Hector Del Alto v. State

NUMBER 13-02-179-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG HECTOR DEL ALTO, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 105th District Court of Nueces County, Texas. O P I N I O N Before Chief Justice Valdez and Justices Hinojosa and Baird Opinion by Justice Baird Appellant was charged in a two count indictment with the offenses of possession of heroin and cocaine. The indictment also alleged two prior felony convictions for the purpose of enhancing the range of punishment. The State abandoned the first count, and a jury convicted appellant of the offense alleged in the second count, possession of cocaine. Appellant pled true to the enhancement allegations, and the jury assessed punishment at confinement for life in the Texas Department of Criminal Justice–Institutional Division. We affirm. Appellant raises two points of error. The first contends the trial judge erred in denying appellant’s motion to suppress. The second contends trial counsel was ineffective for stipulating the search warrant was valid. We will address these points of error jointly because the success of each turns upon whether the search warrant was valid. The search in the instant case was executed pursuant to a warrant. That warrant was signed and issued on October 15, 2001, and executed on October 19, 2001. Appellant argues the warrant was “invalid on its face” because it was not executed within the time limit prescribed by article 18.06 of the Texas Code of Criminal Procedure. Article 18.06(a) provides: A peace officer to whom a search warrant is delivered shall execute it without delay and forthwith return it to the proper magistrate. It must be executed within three days from the time of its issuance, and shall be executed within a shorter period if so directed in the warrant by the magistrate. Tex. Code Crim. Proc. Ann. art. 18.06(a) (Vernon Supp. 2004) (emphasis added). The succeeding article provides the three day requirement “shall be three whole days, exclusive of the day of its issuance and of the day of its execution.” Tex. Code Crim. Proc. Ann. art. 18.07 (Vernon 1977). Appellant argues that since the warrant was issued on the 15th, but not executed until the 19th, four days later, the warrant had no force or effect. Swanson v. State, 18 S.W.2d 1082, 1082 (Tex. Crim. App. 1929) (search warrant not executed within time period becomes "functus officio," and any search whose legality depends on the warrant is unauthorized). We disagree. The warrant was issued on the 15th. Therefore, under article 18.07, that day must be excluded in our three day computation. See Tex. Code Crim. Proc. Ann. art. 18.07 (Vernon 1977). Similarly, the 19th, the date of execution, must be excluded from our calculations. Id. Under this calculus, the warrant was valid when appellant’s home was searched and the contraband seized. Williams v. State, 965 S.W.2d 506, 507-08 (Tex. Crim. App. 1998); Gonzalez v. State, 768 S.W.2d 436, 437-38 (Tex. App.–Houston [1st Dist.] 1989, no pet.). Appellant attempts to distinguish the instant case from Williams, supra. In Williams, the Texas Court of Criminal Appeals upheld the search based upon a warrant issued on November 5th and executed on November 9th–the same time period involved in the instant case. See Williams, 965 S.W.2d at 507. We fail to see any principled distinction between the instant case and Williams. Accordingly, we hold the trial judge did not err in denying the motion to suppress, and trial counsel was not ineffective for stipulating the warrant was valid. Therefore, the first and second points of error are overruled. The judgment of the trial court is affirmed. CHARLES BAIRD, Justice Do not publish. Tex. R. App. P. 47.2(b). Opinion delivered and filed this 18th day of March, 2004.