Campbell v. State

373 S.W.2d 749, 1963 Tex. Crim. App. LEXIS 808

Opinions

MORRISON, Judge.

The offense is the possession of narcotic drugs; the punishment, seven years.

Police officers of the city of Fort Worth and State Narcotic Agents armed with a search warrant, searched appellant’s apartment and there found three bottles which contained a total of 294 tablets which were shown by the testimony of a chemist to be morphine or dihydromorphinone, a derivative of morphine. Appellant was arrested when he entered the apartment by means of a key. His landlady testified that she had rented the apartment to appellant and had seen him coming and going therefrom.

Appellant did not testify or offer any evidence in his own behalf.

We shall discuss the contentions advanced by court appointed counsel in his brief and argument. He objected to the introduction of the fruits of the search because of the failure of the officers to comply with the terms of Art. 725-b, Sec. 16, Vernon’s Ann.P.C., in that they did not swear to their return on the search warrant which they made, failed to take appellant before the magistrate who issued the warrant for a hearing, and failed to carry the property seized before such magistrate.

In Garcia v. State, 164 Tex.Cr.R. 273, 298 S.W.2d 831, this Court disposed of a similar contention and cited Boyer v. State, 128 Tex.Cr.R. 76, 79 S.W.2d 318, which in turn relied upon Cornelius on Search and Seizure and held that a failure to follow the terms of the statute as to what should be done by the officers after the search had been made did not constitute reversible error.

The same rule applies where the search is made without a warrant. Jenkins v. State, Tex.Cr.App., 367 S.W.2d 343, Dennis v. State, 108 Tex.Cr.R. 672, 2 S.W.2d 223, Burns v. State, 99 Tex.Cr.R. 252, 268 S.W. 950, and Austin v. State, 97 Tex.Cr.R. 360, 261 S.W. 1035.

By bill of exception number two, complaint is made as to the answer of Officer Johnson in response to a question propounded by defense counsel which elicited information concerning extraneous offenses. The answer was clearly responsive and since appellant asked the same, he cannot be heard to complain as to the answer. Avant v. State, 168 Tex.Cr.R. 6, 323 S.W.2d 464 and Pettigrew v. State, 163 Tex.Cr.R. 194, 289 S.W.2d 935.

Finding the evidence sufficient to sustain the conviction and no reversible error appearing, the judgment is affirmed.