Mattei v. State

455 S.W.2d 761, 1970 Tex. Crim. App. LEXIS 1449

• Court: Court of Criminal Appeals of Texas
• Decided: May 6, 1970
• Docket: 42468
• Status: Published

Opinions

OPINION

WOODLEY, Presiding Judge.

The offense is unlawful possession of marihuana; the punishment, 40 years.

Trial was before a jury on a plea of not guilty. Punishment was assessed by the court.

The sufficiency of the evidence to sustain the conviction is not challenged. The evidence admitted before the jury reflects that Detective Lieutenant Homer E. Shelton and Detective Cordus Jackson, Jr., accompanied by other police officers of the City of Killeen and by Criminal Investigation Division personnel of nearby Ft. Hood, Texas, searched apartment 5 of the East Gate Apartments at 925 West Ran-cier, Killeen, Texas, which appellant had rented a few weeks before. Appellant was arrested and 870 grams (slightly less than two pounds) of marihuana in the following described envelopes and paper bags was found and seized:

From dresser drawer in bedroom, 51 small manila envelopes which “had markings on them indicating five dollars, ten dollars, twenty dollars, things of that nature.”

From a brown paper bag in the bedroom, 11 small manila envelopes;

From a suitcase in the bedroom closet, 5 small manila envelopes, a one pound bag, and another brown paper bag.

Officer Homer E. Shelton was the first witness for the state to testify before the jury. Having testified that he had occasion on December 10, 1968, to go to the East Gate Apartments, and having named the Killeen Police Officers and the members of the Narcotic Section, CID at Ft. Hood who accompanied him, he was asked and answered:

“Q. What was your purpose in going to Apartment No. 5 of the East Gate Apartments on this date ?

“A. We went there with a search warrant for the purpose of searching apartment Number Five for narcotic drugs.”

At this point appellant’s counsel, who had prepared a motion to suppress and objection to the search, requested voir dire examination of the witness out of the presence of the jury, which was granted.

The voir dire examination of the witness Officer Shelton having disclosed that the search of appellant’s apartment on December 10, 1968, pursuant to a search warrant issued on December 8, 1968, was made by Officer Shelton and not by Detective Cordus Jackson, Jr., to whom the search warrant was delivered, appellant objected that the search of appellant’s apartment was an illegal search in violation of the Fourth Amendment of the Constitution of the United States; Sec. 9, Art. I of the Constitution of Texas, Vernon’s Ann.St., and Arts. 11.01 and 18.14 of the Texas Vernon’s Ann.Code of Criminal Procedure. This claim of error is set forth in appellant’s brief as his first ground of error.

Art. 18.13 C.C.P. (5) provides that a warrant to search a suspected place be “directed to the sheriff or any peace officer of the proper county.”

While Officer Cordus Jackson, Jr., was engaged in searching another apartment when the search of appellant’s apartment commenced, he arrived shortly thereafter and participated in the search.

During the voir dire examination of Officers Shelton and Cordus Jackson, in connection with his “motion to suppress and objection to introduction of marihuana in evidence,” which he was permitted to file during the hearing, appellant introduced evidence to the effect that an affidavit for search warrant was made by Cor-dus Jackson, Jr. on December 5, 1968, and a search warrant issued and “returned un-served” the same day was introduced as Defendant’s Exhibit No. 1. Also the search warrant issued December 8, 1968, and return thereon, was introduced as Defendant’s Exhibit No. 2, and the inventory and schedule of the property seized attached to the return was introduced as Defendant’s Exhibit No. 3.

The return on the search warrant issued December 8, 1968, showing the seizure of the marihuana and the arrest of appellant, and the inventory of the property seized, were signed by Cordus Jackson, Jr.

The search warrant introduced by appellant at the hearing on his motion to suppress complied with Art. 18.13 V.A.C.C.P., being directed to the sheriff or any peace officer of Bell County. The fact that an officer other than the affiant or affiants on the affidavit for search warrant conducted or assisted in the search does not render the evidence seized inadmissible. Vojel v. State, Tex.Cr.App., 417 S.W.2d 176.

Ground of error No. 1 is overruled.

The second ground of error is:

“The search warrant dated December 8, 1968, issued to Detective Cordus Jackson, Jr., was issued without a sworn complaint being first filed with the Justice of the Peace, who issued the same, and said warrant was, therefore, illegally issued and void.”

The search warrant dated December 8, 1968, introduced as Defendant’s Exhibit No. 2, recites on its face:

“Whereas, complaint in writing, under oath, has been made before me by Cor-dus Jackson, Jr., which complaint is hereto attached and expressly made a part hereof, and said complaint having stated facts and information in my opinion sufficient to establish probable cause for the issuance of this warrant * *

Also, as stated above, appellant introduced evidence that Cordus Jackson, Jr. had made affidavit for a search warrant on December 5, 1968.

Ground of error No. 3 is: “The Court erred in overruling Appellant’s Motion to Suppress the introduction of the marihuana in evidence,” and No. 4 is: “The Court erred in overruling Appellant’s objection to the introduction of the marihuana in evidence.”

Following the voir dire examination of Officer Shelton there was a conference held at the bench between counsel, and the court announced to the jury:

“* * * there is a certain witness in connection with this motion that is not here. He is up at Fort Hood or somewhere around Killeen, and it has necessitated a recess for forty-five minutes until they can get him here because we can’t proceed with the motion until we do, so consequently we will recess at this time for forty-five minutes. * * *”

Following the recess, Cordus Jackson, Jr. was called as a witness by the defense on voir dire in the absence of the jury and he identified “an original of a document” which he signed on December 5, 1968, as an affidavit for the issuance of a search warrant which he prepared and upon which the Justice of the Peace issued a search warrant on December 5, 1968, which was returned the same day. Cordus Jackson was closely examined as to why the search warrant issued on December 5, 1968, was returned unserved the same day, and testified in part: “Q. In other words, from the information that you had you weren’t sure that it (the marihuana) was there or not? A. I was sure it was in there but kind of like I said, I wasn’t sure whether or not there could have been anybody there; there wasn’t any lights on or anything to get in the place.”

At the conclusion of the hearing on appellant’s motion to suppress the court ruled: “The defendant’s motion to suppress is denied. Bring in the jury, Mr. Sheriff.”

Appellant’s able counsel forcefully argued in support of his motion to suppress that the affidavit made by Cordus Jackson, Jr. on December 5, 1968, could not be relied upon because a search warrant was issued upon such affidavit and returned unexecuted the same day. His principal argument is that the affidavit of Cordus Jackson, Jr. does not meet the requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, nor of Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.

The affidavit for search warrant dated December 5, 1968, is not a part of the Record on Appeal. It was not introduced at the separate hearing on the motion to suppress or at any time during the trial.

Appellant requested that the clerk include the affidavit in the record and objected to the Record on Appeal because it did not contain such affidavit. He presented to the court his Bill of Exception No. 1 complaining of the District Clerk’s refusal to include in the Record on Appeal the affidavit, “a true copy of which is attached,” and excepted to the action of the District Clerk in not incorporating the original affidavit for a search warrant and asked that the Bill of Exception be filed as a part of the record.

The trial judge refused the bill of exception, stating: “The Defendant’s Bill of Exception Number One does not recite that on May 1, 1969, the date upon which this case was tried before a jury, the affidavit for a search warrant was not introduced or offered into evidence in the hearing on the Defendant’s Motion to Suppress, or at any time before, after, or during the trial of this case, and that the affidavit not being introduced into evidence is, therefore, not properly made a part of the Record on Appeal in this case; Irwin v. The State, ([Tex.Cr.App.] 441 S.W.2d 203). I hereby refuse such bill.”

The clerk advised appellant’s counsel by letter that his Bill of Exception had been refused by the court; that the affidavit for search warrant was never a filed paper in his office which was the reason it was not included in the transcript. A copy of the clerk’s letter, appellant’s objection and Bill of Exception, which included a copy of affidavit, were added to the transcript.

Without regard to whether the trial court was in error in refusing the bill of exception, the copy of the affidavit for search warrant attached to the bill of exception which the court refused is not be-for us.¹

Without the affidavit upon which the search warrant was issued, we have only the fact that the search warrant dated December 8, 1968, was issued upon and affidavit made three days before, and that a search warrant had issued on the same affidavit and been “returned unserved.” This is not alone sufficient to show that the search warrant was issued without affidavit showing probable cause.

The rule applicable where the defendant seeks to suppress evidence by motion prior to its being offered is set out in the recent case of United States v. Thompson, 5th Cir., 421 F.2d 373, 377:

“There was uncontradicted testimony at the hearing that a Louisiana criminal district judge issued a warrant for the search, and this testimony was sufficient to establish the issuance of the warrant. See Castle v. United States, 5th Cir. 1961, 287 F.2d 657; United States v. Burkhart, 6th Cir. 1965, 347 F.2d 772. Since the issuance of a warrant was effectively established, the burden of establishing that the search was illegal was on movant-defendant. Rogers v. United States, 5th Cir. 1964, 330 F.2d 535; Batten v. United States, 5th Cir. 1951, 188 F.2d 75; Chin Kay v. United States, 9th Cir. 1962, 311 F.2d 317. Defendant, however, completely failed to sustain his burden of proving that the warrant was illegally issued or executed. Defendant had access to the public records where the warrant was filed; he could have introduced the document into evidence in order to prove that it was illegally issued or executed. He did not do so. In truth, defendant’s only complaint is that the prosecution did not introduce the warrant into evidence. We are aware of no rule of procedure, evidence or law that requires the prosecution to introduce a search warrant into evidence under such circumstances as are presented here. There was no error in the trial judge’s allowance of testimony concerning the evidence seized at the house of defendant’s mother.”

Rogers v. United States, 5th Cir. 1964, 330 F.2d 535, cert. denied, 379 U.S. 916, 85 S.Ct. 265, 13 L.Ed.2d 186, cited in United States v. Thompson, supra, states the rule as to burden of proof during the hearing on motion to suppress evidence as follows:

“There is one final question. The defendant maintains that he was unfairly prejudiced by being saddled with the burden of proof during his hearing on his motion to suppress evidence. During the hearing the judge stated it was his opinion that defendant, as the moving party, bore the burden of proof. At the end of the hearing, the district judge stated that he was willing to withdraw his opinion on burden of proof, and, giving the defendant the benefit of the doubt, he still ruled against the motion to suppress. We see no reversible error.

“As is true in so many other situations, the burdens of persuasion and of producing evidence in motions for the suppression of evidence have been badly confused. The burden of persuasion is properly and permanently placed upon the shoulders of the moving party. When a criminal defendant claims the right to protection under an exclusionary rule of evidence, it is his task to prove his case. Nardone v. United States, 1939, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307; Joseph v. United States, 5 Cir. 1956, 239 F.2d 524; Wilson v. United States, 10 Cir. 1955, 218 F.2d 754; United States v. Walker, supra [2 Cir. 1949, 176 F.2d 564]; United States v. Okawa, D.C.Haw.1961, 26 F.R.D. 384. In the areas of coerced confessions and illegal searches and seizures this rule is reinforced by the usual presumption of proper police conduct. 1 Wharton’s Criminal Evidence 238 (1955); 22A C.J.S.Criminal Law § 589(1), p. 355.

“The moving party must also bear the burden of producing evidence. If the essential evidence is not brought to light the motion must fail. It is true, however, that in asserting an illegal arrest the defendant must satisfy this burden by showing that the arrest was made without a warrant. While an arrest pursuant to a warrant is prima facie evidence of probable cause, Chin Kay v. United States, 9 Cir. 1962, 311 F.2d 317, 321; Batten v. United States, 5 Cir. 1951, 188 F.2d 75, 77, the prosecutor should be forced to come forward with evidence of probable cause in the absence of a warrant. Plazola v. United States, 9 Cir. 1961, 291 F.2d 56, 58; Wrightson v. United States, 1951, 95 U.S.App.D.C. 390, 222 F.2d 556. Without such a rule there would be little reason for law enforcement agencies to bother with the formality of a warrant. Furthermore, the evidence comprising probable cause is particularly within the knowledge and control of the arresting agencies.

“In the case before us the defendant had the burden of persuasion. He was not prejudiced by the district judge’s treatment to the contrary. The burden of producing evidence is never crucial unless certain necessary facts in a case are not aired. Here all of the salient facts were aired. Few were even in dispute. The defendant, therefore, was not prejudiced by the order in which the evidence was presented. And the district judge allowed defendant’s counsel to examine all of the witnesses as hostile. There is no prejudicial error in the record.”

Appellant failed to meet the burden of proving that the marihuana was obtained as the result of an unlawful search. The trial court did not err in overruling his motion to suppress.

The judgment is affirmed.

1 . Irwin v. State, supra; Doby v. State, Tex.Cr.App., 383 S.W.2d 418.