Casas v. State

462 S.W.2d 581, 1970 Tex. Crim. App. LEXIS 1653

• Court: Court of Criminal Appeals of Texas
• Decided: October 28, 1970
• Docket: 43168
• Status: Published

Opinions

OPINION

MORRISON, Judge. .

The offense is the possession of marihuana, the punishment ten (10) years.

Appellant’s first four grounds of error relate to the legality of the search and the admissibility of the testimony of the arresting officers. The affidavit, we have concluded, meets the test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. First it stated that the informant had, on the day the affidavit was made, personally seen marihuana and heroin in the described premises in the possession of appellant. It then stated that the informant was reliable and credible because he had on' previous occasions given affiant information regarding narcotic traffic which had proven to be correct. The address given was 315 W. Theo, Apt. 3. We do not deem it mandatory that the informant tell where in the apartment he had seen the narcotics or how long the narcotics had been in the apartment as appellant contends. Neither do we deem it mandatory that the affidavit state how many times the informant had given the affiant information which had been proven to be correct.

His next attack upon the search grows out of the testimony of the arresting officers. His principal reliance seems to be upon Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311. This writer has more than a passing acquaintance with Orozco. In that case the officers entered Orozco’s bedroom and began to question him. He first gave his name, he was then asked if he owned a pistol. Only after repeated questioning did Orozco tell the officers where they might find the pistol. All of this time Orozco was under arrest. Clearly this was the type of interrogation which demanded Miranda warnings.

Here is what we have in the case at bar. The officers entered the apartment, announcing that they had a narcotic search warrant. The woman who claimed to reside in the apartment which was searched, while testifying for appellant, stated that the officers who entered walked directly to the bed where appellant was reclining, gave appellant a piece of paper and, “He just pointed towards the suitcase”. This compares to a large extent with the testimony of the arresting officers. They each stated that they entered and approached the bed where appellant was lying undressed. They testified that one of the officers said, “This is a search warrant for marihuana. I know it’s here and we are going to find it”. In answer, appellant said, “Well here it is”, reached under the head of the bed, and handed the officers a suitcase inside which they found the marihuana. As in Glaze v. State, 165 Tex.Cr. R. 626, 310 S.W.2d 88, there was no question as to the officer’s authority to be on the premises. In Glaze, when the officer announced the nature of their business the accused said, “You have got me”, then went to the kitchen and delivered the marihuana to the officers. We overrule all of appellant’s grounds of error relating to the legality of the search and the testimony of the arresting officers.

His fifth ground of error is that the evidence is insufficient to show that appellant had possession of the marihuana. This is based largely upon defensive testimony, which was rebutted by the State, to the effect that appellant did not live in the apartment which was searched and that possibly a woman who was present at the time of the search had brought the marihuana into this country. This was a question for the jury’s determination and we do not under this record conclude that they decided the issue incorrectly.

Finding no reversible error, the judgment is affirmed.

WOODLEY P. J., concurs in the result.