holding officers testimony that substance was believed to be marijuana was sufficient to support conviction for possession, even where State did not offer the seized marijuana into evidence
How later courts described this case
- holding officers testimony that substance was believed to be marijuana was sufficient to support conviction for possession, even where State did not offer the seized marijuana into evidence
- court rejected the affidavit even though it expressly asserted that the officer had personal knowledge of the recited conclusions: "the [arresting] officer's `personal knowledge' is but a conclusion, which like any other conclusion stated in an affidavit supporting a warrant must be supported by facts" (emphasis in original)
- "I believe that an attorney's unsworn statements made in a court of law are synonymous with sworn statements...."
- “the burden is on the defendant to include a contested affidavit supporting an arrest warrant in the record”
Written by the judges who cited it.
Later courts went against this
Overruled in part by Miller v. State, 736 S.W.2d 643 (1987)
See Russell, 717 S.W.2d at 10, citing Rumsey v. State, 675 S.W.2d 517 (Tex.Crim.App.1984), overruled in part in Miller v. State, 736 S.W.2d 643 (Tex.Crim.App.1987).
Distinguished
Distinguished by Ranulfo Ponce v. State (1996)
Rumsey is also distinguishable on its facts and its
The opinion
TEAGUE, Judge,
dissenting.
On page 520 of its opinion, the majority makes the following statements:
Notwithstanding the trial court’s misunderstanding of the law, no evidence appears in the record to suggest that the affidavit in question was not part of the public record in Williamson County available to defense counsel or that the State in any way prevented or hindered defense counsel from obtaining the affidavit. Defense counsel offered no evidence in support of his motion for continuance
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It has often been stated that “a good rule of law works both ways,” i.e., a good rule of law for the prosecution is a good rule of law for the defendant, and vice versa.
Just recently, in Canada v. State, 660 S.W.2d 528, 530 (Tex.Cr.App.1983), this Court was confronted with the question of how much credence we might give unsworn statements of the prosecuting attorney. There, this Court reaffirmed what it had held in Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975), namely, that unsworn statements of one of the attorney’s were sufficient to place the event in the record, and held that “[t]he record affirmatively establishes that the State’s witness was unable to testify at that time.” Such conclusion was supported solely by the prosecutor’s unsworn statements. Because I believe that an attorney’s unsworn statements made in a court of law are synonymous with sworn statements, I voted with the majority in Canada v. State, supra, which was only a 5-4 decision.
In this instance, Mr. Bruder, counsel for the appellants, stated, “I have been unable to secure from Williamson County the documentation supporting the arrest warrant ... I would like the opportunity to get those documents.”
It is obvious to me that Bruder had sought to obtain the documents from the authorities in Williamson County, but was unsuccessful. Thus, he relied upon the prosecution to bring the documents. By the majority opinion, the prosecution neither tendered to Bruder the documents nor did it account for the missing documents.
I find from Bruder’s statements that he sustained whatever burden he might have had. One of two things should have then taken place: (1) the prosecution should have come forth with the documents or (2) the trial court should have granted Bruder a continuance so that he could attempt to find the documents.
If it is the intention of the majority to apply the rule of law that this Court adopted in Canada v. State, supra, only where we are dealing with unsworn statements of a prosecutor, then please show me voting to overrule Canada v. State, supra.