Bellah v. State

653 S.W.2d 795, 1983 Tex. Crim. App. LEXIS 1083

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

PER CURIAM.

A jury found appellant guilty of murder and assessed punishment at confinement for thirty five years. The El Paso Court of Appeals affirmed. Bellah v. State, 641 S.W.2d 641 (Tex.App.—El Paso 1982). We granted appellant’s petition in order to review that court’s decision regarding the sufficiency of an arrest warrant affidavit and the voluntariness of appellant’s confession.

Appellant attacks the arrest warrant affidavit solely on Fourth Amendment grounds; he makes no claim under the constitution or statutes of this State.¹ He contends the affidavit fails to satisfy the “ve racity” prong of the two-pronged test articulated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509,12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). However, after submission of the case in this Court, the United States Supreme Court abandoned the two-pronged test, announced that an informant’s “veracity” and “basis of knowledge,” and the “reliability” of his information, while “highly relevant,” should not be regarded as “entirely separate and independent requirements to be rigidly exacted in every case,” but “should be understood simply as closely intertwined issues that may usefully illuminate the common-sense, practical question whether there is ‘probable cause’.... ” Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).²

The police officer’s affidavit stated that an informant, who was not named in the affidavit, met with the officer and gave him a sworn statement. Therein the informant stated that appellant had told the informant the details of his involvement in the killing the morning after it occurred. Appellant had displayed his blood-stained shoes and had described the murder scene, which was one-half block from the informant’s home. The affidavit also states that the informant’s description of the killing matches other information in the officer’s possession concerning the cause of death, specifically, the knife wounds in the victim’s chest. Given these statements and others in the affidavit, as set out in the opinion by the court of appeals, and taking the “totality of the circumstances approach” endorsed in Gates, we find no Fourth Amendment violation. This ground of error is overruled.³

Regarding the voluntariness and admissibility of the confession, we need only say that the trial judge believed the officer who took the statement from appellant, and he discounted the defense version of events, as set out in the opinion by the court of appeals. The trial judge is the sole judge of the weight and credibility of the witnesses, and there was sufficient evidence to support the finding of voluntariness. Myre v. State, 545 S.W.2d 820 (Tex.Cr.App.1977).

The judgment of the court of appeals is affirmed.

MILLER and CAMPBELL, JJ., not participating.

APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

Footnotes

1

. The dissent faults our textual language, asserting that appellant “expressly stated that he relies upon” the State provisions mentioned.

In his motion to suppress in the trial court, inter alia, appellant put forth the following propositions:

“An affidavit issued in support of a search warrant must state sufficient facts to support the issuance of a warrant. Aguilar v. Texas, 378 U.S. 108 (1964). Specifically, Aguilar requires that two requirements be met by providing the following sufficient information. * * * If the basis for such credibility is not established within the four comers of the affidavit, then the affidavit must fail. Art. 1, Sec. 9, Texas Constitution; Texas Code of Criminal Procedure, Art. 15.03, 15.04; Ruiz v. State, 457 S.W.2d 894 (Tex.Cr.App.1970).”

Arguing the motion to the trial court, counsel for appellant called attention to the same authorities, and attributed to Ruiz: “When the sufficiency of an arrest warrant is challenged, the Court must block out the four corners of the affidavit...” In his first appellate brief appellant asserts: “The sufficiency of the affidavit must be determined within the four corners of the document,” and cites similar authorities, substituting Article 18.01, V.A.C.C.P. for 15.03 and 15.04. Without at all mentioning the “four comers rule,” the court of appeals said, “Appellant contends that the affidavit does not sufficiently relate the basis for a conclusion that the unnamed informant was a credible and reliable individual as required in Aguilar v. Texas...” His first reason for this Court to review that opinion is that the court of appeals "violated the standards of Aguilar v. Texas ...,” and in his argument he cites Aguilar for a requirement that the magistrate “must observe and follow the ‘Four Comers Rule,’ ” pretermitting any state authorities on that point. Finally, in his brief on submission to this Court appellant states:

“The law set out in Aguilar v. Texas ... clearly requires that probable cause affidavits which rely on hearsay from an anonymous informant provide two indicia of reliability:

⅜ ⅛⅜ ⅜ * ‡ ⅜

It should be noted that the law is clear that the ‘prongs’ of Aguilar must be satisfied and determined within the four comers of the affidavit. [Citing Article 1, § 9; Article 18.-01; Ruiz, supra.].”

We are satisfied that our statement of the grounds on which appellant attacks the arrest warrant affidavit is correct.

2

. Gates involved a search warrant, but the rationale is equally applicable to the arrest warrant in this case. Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971).

3

. In overruling this ground of error we rule only on the Fourth Amendment question, not on the requirements of state law, and, like the Supreme Court, “we in no way abandon Spinel-li’s concern for the trustworthiness of informers.” Gates, supra, n. 11.

As an aside, we attach no significance to a fact mentioned by the court of appeals — that the informant later testified at trial — for obviously the magistrate could not take that fact in account.