# Ruiz v. State > Court of Criminal Appeals of Texas · September 23, 1970 · 457 S.W.2d 894 URL: https://www.frixlaw.com/law-library/cases/9681639 ## Case - **Full name:** Alma Rodriguez RUIZ, Appellant, v. the STATE of Texas, Appellee - **Court:** Court of Criminal Appeals of Texas - **Decided:** September 23, 1970 - **Citations:** 457 S.W.2d 894; 1970 Tex. Crim. App. LEXIS 1289 - **Precedential status:** Published - **Opinion:** Dissent by Woodley - **Judges:** Douglas, Onion, Woodley, Belcher - **Cited by:** 20 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/9681639 ## Opinion text WOODLEY, Presiding Judge, (dissenting)- Represented by the same retained counsel and separately indicted for the offense of unlawful possession of heroin, appellant Ruiz and Marcello T. Flores, Jr., appellant in our Cause No. 42,438, 457 S.W.2d 902 , filed identical motions to suppress evidence, agreed to be tried jointly and waived a jury. The motion to suppress was heard and overruled. At the hearing the affidavit for search warrant, the warrant and the return of the officer-affiant, Texas Highway Patrolman Everette H. Hewett, were introduced by appellants and the magistrate who issued the warrant was called by appellants and testified. The evidence which appellants sought to suppress, which was afterwards admitted, is reflected in the return of Patrolman Hewett, the officer executing the search warrant: “On December 8, 1968, at approximately 1:30 AM, I, Everette Hewett, served this search warrant by going to room # 10 of the Victoria Motel which is located at 709 East Rio Grande Street in the City and County of Victoria, Texas and searched said room. “During the search I found Alma Rod-rigues Ruiz and Marcello Flores to be in the room. Kenneth Bertling, Jerry Renfroe, Tom Kennedy and Jesse Ramirez assisted me in serving this search warrant. During the search we found ten small packets of heroin which I retrieved from the commode when Mar-cello Flores threw them in and tried to flush them down. Also found were two hypodermic syringes just outside the bathroom window where they had been thrown out by MarceZo Flores and a spoon which showed evidence of being used to cook heroin before injecting it. “We further found two measuring spoons on the right-hand top dresser drawer that was in the room. Also seized were what I believed to be pentobarbital capsules, secobarbital capsules, amphetamine capsules and amphetamine-barbiturate combination capsules. “All these items were seized along with $923.35 which were in the possession of Alma Rodriguez Ruiz.” In support of his motion to suppress, appellants’ counsel argued before the trial court and cited the concurring opinion in Gaston v. State, Tex.Cr.App., 440 S.W.2d 297 , cert. denied, 396 U.S. 969 , 90 S.Ct. 452 , 24 L.Ed.2d 435 . As to that portion of such concurring opinion which convinced its writer that “there is more than hearsay here involved,” appellants’ counsel’s only attempt to distinguish Gaston was: “Then again, like I say, the Court came to grips with Spinelli, on March 12, Judge Onion that concurred there, but it is clearly distinguishable from this case because the affidavit is by far much different and much better than this one. However, I believe Judge Onion in concurring, discusses all these cases very well and points to the Aguilar, the Jones decisions. And this just doesn’t meet the test at any point, Your Honor. This *901 wouldn’t even meet the test, we feel, under Aguilar.” The opinion prepared by Judge Douglas, who did not participate in the disposition of the appeal in Gaston v. State, supra, sets out the affidavit upon which the search warrant in the cases before us was issued and holds that there are neither sufficient facts nor underlying circumstances to show probable cause for the issuance of the search warrant, citing Giordenello v. U. S. An affidavit for search warrant may be based on personal observation of the af-fiant or hearsay or a combination of both. U. S. v. Flanagan, 5th Circuit, 423 F.2d 745, 747 ; Gonzales v. Beto and Acosta v. Beto, 5th Circuit, decided May 6, 1970, 425 F.2d 963 . The affidavit of Texas Highway Patrolman Hewett upon which the search warrant was issued reflects that it was not based upon hearsay alone. On December 7, 1968, Patrolman Hewett solemnly swore that on or about the 7th day of December, 1968, in Victoria County, Texas, Alma Ruiz, Alias Janie Ruiz, unlawfully possessed heroin. In Gaston, supra, the affiants swore that “a certain building, house and place occupied and used as a private residence, located in Austin, Travis County, Texas, described as a white frame two story house located at 608 East 19½ Street, Austin, Travis County, Texas, with the bottom apartment, which is to be searched, facing and being entered from 19½ Street, and being the building, house or place of Shar-land Elizabeth Reeves, W-F approximately 21, 5'6", brown hair with bangs, blue eyes and other person or persons unknown to affiants by name, identity or description, is a place * * The affidavit in the case at bar continues : “and I have good reason to believe and do believe that said narcotic drug is now concealed by Alma Ruiz, Alias Janie Ruiz, in said County and State, in Room 10 of the Victoria Hotel * * In Gaston, supra, the affidavit continued: “where we each have reason to believe and do believe that said party so occupying and using as a private residence the said house and place has in her possession therein narcotic drugs * * *.” In the case at bar the affidavit sets out facts which affiant swore he knew, upon which his belief was based. In Gaston the affidavit set out information received from a credible and reliable informant upon which the affiants based their belief. Like the case at bar, Gaston was a trial on a plea of not guilty and the sufficiency of the affidavit to show probable cause for the issuance of the search warrant was the sole issue raised on appeal. This court held that the affidavit in Gas-ton was sufficient, two of the four Judges participating expressing the view that there was more than hearsay in the affidavit, and affirmed the conviction. Since the trial of the case at bar the Supreme Court denied certiorari in Gaston, supra. Appellants’ counsel state in their briefs: “The appellants have found no case comparable to the case now before the court.” Nor have I. Unfortunately the Supreme Court will not have the opportunity to pass upon the sufficiency of the affidavit in the cases at bar, as it did in Gaston v. State. I would hold the affidavit sufficient to show probable cause. BELCHER, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9681639. Public record. Not legal advice.