Torres v. State

• Decision Date: 22 June 1977
• Docket Number: No. 53472,53472
• Citation: Torres v. State, 552 S.W.2d 821 (Tex. Crim. App. 1977)
• Parties: Tomas V. TORRES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 821

552 S.W.2d 821

Tomas V. TORRES, Appellant, v. The STATE of Texas, Appellee.

No. 53472.

Court of Criminal Appeals of Texas.

June 22, 1977.

Rehearing Denied July 13, 1977.

Antonio G. Cantu, San Antonio, on appeal only, for appellant.

Ted Butler, Dist. Atty., Gordon V. Armstrong, Sharon S. MacRae and Susan D. Reed, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. The jury found the paragraphs in the indictment charging appellant with having been previously convicted of two felonies to be true, and punishment was assessed under V.T.C.A., Penal Code, Sec. 12.42(d), at life.

The record reflects that on June 6, 1975, several San Antonio police officers entered appellant's residence armed with a search warrant. Upon entry of the house, appellant was found seated at the kitchen table. On the table were 245 balloons, some of which contained heroin; a dinner plate with a brown powder substance on same, later determined to be heroin; a spoon and a razor blade. Twenty-five hundred dollars in cash was found under a dresser. Four or five ounces of heroin were seized. Appellant and his wife, Olivia Sanchez, were arrested and tried in a joint trial. The sufficiency of the evidence is not challenged.

Appellant contends in his first ground of error that the trial court erred in overruling his motion to suppress the contraband in that the affidavit underlying the search warrant was insufficient to reflect probable cause. The relevant portion of the affidavit in support of the search warrant provides as follows:

" . . . such belief of the affiant is founded upon the following information: On the 6th of June, 1975, the affiant received information from a reliable and credible person who has given information in the past regarding narcotic traffic which has proven to be true and correct but whoes (sic) name cannot be revealed for security reasons that he the said reliable and credible person did see controlled substance, to wit: heroin unlawfully possessed by Tomas V. Torres and Olivia R. Sanchez on the 5th day of June, 1975 at 3558 W Woodlawn. . . ."

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, sets out the following requirements necessary to show probable cause when an unidentified informer is involved:

"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, and some of the underlying circumstances from which the officer concluded that the informant . . . was 'credible' or his information 'reliable.' "

The statements in the affidavit that the informer had personally observed appellant and Olivia Sanchez in possession of heroin at the address where the search warrant was executed only one day before he gave the information to the officer who swore to the affidavit satisfies the first prong of the Aguilar test. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Smith v. State, Tex.Cr.App., 496 S.W.2d 90; Hegdal v. State, Tex.Cr.App., 488 S.W.2d 782; Heredia v. State, Tex.Cr.App., 468 S.W.2d 833.

The second prong of Aguilar was fulfilled by the recitations in the said affidavit that the affiant received information from a credible and reliable person who had given information in the past regarding narcotic traffic which had proven to be true and correct. See Hegdal v. State, supra; Collins v. State, Tex.Cr.App., 502 S.W.2d 743.

Appellant complains that the language in the affidavit that the informer has given information "regarding narcotic traffic" is unclear. We rejected a similar contention in Barnes v. State, Tex.Cr.App., 504 S.W.2d 450, where we held that language in an affidavit that the informer had given information on several occasions "concerning narcotic offenses" which had proven true and correct was not vague and ambiguous, and satisfied Aguilar. Likewise, appellant's argument that the affidavit is insufficient in that it does not allege the informer was familiar with heroin in order to identify it is without merit. In Pecina v. State, Tex.Cr.App., 516 S.W.2d 401, we held that an affidavit need not state an informer's qualifications to identify heroin. Further, the allegation that the informer had given information in the past "regarding narcotic traffic" which had proven to be correct, when interpreted in a realistic and common sense manner, indicates the informer's familiarity with controlled substances. Appellant also contends that the affidavit is defective because it does not recite to whom the informer had given information in the past. Appellant's contention was answered adversely to him in Jones v. State, Tex.Cr.App., 522 S.W.2d 930, where the affidavit stated:

" . . . The source has given information in the past on at least five occasions and on each occasion the information has proven to be true and correct and the information at this time is that the heroin has been observed by the source within the last 24 hours. . . ."

In Jones, the Court wrote:

"A realistic and common sense interpretation of the affidavit in the instant case is that the informant had given prior information to both officers who signed the search warrant and swore to the affidavit."

See also Barnes v. State, Tex.Cr.App., 504 S.W.2d 450; Ware v. State, Tex.Cr.App., 467 S.W.2d 256; Williams v. State, Tex.Cr.App., 476 S.W.2d 300; Curtis v. State, Tex.Cr.App., 519 S.W.2d 883; and numerous cases which are cited in Avery v. State, Tex.Cr.App., 545 S.W.2d 803, holding similar affidavits to be sufficient.

We hold therefore that the affidavit supporting the search warrant presented sufficient underlying circumstances for the magistrate to determine that the informant was reliable and that the heroin was where the informer said it was.

Appellant next contends that the trial court erred in admitting the search warrant and officer's return (not the affidavit upon which the warrant was based) into evidence over his objection.

Recitals contained in a search warrant and return are hearsay and are not admissible before the jury for any purpose, and their admission over objection is error. See Doggett v. State, Tex.Cr.App., 530 S.W.2d 552, and cases there cited. However, whether the error constitutes reversible error is determined by examining the facts of each case to see if the receipt of the instruments was harmful. See Doggett v. State, supra.

In the instant case, the complained-of instruments contain a statement by Officer Carpenter that the search warrant was executed on June 6th and that approximately 8 ounces of heroin were recovered and appellant and Olivia Sanchez were arrested for possession of heroin.

At trial, Officer Carpenter testified in much greater detail to substantially the same facts as contained in the search warrant and the return. This Court has held that as a general rule a judgment will not be reversed for the erroneous admission of improper testimony if the same facts were proved by other proper testimony. See Doggett v. State, supra; Watson v. State, Tex.Cr.App., 532 S.W.2d 619; Alvarez v. State, Tex.Cr.App., 511 S.W.2d 493; Yates v. State, Tex.Cr.App., 488 S.W.2d 463. This case is distinguishable from Figueroa v. State, Tex.Cr.App., 473 S.W.2d 202, relied upon by appellant, in that the instrument complained of here did not contain hearsay allegations such as are set forth in the affidavit by an unidentified informer who did not testify at trial. Ne error is shown.

Appellant complains that the trial court erred in overruling his objection and motion for mistrial to the State's final argument because said argument injected harmful unsworn testimony before the jury.

The record reflects that during final argument the prosecutor stated:

"MR. ARMSTRONG: Two hundren (sic) and forty-five of these things lying around on the table, a spoon, a razor blade, heroin all over this nice dinner plate right here. You know, he wasn't doing it out in the garage, he wasn't off at some place in the woods doing it that she didn't have any knowledge about it. He is sitting right there at the kitchen table and she is just looking and he is just fixing these things up, with $2,000.00 hidden under a dresser. But, she didn't know anything about him. And this has been going on for a couple of years."

Appellant's objection that there was no testimony "that this had been going on for two or three years" was sustained and the court instructed the jury to disregard the same. Appellant's motion for mistrial was denied.

We find that appellant's objection and the court's prompt instruction to the jury to disregard the argument cured error, if any. See Young v. State, Tex.Cr.App., 547 S.W.2d 23; Lafoon v. State, Tex.Cr.App., 543 S.W.2d 617; Smith v. State, Tex.Cr.App., 516 S.W.2d 415.

Appellant next contends that the trial court erred in refusing to grant him a mistrial after the prosecutor argued before the jury that appellant had failed to call a witness to testify.

The record reflects that the prosecutor argued as follows:

"Well, as Torres says, her (Sanchez's) sister is here. Where is her sister? She is out there in the hallway. They bring her sister in here as to what? Anything about this? They didn't even put her sister on. They didn't put nothing on. Just let everybody

"MR. GONZALEZ (defense counsel): I will object to that. The defendants don't have any duty to put on any evidence. We object to the inference that we have to call the sister or any other witness in this case. The burden is on the State and not the defendant. We object to this kind of argument. It is inflammatory, prejudicial and completely improper.

"THE COURT: Overruled.

"MR. GONZALEZ: Note our exception."

Appellant testified before the jury that Sanchez's sister, Mary Zuniga, was out in the hallway of the courtroom.

Where the record reflects that...