Petition for Writ of Certiorari — Alaniz v. McCotter

Supreme Court, U.

85-1906 oe”

NO. MAY 12 1908

scot a — JR.

, L__—_—

In the

Supreme Court of the United States

OCTOBER 1985 TERM

ADELFINO ALANIZ, PETITIONER

v.

O.L. McCOTTER, DIRECTOR-

TEXAS DEPARTMENT OF CORRECTIONS,

RESPONDENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DOUGLAS TINKER DONALD B. DAILEY, JR.

P.O. Box 276/512-882-4378 622 S. Tancahua/512-884-8745

Corpus Christi, TX 78403 Corpus Christi, TX 78401

State Bar No. 20056000 State Bar No. 05317500

ATTORNEY FOR PETITIONER ATTORNEY FOR PETITIONER

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals erred in holding that peti-

tioner’s Fourth Amendment claims were fully and fairly

considered in the state appellate court.

ii

TABLE OF CONTENTS

Question Present for Review ...........sccssssessssseserseeneenensens i

Pdshe Gf COmARIAUR cicvecncnssecascccssnssassssevenssecsnacesnnsnsebeovenvsesteaten ii

Table of Case Authorities ..............ccsccccccccsccrcrcrsrsrsrsssees iii

Opinion Below .........:csccccessesseseseseseesessscssssestsseeseseenennenseaenns 1

Statement of Jurisdiction ............cccccccccccccccccccsccecerceeceeeeeeees 1

Constitutional Provisions, Statutes, and Rules ............... 1

Statement Of the Case ......ccsecccccscccsscscccsceccccsesccscsssssevencssvess 2

A. Course of Proceedings .............:cccccesesserresesseeseenees 2

B. Statement OF Fates .......cccccccseerscscsssccccsecccvscsssensonsons 3

Summary of the Argument ............csssseeesseeeseensseeeeeeeeenees 7

Argument

A. The Stone Background ................::ccccccseessnereereeesseeee 8

B. Procodcaral DeGRNs ..nccccccecccsscsscasssesscconssscnsessscctennsens 9

C. Exigent Circumstances ...........cssesesseeseeseeeeeeeees 13

D. Fruit of the Poisonous Tree ................scseeeeeeserseees 15

CIT voccanecennincniintninssensanrinipiasavtetuneeennsesieaaaae 16

Coethticntn OF Ger WIGO oissiisssccescecscncsissccssssscciaccesssneasanncsmmnaans 16

Certificate of Mailing ..................scccssccsscsssssrssessssrecsessnsees 16

Appendix One-Text of the Opinion of the United

States Court of Appeals for the Fifth Circuiit ............ A-l

Appendix Two-Text of the Opinion of the Texas

Court of Appeals for the Thirteenth Supreme

Fradical DAStrACh ......cccccccsesvcsnsseccssenssncscssmasseseensscestetsnvennens A-6

| we i aa

iii

TABLE OF CASE AUTHORITIES

Alaniz v. State,

647 SW2d 310 (13th Dist-1982, pet ref’d) ....... 1

Arkansas v. Sander,

442 US 753, 99 SCt 2586, 61 LEd2d 235 (1977) ........ 12

Coolidge v. New Hampshire,

403 US 443, 91 SCt 2022, 29 LEd2d 564 (1971) ........ 11

Darland v. State,

482 SW2d 452 (Tex Crim App 1979) ...cccccccccccecssesscseeseees 10

Dill v. State,

697 SW2d 702 (13th District-1985, no pet) ................ 10

Goodrich v. State,

632 SW2d 349 (Tex Crim App 1982)............ccccceeeeeeee 10

Maynard v. State,

685 SW2d 60 (Tex Crim App 1985) 0.0.0... eeeeeeeeee 10

Riojas v. State,

530 SW2d 298 (Tex Crim App 1975) ......... eee 10

Shoemaker v. Riley

459 US 948, 103 SCt 266, 74 LEd2d 207 (1982) .......... 1

Stone v. Powell,

428 US 465, 96 SCt 3037, 49 LEd2d 1067 (1976) ........ 8

United States v. Chadwick,

433 US 1, 97 SCt 2586, 53 LEd2d 538 (1977) ............ 12

United States v. Ventresca,

380 US 102, 85 SCt 741, 13 LEd 2d 604 (1965) ........ 14

SES

iv

United States v. Watson,

423 US 411, 96 SCt 820, 46 LEd2d 98 (1976) ............ 15

Wainwright v. Sykes,

433 US 72, 97 SCt 2497, 53 LEd2d 594 (1977) ............ 9

Whitely v. Warden,

401 US 560, 91 SCt 1031, 28 LEd2d 306 (1971) ........ 11

Wong Sun v. United States,

371 US 471, 83 SCt 407, 9 LEd 2d 441 (1968) .......... 15

Writt v. State,

541 SW2d 424 (Tex Crim App 1976) ........:ccccseseeeeeeeees 10

Zillender v. State,

557 SW2d 515 (Tex Crim App 1977) ........:::cceeeeeeeeeees 10

1

OPINION BELOW

The unpublished opinion of the United States Court

of Appeals for the Fifth Circuit is set forth in appendix one

to this petition. The opinion of the Texas Court of Appeals

for the Thirteenth Supreme Judicial District is set forth in

appendix two to this petition and published at 647 SW2d

310.

STATEMENT OF JURISDICTION

The opinion of the United States Court for the Fifth

Circuit was delivered on February 19, 1986. Petitioner’s

motion for rehearing was overruled on March 21, 1986. The

mandate was issued on March 31, 1986. The jurisdiction of

the Supreme Court is invoked pursuant to 28 USC §2254.

The Fifth Circuit Court of Appeals has rendered a

decision in conflict with the decisions of other circuit

Courts of Appeals. Shoemaker v. Riley, 459 US 948, 103

SCt 266, 74 LEd2d 207 (1982). Also, the Fifth Circuit Court

of Appeals has rendered a decision in conflict with ap-

plicable decisions of the Supreme Court.

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

“The right of the people to be secure in their per-

sons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon pro-

bable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and

the persons or things to be seized.’’ Fourth Amend-

ment, United States Constitution.

‘‘When the court hears objections out of the

presence of the jury and rules that such evidence

shall be admitted, then in that event such objections

shall be deemed to apply to such evidence when it is

2

admitted before the jury without the necessity of

such objections being renewed in the presence of the

jury.” Article 40.09(6)(d)(3), Texas Code of Criminal

Procedure (1965).

STATEMENT OF THE CASE

A. Course of Proceedings

On November 30, 1979, Alaniz was indicted for

possession of heroin with a prior felony conviction alleged

for enhancement. On January 23, 1980, Alaniz filed a mo-

tion to suppress evidence on Fourth Amendment grounds.

On January 31, 1980, pretrial was held at which Alaniz’

motion was overruled after an evidentiary hearing. On

February 25, 1980, at the jury trial the evidence was admit-

ted without objection. On February 26, 1980, Alaniz was

found guilty and his punishment assessed at thiry years

imprisonment in the Texas Department of Corrections. On

March 10, 1980, Alaniz was formally sentenced and gave

notice of appeal.

On September 19, 1980, Alaniz filed his brief wherein

he complained that the trial court erred in admitting into

evidence heroin which was seized contrary to Alaniz’ rights

under the Fourth Amendment. Alaniz’ conviction was af-

firmed by the Court of Appeals for the Thirteenth Supreme

Judical District of Texas on October 28, 1982. The Texas

Court of Criminal Appeals refused review of Alaniz’ peti-

tion for discretionary review on January 27, 1983. Alaniz

did not file a petition for writ of certiorari in the United

States Supreme Court.

On September 23, 1984, Alaniz filed his petition for

habeas corpus under 28 USC §2254 with the United States

District Court for the Southern District of Texas, Corpus

Christi, Texas. On May 30, 1985, the district court denied

Alaniz’ petition. On June 10, 1985, Alaniz gave notice of

3

appeal. On June 21, 1985, the district court issued a cer-

tificate of probable cause to authorize an appeal.

Alaniz’ appeal was docketed on June 25, 1985. Alaniz

filed his brief on August 8, 1985. Respondent filed its brief

on October 16, 1985. Alaniz filed his reply brief on October

25, 1985. An opinion denying Alaniz’ appeal was issued on

February 19, 1986. Alaniz filed a motion for rehearing on

March 3, 1986. Alaniz’ motion for rehearing was overruled

on March 21, 1986. A mandate was issued on March 31,

1986.

B. Statement of the Facts

At the pretrial George Spaulding testified by deposi-

tion as follows. He was a DEA Special Agent. On August

23, 1979, he provided information which he had received

from an informant to the Corpus Christi Police Depart-

ment. The informatiion he received from the informant at

7:15 p.m. on August 23, 1979, was as follows. Alaniz would

be transportng a quantity of heroin to Remundo De Leon

in Corpus Christi, Texas, in either a white over red Pontiac

Firebird or a bluish gray 1968 Camaro with body putty all

over it. Alaniz would have at least one of his children with

him. The heroin would be concealed in the windshield sup-

port post of which ever vehicle. The amount of heroin

would be in excess of one ounce.

In addition the informant stated as follows. The last

place he had seen Alaniz was at his brother’s residence at

3723 South Sugar Road, Edinburg. Alaniz was the only

person there. Alaniz would be departing from there to go to

Corpus Christi with the heroin. Alaniz would be leaving im-

mediately. The informant gave Spaulding the phone

number for the residence and suggested that Spaulding

call. If no one answered, Spaulding would know Alaniz had

probably left. Spaulding called, and no one answered.

4

Spaulding called the Corpus Christi Police Depart-

ment and gave the above information to Jesse Garcia.

Shortly thereafter, A. L. Leal called back, and Spaulding

repeated the above information. Leal asked him whether he

had used the informant before. Spaulding said that he had

received information from the informant which had been

verified before.

At the pretrial A. L. Leal testified by deposition as

follows. He was a Corpus Christi Police Department officer

working in the narcotics division. Jesse Garcia called him

and téld him that Spaulding had called. Garcia relayed the

information and gave him Spaulding’s telephone number.

Leal called Spaulding back. Spaulding told him that the in-

formant was reliable. Leal stated that he called Spaulding

at 7:45 and left his house at 8:00. At the police station he

conferred with other police officers. They decided to place

three routes into the city and De Leon’s home under

surveillance. Everthing was set up by 8:30. Leal estimated

that Alaniz would take two and one-fourth to three and

one-half hours to get to Corpus Christi depending on how

fast he drove.

Leal stated that the Municipal Court magistrate was

gone. He felt that he did not have enough time to get a war-

rant. He would have needed forty-five minutes to an hour

to ‘‘write up”’ the warrant and get it signed by a judge. Leal

stated that he had gone to the magistrate’s home to get a

warrant signed before. He had the phone number of the

magistrate. If he had to “‘type up”’ the warrant, he would

have needed an hour and a half to type the warrant, drive

to Judge Gonzalez’ home, present the warrant, and obtain

the magistrate’s signature.

At the pretrial Wallace C. Crisp testified as follows.

He was a Corpus Christi Police Department officer working

+ Ge nt ote

5

in the narcotiics division. At approximately 8:30 p.m. he

began surve'llance of Farm Road 665 leading into the city.

When he saw a red and white car go by, he followed in his

unmarked car. He observed the other car drive erratically,

veering across the center stripe. When he got close to the

other car, it pulled to the side of the road and stopped.

Crisp passed the other car, turned around and came back.

When he got behind the other car again, he noticed erratic

movement again. The other car pulled off the road again

and stopped. Crisp got out of his car with his pistol in one

hand and his badge in the other. Alaniz got out of his car

and walked to the back of his car. Crisp identified himself

and told Alaniz not to move. Alaniz said, ‘All right.’’ In

the meantime two more police officers arrived.

Crisp observed that Alaniz was unsteady on his feet

when he got out of his car. He concluded that Alaniz might

be intoxicated. Crisp asked for and Alaniz produced a

driver’s license. Crisp concluded he had the man for whom

he was looking. He would not have let Alaniz go with

Alaniz’ apparent intoxication being part of the reason.

Crisp asked Alaniz if the license was his. Alaniz said it was.

The two other officers, Galvan and Almanza, came up and

engaged Alaniz in coversation, part in English and part in

Spanish.

Galvan then told Crisp that he had permission to

search the vehicle. Crisp removed the door post molding

near the windshield with a screwdriver and discovered the

contraband. Crisp returned to the back of Alaniz’ vehicle

and advised Galvan of what he found. Galvan then read

Alaniz his rights and told Alaniz he was under arrest.

At the pretrial Raul Galvan testified as follows. He

was a Corpus Christi Police Department officer working in

the narcotics section. He and his partner, Officer Almanza,

6

had set up surveillance on Farm Road 665 prior to the ar-

rival of Crisp. After Crisp had stopped Alaniz, Galvan ap-

proached Alaniz and told Alaniz that they had reason to

believe that he was carrying contraband in his car and did

he mind if they searched his car. Alaniz responded, ‘‘Go

ahead, you are not going to find anything.’’ Crisp and

Almanza were standing close enough to hear.

At the pretrial Ruben F. Almanza testified as

follows. He was a Corpus Christi Police Department officer

working in narcotics. He heard Crisp ask Alaniz a couple of

questions. Then Crisp asked if they could look in Alaniz’

vehicle. Alaniz replied in Spanish, ‘‘Go ahead, you are not

going to find anything.’’ At the time Alaniz was restrained

to the extent of having his hands on top of the car trunk.

Alaniz’ person had already been searched.

At that point no one had read Alaniz the Miranda

warnings. Almanza looked into the vehicle and observed a

young boy and a young girl. He went to the passenger’s

side of the car and started looking the area where they had

received information the contraband was located, i.e. the

windshield molding. Five minutes elapsed between the

time Almanza arrived on the scene and the time the contra-

band was located. Almanza observed that Alaniz was in-

toxicated. He smelled marijuana smoke in the car. Also,

Alaniz had an open beer in the car.

At the pretrial Alaniz testified that he did not give

consent to the police officers to search the vehicle. He

became apprehensive for his children due to being followed

so closely at night. He pulled off the road to let them go

past. When he pulled off again, he saw the other vehicle

stop. He saw 4 man get out of the unmarked car with a gun

in one hand and a badge in another. Crisp asked him for his

driver’s license and told him they were going to search his

7

car. Then Galvan and Almanza srrived. They said, ‘‘We are

going to search your car.’’ Alaniz said ‘‘Just go ahead,’’

since he did not have any choice with three armed officers

present.

At the trial on guilt Crisp in addition to his previous

testimony indicatd that the stop of Alaniz occurred around

10:00 p.m. Almanza added that the area where the stop oc-

curred was unlighted.

James Waller identified himself as a Texas Depart-

ment of Public Safety chemist. He analyzed the substance

seized by the police as heroin.

Galvan added the following in his pretrial testimony.

The stop took place late at night in a secluded area. After

Alaniz was handcuffed and given his Miranda warning by

Galvan, Crisp and Almanza went back to the vehicle.

Whereupon Alaniz said in Spanish, ‘‘Why are they going

back to the vehicle again? They already found what they

was going to find.”’

Alaniz testified that the vehicle belonged to the

business he and his brothers owned and was for sale. He

stated that many other people had access to the vehicle. He

was going to Corpus Christi for the weekend with his kids.

He did not know the car contained heroin. He denied saying

the above words attributed to him by Galvan.

SUMMARY OF THE ARGUMENT

No exigent circumstances existed to support the

warrantless search of Alaniz’ automobile. By the police

testimony more than enough time was available to procure

a warrant. The state appellate court refused to consider the

matter because Alaniz failed to use the words “‘exigent cir-

cumstances”’ in his pretrial motion to suppress. However,

since the burden was on the state to show exigent cir-

8

cumstances, Alaniz’ objection to the search on Fourth

Amendment grounds was sufficient. Although the police

claimed that Alaniz consented to the search, their

discovery of the heroin was the product of their initial il-

legal stop of Alaniz.

ARGUMENT

A. The Stone Background

If the accused has received a full and fair determina-

tion of his federal search and seizure complaints in state

court, then he is not entitled to relitigate such issues by

way of federal habeas corpus. Stone v. Powell, 428 US 465,

96 SCt 3037, 49 LEd2d 1067 (1976).

In this case the appellate zourt was squarely faced

with Alaniz’ exigent circumstances complaint and inten-

tionally did not consider its merits. The opinion of the state

appellate court clearly shows that it not only did not con-

sider the issue fully but also refused to ‘‘address’’ the issue

at all. Appendix 2, page A-12.

The state appellate court in its opinion restated some

but not all of the important facts bearing on exigent cir-

cumstances from the record. For example, ‘‘Officer Leal

testified that obtaining a warrant could take up to an hour

and a half.” Appendix 2, page A-12. However, the court

omitted to state that Leal, also, testified that the hour and

a half maximum was based on his assumption that he had

to ‘type up” the warrant. Statement of Facts, page 34. The

omission of the court, no doubt, arose from its decision not

to consider the issue. ‘“‘Appellant’s contention in his brief

that this estimate was excessive was not raised at trial and

will not be addressed.’’ Appendix 2, page A-12, emphasis

added.

The federal appellate court in its opinion states that

9

Alaniz’ complaint is that the trial court failed to ‘‘credit the

evidence which suggested that the police could have ob-

tained a warrant before Alaniz arrived in Corpus Christi.”’

Appendix 1, page A-4. The court states, also, that the state

court of appeals ‘‘held that the trial court did not err in rul-

ing that exigent circumstances justified a warrantless

search.”’ Appendix 1, page A-4. The court states, further,

that ‘‘the state court of appeals upheld the trial court’s fin-

ding that “‘the [time] estimate was reasonable and that pro-

curing a warrant was impractible.’’ Appendix 1, page A-4

to A-5.

Significantly, the federal appellate court never

claims or presents any argument that an examination of all

the facts in the record supports a finding of exigent

circumstances.

Most significantly, the federal appellate court’s com-

ments miss the point of Alaniz’ argument and misap-

prehend the holding of the state appellate court. The trial

court’s failure to credit is but a preamble to the state ap-

pellate court’s failure to consider. Upholding the trial

court’s ruling does not amount to considering the trial

court’s ruling.

The state appellate court did not uphold the trial

court on the basis ‘‘that procuring a warrant was imprac-

ticable.’’ Rather, the state appellate court upheld the trial

court on the basis that the issue ‘‘wiil not be addressed.’’

In othe words, the issue of exigent circumstances was not

given consideration on its merits on appeal but only upheld

by default on appeal. Therefore, Alaniz had been denied full

and fair consideration of the exigent circumstances issue

on appeal in violation of his Fourth Amendment rights.

B. Procedural Default

This case does not fall into the category of cases

which might be barred by Wainwright v. Sykes, 433 US 72,

hl

i

97 SCt 2497, 53 LEd2d 594 (1977) on the basis of a contem-

poraneous objection procedural default.

In Riojas v. State, 530 SW2d 298, 301 (Tex Crim App

1975), Art. 40.09(6)(d)(3) was construed to mean that “‘...the

overruling of any pre-trial motion to suppress is sufficient

to preserve error in the admission of the evidence made the

basis of the motion to suppress.”’ In Writt v. State, 541

SW2d 424, 426 (Tex Crim App 1976), Riojas was qualified

“to limit it to situations...where the hearing on the pre-trial

motion to suppress is supported by evidence and the con-

tention on appeal is the same as that presented to the trial

court at such hearing.”

As a general rule, specific objections to the admis-

sion of evidence must be made to present error on appeal.

Goodrich v. State, 632 SW2d 349 (Tex Crim App 1982). The

basis of the rule is to inform the trial judge of the basis of

the objection and afford him an opportunity to rule on it

and to afford opposing counsel an opportunity to remove

the objection or supply other evidence. Darland v. State,

582 SW2d 452, fn7 (Tex Crim App 1979). Maynard v. State,

685 SW2d 60 (Tex Crim App 1985). Thus, as an exception,

a general objection will suffice where the correct ground of

exclusion is obvious to the trial judge and opposing

counsel. Zillender v. State, 557 SW2d 515 (Tex Crim App

1977).

The citation relied on by the federal appellate court

in its holding that Alaniz procedurally defaulted in the trial

court on exigent circumstances, to wit: Dill v. State, 697

SW2d 702 (13th Dist.-1985 no pet) is not in fact an opinion

of the Texas Court of Criminal Appeals, but rather an opi-

nion of the Texas Thirteenth Court of Appeals. In other

words, Dill is not an expression of Texas criminal law from

the highest Texas appellate court with criminal jurisdic-

tion. Furthermore, Dill does not deal with the

11

sufficiency of pretrial objections to a warrantless search.

The applicable cases on the sufficiency of pretrial search

objections from the Texas Court of Criminal Appeals do

not justify holding a procedural default occurred in the

trial court in this case.

Alaniz did not fail to object on Fourth Amendment

grounds at the trial level nor fail to take a direct appeal on

such grounds. The absence of the magic words “exigent cir-

cumstances”’ from Alaniz’ motion to suppress simply does

not amount to an adequate basis for the state appellate

court to intentionally refuse to consider whether that im-

portant aspect of Alaniz’ federal rights were violated.

It should be remembered that the context of this

case is that of a search where the burden is on the prosecu-

tion to go forward and prove that both probable cause and

exigent circumstances combined to justify a warrantless

search. Whitely v. Warden, 401 US 560, 91 SCt 1031, 28

LE2d 306 (1971). Coolidge v. New Hampshire, 403 US 443,

91 SCt 2022, 29 LEd2d 565 (1971).

Probable cause and exigent circumstances go hand in

glove in any warrantless search situation. Before any

evidence is heard the prosecutor knows he must show ex-

igent circumstances to uphold his search and the trial court

knows it must find exigent circumstances before admitting

any seized evidence. The accused puts the prosecution to

this burden by simply complaining that the search and

seizure was illegal. In other words, an accused need only ob-

ject to a warrantless search on general search and seizure

grounds and need not negate every possible exception to

the presumed illegality of warrantless searches in the form

of objections. Rather, once an accused has objected to a

warrantless search on general search and seizure grounds,

the state must go forward and prove some exception exists.

a a a

'

12

Thus a prosecutor in any warrantless search situa-

tion knows a priori that he will not only have the opportuni-

ty to supply evidence of exigent circumstances and to

remove any objections to the existence of exigent cir-

cumstances but rather has the obligation to do so.

Likewise, a trial judge in any warrantless search situations

knows a priori that he will not only have an opportunity to

rule whether or not exigent circumstances exist but has an

obligation to do so. Therefore, the Darland/Maynard ra-

tionale has no application in the context of this case.

In this case, the prosecution had four months to look

at Leal’s deposition. There is just no excuse for the pros-

ecution not to have noticed that it had a problem on its

burden of exigent circumstances.

Also, the prosecution was put on notice of an exigent

circumstances complaint by the defense at the pretrial

stage. If the prosecution had read the last two cases cited

by the defense in its motion to suppress, the prosecution

would have clearly seen that the defense was challenging

on the issue of exigent circumstances in this case. In

United States v. Chadwick, 433 US 1, 97 SCt 2586, 53

LEd2d 538 (1977), the defense motion to suppress was

upheld because there were no exigent circumstances to

justify the search. In Arkansas v. Sanders, 442 US 753, 99

SCt 2586, 61 LEd2d 235 (1977), the defense motion to sup-

press was upheld because there were no exigent cir-

cumstances to justify the search. These are United States

Supreme Court exigent circumstances cases pure and

simple.

The citation of the above authorities in defendant’s

motion to suppress shows that the defense put the prosecu-

tion on notice with regard to the issue of exigent cir-

cumstances. If the prosecution prior to the pretrial hearing

had carefully reviewed the above authorities and carefully

as |

13

reviewed Leal’s deposition, the prosecution would have

known they had a problem with exigent circumstances.

The prosecution had plenty of time to get prepared

on exigent circumstances. That they failed to do so is

nobody’s fault but their own. In fact, the defense

facilitiated the prosecution's meeting its burden by obtain-

ing the deposition of Leal well in advance and by citing ex-

igent circumstance authority well in advance. Therefore,

the prosecution’s reliance on the contemporaneious objec-

tion rule is misplaced. The goals of the contemporaneous

objection rule were achieved in this case. The prosecution

had all the time in the world to “remove the objection or

supply other testimony.”

In other words, Alaniz adequately raised the issue of

the violation of his Fourth Amendment rights at the trial

level. The admission of the evidence seized pursuant to the

search was the whole case against Alaniz and, obviously,

prejudicial to him.

C. Exigent Circumstances

A warrantless search must be supported by exigent

circumstances, i.e. by proof that there is no time to procure

a warrant because the offender is about to escape. While ex-

igent circumstances are usually present when a vehicle is

involved they are not always present so as to meet the re-

quirements of the Fourth Amendment. Coolidge, above.

In this case the record is so well developed as to

clearly indicate that exigent circumstances were not pres-

ent. Leal testified that a magistrate was available and that

he could have obtained a warrant in forty-five minutes to

one hour from the time he started preparing the warrant

until the time he obtained the judge’s signature.

Spaulding testified that the informant called him at

14

7:15 p.m. to say Alaniz was leaving immediately. Leal

estimated that the trip would take two hours and fifteen

minutes to three hours and thirty minutes. Assuming

Alaniz left as early as 7:15 p.m. he would be arriving no

sooner than 9:30 and possibly as late as 10:45.

Even if Leal had not sought to obtain a warrant until

the surveillance was all set up at 8:30, he still would have

had the hour he needed to obtain a warrant. Leal’s claim

that he didn’t think he had time to obtain a warrant is not

even supported by his own facts and figures.

Apparently, Leal picked up a suggestion from the

prosecutor’s question that the warrant had to be “‘typed

up” which lead him to add to the time he needed to get a

warrant signed. Apparently, the Corpus Christi police force

labors under the delusion that search warrant applications

must by “‘typed up.’’ Of course, nowhere in any constitu-

tion, statute, rule of procedure, or case law applicable to

this issue is there any requirement that search warrant ap-

plications must be “‘typed up.”’ On the contrary, the courts

have gone out of their way to point out to law enforcement

that such formalisms are not required. United States v.

Ventresca, 380 US 102, 85 SCt 741, 138 LEd2d 684 (1965).

A delusive belief in the need to type up a search warrant ap-

plication cannot be a basis for exigent circumstances. In

other words, the one hour and thirty minute revised

estimate by Leal was far too long.

Furthermore, the police had time to get together at

the Corpus Christi police station and plan four locations to

be placed under surveillance which indicates both the

availability of time and manpower. Planning and action to

obtain a warrant should have commenced with and been an

integral part of the overall action of the police. However, no

actual effort was made nor were any plans considered to ob-

a ae

15

tain a search warrant. In other words, the failure of the

Corpus Christi police officers to obtain a search warrant

was due to lack of interest, not a lack of time. In this case,

then, it is clear that the prosecutor has failed to meet his

burden on exigent circumstances.

D. Fruit of the Poisonous Tree

Where the consent was obtained by exploitation of

an initial illegal arrest or seach, any evidence seized pur-

suant to the consent search must be suppressed as “‘fruit

of the poisonous tree.”’ Wong Sun v. United States, 371 US

471, 83 SCt 407, 9 LEd2d 441 (1963). Consent can’t be

decided in a vacuum. United States v. Watson, 423 US 411,

96 Sct 820, 46 LEd2d 598 (1976).

The state trial court initially denied Alaniz’ motion

to suppress. Statement of Facts, page 96. After Alaniz put

on further evidence on the issue of consent the state trial

court again denied Alaniz’ motion to suppress. Statement

of Facts, page 102. However, the state trial court never

made any findings of fact that Alaniz consented to the

search. While the state appellate court stated that the

record supported ‘‘a determination that appellant con-

sented to the search of his automobile’’ (Appendix 1, page

A-4), it did not so hold as the basis for its decision. Rather,

the state appellate court based its decision on its holding

that the search was supported by probable cause. Neither

the state appellate court nor the federal appellate court

have faced the issue of whether or not the consent, if any,

was obtained by the exploitation of an illegal stop of

Alaniz.

It is clear from the record that Alaniz was stopped

based on the information supplied by the informant, not on |

any traffic offense or intoxication. Alaniz’ erratic driving

and apparent intoxication were but incidental factors in the |

police officer’s unwerving quest to unscrew the windshield

molding. Alaniz’ consent was sought only to expedite that

i aaa

16

quest and was clearly a fruit of a poisonous tree. In other

words, the search of Alaniz was an illegal invasion of his

federal Fourth Amendment rights. In this case, the issue of

consent can’t be separated from the issue of exigent cir-

cumstances. Only if the stop of Alaniz was lawful can con-

sent come into play. There was no legal stop in this case

because there were no exigent circumstances. Therefore,

consent is not a basis for upholding the search in this case.

CONCLUSION

For the reasons set forth above, petitioner respectful-

ly submits that his petition for writ of certiorari should be

granted.

CERTIFICATE OF SERVICE

The undersigned certifies that three copies of the

foregoing brief for appellant were delivered to Jane A.

Peddicord, Assistant Attorney General, P.O. Box 12548,

Capitol Station, Austin, Texas 78711, attorney for

respondent-appellee, by First Class United States Mail this

eighth day of May, 1986.

CERTIFICATE OF MAILING

The undersigned certifies that the foregoing docu-

ment has been deposited in the United States Mail, with

first class postage prepaid, properly addressed to the Clerk

of the United States Supreme Court within the time al-

lowed for filing.

Respectfully submitted,

'/s/ Donald B. Dailey, Jr.

DONALD B. DAILEY, JR.

622 S. Tancahua/512-884-8745

17

Corpus Christi} Tx 78401

State Bar No. 05317500

ATTORNEY FOR PETITIONER

STATE OF TEXAS

COUNTY OF NUECES . AFFIDAVIT

*

On this day Donald B. Dailey, Jr. personally ap-

peared before me and stated under oath that the foregoing

Certificate of Mailing is true and correct.

/s/ Donaid B. Dailey, Jr.

DONALD B. DAILEY, JR.

SUBSCRIBED AND SWORN to before me this

eighth day of May, 1986.

/s/ Ernestina Valenzuela

NOTARY PUBLIC--State of Texas

Norary’s Printed Name:

ERNESTINA VALENZUELA

My commission expires on:

December 23, 1989

A-l

APPENDIX ONE

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 85-2437

Summary Calendar

ADELFINO ALANIZ,

Petitioner-Appellant,

versus

O. L. McCOTTER, DIRECTOR

TEXAS DEPARTMENT OF CORRECTIONS,

Respondent-Appellee.

Appeal from the United States District Court

For the Southern District of Texas

(February 19, 1986)

Before RUBIN, JOHNSON and JONES, Circuit Judges.

JONES, Circuit Judge:*

Because we find that petitioner's fourth amendment

claims were fully and fairly considered in state court pro-

ceedings, Alaniz v. State, 647 S.W.2d 310 (Tex. App.-

Corpus Christi 1982; pet. ref’d, 1983), we AFFIRM the

district court’s dismissal of this habeas corpus petition.

*Local Rule 47.5 provides: ‘“‘The publication of opinions that have no

precedential value and merely decide particular cases on the basis of

well-settled principles of law imposes needless expense on the public and

burdens on the legal profession.’’ Pursuant to that Rule, the court has

determined that this opinion should not be published.

A-2

I. FACTS

At 7:15 p.m. on August 23, 1979, special agent

George Spaulding of the Drug Enforcement Agency re-

ceived a call from a reliable informant. The informant ad-

vised him that Adelfino Alaniz was transporting one ounce

of heroin from Edinburg, Texas, to Corpus Christi. Corpus

Christi is less than 160 miles from Edinburg, and the trip

ordinarily takes at least two hours. Spaulding first verified

that Alaniz had left Edinburg and then called Corpus

Christi Police Department narcotics officer Leal with

whom he spoke sometime between 7:30 and 7:40 p.m. Of-

ficer Leal arrived at the police station a little after 8:00

p.m., called in additional police officers, and, by 8:30 p.m.,

had instituted surveillance along three routes into Corpus

Christi. No effort was ever made to obtain a search war-

rant, which could have taken forty-five minutes but more

probably would have taken an hour and a half.

At approximately 10:35 p.m., Alaniz arrived at one

of the surveillance points driving erratically. A police of-

ficer stopped him. When two other officers arrived, the

police announced their intention to search the vehicle and

Alaniz said, ‘‘Go ahead.’’ The officers discovered a packet

of heroin under the windshield support post, where the in-

formant had indicated it would be.

At trial, Alaniz moved to have the heroin sup-

pressed, contending that it had been seized without pro-

bable cause and that he had not consented to the search of

his automobile. The motion was denied and the jury con-

victed Alaniz of possession of heroin with his sentence,

enhanced by a prior felony conviction, assessed at 30 years

imprisonment. Alaniz direct appeal was unsuccessful and a

petition for discretionary appeal was rejected. The state

concedes that Alaniz has exhausted his state remedies

regarding his fourth amendment claim.

A-3

Alaniz filed a federal habeas petition, alleging that

his conviction had been based on the use of evidence ob-

tained in violation of the fourth amendment. A United

States magistrate recommended dismissal, and the trial

judge adopted that recommendation and dismissed the

petition. Alaniz filed timely notice of appeal, and the trial

judge granted a certificate of probable cause.

II. DISCUSSION

Alaniz purports to raise five issues on appeal, but in

fact raises only one: whether the heroin must be suppressed

because it was seized in violation of the fourth amendment.

The heroin in Alaniz’ case was seized following a search

conducted without a warrant. A warrantless search and

seizure is proper only if there was probable cause for the

search and if there were exigent circumstances to justify

the failure to obtain a warrant. See Chambers v. Maroney,

399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). A

warrant also is not necessary if the search is consensual.

Katz v. United States, 389 U.S. 347, 358 n. 22, 88 S.Ct. 507,

19 L.Ed.2d 576 (1967).

In challending the seizure of the heroin on fourth

amendment grounds on a collateral attack, Alaniz is ‘‘ask-

ing society to redetermine an issue that has no bearing on

the basic justice of his incarceration.’’ Stone v. Powell, 428

U.S. 465, 491 n.31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).

This is ordinarily improper: ‘‘where the State has provided

an opportunity for full and fair litigation of a Fourth

Amendment claim, a state prisoner may not be granted

federal habeas corpus relief on the ground that evidence ob-

tained in an unconsitutional search or seizure was intro-

duced at his trial.’’ Id. at 494. Where facts are in dispute,

‘full and fair consideration requires consideration by the

A-4

factfinding court, and at least the availability of mean-

ingful appellate review by a higher state court.’’ O'’Berry v.

Wainwright, 546 F.2d 1204, 1213 (5th Cir. 1977).

At a pretrial motion to suppress, Alaniz had an op-

portunity to present evidence that he had not consented to

the search. The trial court rejected his contention. Alaniz

attacked this ruling on appeal and the appellate court held

that the trial court had not erred in finding consent. Thus

the fact-finding court considered Alaniz’ consent claim and

the state court of appeals reviewed the trial court’s finding;

the claim was given ‘“‘full and fair consideration.’’ O’Berry

v. Wainwright, 546 F.2d at 1213.

At a suppression hearing, Alaniz advanced the claim

that the police lacked either probable cause or exigent cir-

cumstances. Following a full hearing on the issue, the trial

court denied the motion. The state court of appeals found

that there was probable cause for the search. It held that

the trial court did not err in ruling that exigent cir-

cumstances justified a warrantless search. Alaniz

nonetheless argues that the exigent circumstances issue

was not adequately addressed because the fact-finder failed

to credit the evidence which suggested that the police could

have obtained a warrant before Alaniz arrived in Corpus

Christi. There was evidence that if the police had moved

quickly and encountered no delays and if Alaniz had not

transported the heroin with unexpected haste, with split-

second timing, it might have been possible to obtain a war-

rant prior to Alaniz’ arrival. The trial court’s failure to con-

clude that since these things could have happened they

would have happened and that a warrant was therefore

necessary, however, hardly amounts to a failure to give

Alaniz’ fourth amendment claim full and fair consideration.

The state court of appeals upheld the trial court’s finding

ET nee, a

A-5

that ‘‘the [time] estimate was reasonable and that procur-

ing a warrant was impracticable.”’ 647 S.W.2d at 314.!

Because both the state trial court and a state ap-

pellate court considered and decided the fourth amendment

claim, we AFFIRM the dismissal of Alaniz’ habeas

petition.

1 In discussing the matter of exigent circumstances, the appellate

court declined to address the merits of Alaniz’ challenge to the time

estimate, because he had failed to raise the issue in the trial court. Under

Texas law, failure to make a timely and proper objection waives any er-

ror in the admission of evidence. Dill v. State, 697 S.W.2d 702, 709 (Tex.

Crim. App. 1985) (citing Boulware v. State, 542 S.W.2d 677, 682 (Tex.

Crim. App. 1976), cert. denied, 430 U.S. 959 (1977). The refusal of peti-

tioner’s procedural default suffices under Berry v. Wainright, 546 F.2d

at 1218, as “meaningful appellate review by a higher state court.”’

A-6

APPENDIX TWO

(NUMBER 2098cr)

NUMBER 13-81-109-CR

COURT OF APPEALS

THIRTEENTH SUPREME JUDICAL DISTRICT OF

TEXAS

CORPUS CHRISTI

* . * * x * *

ADELFINO ALANIZ, APPELLANT,

V.

STATE OF TEXAS, APPELLEE.

. * * * * * .

On appeal from the 319th Disrict Court of Nueces County,

Texas.

5 * a * * * *

Before Paul W. Nye, C.J., Norman Utter and Raul A. Gon-

zalez, J.J.

* * x * * * *

OPINION

Appellant was convicted of possession of herion by a

jury which assessed punishment, enhanced by a prior

felony conviction, at thiry years imprisonment. We affirm.

In his first three grounds of error, appellant contends

that the trial court erred by admitting heroin into evidence

which was seized contrary to his rights (1) under the Fourth

and Fourteenth Amendments to the United States Con-

stitution; (2) under Article 1, Section 9 of the Texas Con-

stitution; and (3) under Article 14.4 of the Texas Code of

Criminal Procedure.

At the pre-trial hearing on the Motion to Suppress

Evidence, Special Agent George Spaulding of the Drug En-

forcement Agency testified by deposition that about 7:15

A-7

p.m. on August 23, 1979, he received a phone call at his

residence in McAllen, Texas from an unnamed informant

who alleged that appellant, Mr. Alaniz, accompanied by at

least one of his children, was immediately departing

Edinburg, Texas for Corpus Christi, Texas with slightly

more than one ounce of heroin concealed in the win-

dowshield support post of either a white-over-red Pontiac

Firebird or a bluish-gray 1968 Camaro with ‘‘body putty all

over it.’”’ The informant gave Agent Spaulding the

telephone number of the residence Mr. Alaniz was depar-

ting, stated that Mr. Alaniz was the only person there, and

added that if no one were to answer a telepone call to that

number, Mr. Alaniz could be presumed to have departed for

Corpus Christi. Mr. Alaniz was known to Agent Spaulding.

Agent Spaulding telephoned the Edinburg number

but on one answered. He then telephoned the Corpus

Christi Police Department, asking for Narcotics Officer

Leal, who returned the call about 7:30 or 7:40 p.m. Agent

Spaulding related what he had been told by the informant,

and stated that he had received information from this infor-

mant, and stated that he had received information from

this informant before which had been verified. Officer Leal

drove to the police station, called in some other police of-

ficers, and instituted surveillance along three routes enter-

ing Corpus Christi. There was no attempt to obtain any

warrant.

Captain Wallace Crisp, who had been notified by Of-

ficer Leal of the information given by the informant,

testified that he established surveillance along Farm Road

665 about 8:30 p.m. When an automobile corresponding to

the description of the white-over-red Pontiac drove past

him, Captain Crisp followed it, noting that the driving was

erratic; apparently, the car was straying from its line of

A-8

traffic, veering across the center stripe, and travelling ap-

proximately forty miles per hour. As he approached the

vehicle, it slowed, pulled over, and stopped. Captain Crisp

passed by and turned around, but again the automobile

pulled over as he neared it. This time Captain Crisp also

stopped, displayed his badge, and directed the operator not

to move his vehicle. On examination of the driver’s license,

he noted that the name was that of the appellant, Mr.

Alaniz. In addition, Captain Crisp observed that Mr.

Alaniz was unsteady on his feet and appeared intoxicated.

Officers Galvan and Almanza soon arrived in an un-

marked pick-up truck. Neither officer was in uniform. Of-

ficer Almanza testified that there were two young children

in the automobile, that he could smell marijuana smoke,

and that there was an open beer in the automobile.

Captain Crisp then removed the passenger-side wind-

shield support post and a piece of molding, beneath which

he found heroin. Appellant insists that consent to the war-

rantless search was never given. At the pre-trial hearing on

the Motion to Suppress Evidence, appellant contended

that the heroin was inadmissible because (1) the search was

performed without probable cause and, (2) lacking prob-

able cause, the cearch could nott be justified by

establishing that apvellant had consented to it. The trial

court overruled appellant’s Motion, thus preserving his

right to appellate review. Riojas v. State, 530 S.W.2d 298

(Tex.Crim.App. 1975).

‘Probable cause for a search exists where the facts

and circumstances within the knowledge of the officer on

the scene and of which he had reasonably trustworthy in-

formation would lead a man of reasonable caution and

prudence to believe that he will find evidence pertaining to

a crime.” Quilice v. State, 624 S.W.2d 940 (Tex.App.--San

A-9

Antonio 1981, no pet). The requirement of ‘‘reasonably

trustworthy information’’ is satisfied when there are

underlying cirumstances from which the officer could con-

clude that the undisclosed informant providing the infor-

mation was credible or his information reliable. Aguilar v.

Texas, 378 U.S. 108 (1964). This standard is met when the

officer affirms that he has received information from the

undisclosed informant on previous occasions and that such

information has proved to be true and _ correct.

Carmichael v. State, 607 S.W.2d 536 (Tex.Crim.App. 1981).

In assessing the sufficiency of the probable cause to search

a suspect, the court may also consider the accuracy of the

information supplied by the informant as verified by the of-

ficer, as well as the specificity of that information. Draper

v. U.S., 358 U.S. 307 (1959). ““The question of whether a

warrantless search is constitutionally valid can only be

decided in terms of the concrete factual situation presented

by each individual case.’’ Nastu v. State, 589 S.W.2d 434

(1979).

In this case, Agent Spaulding testified that his infor-

mant had provided verified information on previous occa-

sions. The nature of the information was specific and its ac-

curacy was confirmed in each detail, justifying a man of

reasonable caution in concluding that the crucial informa-

tion would also be accurate; that is, that heroin lay con-

cealed in the windshield support post.

Appellant relies heavily on the reasoning developed

in Aguilar, supra, 378 U.S. 108 and Spinelli v. U.S., 393

U.S. 410 (1969), in which the United State Supreme Court

addressed the circumstances under which probable cause

to search for contraband might arise after peace officers

received information from unnamed informants. Although

a preference for searches made with a warrant was

A-10

repeatedly empahsized in Aguilar, the analysis for whether

information supplied by an informer constitutes probable

cause for a search with or without a warrant has now merg-

ed. Spinelli, 393 U.S. at 417, n. 5. See also Hicks v. State,

545 S.W.2d 805 (Tex.Crim.App. 1977).

The Aguilar case established a two-fold test, requir-

ing generally that an affidavit be based on ‘‘reliable infor-

mation from a credible person.’ First, there must exist

more than mere suspicion and belief without any statement

of adequate supporting facts; since the magistrate will ex-

amine the facts for himself to determine whether the war-

rant will issue, the underlying circumstances must be

stated. Second, there must be an affirmative allegation

that the affiant spoke with personal knowledge - not a mere

suspicion, belief, or conclusion that certain circumstances

exist. Thus, the persons attempting to obtain a search war- |

rant must state why their source is reliable.

In Spinelli, the Court expanded the Aguilar concept

by adding that (1) the affiant-officer must support his claim

that the informant was credible or the information was

reliable, and (2) if there is no statement in the affidavit

detailing how the information was gathered, it is important

that the informant’s information describe the defendant’s

criminal activity in detail sufficient enough to assure the

magistrate that he is relying on something more substan-

tial than causual rumor; that is, underlying circumstances

must be set forth so that the magistrate may independent-

ly judge the validity of the informant’s conclusion. Noted

as exemplifying proper police work was Draper, supra, 358

U.S. 307, which was cited in Spinelli, 393 U.S. at 416.

‘“‘The detail provided by the informant...provides a

suitable benchmark. Which Hereford, the Govern-

ment’s informer in that case, did not state the way

in which he had obtained his information, he

A-11

reported that Draper had gone to Chicago the day

before by train and that he would return to Denver

by train with three ounces of heroin on one of two

specified mornings. Moreover, Hereford went on to

describe, wiith minute particularity, the clothes

that Draper would be wearing upon his arrival at

the Denver station. A magistrate, when confronted

with such a detail, could reasonably infer that the

informant had gained his information in a reliable

way.”

The parallels between Draper and the case before us

are unmistakable. In this case, the informant did not state

the way he had obtained his information. However, he

knew that appellant was leaving Edinburg immediately by

automobile on his way to Corpus Christi. He knew that at

least one child would accompany appellant; he described

two automobiiles, either one of which might be used by ap-

pellant; he knew almost the precise amount of heroin that

was being transported; and he described with exactitude

the cbscure hiding place for the heroin. That he did not

describe appellant or his clothes is easily ascribed to the

fact that appellant was known to the person to whom the

informant relayed his information, and that, since ap-

pellant would be driving an automobile, the description of

the vehicle would be of far more practical importance.

The concern expressed by the Spinelli court for in-

dividual rights is not abandoned here. Uncontroverted

testimony offered by the State clearly established reliance

on something more substantial than casual rumor cir-

culating in the underworld or mere “police suspicion.”’

There is no suggestion that admitting this heroin into

evidence will dilute ‘‘important safeguards that assure that

the judgement of a disinterested judical officer will inter-

pose itself between the police and the citizenry.” Id. 393

U.S. at 419.

A-12

Similarly, the tests in Aguilar were propounded to

quell the concern of the Court that ‘‘the inferences from the

facts which lead to the complaint”’ will be drawn not ‘‘by

a neutral and detached magistrate,’’ as the constitution re-

quires, but instead by a police officer ‘‘engaged in the often

competitve enterprise of ferreting out crime.”’ Aguilar,

supra, 378 U.S. at 115.

In the case before us, the specificity of the infor-

mant’s tip, combined with the independent corroboration

by the police officers detailed in the statement of facts,

establishes sufficient confidence that constitutional

safeguards were met, and that probable cause existed to

search for heroin in the place specified by the informant.

However, the mere fact that probable cause exists

for the search of the automobile will not obviate the

necessity for procuring a search warrant unless the search

falls within an exception to the general rule such as, in this

case, whether exigent circumstances make obtaining a war-

rant impracticable. Stoddard v. State, 475 S.W.2d 744

(Tex.Crim.App. 1972). Appellant therefore contends in his

brief that exigent circumstances sufficient to justify the

failure to obtain a warrant do exist.

Agent Spaulding spoke to his informant about 7:15

p.m. and to Officer Leal about 7:30 p.m. Officer Leal did not

arrive at the police station until about 8:00 p.m.;

surveillance was not established until about 8:30 p.m. Ap-

pellant could have arrived in Corpus Chriisti as early as

9:30 p.m. This testimony was uncontroverted. Officer Leal

testified that obtaining a search warrant could take up to

an hour and a half. Appellant’s contention in his brief that

this estimate was excessive was not raised at his trial and

will not be addressed. The trial court, by denying ap-

pellant’s Motion to Suppress, found that the estimate was

A-13

reasonable and that procuring a warrant was

impracticable.

Finally, there was a conflict in the testimony on

whether appellant consented to the search of his

automobile. Voluntariness of consent to search is a ques-

tion of fact to be determined from the totality of cir-

cumstances. Myers v. State, 627 S.W.2d 527 (Tex.App.--

Forth Worth 1982, pet. ref’d). A finding of fact by the trial

judge at a hearing on a motion to suppress will not be

disturbed so long as it is supported by the record. Green v.

State, 615 S..W.2d 700 (Tex.Crim.App. 1980). Officers

Galvan and Almanza testified that they asked appellant,

‘Do you mind if we search your car?’’, to which appellant

replied, ‘‘Go ahead. You are not going to find anything.”’

Appellant himself testified that, after the officers told him

they were going to search his car, he replied ‘“‘Just go

ahead.”’ The record of the hearing thus supports a deter-

mination that appellant consented to the search of his

automobile.

We hold that the warrantless search of appellant's

vehicle was supported by probable cause. The Motion to

Suppress Evidence was properly denied, and appellant's

first three grounds of error are overruled.

In his fourth ground of error, appellant challenges

the qualifications of a State witness, Special Agent Frank

Garcia of the Federal Drug Enforcement Administration

and United States Department of Justice. Appellant con-

tends, apparently, that because Mr. Garcia is not a

chemist, he is unqualified to offer expert testimony on how

many doses a given amount of heroin will supply. Ap-

pellant cites no authority for this proposition.

Mr. Garcia testified that he had been instructed in

various schools about diluting heroin; that he had actually

A-14

cut substances simulating heroin; and that he had ‘‘sat

down with...heroin violators which we utilize sometimes as

informants. Mr. Garcia had been employed by the Federal

Drug Enforcement Administration for some six years, and

had operated as an undercover agent at least forty times.

Appellant presented no evidence demonstrating that Mr.

Garcia was unqualified to testify about the number of

doses an amount of heroin might supply, the objection

stated only he was "’not qualified or competent to do so.”’

“The special knowledge which qualifies a witness to

give an expert opinion may be derived entirely from a

study of technical works, or specialized education, or prac-

tical experience, or varying combinations thereof; which is

determinative is that his answers indicate to the trial court

that he possesses knowledge which will assist the jury in

making inferences regarding fact issues more effectively

than the jury could do so unaided.’’ Holloway v. State, 613

S.W.2d 497 (Tex.Crim.App. 1981). ‘‘Whether a witness of-

fered as an expert possesses the required qualifications is

a question which rests largely within the discretion of the

trial court, and the decision to admit or excluded the pro-

posed opinion testimony will not be disturbed unless a clear

abuse of discretion is shown.”’ Steve v. State, 614 S.W.2d

137 (Tex.Crim.App. 1981). No abuse of discretion is shown

and appellant’s fourth ground of error is overruled.

In his fifth and final ground of error, appellant claims

that the trial court erred by overruling his Motion to

Dismiss for failure to grant a speedy trial under the Speedy

Trial Act. This contention is also without merit.

In Barfield v. State, 586 S.W.2d 538 (Tex.Crim.App.

1979) the Court stated:

Once the defendant files his motion to dismiss for

failure to adhere to the provisions of the Act, the

state must deciare its readiness for trial then and

A-15

at the times required by the Act. This declaration is

a prima facie showing of conformity to the Act, tne

defendant demonstrating that the state was not

ready for trial during the Act’s time limits... At the

hearing on the motion to dismiss, the prosecuting

attorney stated that he was ready to try the case

then and had been ready to try the case ever since

the complaint and information had been filed. No

evidence was elicited to rebut this statement of

readiness and it remained unchallenged. This being

the case, we hold that the requirements of the

Speedy Trial Act were fulfilled...

Appellant was arrested on August 23, 1979. At his

hearing on the Motion to Dismiss, the State announced

that it was ready for trial on the date set, and that it had

been ready for trial since the grand jury indictment was

returned on November 30, 1979. No evidence was elicited

to rebut this statement of readiness and it remained un-

challenged. All five of appellant’s grounds of error are over-

ruled and the judgment of the trial court is AFFIRMED.

NORMAN L. UTTER

Associate Justice

Opinion delivered and

filed this the 28th

day of October, 1982.