State v. Julian Maldonado ( 2002 )

                                   NUMBER 13-01-783-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                                CORPUS CHRISTI

THE STATE OF TEXAS,                                                         Appellant,

                                                   v.

JULIAN MALDONADO,                                                           Appellee.

                         On appeal from the 36th District Court

                               of San Patricio County, Texas.

                          MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Dorsey and Rodriguez

                                  Opinion by Justice Dorsey

  

The State appeals the granting of appellee Julian Maldonado=s motion to suppress evidence seized pursuant to a search warrant. By one issue, the State complains that the trial court erred in finding the search warrant void and that the seizure was unlawful.   We reverse and remand.

Appellee argues that because the caption found under the heading for the search warrant reads AArticle 18.02(10), Texas Code of Criminal Procedure,@^[1] the justice of the peace, who does not have a license to practice law, could not have authorized the search warrant.  A[O]nly a judge of a municipal court of record or county court who is an attorney licensed by the State of Texas . . . may issue warrants pursuant to Subdivision (10), Article 18.02 of this code.@  Tex. Code Crim. Proc Ann. art 18.01(c) (Vernon Supp. 2003).

The body of the search warrant, as well as the accompanying affidavit, authorized a search and for seizure of cocaine. See Mason v. State, 838 S.W.2d 657, 660 (Tex. App.BCorpus Christi 1992, pet. ref=d) (AWe read the affidavit and warrant together and interpret them in a common sense and realistic fashion.@).  The warrant was for the search and seizure of Adrugs kept, prepared, or manufactured in violation of the law of this state.@  Tex. Code Crim. Proc Ann. art 18.02(7) (Vernon Supp. 2003). Article 18.01(a) allows a justice of the peace who is not a lawyer to issue a search warrant for illegal drugs. Tex. Code Crim. Proc Ann. art 18.01(a) (Vernon Supp. 2003); Chavez v. State, 769 S.W.2d 284, 286 (Tex. App.BHouston [1st Dist.] 1989, pet. ref=d.); see Wall v. State, 878 S.W.2d 686, 688-89 (Tex. App.BCorpus Christi 1994, pet. ref=d).  Accordingly, Justice of the Peace Simpson has authority to issue such a warrant.  That the warrant was titled under an inapplicable section of the Code of Criminal Procedure is not controlling.  The trial court erred in granting the motion to suppress and ruling the evidence inadmissible.  Issue one is sustained.

We reverse the trial court=s order and remand the case for further proceedings consistent with this opinion.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 19th day of December, 2002.

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^[1] This type of warrant authorizes the search and seizure of Amere evidence.@  State v. Young, 8 S.W.3d 695, 699 (Tex. App.BFort Worth 1999, no pet.).