Opinion
No. 32432.
November 23, 1960.
Appeal from the Criminal District Court No. 5, Harris County, Sam W. Davis, J.
Clyde W. Woody, Houston, for appellant.
Dan Walton, Dist. Atty., Samuel H. Robertson, Jr., Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is the unlawful possession of heroin; the punishment, 35 years.
Officers made a search of appellant's home at 4610 Weaver Street and also searched the premises which the evidence shows was occupied by appellant's mother and brother, at 4605 Plagg Street.
In the toilet located in a small building in the rear of the Plagg Street house, which was also adjacent to the rear but offset from the premises of appellant, the officers found eight papers of heroin.
Appellant came to the rear of his home while the search was in progress and started running away, but was arrested and thereafter signed a voluntary statement confessing his ownership of the heroin and stating that he had hidden it in the toilet on his mother's premises where it was found.
The searches were made under authority of two search warrants describing the respective premises. The first warrant directed the search of the premises at 4610 Weaver Road. After describing the premises the warrant recited '* * * and being the building, house or place of Juan R. Moreno, a Mexican male, and other person or persons unknown to the affiants by name, identity, or description.'
The second warrant directed the search of the building and outbuilding located at 4605 Plagg Street, in the City of Houston, and further recited 'and being the building, house or place of unknown Mexican male and unknown Mexican female and other person or persons unknown to the affiants by name, identity or description.'
In addition to objecting to the evidence relating to the search and the fruits thereof, appellant objected to the introduction of his confession, contending that it was obtained as a result of his illegal arrest.
As we understand the record, the trial judge ruled that the portions of the search warrants above quoted were void because in the disjunctive. We do not agree. Similar warrants were found sufficient in Moses v. State, Tex.Cr.App., 328 S.W.2d 885; King v. State, Tex.Cr.App., 335 S.W.2d 378; and Tomlin v. State, Tex.Cr.App., 338 S.W.2d 735.
We do agree that the trial judge was correct in admitting the evidence relating to the search and the fruits thereof, and in admitting appellant's confession.
The trial court's rulings being correct, though for an incorrect reason, will not be disturbed. Parsons v. State, 160 Tex.Crim. 387, 271 S.W.2d 643, 655.
The contention that the chemist read his record of the analysis of the heroin into evidence is not supported by the record. He was properly permitted to refer to his record upon his testifying that he did not have an independent recollection of the analysis without referring to such record.
While the state's witness Hightower was testifying appellant requested that he be shown the original or a copy of a report the witness had made, and which was in the possession of the prosecuting attorney.
After the attorney for the state declined to produce the report unless appellant would offer it in evidence, and after the trial court had declined to order that the report be produced, appellant took no further action and made no effort to thereafter have the statement produced for the purpose of the record, or to otherwise show injury.
In the absence of injury or prejudice, the failure of the court to require the production of a prior statement of a witness not used or exhibited during the trial is not ground for reversal. See Blum v. State, Tex.Cr.App., 317 S.W.2d 931.
In Wiley v. State, Tex.Cr.App., 332 S.W.2d 725, cited by appellant, we said that certain written statements should have been produced. This was not a holding that injury had been shown. Our holding was that such statements should have been made available for the record for the purpose of showing injury, if there was injury.
The judgment is affirmed.