Keen v. State

626 S.W.2d 309, 1981 Tex. Crim. App. LEXIS 873
CourtCourt of Criminal Appeals of Texas
DecidedJanuary 21, 1981
Docket59828 to 59830
StatusPublished
Cited by68 cases

This text of 626 S.W.2d 309 (Keen v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keen v. State, 626 S.W.2d 309, 1981 Tex. Crim. App. LEXIS 873 (Tex. 1981).

Opinions

OPINION

TOM G. DAVIS, Judge.

Appeals are taken from convictions for possession of more than four ounces of marihuana.1 In a trial before the court, the appellants were found guilty and appellant Keen’s punishment was assessed at four years, probated, and a fine of $4,000.00, appellant Teixeira’s punishment was assessed at three years, probated, and a fine of $500.00 and punishment as to appellant Boren was assessed at three years, probated, and a fine of $2,500.00.

Initially, all of the appellants challenge the validity of the search warrant officers were executing at the time the marihuana was recovered. They contend that the warrant was invalid because the person who signed it was not a magistrate as required by Art. 18.04(4), V.A.C.C.P.

The search warrant in question was signed on November 24,1976, by the Honorable Mark Schreiber, Judge of the Municipal Court for the City of Austin. The record reflects that on August 5,1976, the City Council of Austin appointed the Honorable Sarah Denton as Presiding Judge for the Municipal Courts. On September 30, 1976, Schreiber was appointed by the City Council to fill a vacancy as an Associate Municipal Court Judge. Finally, on March 3,1977, the Council passed an ordinance providing for four municipal courts with a judge for each court.

It is thus the appellants’ contention that Schreiber was not properly in office at the time he signed the warrant in question. They maintain that at the time the warrant was signed, the only authorized Municipal Judge for Austin was Denton.

Appellants’ reliance on French v. State, Tex.Cr.App., 572 S.W.2d 934, is misplaced. In French, it was held that without the taking of the oath prescribed by the Constitution of this State, one cannot become either a de facto or de jure judge, and his acts as such are void. In the instant case, there is no question presented concerning Schreiber taking the oath of office when he was appointed in 1976. Further, it is undisputed that Schreiber was acting under color of office at the time he signed the search warrant.

In Snow v. State, 134 Tex.Cr.R. 263, 114 S.W.2d 898, it was held that when a judge is holding office under color of title by appointment and discharging the duties of the office, the only way his title to office could be determined was by a direct proceeding instituted for that purpose in a court of competent jurisdiction. Thus, in Ex Parte Lefors, 171 Tex.Cr.R. 229, 347 S.W.2d 254, this Court declined to address the merits of the petitioner’s contention that the judge who presided over his theft trial was not qualified to be in office. See Archer v. State, Tex.Cr.App., 607 S.W.2d 539.

We find that the appellants’ grounds of error represent an impermissible collateral attack upon Schreiber’s authority to hold office. If the appellants desire to challenge [312]*312such authority, they must bring a direct action through a quo warranto proceeding. See Saenz v. Lackey, 522 S.W.2d 237 (Tex. Civ.App.-Corpus Christi, 1975, writ ref’d. n.r.e.). Appellants’ grounds of error are overruled.

The appellants next contend that in executing the search warrant, officers illegally seized four hundred and eighty-five pounds of marihuana from the trunks of two automobiles. They maintain that the affidavit supporting the search warrant does not contain sufficient information to constitute probable cause for the search of the automobiles.

The affidavit describes the residence to be searched and further states that all motor vehicles and outbuildings appurtenant to the residence are to be searched. The affidavit supporting the search warrant states in pertinent part as follows:

“Your affiant received information from a reliable and credible informant that an individual known only as ‘ROGER’ described as a w/m about 25 years old 5' 8"-5' 10" tall with long brown hair is keeping for the purpose of sale a controlled substance to wit: marijuana at the above described residence located in Travis, County, Texas. Your affiant’s informant has been present inside the above described residence within the past 72 hours and has observed ‘ROGER’ in possession of a quantity of marijuana which ‘ROGER’ has offered for sale to persons who came to the residence. Your affiant’s informant further stated that ‘ROGER’ utilizes several different vehicles to transport the marijuana to and from the above described residence. “Although your affiant does not desire to name the informant, the informant’s reliability and credibility have been established in the past by the fact that the informant has given your affiant information in the past that has always proven to be true and correct and the information has resulted in the seizure of controlled substances in violation of the controlled substances act.” (Emphasis added).

Wolsch stated that the residence named in the warrant was searched first. Officers found approximately sixty-three ounces of marihuana located in various rooms throughout the residence. Wolsch testified that there was a long driveway from the main road to the house. It was estimated that this driveway was approximately three hundred feet in length. Wolsch related that officers observed two cars parked approximately seventy-five feet from the house. After the house was searched and marihuana found, the officers broke open the trunk compartments to the automobiles. Within the trunks were burlap bags which contained four hundred and eighty-five pounds of marihuana.

An affidavit in support of a search warrant must contain sufficient information to support a magistrate’s finding of probable cause. Wood v. State, Tex.Cr.App., 573 S.W.2d 207. The affidavit must contain the underlying circumstances which lead to the informant’s conclusion of guilt and underlying circumstances which lead affiant to believe that informant was credible and reliable. Etchieson v. State, Tex. Cr.App., 574 S.W.2d 753.

In the instant case, the affidavit contains the underlying circumstances which lead to the informant’s conclusion that marihuana was contained within the home. Guerra v. State, Tex.Cr.App., 496 S.W.2d 92. However, as to the automobiles, the affidavit recites nothing more than a conclusion on the informant’s part as to the utilization of automobiles to transport marihuana. Nevertheless, this defect does not render the warrant as a whole defective. Walthall v. State, Tex.Cr.App., 594 S.W.2d 74.

We will thus consider whether a search of the automobiles was beyond the scope of the warrant which validly authorized a search of the residence. As noted above, the cars were searched after marihuana was found in the home. It should be remembered that the appellants were charged with the possession of over four ounces of marihuana and the record reflects that sixty-three ounces of marihuana were found in the home.

[313]*313In Long v.

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Bluebook (online)
626 S.W.2d 309, 1981 Tex. Crim. App. LEXIS 873, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keen-v-state-texcrimapp-1981.