Ware v. State

• Decision Date: 05 May 1971
• Docket Number: No. 43554,43554
• Citation: 467 S.W.2d 256
• Parties: Clevvie WARE, Jr., Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 256

467 S.W.2d 256

Clevvie WARE, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 43554.

Court of Criminal Appeals of Texas.

May 5, 1971.

Rehearing Denied June 9, 1971.

Emmett Colvin, Jr., Kerry P. FitzGerald, Dallas, for appellant.

Henry Wade, Dist. Atty., John B. Tolle, Harry J. Schulz, Jr., W. T. Westmoreland, Jr., and Edgar A. Mason, Asst. Dist. Attys., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DOUGLAS, Judge.

The appeal is from a conviction for the possession of heroin. The punishment was assessed by the jury at fifty years.

The record reflects that officers armed with a search warrant went to appellant's apartment. As they approached the door one of them saw appellant run from the front to another part of the apartment. The officers entered and searched the appellant and found some marihuana in a sock that he was wearing. The officers handcuffed him and had him sit in a chair while the apartment was being searched. A capsule of heroin was found on the seat of the chair after the appellant got up. One of the officers picked up a chair, shook it and a cigarette package containing some sixty capsules of heroin fell to the floor.

In the second ground of error, appellant contends that the court erred in overruling his motion to suppress the evidence obtained in the search, because the affidavit to obtain the search warrant did not contain an affirmative allegation that the informant spoke with personal knowledge of the matters contained in the affidavit.

The affidavit, omitting formal parts, is as follows:

'I, B. S. Ball, do solemnly swear that heretofore, on or about the 11th day of July, A.D. 1969, in the City of Dallas, Dallas County Texas, one Clevie Ware Jr., and person or persons unknown did then and there unlawfully possess and does at this time unlawfully possess a narcotic drug, to-wit: Heroin in an apartment being described as the Big 'D' Apartments, apartment #138, located 2028 East Kiest Blvd. #138 in the City of Dallas, Dallas County, Texas, which said apartment is possessed, occupied, under the control and charge of Clevvie Ware Jr., and person or persons unknown.

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

'I have been informed of the foregoing setout facts by a person, who I know to be reliable, credible and trustworthy, who states the following facts: That Clevvie Ware Jr., has a quantity of heroin concealed in his apartment. That the heroin is concealed in a rubber container hidden in the lining of a white chair, in the living room. That he also has a quantity of heroin concealed in a rubber stall hid in the plumbing fixtures in the kitchen. That the confidential informant has seen the heroin within the last (48) forty eight hours. That I have received this information within the last (24) twenty four hours. That Clevvie Ware Jr., is known by the members of the Dallas Police Department, Narcotic Section to use and sell narcotic drugs. That I believe this information to be true and reliable. That this confidential informant has given true and reliable information concerning narcotic violations before. Other members of the Narcotics Section, of the Dallas Police Department has also received information that Clevvie Ware Jr., has been selling and using narcotic drugs.'

The affidavit as a whole, including the statements that the informant had told Ball that Clevvie Ware, Jr. possessed heroin at his apartment and had seen it within the last forty-eight hours, amounts to an allegation of personal knowledge on the part of the informant.

The affidavit contains sufficient allegations of fact to show probable cause for the issuance of the search warrant. See Gaston v. State, Tex.Cr.App., 440 S.W.2d 297; Nus v. State, Tex.Cr.App., 440 SW.2d 310, and Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935. The second ground of error is overruled.

In the first ground of error it is contended that appellant was denied effective assistance of counsel and the right to the confrontation of witnesses because the court refused to require the witnesses to reveal the name of the informant.

Officer Ball testified that the informant was not present at the time of arrest. The record shows that Shirley Huffman and Dhority Smith were in the apartment at the time of the search. The appellant inquired if JoAnn Brown was the informant. Officer Ball answered that she was not. The appellant testified during the trial that JoAnn Brown was a narcotic addict and had lived with him at the apartment some time before the search.

The Supreme Court of the United States stated in Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639:

'The purpose of the privilege (informer's privilege) is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.

'* * * The problem (of disclosure of informant's identity) is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. * * *'

Appellant relies upon Roviaro and contends that his lack...