Aguillar v. State

362 S.W.2d 111, 172 Tex. Crim. 629, 1962 Tex. Crim. App. LEXIS 1114

• Court: Court of Criminal Appeals of Texas
• Decided: June 20, 1962
• Docket: 34681
• Status: Published

Opinions

BELCHER, Judge.

The conviction is for the possession of heroin; the punishment, twenty years.

On a former appeal this case was reversed. Aguillar v. State, 170 Texas Cr. Rep. 189, 339 S.W. 2d 898.

When Officers Strickland and Rodgers announced at the front door of a house that they were police officers and had a search warrant for the house, they heard scuffling and movements inside, immediately entered, and saw the appellant run into the bath room. Strickland and Rodgers pursued the appellant into the bath room where they saw him throw a package into the commode and flush it. Rodgers pulled the appellant away, and Strickland retrieved the package from the commode.

While testifying, both Officers identified the appellant and the package which they testified he threw into the commode. The package, which contained six blue cellophane papers with a white powder in each of them, was introduced in evidence.

An analysis by a chemist of the substance in each of the cellophane papers showed that it was 36.5% pure heroin.

The appellant did not testify or offer any testimony, and no brief has been filed in his behalf.

An informal bill of exception shows that the trial court refused appellant’s request that he be shown an offense report made by Officers Strickland and Rodgers. The report was not in their possession at the time each appeared as witnesses, nor was it exhibited by the state at such time. But, they had used it to refresh their memory shortly before they testified.

The offense report appears in the record. An examination of the report shows nothing therein which could have been used to impeach the testimony given by the witnesses Strickland and Rodgers. In the absence of any showing of injury or prejudice the court’s refusal to require the production of the offense report is not ground for reversal. Moreno v. State, 170 Texas Cr. Rep. 410, 341 S.W. 2d 450; Perdue v. State, 171 Texas Cr. Rep. 332, 350 S.W. 203; Hughes v. State, No. 34,685, Harris County, delivered June 13, 1962.

At the trial, appellant objected to the admission of the evidence showing the search and the results thereof for the reason that the search warrant was void. He attacks the affidavit on the ground that it is based on hearsay, did not set forth a statement of the offense in clear, plain and intelligible language, and was insufficient to authorize the issuance of the search warrant.

An examination of the affidavit shows that it recites sufficient facts and information to constitute probable cause for the issuance of the warrant. The affidavit and warrant being valid, no error is shown in the admission of the results of the search. Rozner v. State, 129 Texas Cr. Rep. 127, 3 S.W. 2d 411; 113 Texas Cr. Rep. 527, Ruhmann v. State, 22 S.W. 2d 1089.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.