Thomas Alvin Dowell v. The State of Texas--Appeal from 282nd District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-95-167-CR

THOMAS ALVIN DOWELL,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 282nd District Court

Dallas County, Texas

Trial Court # F94-60177-S

O P I N I O N

Appellant Dowell appeals from his conviction for possession with intent to deliver heroin (with one enhancement conviction found "true"), for which he was sentenced to 30 thirty years in the Texas Department of Criminal Justice, Institutional Division.

Police Officers were executing a search and arrest warrant at the premises of 3014 Reed Lane in Dallas on October 11, 1994. The search and arrest warrant recited that the premises were suspected to contain a controlled substance, to-wit: Heroin. The search and arrest warrant further recited that the premises were in charge of and controlled by "an unknown black male being described as approximately 38 years-of-age, 5'11" in height, weighing approximately 160 pounds, with black hair and beard."

When the police-entry-team van arrived at the premises' address, the officers observed a car in the front yard. The car was pulling away from house, so the police blocked the car. Appellant was the driver of the car. The police stopped the car in the yard and ordered the occupants to raise their hands and exit the car. As Appellant exited, Officer Willis noticed a brown pill-bottle on the driver's seat. The bottle of pills was seized. It contained capsules of heroin and capsules of cocaine.

Appellant was indicted for possession with intent to deliver a controlled substance, to-wit: Heroin of 4 grams or more but less than 200 grams. The indictment alleged two prior felony convictions.

Appellant filed a motion to suppress the evidence, i.e., the heroin, which the trial court overruled. The trial court also overruled a re-urged motion to suppress at trial and admitted the heroin into evidence.

Trial was before the court which found Appellant guilty of possession of 2.38 grams of heroin, found one alleged prior felony conviction "true," and sentenced Appellant to 30 years in prison.

In two points of error, Appellant asserts the seizure of the heroin constituted a violation of the Fourth Amendment of U.S. Constitution, and a violation of Article I, Section 9, of the Texas Constitution. Both constitutions provide, in pertinent part, that the people shall be secure in their persons, houses, and effects against unreasonable searches and seizures.

Specifically, Appellant argues that the search violated the U.S. and Texas Constitutions because the heroin was seized from the car without a warrant authorizing a search of the car, and because he was arrested without a warrant specifically naming him.

The police possessed a combination search and arrest warrant. It authorized the search of the premises at 3014 Reed Lane for heroin, and authorized the arrest of an unnamed described offender. Combination search and arrest warrants are permissible when supported by probable cause. Tex. Code Crim. Proc. art. 18.03; Pecina v. State, 516 S.W.2d 401, 402, 403 (Tex. Crim. App. 1974). A search warrant may be issued to search for and seize . . . drugs kept, prepared, or manufactured in violation of law. Tex. Code Crim. Proc. art. 18.02(7). A warrant of arrest may be issued when any person shall make an oath before a magistrate that another has committed some offense against the laws of this state. Tex. Code Crim. Proc. art. 15.03(a)(2).

The police arrived at 3014 Reed Lane pursuant to a warrant to search the premises. The car appellant was driving was on the premises described in the warrant when the police arrived. Thus, under the warrant, the police were authorized to search the car. Appellant has not challenged the validity of the warrant. The search of the car located on the premises is searchable under a warrant and does not require a separate showing of probable cause; it is sufficient that there is probable to cause to believe the items searched for are on the premises, and the car was on the premises. A warrant authorizing a search of "the premises" allows the search of automobiles at those premises. Hughes v. State, 843 S.W.2d 591, 593, 594; United States v. Singer, 970 F.2d 1414, 1417; United States v. Percival, 756 F.2d 600, 612. When heroin and cocaine were found in the car, Appellant was lawfully arrested.

The combination search-arrest warrant, the officers were in possession of, stated that a controlled substance, i.e., heroin was kept there; and the premises were in charge of and controlled by "an unknown black man being described as approximately 38 years-of-age, 5'11" in height, weighing approximately 160 pounds, with black hair and a beard." Officer Foster testified that Appellant was a black male, 5'11" tall, 42 years-of-age, and weighed 160 pounds. Because Appellant's appearance was "very close" to the description of the offender in the warrant and because Appellant was present at the location of the offense described in the warrant, Appellant was lawfully arrested pursuant to the warrant. Walthall v. State, 594 S.W.2d 74, 81 (Tex. Crim. App. 1980); Rice v. State, 548 S.W.2d 725 (Tex. Crim. App. 1977). Because Appellant was lawfully arrested pursuant to the warrant, he was subject to search incident to the arrest. Rogers v. State, 774 S.W.2d 247, 264 (Tex. Crim. App. 1989). Upon removing Appellant from the car, the heroin and cocaine were found. The drugs were lawfully seized and were admissible in evidence.

For either reason addressed above, the trial court properly overruled Appellant's motion to suppress and correctly admitted the heroin into evidence.

Appellant's two points of error are overruled.

Since the trial court found Appellant possessed 2.38 grams of heroin, rather than four or more but less than 200 grams as alleged in the indictment, Appellant is entitled to a reformation of the judgment. Ashberry v, State, 813 S.W.2d 526, 529 (Tex. App. Dallas 1991).

The judgment is reformed to reflect that Appellant possessed 2.38 grams of heroin. The punishment assessed is within the range for conviction for 2.38 grams of heroin (enhanced by a prior conviction) and is not affected.

The judgment, as reformed, is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance and

Chief Justice McDonald (Retired)

Reformed and affirmed

Opinion delivered and filed September 25, 1996

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