Jones v. State

496 S.W.2d 566, 1973 Tex. Crim. App. LEXIS 2733

Opinions

OPINION

DAVIS, Commissioner.

Appeal is taken from a conviction for possession of heroin. After the jury returned a verdict of guilty, punishment was assessed by the court at thirty-five years.

At the outset, appellant complains that the arrest and search were illegal so as to render any evidence seized incident thereto inadmissible.

Dallas police officers, armed with a search warrant, entered appellant’s apartment on Junction Street, in Dallas, in the early morning hours of May 19, 1971, and seized nine capsules of heroin, a hypodermic syringe and needle and three burnt spoons.

Appellant urges that the testimony is inconclusive that the search which revealed the incriminating evidence occurred at the address described in the warrant.

The search warrant and affidavit upon which it is based describe the place to be searched as “apartment 107 of a two story multi-unit apartment complex” located at 3212 Junction Street in the city of Dallas.

Appellant directs our attention to a “prosecution report” prepared by Officer Green, of the Dallas Police Department, which reflects: “Place of arrest 3213 Junction, Apt. 107.” At another place in the report after “where and how committed,” the address is listed as “3212 Junction, Apt. 107,” the same address which appears in the affidavit and search warrant. At still another place in the “prosecution report,” the address of appellant is listed as “3212 Junction, Apt. 107.”

J. T. Williams, one of the officers who made the search in question, testified in response to a question on cross-examination by appellant as to whether the address searched was 3213 Junction rather than 3212 Junction that “to my knowledge, it was 3212. It was on the even side of the street,” and that the place searched was located in “a multiple-unit apartment complex.”

Officer Green, who participated in the search and prepared the “prosecution report,” testified that he thought the listing of the place of arrest as 3213 Junction was a typographical error.

In support of his contention, appellant cites Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676; Combs v. State, 141 Tex.Cr.R. 476, 149 S.W.2d 971 and Childress v. State, 163 Tex.Cr.R. 467, 294 S.W.2d 110. In Balch v. State, supra, this Court held that an affidavit and search warrant describing premises as “302 East Robbins Street” did not authorize search of “304 Robbins Street.” In Combs v. State, supra, the search was held invalid where officers admitted that they erroneously described the premises which were searched when they prepared the affidavit for the search warrant. In Childress v. State, 163 Tex.Cr.R. 467, 294 S.W.2d 110, it was stated if the residence searched was not that described in the warrant, then no valid search warrant authorizing the search existed.

We find the instant case to be distinguishable from the foregoing cases relied on by appellant. The testimony of the officers, the return on the search warrant (reflects that seized property was taken from address described in the warrant), and the prosecution report, except that portion which shows the arrest to have taken place at 3213 Junction, reflect that the search was conducted at apartment 107 of a multi-unit apartment complex at 3212 Junction, the address described in the search warrant. We find that the State has discharged its burden of. proving that the contraband was found upon the premises authorized to be searched by the search warrant. See Childress v. State, supra. Further, as long as the place searched was the residence described in the warrant, the fact that appellant was arrested at another address does not render the search invalid.

Appellant contends that the court erred in refusing his request that the court reporter take shorthand notes of the voir dire examination.

The record reflects that appellant, prior to trial, requested the court in writing to order the court reporter to record the questions and answers propounded to the jury during voir dire examination.

Appellant relies on Article 40.09, Sec. 4, Vernon’s Ann.C.C.P., the pertinent portion of which provides: “At the request of either party the court reporter shall take shorthand notes of all trial proceedings including voir dire examination. . . . ”

The State relies on Miller v. State, Tex.Cr.App., 472 S.W.2d 269, in urging that the court’s refusal of appellant’s request to order the court reporter to record the voir dire examination is not reversible error. In Miller v. State, supra, the defendant’s request that the court reporter take the voir dire examination was denied. This Court noted that there was not any suggestion that anything occurred on voir dire to the detriment of appellant and said that absent a showing of harm or prejudice, failure to comply with appellant’s request is not reversible error. In Vines v. State, Tex.Cr.App., 479 S.W.2d 322, this Court held it was reversible error for the court to refuse to order the court reporter to record voir dire examination where some action occurring during the voir dire examination is assigned as error. See Young v. State, Tex.Cr.App., 488 S.W.2d 92, 94.

In the instant case, appellant has not shown harm or prejudice by virtue of the court’s refusal to order the recording of the voir dire examination, Miller v. State, supra, nor has appellant claimed that some action occurring during voir dire examination constitutes error, Vines v. State, supra. Thus, reversible error is not shown, but in so holding, we reaffirm the position taken by this Court in Miller v. State, supra, where it was stated: “We do not mean to imply that we approve the action of the trial court in refusing to comply with Art. 40.09, Sec. 4, V.A.C.C.P. The rule should be followed.” ¹

• Finding no reversible error, the judgment is affirmed.

Opinion approved by the Court.

1 . In Taylor v. State, 489 S.W.2d 890 (Tex.Cr.App.1973) and Jackson v. State, 491 S.W.2d 155 (Tex.Cr.App.1973), this Court lias, in footnotes to the opinions, urged trial judges, even in tlie absence of a request to do so, have the court reporter record all the proceedings unless the same is waived.