King v. State , 645 S.W.2d 782 ( 1981 )

OPINION

ODOM, Judge.

This is an appeal from a conviction for theft. Punishment was assessed by the court at five years and appellant was granted probation.

Appellant waived his right to trial by jury, and the case was heard by the court on a plea of not guilty. Evidence was received by stipulation and an adverse ruling on appellant’s motion to suppress was preserved for review. The fruits of the theft charged in this case, some thirty antique pistols, were seized from appellant’s home in a search conducted pursuant to a search warrant. Several grounds of error challenge the validity of the search by way of an attack on the sufficiency of the affidavit upon which the search warrant was issued. We therefore set out the affidavit:

“THE STATE OF TEXAS

TRAVIS COUNTY:

“THE UNDERSIGNED AFFIANT, being a Peace Officer under the laws of Texas and being duly sworn, on oath makes the following statements and accusations:

“1. There is in Travis County, Texas, a suspected place and premises described and located as follows: A green frame residence with detached double garage located at 4406 Lockhart Hwy., Austin, Travis County, Texas together with all other sheds, outbuildings and vehicles located on said premises.

“2. There is at said suspected place and premises personal property concealed and kept in violation of the laws of Texas and described as follows: An antique clock approximately 18" in height with a brown wooden case and an approximately 4" square of frosted glass with beveled edges below the clock face, antique pistols and antique furniture.

“3. Said suspected place and premises are in charge of and controlled by each of the following persons: Daniel Patrick King, w/m — DOB 2-10 — 47 and wife Peggy-

“4. It is the belief of AFFIANT, and he hereby charges and accuses, that: the above mentioned property was acquired by theft.

“5. AFFIANT has probable cause for said belief by reason of the following facts: On the 25th day of May, 1977, affiant received the following information from a confidential source, hereinafter referred to throughout as “The Source”, who has provided information in the past on more than three occasions which proved to be true and on at least two occasions resulted in criminal convictions for offenses based on evidence revealed as a result of the information provided on those previous occasions.

“ ‘The Source’ stated to affiant that he has been inside the above-described house within the last 48 hours and saw the above-described antique clock; further ‘The Source’ provided a sketch of an antique marble top washstand on a dark brown wood base. Said sketch matches the description of a washstand reported stolen from Katherine Williams on or about March 9, 1977, Austin Police Department Case # R-01870. The clock was reported stolen to Officer Cutler, TCSO by means of a burglary from John W. Chase on or about March 3, 1977 by the said John W. Chase.

“WHEREFORE, AFFIANT asks for issuance of a warrant that will authorize him to search said suspected place and premises for said personal property and seize the same and to arrest each said described and accused person.”

In his third ground of error appellant contends the affidavit fails to establish probable cause to believe the property was stolen. In his fourth ground of error he contends the affidavit fails to provide sufficient underlying circumstances to support a conclusion that the property was where the informant said it was, as required by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We sustain both grounds of error.

This conviction was for the theft of the antique pistols from one Ivan McElroy. Other property listed in the search warrant was allegedly stolen from other people. Paragraphs 2 and 4 of the affidavit assert that the antique pistols were at the alleged premises and were stolen property. Yet the narration of facts in paragraph 5, asserted to constitute probable cause for the beliefs stated in paragraphs 2 and 4, make no reference whatsoever to the antique pistols. In that paragraph there is no assertion that the informant saw any pistols in the premises to be searched, as required to meet the standard of Aguilar, supra. Also, there is no assertion of facts to support the conclusion that any such pistols were stolen property, such as would permit issuance of a warrant under Art. 18.02(1), Y.A.C.C.P. In sum, aside from the bold conclusion in paragraph 2 that antique pistols were in the described premises, the affidavit contains no reference to the pistols whatsoever. Grounds of error three and four are sustained.

In his fourth ground of error appellant challenges the sufficiency of the evidence.¹ The State relied on the presumption arising from unexplained possession of recently stolen property. Seven months had passed between the theft and the seizure of the pistols from appellant’s possession. Without expressing any opinion on what evidence the State may be able to muster in the event of a retrial, we find the seven month lapse shown in the facts of this ease does not mandate a holding that the possession, as a matter of law, was not sufficiently “recent” to invoke the presumption. Under Hardage v. State, Tex.Cr.App., 552 S.W.2d 837, the possession of the thirty pistols stolen from one complaining witness is a sufficient circumstance to allow reliance on the presumption. The ground of error is overruled.

For the trial error discussed above, the judgment is reversed and the cause remanded.

Before the court en bane.

1 . We address the sufficiency of the evidence because if meritorious such error would require an acquittal rather than reversal. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978); Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). In assessing the sufficiency of the evidence we consider the state’s case as presented, and not in light of the trial error found in the first part of this opinion. To do otherwise would in effect allow trial error to produce a jeopardy bar, contrary to the distinction drawn in Burks and Greene, supra.