Dow v. State

626 S.W.2d 93, 1981 Tex. App. LEXIS 4396
CourtCourt of Appeals of Texas
DecidedNovember 19, 1981
DocketNo. 13-81-018-CR
StatusPublished
Cited by3 cases

This text of 626 S.W.2d 93 (Dow v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dow v. State, 626 S.W.2d 93, 1981 Tex. App. LEXIS 4396 (Tex. Ct. App. 1981).

Opinion

OPINION

NYE, Chief Justice.

This is an appeal from a conviction for burglary of a habitation. Punishment was assessed at life, based on a jury finding that appellant was a habitual felony offender.

Appellant contends on appeal that stolen property admitted into evidence against him was obtained by means of a defective search warrant and that the evidence is insufficient to sustain the conviction. The trial court admitted into evidence as part of the State’s case several items of personal property which had been seized from a storage locker by police acting under a search warrant. This property had been stolen from the home of Thomas N. Smith, III. Appellant was shown to be in control of the locker at the time of the search.

Appellant contends that the affidavit in support of the search warrant is defective because it fails to state sufficient underlying circumstances from which the affiant could conclude that the unnamed informant was credible or his information reliable. The pertinent part of the affidavit reads as follows:

“. .. IT IS THE BELIEF OF AFFIANT, AND HE HEREBY CHARGES AND ACCUSES, THAT SAID SUSPECTED PARTY HAS POSSESSION OF AND IS CONCEALING AT SAID SUSPECTED PLACE THE FOLLOWING DESCRIBED stolen property TO WIT:
1. Kirby vacuum cleaner and attachments
2. Sterling silver champagne cooler
3. Sterling silver water pitcher
4. Two sterling silver sugar shakers
5. Large sterling silver tray
6. Twelve sterling silver drinking cups
7. Sterling silver ladle
8. Sterling silver punch bowl
9. Sterling silver tea service set
10. Two sterling silver candle holders
11. Sterling silver pitcher and bread tray
[95]*95AFFIANT HAS PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS, TO WIT: Affiant officer was told by a confidential informant that said informant was taken to the Stor-Safe Corporation storage units, storage locker number 182 by Frichard Dow within the past ten days and that Dow took informant inside of locker number 182 and showed him a large quantity of camera equipment, plus all of the items listed in section number three of this warrant. Informant further advised affiant officer that all of the above mentioned silver and the Kirby vacuum cleaner were stored together in a separate section away from the other items within the storage locker. Informant also told affiant that Dow told him not to repeat anything that was said during his visit to locker number 182, nor to disclose any information about anything that he had seen there. Said informant further advised affiant that he believes that all of the property mentioned in section number three of this warrant to be stolen. From the description of the items given by the informant affiant officer was able to locate a burglary report dated July 22, 1977, in the police files from which the above described property was stolen and the items matched each piece of silver reported stolen from offense number 70722-062. Affiant officer believes the informant to be trustworthy, reliable and credible because said informant has lived in Corpus Christi and Nueces County most of his life and continuously for the past two and one-half years and is gainfully employed and has no arrest records.”

There is no claim of falsehood or reckless disregard for the truth in the affidavit. Consequently, we are bound by the four corners of the instrument in determining the question raised here. Ramsey v. State of Texas, 579 S.W.2d 920 (Tex.Cr.App.1979).

The underlying circumstances from which affiant concluded that the unnamed informant was credible are that the informant “has lived in Corpus Christi and Nuec-es County most of his life and continuously for the past two and one-half years and is gainfully employed and has no arrest records.” Minimum circumstances justifying a conclusion of credibility were set out in Avery v. State of Texas, 545 S.W.2d 803 (Tex.Cr.App.1977). There it was held that the minimal requirements to establish the credibility and reliability of an unnamed informant are: 1) that the informant have no criminal record; 2) that he shall enjoy a good reputation among his associates and in the community; and 3) that he be gainfully employed. Although the affiant makes no mention of the informant’s reputation in the community, the affidavit does show underlying circumstances which can be looked to for corroboration of the information from the unnamed informant. Using the list of property reported by the informant, the affiant police officer located a burglary report dated July 22, 1977, in which eleven items listed as stolen by the homeowner matched exactly the eleven items seen by the informant. This information was set out in the affidavit that was used in support of the search warrant.

Appellant contends that the police report is not sufficient to corroborate the informant’s observations because the description of the property given by the informant as reported in the affidavit totally lacked “sufficient specificity to distinguish one of said items from another of the same kind, make or model.” We disagree. The description of the property in the affidavit is sufficiently detailed for the affiant officer and the magistrate to conclude from exact matching of the items on the two lists that the items seen by the informant were the same items taken in the burglary. This is true because of the large number of items involved, the proximity in time of the dates of the offense and the informant’s observations, and the fact that the items were stored separately in the locker. See: Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978).

Having considered the affidavit as a whole and in a common sense and realistic way, we find that the police report corroborates the informant’s observations. It sup[96]*96ports the conclusion that his information was reliable. U. S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In his second ground of error, appellant challenges the sufficiency of the evidence to adequately corroborate the testimony of the accomplice witnesses. Tex.Code Crim.Pro. Ann. art. 38.14 (Vernon 1979). On July 27, 1977, the house of Mr. and Mrs. Thomas N. Smith, III, was burglarized while they were out of town. On September 3, 1977, a search warrant was executed upon storage locker 182, located within the Stor-Safe Corporation complex at 863 Savage Lane, Corpus Christi, Texas. A large amount of stolen property was found in this locker, some of the property being identified as that taken during the Thomas Smith burglary. After the issuance of the search warrant, and with the cooperation of the owner of the locker, the padlock on locker 182 was changed. The owner was requested to inform the police when anyone attempted to open the locker. On September 22, 1977, Danny Jester attempted to open the locker. The police were called.

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626 S.W.2d 93, 1981 Tex. App. LEXIS 4396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dow-v-state-texapp-1981.