Opinion
Nos. 14-09-00799-CR, 14-09-00801-CR
Opinion filed December 2, 2010. DO NOT PUBLISH — TEX. R. APP. P. 47.2(b).
On Appeal from the 179th District Court, Harris County, Texas, Trial Court Cause No. 1137131.
MEMORANDUM OPINION
Appellant, Juan Edmundo Trevino, was charged with two separate counts of possession of a controlled substance with intent to deliver: one for possession of cocaine and one for possession of methamphetamines. After the trial court denied his motion to suppress, appellant pleaded guilty to both counts. Pursuant to a plea bargain with the State, appellant was sentenced to 15 years in prison for each count to run concurrently. In a single issue on appeal, appellant contends that the trial court erred in overruling his motion to suppress because the affidavit supporting the request for a search warrant was insufficient to establish probable cause for the search. We affirm.
Standards of Review
The Fourth Amendment to the United States Constitution provides that no warrants may issue, whether for arrest or search, in the absence of probable cause. U.S. Const. Am. IV; Henry v. United States, 361 U.S. 98, 100 (1959); Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007). More specifically, a magistrate may not issue a search warrant without first finding probable cause "that a particular item will be found in a particular location." Rodriguez, 232 S.W.3d at 60. In reviewing an affidavit attached to an application for a search warrant, "[t]he test is whether a reasonable reading by the magistrate would lead to the conclusion that the affidavit provided a `substantial basis for the issuance of the warrant.'" Id. (quoting Massachusetts v. Upton, 466 U.S. 727, 733 (1984)). To determine whether probable cause exists, the magistrate must consider the totality of the circumstances in deciding whether there is a fair probability that contraband or other evidence of a crime will be found at the specified location. Id. A finding of "fair probability" cannot be based on "mere ratification of the bare conclusions of others." Illinois v. Gates, 462 U.S. 213, 238 (1983). Our review of the magistrate's determination is highly deferential and recognizes that the magistrate may draw reasonable inferences from statements in the affidavit. Rodriguez, 232 S.W.3d at 61. Ultimately, our inquiry focuses on "whether there are sufficient facts, coupled with inferences from those facts, to establish a `fair probability' that evidence of a particular crime will likely be found at a given location. The issue is not whether there are other facts that could have, or even should have, been included in the affidavit. . . ." Id. at 62.The Affidavit
Appellant contends that because the affidavit attached to the application for a search warrant was insufficient, the court below erred in denying the motion to suppress evidence obtained as a result of the search warrant. Because of the importance of the affidavit to our analysis, we present it below in its entirety:My name is Christopher Cayton and I am commissioned as a peace officer by the Houston Police Department.
1. There is in the City of Houston, Harris County, Texas, a suspected place and premises described and located as follows: 2106 Woodland Park Drive, Apartment #7108, Houston, Harris County, Texas. Said suspected place is described as: a first floor apartment located within the Archstone Westchase Apartment Complex on the south east corner of Woodland Park Drive and Westheimer. The apartment is located on the east side of the complex and the numbers "7-1-0-8" are clearly marked on the front door of the apartment. The front door to the apartment is dark green in color with the numbers "7-1-0-8" in green on a tan background. The numbers are affixed to a plaque in the center of the front door.
2. Said suspected place is in the charge of and controlled by each of the following named and/or described suspected parties (hereafter called "suspected party," whether one or more), to wit: "Jon", unknown Hispanic Male, 5'5"-5'8", 170-200 pounds.
3. It is the belief of affiant that said suspected party has possession of and is concealing at said suspected place in violation of the laws of the State of Texas the following property: a drug, controlled substance, immediate precursor, chemical precursor, or other controlled substance property, including an apparatus or paraphernalia kept, prepared, or manufactured in violation of the laws of this state, to wit: illegal narcotics, including but not limited to powder cocaine.
4. Affiant has probable cause for said belief by reason of the following facts and circumstances: On or about October 12, 2007, I received information from a confidential source that the apartment located at 2106 Woodland Park Drive, Apartment #7108, was selling large amounts of powder cocaine. The confidential source stated that the unknown Hispanic male at the location recently took control of approximately 5 kilograms of powder cocaine.
The confidential source has provided me with information in the past that has led to the recovery of large amounts of illegal narcotics.
On October 12, 2007, I conducted surveillance on the location and observed vehicluar [sic] traffic consitant [sic] with illegal narcotics activity.
Officer Benavides assisted by conducting surveillance on the front door of apartment #7108 and he relayed the following facts to me:
Officer Benavides observed Gregory Hollman date of birth: 3-23-75 arrive at 2106 Woodland Park Drive, Apartment #7108, in a white Ford F-150 pickup. Officer Benavides observed Gregory Hollman go inside apartment #7108 and return to his vehicle after just a few momments [sic]. Officer Benavides observed Gregory Hollman placing an unknown object inside his pants as he was living [sic] the apartment.
I followed Gregory Hollman from the location and observed him fail to signal several lane changes as he traveled eastbound on Westheimer from Woodland Park Drive. I had Officer K. Mcdonald in a marked police unit conduct a traffic stop on Gregory Hollman for the observed traffic violations. As a result of the traffic stop I was informed by Officer K. Mcdonald that Gregory Hollman was arrested for possesion [sic] of a quantity of powder cocaine and ecstasy pills.
I interviewed Gregory Hollman and he made the following statement against his penal interest: "I went to apt# [sic] 7108 and bought cocaine and ecstasy from Jon." "I have been there before and go approximately (1) a month for the last year." "He has been consistent every time I go." "I buy $40-$60 cocaine and have bought ecstasy for $10 a piece."
I have attached a copy of the written statement provided by Gregory Hollman.
I have been a police officer for over seven years and have made numerous arrests for possession of cocaine. I tested the substance found in the possession of Gregory Hollman and it field tested positive for cocaine content.
Wherefore, affiant asks for issuance of a warrant that will authorize affiant and other peace officers to search said suspected place and premises for the property described above and seize same.