Sessions v. State

• Decision Date: 19 September 1973
• Docket Number: No. 46517,46517
• Parties: Taylor SESSIONS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 933

498 S.W.2d 933

Taylor SESSIONS, Appellant, v. The STATE of Texas, Appellee.

No. 46517.

Court of Criminal Appeals of Texas.

Sept. 19, 1973.

Dan J. Anderson, Richardson, for appellant.

Henry Wade, Dist. Atty., W. T. Westmoreland, Asst. Dist. Atty. Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

GREEN, Commissioner.

The appeal is from a conviction of possession of a narcotic drug, to-wit, heroin. The punishment was assessed by the court at fifty (50) years.

On February 15, 1971, officers of the Dallas Police Department executed a search warrant at the BIG D APARTMENTS, number 206, located at 2707 Gould Street in Dallas. As a result of the search of the apartment, the officers found various types of narcotics, dangerous drugs and narcotic paraphernalia, including a plastic bag containing 103 capsules of heroin, syringes, needles and tie-off rags. In addition three capsules of heroin were found on the floor next to the chair in which appellant was sitting when he was arrested.

The sufficiency of the evidence is not challenged.

Appellant contends in his first ground of error 'that the trial court committed reversible error in allowing to be admitted before the jury for consideration the physical evidence secured at the BIG D APARTMENTS as a result of a search warrant issued based upon an affidavit filed by members of the Dallas Police Department.'

It is appellant's claim that the printed form recitation to the effect that the informant was known to be reliable, credible and a trustworthy person contained in the warrant affidavit does not conform with the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, because the fact that the recitation was printed forecloses the possibility that the reliability of the informant was investigated by the magistrate prior to the issuance of the warrant.

The relevant portion of the affidavit presented by Officer C. R. Hemby to the magistrate reads as follows:

'MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:

'I have been informed of the foregoing set out facts by a person, who I know to be reliable, credible and trustworthy, who states the following facts: ¹

'That I, the affiant have received information in the past twelve hours from a confidential informant that Lola Faye Johnson has a quantity of heroin concealed in her apartment at 2707 Gould Street, apartment 206. The informant has been inside this apartment in the past twelve hours and has seen Lola Johnson with the heroin. The informant also states there is another colored female and a colored male that was inside the apartment and they were also in possession of heroin. The informant states while he was inside the apartment at 2707 Gould Street, apartment 206, he observed Lola Faye Johnson remove a bottle from her bra containing several capsules of heroin and sell it to a colored male that had come to this apartment. The informant observed the colored male that was in the apartment take a plastic wrapper from his pocket and remove three capsules of heroin and sell them to another unknown colored male who had come to the apartment to buy heroin. The informant states that the capsules of heroin were sold for seven dollars a capsule. The informant knows Lola Faye Johnson to be a user and a dealer of Heroin.

'The affiant has received information regarding narcotics users and dealers from this informant many times in the past and the information has always been true and correct. The affiant knows this informant to be a reliable, credible and a trustworthy person.' ²

In determining the sufficiency of such affidavit to reflect probable cause for the issuance of the search warrant, this Court is bound by the four corners thereof. Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852; Adair v. State, Tex.Cr.App., 482 S.W.2d 247; Cook v. State, 497 S.W.2d 295 (1973).

The affidavit states that the informant had been inside the apartment within the past 12 hours and had seen Lola Faye Johnson selling capsules of heroin to others. Thus, the personal knowledge of the informant, the first prong of Aguilar, supra, has been satisfied and is not contested by appellant.

Appellant's complaint involves the second prong of Aguilar, the credibility and reliability of the informer relied on by the affiant. This is not a case where the informant has not given information in the past but rather a case in which the informant's information has previously been true and correct. Cf. Wetherby v. State, Tex.Cr.App., 482 S.W.2d 852; Yantis v. State, Tex.Cr.App., 476 S.W.2d 24; Cook v. State, 497 S.W.2d 295 (1973).

While the use of form affidavits was criticized in Brown v. State, Tex.Cr.App., 437 S.W.2d 828, the record reflects the affidavit in this case was not a model affidavit which was copied in haec verba (except for names, dates and places) in other cases. The actual affidavit, as opposed to the printed recitation, was set out in the blanks of a printed form entitled 'Affidavit for Search Warrant for...