White v. State

OPINION ON STATE’S MOTION FOR REHEARING

DOUGLAS, Judge.

The conviction is for the possession of narcotic paraphernalia for the purpose of subcutaneous injection of narcotic drugs in a human being. Two prior convictions for felonies less than capital were alleged for enhancement. The punishment was assessed at life under Article 63, V.A.P.C.

The record reflects that officers, armed with a search warrant, went to appellant’s apartment where Judy Guillory stated that she had given appellant fifteen dollars so that he could purchase two capsules of heroin, one for him and one for her, and that he would be returning shortly. She also told the officers that appellant kept his rig (narcotic paraphernalia) in a gas heater in the bathroom. When appellant returned to the apartment and saw the officers, he ran and threw two capsules of heroin in a gutter where it was later recovered.

When the officers found the paraphernalia appellant stated, “That’s my stuff.” The paraphernalia contained traces of heroin and consisted of ten hypodermic needles, an eyedropper and a bottle cap.

Appellant stipulated that he was the person who had been convicted for the prior offenses as alleged in the indictment.

In the first ground of error it is contended that the court erred in admitting the evidence found as a result of the search, because the affidavit upon which the search warrant was based did not contain sufficient facts to show probable cause under Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and other United States Supreme Court decisions.

The affidavit, made by Paul DeLa Rosa, Jr. on October 27, 1967, recites that he had good reason to believe that Lionel A. White possessed heroin and it is now concealed at the apartment described in the affidavit. He was informed on October 26, 1967 by two reliable, credible and trustworthy citizens of Galveston County that appellant was involved in illicit narcotic traffic and that he kept a ready supply of heroin at the apartment; that White kept the heroin either on his person while at the apartment in the bedroom at said apartment, in clothing or under-clothing worn by White or located at said apartment; that one of the informants stated that he had gone to the apartment on several prior occasions and purchased narcotic drugs from White and that the drugs had been secreted at the premises; that the two credible persons had given him information on previous occasions upon which he relied and which proved to be correct; that he further relied on the above information and had kept the premises and White under surveillance and had seen White go to and leave the premises at all hours in the company of persons of disreputable character.

The affidavit contained sufficient facts for the magistrate to conclude that probable cause existed. Crotts v. State, Tex. Cr.App., 432 S.W.2d 921. See Aguilar v. State, Tex.Cr.App., 444 S.W.2d 935, and the cases therein cited. The first ground of error is overruled.

In the second ground of error complaint is made because the court allowed the State to introduce into evidence the statement of Judy Guillory to the officers that appellant had gone to buy some heroin for their use and that appellant kept the paraphernalia in the gas heater in the bathroom near the apartment. He objected to this testimony on the grounds that it was hearsay and that he was not confronted with the witness at the trial. He contends that the State did not produce the witness or account for not doing so.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, relied upon by appellant, Bruton was tried jointly with Evans. A confession made by Evans inculpating Bruton was introduced. The trial court instructed the jury that a co-defendant’s confession inculpating Bruton had to be disregarded on his guilt or innocence. The Supreme Court held “ * * * that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. * * * ” In footnote number 3, the Court stated:

“We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence, see Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196, the problem arising only because the statement was (but for the violation of Westover, [Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694] supra, n. 1) admissible against the declarant Evans. * * * There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause.”

The Supreme Court of the United States has held that the hearsay exception to statements made during the progress of a conspiracy is not in conflict with the Confrontation Clause. Delaney v. United States, 263 U.S. 586, 590, 44 S.Ct. 206, 68 L.Ed. 462 (1924).

In Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, 826, the offense was possession of heroin. A conspiracy between Alvarez and Agüero was shown. This Court stated:

“The acts and declarations of one co-conspirator are admissible against other conspirators during the furtherance of the conspiracy.”

In Saddler v. State, 167 Tex.Cr.R. 309, 320 S.W.2d 146, this Court held:

“The rule is well settled that the acts and declarations of one conspirator during the furtherance of the conspiracy are admissible against the other conspirators.”

Saddler was expressly based, in part, on Aguero v. State, 164 Tex.Cr.R. 265, 298 S.W.2d 822, and on Angle v. State, 165 Tex.Cr.R. 305, 306 S.W.2d 718, 723, where this Court stated that “ * * * the acts of appellant’s co-conspirator which took place during the existence of the conspiracy were admissible.” See also Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49, 50.

Such acts or declarations are admissible even though they are made outside the presence of the co-conspirator on trial. Braley v. State, 156 Tex.Cr.R. 15, 238 S.W.2d 539; Bannister v. State, 112 Tex. Cr.R. 158, 15 S.W.2d 629; Saddler v. State, supra, and Aguero v. State, supra.

Appellant contends that the conspiracy was complete when the agreement to purchase the heroin was made, and therefore the statements of Judy Guillory to the officers were not admissible.

The substantive crime of conspiracy was complete at the time of the agreement. Article 1623, V.A.P.C. There was sufficient evidence for the trial court to conclude that the final objective of the conspiracy, the injection of the heroin, had not been completed. A conspiracy is not finally terminated until everything has been done that was contemplated to be done by the conspirators. Robins v. State, 134 Tex.Cr.R. 617, 117 S.W.2d 82.

In Adamson v. State, 113 Tex.Cr.R. 335, 21 S.W.2d 675, a building was burned to collect insurance. This Court held that testimony of several witnesses showing transactions after the burning of the building was admissible, because the conspiracy had not terminated where the insurance had not been collected nor the accomplice paid.

Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263, held that the statement and the fact that a co-conspirator pointed out the tools used in, and the stolen property taken from, the burglary were admissible where the stolen property had not been finally disposed of.¹

There was sufficient evidence to show the existence of the conspiracy. The acts and declarations of appellant and the finding of the paraphernalia where Judy Guil-lory said it would be was sufficient for the trial court to conclude a conspiracy existed. The agreement of the parties to act together in an unlawful act or design may be established by circumstantial evidence. Price v. State, Tex.Cr.App., 410 S.W.2d 778; Westfall v. State, Tex.Cr. App., 375 S.W.2d 911; Roberts v. State, Tex.Cr.App., 375 S.W.2d 303.

From our holdings in Agüero, Saddler and Angle, previously discussed, it can be readily seen that the rule in Texas does not require the incriminating acts or declarations to “ * * * be in the furtherance of the conspiracy.”

The Uniform Rules of Evidence has adopted in substance the same position and would allow the admission of any act or statement of a co-conspirator which is relevant to the conspiracy and is made during the course of the conspiracy.²

The statements by the co-conspirator Guillory in the present case were properly admitted as an exception to the hearsay rule.³ No error is shown.

The second ground of error is overruled.

In the third ground of error, it is contended that the trial court erred in admitting a statement made by appellant while he was under arrest and was not warned in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

After appellant entered the apartment building he saw the officers, ran and threw the heroin. When the officers showed him the narcotic paraphernalia within three or four minutes after he was apprehended, appellant stated, “That’s my stuff.” At the time he appeared to be nervous and out of breath.

The trial court did not err in holding that the statement was res gestae. Article 38.22, Sec. 1(f), V.A.C.C.P., provides in part: “Nothing contained herein shall preclude the admissibility * * * of any statement that is the res gestae of the arrest or of the offense.”

In Gonzales v. State, Tex.Cr.App., 410 S.W.2d 435 (1966), cert. denied 387 U.S. 925, 87 S.Ct. 2044, 18 L.Ed.2d 982, this Court held that after an arrest, an oral confession with regard to heroin was admissible under the res gestae exception where the confession was made within seconds after the officers entered the apartment. In Sparks v. State, 161 Tex.Cr. R. 100, 275 S.W.2d 494, the conviction was for possessing marihuana. Sparks, who appeared to be nervous and excited, made a statement some ten minutes after his arrest that “I guess I will get ten years for this.” The court held the statement was a part of the res gestae on the issue of possession of marihuana. See Moore v. State, Tex. Cr.App., 440 S.W.2d 643; Ramos v. State, Tex.Cr.App., 419 S.W.2d 359. In McCormick & Ray, Texas Law of Evidence, Sec. 1212, p. 88, is found:

“Of course, where the statements or acts of the accused satisfy the requirements of some other exception to the hearsay rule, e. g. spontaneous exclamations (res gestae) they are admissible even though they are incompetent as confessions because made while under arrest.”

Miranda v. Arizona, supra, does not prohibit the introduction of volunteered statements.

The third ground of error is overruled.

The State’s motion for rehearing is granted. The reversal is set aside and the judgment is affirmed.

1 . The record shows that Judy Guillory was not under arrest at the time and had not been arrested at the time of the trial. Even if one is under arrest, it does not necessarily mean a withdrawal from the conspiracy. In Howell v. United States, (U.S.D.C., Illinois) 300 P.Supp. 1017 (1969), the Court stated:

“While the law is clear that an ‘arrest or incarceration may constitute a withdrawal from a conspiracy, it does not follow that in every instance it must.’ United States v. Agueci, 310 F.2d 817, 839 (2nd Cir. 1962), cert. denied Guippone v. United States, 372 U.S. 959, 83 S.Ct. 1013, 10 L.Ed.2d 11 (1962). In most of the cases to which petitioner refers as examples of situations wherein an arrest did constitute a withdrawal from a conspiracy, the arrest was for the crime of conspiracy. Gay v. United States, 322 F.2d 208, 209 (10th Cir. 1963) ; Cleaver v. United States, 238 F.2d 766, 768 (10th Cir. 1956) ; United States v. Cohen, 197 F.2d 26 (3rd Cir. 1952). However, in the instant case, as in United States v. Agueci, 310 F.2d 817, 838 (2nd Cir. 1962), the arrest which is said to have constituted withdrawal from the conspiracy was not for the crime of conspiracy, but for another violation. As possession of narcotics and conspiracy to violate the narcotics statutes are separate and distinct crimes, Id. at 828, an arrest for violation of a state narcotics possession charge does not logically constitute withdrawal from a conspiracy in violation of federal law. Thus, it cannot be said that petitioner withdrew from the conspiracy until he was arrested in early May, 1963, in Chicago, Illinois, on the federal conspiracy charge.”

2 . See Howell v. United States, supra. At page 1020, the Court noted:

“Finally, under the standard phrasing of the co-conspiracy exception, to be admissible, the incriminating statements must be in furtherance of the conspiracy. Commentators now recognize that the furtherance requirement is rarely literally applied to restrict admissible evidence to those statements which were made to advance the conspiracy, but is generally invoked to include any statement of a co-conspirator which is relevant to the conspiracy and is made during the course of the conspiracy. Comment, The Hearsay Exception for Co-conspirators’ Declarations, 25 U.C.L.Rev. 530, 531 n. 5 (1958). The Uniform Rules of Evidence, Rule 63(9) (b) adopts such a position.”

3 . The contention that the absence of Judy Guillory was not accounted for is perhaps answered by appellant’s own testimony during the hearing on the motion to suppress evidence when he testified that she was his common law wife. Article 38.11, V.A.C.C.P., provides, among other things, that a wife shall in no case testify against her husband in a criminal prosecution (except in cases where certain crimes are committed against her or her children). Common law marriages are recognized in Texas.