Lee v. State

322 S.W.2d 260, 167 Tex. Crim. 608, 1958 Tex. Crim. App. LEXIS 3570

• Court: Court of Criminal Appeals of Texas
• Decided: October 8, 1958
• Docket: 29701
• Status: Published

Opinions

DICE, Judge.

Upon a trial before the court without a jury, appellant was convicted of unlawfully possessing policy paraphernalia and his punishment assessed at a fine of $500.

Vice-Squad Officer B. G. Bond of the Houston Police Department testified that on the day in question, he observed the appellant driving alone in a 1957 Ford Automobile on Holman Street in the city of Houston; that he followed the appellant and after he stopped, proceeded, under the authority of a search warrant, to search the automobile which appellant was driving; and in the search he found in the glove compartment fourteen T & L policy books, various “days plays,” report sheets and cash in the amount of $230.21. After qualifying as an expert he further testified that the items found in the glove compartment of the automobile were adaptable for use in connection with a policy game.

It was further shown that the license number on the automobile which appellant was driving was issued to a person by the name of C. R. Lee.

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

In his brief and in oral argument appellant contends that both the complaint and information are invalid because they did not set out the written instruments that constituted the policy plays which he was charged with having possessed. While appellant filed no exception or motion to quash in the trial court we have examined both the complaint and information and find the allegations therein sufficient to charge the offense. The failure to set out the written instruments that constituted the policy plays did not render the pleadings insufficient to charge an offense. Cagle v. State, 147 Texas Cr. Rep. 354, 180 S.W. 2d 928.

Appellant next insists that the search of the automobile was illegal because of certain claimed defects in the affidavit for the search warrant and the warrant itself. The record reflects that both the search warrant and the affidavit were produced by the state, marked for identification purposes only and in making his objection thereto, counsel for the appellant read certain portions thereof from the affidavit to the court and secured the court’s ruling on such objections. Though appellant’s counsel had these in his hand he has not perfected his bill of exception by transmitting them to us. Neither instrument appears in the record before us, therefore the question of the legality of the search is not presented for review. Bailey v. State, 157 Texas Cr. Rep. 315, 248 S.W. 2d 144; Williams v. State, 159 Texas Cr. Rep. 487, 264 S.W. 2d 731 and DeLeon v. State, 164 Texas Cr. Rep. 48, 297 S.W. 2d 140. This is so because the validity of a search warrant is a question of law. Having secured a ruling from the trial court that they were valid, the state made out a prima facie case authorizing the search. In order to defeat the prima facie case so made out, it became incumbent upon the accused to bring the warrant and the affidavit to this court so that we may pass upon the correctness of the trial court’s ruling. It should be remembered that this is not a case where the officers merely said they had a search warrant but failed to produce the same. Here they produced the warrant and secured a ruling from the trial court that the warrant was a legal warrant. If the court was in error in such ruling, then it became incumbent upon the appellant, as in any other case, to bring the warrant before this court so that we might pass upon the question so raised.

The state had no burden in the trial court to establish to the satisfaction of this court that the search was lawful. The burden on the state was to satisfy the trial judge of such fact. It is the well established rule of appellate review in this court, if not all appellate courts, that the ruling of a trial judge is presumed to be correct and the burden rests upon the appellant to establish the contrary.

Without the search warrant and affidavit or evidence of their contents we are in no position to say that the trial court erred in admitting evidence obtained by the search under such warrant.

We find no error in the court’s action in permitting Officer Bond to explain the game of policy and to describe how the various items taken from the automobile driven by appellant were used in the game. The officer was shown to be qualified as an expert and, as such, was authorized to give such testimony. Grigsby v. State, 164 Texas Cr. Rep. 248, 298 S.W. 2d 595.

Appellant contends that Art. 642c, sec. 2, V.A.P.C., under which he is prosecuted, is invalid and unconstitutional because it does not define a policy game and delegates legislative power to police officers or experts to determine what is “adaptable for use in any policy game.” With this contention we cannot agree. Whether or not a “writing, paper, print,” etc., was “designed or adaptable” for such use would be a question of fact, like any other question of fact, upon which proof might be offered.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment of the trial court is affirmed.

Opinion approved by the Court.