White v. State, No. 42161

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: MORRISON; DOUGLAS; MORRISON; ONION; BELCHER
• Citation: 451 S.W.2d 497
• Docket Number: No. 42161
• Decision Date: 09 July 1969
• Parties: Lionel A. WHITE, Appellant, v. The STATE of Texas, Appellee.

Page 497

451 S.W.2d 497 Lionel A. WHITE, Appellant,
v.
The STATE of Texas, Appellee. No. 42161. Court of Criminal Appeals of Texas. July 9, 1969.
State's Rehearing Granted Dec. 3, 1969.
Appellant's Rehearing Granted March 18, 1970.

Richard Thornton, Galveston, court-appointed counsel, for appellant.

Jules Damiani, Jr., Dist. Atty., R. L. Wilson, Asst. Dist. Atty., Galveston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is the possession of Narcotic Paraphernalia, with two prior noncapital felony convictions alleged for enhancement; the punishment, life.

Laying aside the question of confrontation ¹ so urgently urged by appellant, we are met at the outset with the question of whether or not the confession of one co-conspirator is admissible against the other where the statement or confession is not uttered in furtherance of the conspiracy. Judy Guillory, the co-conspirator, told police officers who were executing a search warrant in appellant's apartment that she had arrived at the apartment for the purpose of securing a shot of narcotics, found that appellant had none, had given him $15.00 with instructions to go out and buy two caps, one for herself and one for him, and that appellant kept his paraphernalia down the hall in a bathroom common to all tenants on the floor. These statements by Guillory, related at the trial by the police officers to whom she spoke, were admitted over appellant's objections evidently upon the trial court's reliance upon the rule announced in Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146:

Page 498

'The rule is well settled that the acts and declarations of one conspirator during the Furtherance of the conspiracy are admissible against the other conspirators. * * * This rule applies though the act or declaration occurred out of the presence and hearing of the conspirator on trial.'

This narration by Guillory to the police officers cannot be said to have been in 'furtherance of the conspiracy', for when this statement was made to the officers, the conspiracy came to an effective end. It would tax credulity of any man to say that a statement made to those in constituted authority, in this case the police, is done so for the purpose of furthering, helping forward, promoting, advancing or progressing ² the conspiracy ³.

The hearsay testimony was thus not admissible under the co-conspirator exception, and its introduction requires a reversal of this conviction.

For the error of the court in admitting the testimony of the officers in which they detail what the co-conspirator Guillory told them, the judgment is reversed and the cause is remanded.

WOODLEY, P.J., not participating.

OPINION ON STATE'S MOTION FOR REHEARING

DOUGLAS, Judge.

The conviction is for the possession of narcotic paraphernalia for the purpose of subcutaneous injunction of narcotic drugs in a human being. Two prior convictions for felonies less than capital were alleged for enhancement. The punishment was assessed at life under Article 63, V.A.P.C.

The record reflects that officers, armed with a search warrant, went to appellant's apartment where Judy Guillory stated that she had given appellant fifteen dollars so that he could purchase two capsules of heroin, one for him and one for her, and that he would be returning shortly. She also told the officers that appellant kept his rig (narcotic paraphernalia) in a gas heater in the bathroom. When appellant returned to the apartment and saw the officers, he ran and threw two capsules of heroin in a gutter where it was later recovered.

When the officers found the paraphernalia appellant stated, 'That's my stuff.' The paraphernalia contained traces of heroin and consisted of ten hypodermic needles, an eyedropper and a bottle cap.

Appellant stipulated that he was the person who had been convicted for the prior offenses as alleged in the indictment.

In the first ground of error it is contended that the court erred in admitting the evidence found as a result of the search, because the affidavit upon which the search warrant was based did not contain sufficient facts to show probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and other United States Supreme Court decisions.

The affidavit, made by Paul DeLa Rosa, Jr. on October 27, 1967, recites that he had good reason to believe that Lionel A. White possessed heroin and it is now concealed at the apartment described in the affidavit. He was informed on October 26, 1967 by two reliable, credible and trustworthy citizens of Galveston County that appellant was involved in illicit narcotic traffic and that he kept a ready supply of heroin at the apartment; that White kept the heroin either on his person while at the apartment in the bedroom at said apartment,

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in clothing or under-clothing worn by White or located at said apartment; that one of the informants stated that he had gone to the apartment on several prior occasions and purchased narcotic drugs from White and that the drugs had been secreted at the premises; that the two credible persons had given him information on previous occasions upon which he relied and which proved to be correct; that he further relied on the above information and had kept the premises and White under surveillance and had seen White go to and leave the premises at all hours in the company of persons of disreputable character.

The affidavit contained sufficient facts for the magistrate to conclude that probable cause existed. Crotts v. State, Tex.Cr.App., 432 S.W.2d 921. See Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935, and the cases therein cited. The first ground of error is overruled.

In the second ground of error complaint is made because the court allowed the State to introduce into evidence the statement of Judy Guillory to the officers that appellant had gone to buy some heroin for their use and that appellant kept the paraphernalia in the gas heater in the bathroom near the apartment. He objected to this testimony on the grounds that it was hearsay and that he was not confronted with the witness at the trial. He contends that the State did not produce the witness or account for not doing so.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, relied upon by appellant, Bruton was tried jointly with Evans. A confession made by Evans inculpating Bruton was introduced. The trial court instructed the jury that a co-defendant's confession inculpating Bruton had to be disregarded on his guilt or innocence. The Supreme Court held '* * * that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. * * *' In footnote number 3, the Court stated:

'We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196, the problem arising only because the statement was (but for the violation of Westover, (Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) supra, n. 1) admissible against the declarant Evans. * * * There is no before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.'

The Supreme Court of the United States has held that the hearsay exception to statements made during the progress of a conspiracy is not in conflict with the Confrontation Clause. Delaney v. United States, 263 U.S. 586, 590, 44 S.Ct. 206, 68 L.Ed. 462 (1924).

In Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, 826, the offense was possession of heroin. A conspiracy between Alvarez and Aguero was shown. This Court stated:

'The acts and declarations of one co-conspirator are admissible against other conspirators during the furtherance of the conspiracy.'

In Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146, this Court held:

'The rule is well settled that the acts and declarations of one conspirator during the furtherance of the conspiracy

Page 500

are admissible against the other conspirators.'

Saddler was expressly based, in part, on Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, and on Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718, 723, where this Court stated that '* * * the acts of appellant's co-conspirator which took place during the existence of the conspiracy were admissible.' See also Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49, 50.

Such acts or declarations are admissible even though they are made outside the presence of the co-conspirator on trial. Braley v. State, 156 Tex.Cr.R. 15, 238 S.W.2d 539; Bannister v. State, 112 Tex.Cr.R. 158, 15 S.W.2d 629; Saddler v. State, supra, and Aguero v. State, supra.

Appellant contends that the conspiracy was complete when the agreement to purchase the heroin was made, and therefore the statements of Judy Guillory to the officers were not admissible.

The...