dissenting.
In response to appellant’s challenge to the sufficiency of the affidavit supporting the search warrant, I would overrule the ground of error because the facts submitted to the magistrate were sufficient to justify a conclusion that methamphetamine was probably on the premises at the time the warrant was issued.
In Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), the United States Supreme Court established a two-part requirement for affidavits founded upon hearsay information: (1) underlying circumstances from which the informant concluded that the narcotics were probably where he claimed them to be, and (2) underlying circumstances from which the officer concluded that the informant was credible or his information reliable. 378 U.S. at 114, 84 S.Ct. at 1514. Here, the majority opinion bases a reversal on a hypertechnical finding that the first element of Aguilar has not been met. Specifically, the opinion emphasizes that the affidavit failed to specify that the informant had personal knowledge that the substance observed was in fact methamphetamine and that he was “credible” and “knowledgable” with regard to that particular drug.
The failure of the affidavit to allege such expertise and certainty on the part of the informant is not fatal. The magistrate was provided with sufficient facts and circumstances to support the issuance of the search warrant because “... only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.” Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Lopez v. State, 535 S.W.2d 634 (Tex.Cr.App.). By holding that the affidavit is insufficient for failure of the informant to personally insure that the substance was in fact methamphetamine and not “laundry detergent” the majority is proposing that a chemical analysis be conducted by an informant as a prerequisite to the issuance of a search warrant. Certainly, the magistrate need not be provided with the very evidence that the execution of the warrant may indeed reveal. Likewise, the affiant is not shouldered with the identical burden that is necessary at trial to sustain a conviction. The validity of a search warrant does not depend on establishing guilt beyond a reasonable doubt or by preponderance of the evidence. United States v. Harris, 403 U.S. *298573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Dishman v. State, 460 S.W.2d 855 (Tenn.1970).
The majority opinion mistakenly concludes that the affidavit is based on a “mere conclusion of the source that the appellant possessed methamphetamine.” A reading of the specific language in the affidavit supports a contrary finding. Instead of relating a personal conclusion regarding the specific type of narcotic observed, the informant provided the affiant with a description of the substance as well as a claim by the appellant himself that the powder was “speed.” These factual observations are not the “conclusions” which are fatal to an affidavit in support of a search warrant. Instructive on this point is Powers v. State, 456 S.W.2d 97, (Tex.Cr.App.) where the informant merely stated that there was marihuana at a certain location. The affidavit, in contrast to the one presently before the court, failed to provide the magistrate with the circumstances from which the informant concluded that the narcotics were where he claimed them to be. Further, I respectfully disagree with the conclusion of the majority that the source may have based his information on “mere suspicion or belief” in light of the clear recitation in the affidavit that the facts contained therein were based on the personal observation of the informant in the living room of the premises searched. This Court has consistently recognized that personal observation by an affiant’s source is sufficient to satisfy the first element of Aguilar. See Carmichael v. State, 607 S.W.2d 536, 539 n. 1; Lopez v. State, 535 S.W.2d 643; Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.); Collins v. State, 502 S.W.2d 743 (Tex.Cr.App.); Hilson v. State, 475 S.W.2d 788 (Tex.Cr.App.).
The majority attempts to support the invalidity of the affidavit by pointing out that the informant’s factual observations fail to establish a “nexus” between the appellant and the substance he claimed was “speed.” There is no such requirement. In fact, the issuance of the search warrant for the premises where the substance was observed would have been proper even if appellant’s identity or presence at that residence was unknown. Turner v. State, 543 S.W.2d 629. Appellant’s presence is only significant with regard to identifying the powder as a narcotic because he claimed it was “speed.” This claim, when considered with the fact that the informant had given reliable and correct information in reference to narcotics dealers and users in the past, supports a finding by the magistrate that narcotics would probably be located on the premises at the time the warrant was issued. Direct evidence sufficient to sustain a conviction against appellant for methamphetamine possession was not a requisite to a finding of probable cause for the issuance of the search warrant of the premises. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Lopez v. State, 535 S.W.2d 643.
The approach taken by the majority imposes the hypertechnical specificity that was condemned by the Supreme Court in United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684. To properly ascertain whether the search warrant is based on probable cause, the affidavit should be interpreted in a common sense and realistic manner and the magistrate is entitled to draw reasonable inferences from the facts contained therein. United States v. Ventresca, supra; Lopez v. State, supra. Furthermore, “... the resolution of doubtful or marginal cases should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, supra. Probable cause exists where the facts submitted to the magistrate are sufficient to justify the conclusion that the property that is the object of the search is probably on the premises to be searched at the time the warrant issues. Gish v. State, 606 S.W.2d 883 (Tex.Cr.App.).
The affidavit herein recites the necessary facts and circumstances to support a finding of probable cause and Powell v. State, 505 S.W.2d 585, does not require a contrary holding. As the majority notes, the affidavit in Powell contained greater specificity than the one presently before the court but Powell did not establish the minimum re*299quirements for an affidavit based on hearsay. As we stated in Powell, the first element of Aguilar was met because the “... recitations in the affidavit in the case at bar stated that the informer had actually been inside the apartment where the appellant and others were arrested ...” Powell, supra at 586.
For these reasons I dissent.
Before the court en banc.