Schutz v. State
| Decision Date | 12 November 1969 |
| Docket Number | No. 42326,42326 |
| Citation | 448 S.W.2d 486 |
| Parties | Chester A. SCHUTZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Max P. Flusche, Jr., Austin, for appellant.
Robert O. Smith, Dist. Atty., Austin, and Jim D. Vollers, State's Atty., Austin, for the State.
The offense is the unlawful possession of marihuana, a narcotic drug; the punishment, ten years.
Trial was before the court on February 6, 1968, upon a plea of not guilty to a three count indictment returned January 18, 1966, alleging (1) unlawful possession of marihuana, (2) unlawful possession of heroin and (3) unlawful possession of a hypodermic syringe for the purpose of subcutaneous injections of narcotic drugs in a human being, on or about August 30, 1965. 1
The record on appeal was filed in this court on July 3, 1969.
Three grounds of error are set forth in appellant's brief.
Ground One complains of the denial of pre-trial motion to suppress evidence obtained as the result of the search conducted under authority of a search warrant, the contention being that such warrant issued upon an affidavit which failed to set out sufficient facts to constitute probable cause.
Ground Two complains that such evidence should have been suppressed because the search was conducted in violation of Art. 18.18 Vernon's Ann.C.C.P. 2
Ground Three complains that the evidence failed to establish that appellant was an occupant of the premises searched or was in possession of the marihuana and other contraband seized.
Our task in passing upon appellant's first and second grounds is made easy by the unusual circumstance that the United States Court of Appeals, Tenth District, has passed upon the sufficiency of the same affidavit and the legality of the same search and decided the questions contrary to appellant's contentions.
In Schutz v. United States, 10 Cir., 395 F.2d 225, cert. denied, 394 U.S. 946, 89 S.Ct. 1279, 22 L.Ed.2d 479, the Circuit Court of Appeals said:
'Prior to trial Schutz filed a motion to suppress certain evidence and an evidentiary hearing was had upon the motion. There it was contended that the government intended to use the fruits of both the Texas and Kansas searches in the trial to follow. The argument presented there was that the affidavit used to obtain the Texas search warrant was insufficient upon its face and that the officers used unnecessary force in executing the warrant. The first argument presents a legal question and the second, as we will later demonstrate, is a factual question.
'The evidence adduced upon this motion shows that on August 30, 1965, two Texas state law enforcement officers procured a search warrant, upon the basis of an affidavit filed by them, from a local magistrate at Austin, Texas. The affidavit and warrant were on a one page printed form with appropriate blank spaces to be filled in by the affiant and the magistrate. The affidavit described the premises to be searched and included 'all other outbuildings and motor vehicles appurtenant thereto.' It further described the premises as 'the building, house or place of Chester Schutz * *...
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Franklin v. State, 46294
...'A Yes, I can say that.' Ground of error number one advanced by appellant challenges the sufficiency of the evidence. Schutz v. State, Tex.Cr.App., 448 S.W.2d 486, is very similar in facts to this case. There Schutz and a woman lived in the house where the contraband was found. The court sa......
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Kinkle v. State, 44464
...rented to Danny James Woodall and Elaine Woodall. Appellant Kinkle was not shown to be residing at the apartment, cf. Schutz v. State, 448 S.W.2d 486 (Tex.Cr.App. 1970); Slaton v. State, 418 S.W.2d 508 (Tex.Cr.App. 1967), nor was he shown to have had any other connection with it apart from ......
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Hilson v. State
...473 S.W.2d 520 (1971). See Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726. No error is shown. See Shutz v. State, Tex.Cr.App., 448 S.W.2d 486. The contention that the jury was allowed to assess the punishment when it was not requested is directly contrary to the approved reco......