# Ex parte Mattei > Court of Criminal Appeals of Texas · November 4, 1970 · 458 S.W.2d 916 URL: https://www.frixlaw.com/law-library/cases/5036318 ## Case - **Full name:** Ex Parte Jose A. Mattei. - **Court:** Court of Criminal Appeals of Texas - **Decided:** November 4, 1970 - **Citations:** 458 S.W.2d 916; 1970 Tex. Crim. App. LEXIS 1622 - **Precedential status:** Published - **Opinion:** Dissent by Onion - **Judges:** Onion - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5036318 ## Opinion text DISSENTING OPINION ONION, Judge. I dissent to the action of the majority in denying the application for writ of habeas corpus. I would grant the same and set aside the conviction for the reasons set forth in my dissenting opinion in Mattei v. State, Tex.Cr.App., 455 S.W.2d 761 . And this is particularly true since the State has now conceded in oral argument that the affidavit quoted in such dissenting opinion is in fact the affidavit in question. I write further in view of the fact that the trial court and the majority of this court have consistently denied the petitioner any opportunity to vindicate his federal constitutional rights in state courts. On original submission the majority of this court affirmed without resolving the search and seizure issues raised finding the affidavit for the issuance of the search warrant not properly in the appellate record, using a state procedural rule that it was incumbent upon the appellant to see that such affidavit was contained in the appellate record to be considered on appeal. Now on this post conviction writ of habeas corpus the majority without any additional evidence shifts its position and finds, for the purpose of denying the petitioner an evidentiary hearing, that he waived his constitutional rights without any showing that he did so knowingly, voluntarily and intelligently. In his application for writ of habeas corpus petitioner alleges his conviction, obtained in violation of due process of law, is void for want of the jurisdiction of the court to enter such judgment. See Fifth and Fourteenth Amendments, U.S. Constitution; Fay v. Noia, 372 U.S. 391 , 83 S.Ct. 822 , 9 L.Ed.2d 837 ; Ex parte Young, Tex.Cr.App., 418 S.W.2d 824 . In said application the petitioner alleges he is illegally restrained in violation of his constitutional rights; that his conviction was obtained by use of evidence illegally seized. See Fourth Amendment, United States Constitution. Article I, Sec. 9, Texas Constitution, Vernon’s Ann.St. He alleges his apartment in the city of Killeen was searched on December 10, 1968, by virtue of a search warrant issued on December 8, 1968, without any affidavit supporting the same having ever been filed *921 with the magistrate. 1 He also contends that if the search warrant dated December 8 was in fact based upon an affidavit dated December 5, 1968, which had already served as the basis for a search warrant returned “unexecuted” that such procedure was legally impermissible. In the alternative he alleges that if such procedure was legally possible, such affidavit does not reflect probable cause and does not meet the requirements of Aguilar v. Texas, 378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 and Spinelli v. United States, 393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 . These issues were not resolved on appeal. 455 S.W.2d 761 . The majority concluded that the affidavit dated December 5, 1968, was not properly in the record before us and therefore whether it met the tests of Aguilar and Spinelli was not considered in the majority opinion. Further, with regard to the petitioner’s first contention, the majority opinion stated: “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 an 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.” Thus it is clear that the issues raised by petitioner were not fully resolved by the original appeal on the basis of a procedural default. Now as to the claim of waiver of a federal constitutional right, let’s examine the record which is described in some detail in 455 S.W.2d 761 . Prior to trial appellant’s counsel announced to the court that he intended to object to certain evidence if offered by the State. When the State sought to elicit evidence of the search appellant orally objected and filed his motion to suppress. At the hearing in absence of the jury appellant introduced the search warrant dated December 5, 1968, based on the affidavit of the same date. Such exhibit contained the phrase “which complaint is hereto attached and expressly made a part hereof.” The affidavit or complaint dated December 5 was handed to two officer-witnesses and identified by them in the presence of the trial judge as the affidavit filed by them on that date. Subsequently, appellant’s counsel read to the trial court from the affidavit and argued at length that it did not meet the tests of Aguilar and Spinelli. The same is contained within the transcription of the court reporter’s notes. It is a well established rule that that which is read into evidence without objection has the same effect as if the instrument had been introduced. The State in its brief on appeal acknowledged the affidavit was “quoted * * * to the court.” Upon discovering, after conviction, that the affidavit was not contained in the record, the appellant objected to the approval of the record for the failure to include the same. Despite the mandatory language of Article 40.09, Sec. 7, Vernon’s Ann.C.C.P., he was not accorded a hearing thereon by the trial court. He then sought to use a formal bill of exception attaching thereto a copy of the affidavit. See Article 40.09, Sec. 6, V.A.C.C.P. Such bill was refused. Having no other recourse, the affidavit was attached to the brief on appeal. As noted, the majority refused to consider the affidavit on appeal. Following the affirmance the appellant sought an evidentiary hearing under the provisions of Article 11.07, V.A.C.C.P. And as noted by the majority opinion he attached to his habeas application a copy of the affidavit in question. Once again, the trial judge denied a hearing. *922 In Henry v. Mississippi, 379 U.S. 443 , 85 S.Ct. 564 , 13 L.Ed.2d 408 , it was held that one convicted in state court after a trial in which illegally obtained evidence was admitted without contemporaneous objection is not precluded from pursuing vindication of his federal claim as to evidence in a federal habeas corpus proceeding, at least unless it is shown that he deliberately bypassed the orderly procedure of the state courts. It is difficult for me to see how it can seriously be claimed that appellant deliberately bypassed orderly procedure of the state and thereby waived his federal constitutional rights. In fact, it may be questioned whether he was even afforded the orderly procedures of the state. And it does not seem to me that the State’s insistence on compliance with its procedural rule involved serves such a legitimate state interest as should prevent vindication of a federal constitutional right even if it can be claimed there was a procedural default. Further, it must be borne in mind that the United States Supreme Court has always set high standards of proof for waiver of constitutional rights. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 . The waiver of constitutional rights will not be “lightly inferred” and the courts will “indulge every reasonable presumption against [the] waiver of fundamental constitutional rights.” Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 . The “waiver” referred to may be defined as “an intentional relinquishment or abandonment of a knpwn right or privilege.” Johnson v. Zerbst, supra. And it is now clear that such waiver must be knowingly, voluntarily and intelligently made. As stated in Brady v. United States, 397 U.S. 742 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 , “Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.” How then can there be waiver under this record with objections all along the way is difficult for me to comprehend. In Kaufman v. United States, 394 U.S. 217 , 89 S.Ct. 1068 , 22 L.Ed.2d 227 , the Supreme Court pointed out: “The Government concedes in its brief that we have already rejected this approach with respect to the availability of the federal habeas corpus remedy to state prisoners. This rejection was premised in large part on a recognition that the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake. Our decisions leave no doubt that the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial. See e. g., Mancusi v. DeForte, 392 U.S. 364 , 88 S.Ct. 2120 , 20 L.Ed.2d 1154 (1968); Carafas v. LaVallee, 391 U.S. 234 , 88 S.Ct. 1556 , 20 L.Ed.2d 554 (1968); Warden Md. Penitentiary v. Hayden, 387 U.S. 294 , 87 S.Ct. 1642 , 18 L.Ed.2d 782 (1967); see also Henry v. Mississippi, 379 U.S. 443, 452 , 85 S.Ct. 564 , 13 L.Ed. 2d 408, 415 (1965).” Petitioner, having now exhausted his state remedies, will undoubtedly proceed to federal court to seek the justice he has been denied by our state courts. For the reasons stated, I dissent. . Attention is called to the testimony of Officer Cordus Jackson that on December 8, 1968, no new affidavit was presented to the magistrate and that he had not obtained any additional information. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5036318. Public record. Not legal advice.