest that the affidavit in question was not part of the public record in Williamson County available to defense counsel or that the State in any way prevented or hindered defense counsel from obtaining the affidavit. Defense counsel offered no evidence in support of his motion for continuance during trial to show that the State's witnesses were expected to bring the affidavit to trial with them, or that the State's witnesses' failure to produce the affidavit created an occurrence which no reasonable diligence could have anticipated causing the defense to be so taken by surprise that a fair trial could not be had. See Article 29.13, V.A.C.C.P., ("Continuance After Trial is begun"). The arrest warrant admitted into evidence is presumptively valid authority for the arrest of appellant Rubac.

In this same ground of error, appellant appears to contend that the burden was on the State to produce the affidavit at trial. This contention was rejected in Ortega v. State, 464 S.W.2d 876 (Tex.Cr.App. 1971), wherein the defendant wanted the State to produce the affidavit upon which the warrant was issued and to show it was sufficient as a matter of law. The Ortega Court held:

"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...