Selph, Andrew Sanchez v. State ( 2005 )

Affirmed and Memorandum Opinion filed April 14, 2005

Affirmed and Memorandum Opinion filed April 14, 2005.

In The

Fourteenth Court of Appeals

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NOS. 14-03-01112-CR &

      14-03-01113-CR

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ANDREW SANCHEZ SELPH, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause Nos. 03-07-11,515 & 03-07-11,516

M E M O R A N D U M   O P I N I O N

Appellant was charged by indictment with possession of marijuana and possession of cocaine with the intent to manufacture or deliver.  He filed a motion to suppress the drug paraphernalia and large amounts of cash, cocaine, and marijuana seized during a search of his house.  The trial court denied the motion.  Appellant pleaded Anot guilty@ to both offenses.  A jury found appellant guilty and assessed punishment at thirty years in the Texas Department of Criminal Justice, Institutional Division for possession of cocaine and ten years for possession of marijuana.  In two issues, appellant asserts the trial court erred in denying (1) his motion to suppress evidence seized pursuant to a search warrant, and (2) his motion to require disclosure of an informant under Texas Rule of Evidence 508(c)(3).  We affirm.

Issues and Analysis

I.        Did the trial court err in denying appellant=s motion to suppress evidence seized pursuant to a search warrant?

In his first issue, appellant argues that the trial court erred in denying his motion to suppress evidence that allegedly was obtained in violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments of the United States Constitution; Articles 9, 10, and 19 of the Texas Constitution; and article 38.23 of the Texas Code of Criminal Procedure.  At the  motion-to-suppress hearing, appellant argued the search was illegal, alleging the affidavit supporting the search warrant was legally insufficient to sustain an arrest warrant because it (1) did not reflect sufficient probable cause; (2) was not issued by a neutral magistrate; and (3) was not properly sworn before a neutral magistrate.  The trial court found that the evidence fell within the good-faith exception in article 38.23(b) of the Texas Code of Criminal Procedure and denied the motion. See Tex. Code Crim. Proc. Ann. art. 38.23(b) (Vernon Supp. 2004).

We review the trial court=s ruling on a motion to suppress evidence under an abuse-of-discretion standard.  Long v. State, 823 S.W.2d 259, 277 (Tex. Crim. App. 1991).  A trial court=s ruling on a motion to suppress, if supported by the record, will not be overturned.  Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  At a suppression hearing, the trial judge is the sole finder of fact and is free to believe or disbelieve any or all of the evidence presented.  Id.  We give almost total deference to the trial court=s determination of historical facts that depend on credibility and demeanor, but review de novo the trial court=s application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. See Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  When, as in this case, the trial court fails to file findings of fact, we view the evidence in the light most favorable to the trial court=s ruling and assume that the trial court made implicit findings of fact that support its ruling as long as those findings of fact are supported by the record.  State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).  Because the trial court stated that it was denying the motion because the evidence fell within the good-faith exception in article 32.23(b) of the Texas Code of Criminal Procedure, we must first address this ground. See Brooks, 76 S.W.3d at 430. If we disagree with the trial court=s reason, but find its ruling on the motion to suppress correct on a different theory of law applicable to this case, we still may affirm its decision.  Id. at 430B31.

Article 38.23(b) of the Texas Code of Criminal Procedure provides that evidence obtained by a law enforcement officer acting with objective good-faith reliance upon a warrant issued by a neutral magistrate and based on probable cause is admissible even if the evidence was obtained in violation of the constitution or laws of Texas or of the Constitution  or laws of the United States.  Tex. Code Crim. Proc. Ann. art. 38.23(a) & (b) (Vernon Supp. 2004).  Under its unambiguous language, article 38.23(b) requires an initial finding of probable cause.  Curry v. State, 808 S.W.2d 481, 482 (Tex. Crim. App. 1991).  On appeal, appellant argues that article 38.23(b) does not apply to this case because (1) the affidavit did not establish probable cause; (2) the magistrate who issued the warrant was not neutral; (3) the affidavit was not properly sworn; and (4) the officers= reliance on the warrant was unreasonable.

An affidavit is sufficient to establish probable cause, if from the totality of the circumstances reflected in the affidavit, a magistrate was provided with a substantial basis for concluding that probable cause existed.  See Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983).  Allegations in a affidavit are sufficient if they would A>justify a conclusion that the object of the search is probably on the premises.=@  Ramos v. State, 934 S.W.2d 358, 363 (Tex. Crim. App. 1996) (quoting Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986).  In determining the sufficiency of an affidavit to support the issuance of a warrant, we consider only the facts found within the four corners of the affidavit.  Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992).  We interpret the affidavit in a common sense, realistic manner, recognizing that the magistrate was permitted to draw reasonable inferences from the facts and circumstances alleged.  Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987).

Appellant asserts that the affidavit was inadequate to support the issuance of a search warrant because the affidavit failed to show probable cause.  Appellant argues the affidavit does not demonstrate probable cause because it is conclusory and does not contain sufficient facts upon which a magistrate could conclude that evidence of the suspected offense could be found in appellant=s house.

The affidavit in question recites the following facts: 

$ A reliable confidential informant told the affiant, Officer Robert Burns, that appellant and Larry Isbell were going to Houston (Harris County) to pick up a sizeable quantity of cocaine and marijuana.

$ According to the informant, appellant and Isbell intended to transport the cocaine and marijuana back to appellant=s house in Waller County.

$ Burns set up surveillance in the parking lot of a truck stop on the route from Houston to appellant=s house. 

$ Burns saw appellant driving by in a red Cadillac and followed the vehicle until it turned into appellant=s driveway. 

$ Appellant got out of his car, opened the trunk, and a retrieved package that Burns thought had the same size, shape, and appearance of a ten-pound brick of compressed marijuana. 

$ Seeing Burns=s car, appellant turned his body to conceal the package from Burns. 

$ Appellant, package in hand, walked towards his house and went inside.

From the totality of the circumstances reflected in the affidavit, the magistrate reasonably could have determined that probable cause existed for the issuance of the search warrant.  See Gates, 462 U.S. at 238, 103 S. Ct. at 2332.

Appellant next argues that Waller County Justice of the Peace Delores Hargrave, the magistrate that issued the search warrant, was not neutral.  Appellant bases the alleged lack of neutrality on his assertion that the affidavit does not contain enough factual information upon which Judge Hargrave could have based an independent conclusion that there was probable cause to search appellant=s house. Appellant asserts that Judge Hargrave acted as an adjunct law enforcement officer by simply ratifying the conclusions of law enforcement officers.  We disagree.  Based on our examination of the affidavit, we conclude that it contains enough factual information to support an independent conclusion that probable cause existed to search appellant=s house.  Appellant also argues that Judge Hargrave=s failure to sign the affidavit is further evidence of her alleged lack of neutrality.  The affidavit supporting the search warrant in this case is signed by the affiant but is not signed by a magistrate.  Appellant does not cite nor have we found any authority stating that a magistrate=s failure to sign the affidavit underlying a search warrant is evidence that the magistrate was not neutral.  In addition, nothing in the trial court record indicates that Judge Hargrave was not neutral.  Therefore, we find no merit in appellant=s contention and conclude that Judge Hargrave was acting as a neutral magistrate when she signed the search warrant in this case.

Next, appellant asserts that because the affidavit is not signed, it was not properly sworn as required by article 18.01(b) of the Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon 2005).  Appellant further contends that due to this defect in the affidavit, Judge Hargrave should not have issued the search warrant based on the affidavit.  When the jurat for the affidavit is defective, the fact that the affidavit was properly sworn may be shown by other evidence.  See Reese v. State, 712 S.W.2d 131, 133 (Tex. Crim. App. 1986), overruled on other grounds by Reynolds v. State, 723 S.W.2d 685 (Tex. Crim. App. 1986); King v. State, 167 Tex. Crim. 440, 442, 320 S.W.2d 677, 678 (1959).  When a magistrate states in a warrant that the affiant has sworn to a statement in his affidavit, the affidavit may be incorporated by reference into the warrant when the two instruments are stapled together.  See Faulkner v. State, 537 S.W.2d 742, 744 (Tex. Crim. App. 1976). In such a case, the affidavit is considered properly sworn.  Id.

In this case, the warrant recites that the affidavit was attached to it and that Burns swore to Judge Hargrave that the facts in the affidavit were true.  The warrant incorporates the affidavit by reference and creates a single document containing both instruments.  By the express terms of this document, the affidavit was duly sworn before a magistrate.  Also, during the motion-to-suppress hearing, both Burns and Judge Hargrave testified that Burns orally swore to the information in the affidavit.  Based upon this testimony and reading the affidavit and the search warrant as one document, the affidavit was properly sworn.

Finally, appellant argues that the officers= reliance on the warrant was unreasonable because the affidavit is so lacking in indicia of probable cause to make reliance unreasonable.  Nothing in the record indicates that the law enforcement officers executing the warrant did not act in objective good-faith reliance on the warrant.  During the motion-to-suppress hearing, Burns testified that he knew for a fact that Judge Hargrave signed the affidavit.  When shown a copy of the unsigned affidavit, he stated that he could not recall for sure whether he saw Judge Hargrave sign the affidavit, but that it was her normal practice to sign them.  Because the trial judge was free to believe any or all evidence presented and to make a determination of historical facts supported by the record after evaluating the credibility and demeanor of Burns, we must give the trial judge=s decision due deference.  See Guzman, 955 S.W.2d at 89.  Therefore, we find that the trial court was acting within its discretion when it impliedly found that Burns thought that Judge Hargrave signed the affidavit at the time the judge executed the search warrant.  The trial court did not abuse its discretion in determining that the officers were acting in objective, good-faith reliance on the warrant when they seized the evidence from appellant=s house.  See Long, 823 S.W.2d at 277.

Accordingly, we overrule appellant=s first issue.

II.       Did the trial court err in denying appellant=s motion to require disclosure of an informant as allowed by Texas Rule of Evidence 508(c)(3)?

In his second issue, appellant asserts that the trial court erred in denying his motion to require disclosure of the informant who provided the information that formed the basis of  Burns=s affidavit.  Appellant argues that under Texas Rule of Evidence 508(c)(3), the trial court, in determining the legality of the means by which the evidence was obtained, should have (1) required the disclosure of the informant, and (2) conducted an in camera hearing to determine if the informant was reliable and to preserve the trial court=s determination of the informant=s credibility for appellate review.  Such a failure, appellant argues, denied him the right to a fair trial.

When information from an informant relates to the legality of the means by which evidence was obtained instead of to the merits of the case, the trial court, under Texas Rule of Evidence 508(c)(3), may require disclosure of the informant=s identity if the court is not satisfied that the informant is reliable or credible.  See Tex. R. Evid. 508(c)(3).  We review a trial court=s decision concerning disclosure of an informant=s identity under an abuse-of-discretion standard. See Hall v. State, 778 S.W.2d 473, 474 (Tex. App.CHouston [14th Dist.] 1998, pet. ref=d).  The trial judge is the exclusive judge of credibility of witnesses and the weight of their testimony and has discretion to decide whether disclosure is warranted. Id.

The trial court sustained the State=s objection to appellant=s request for disclosure.  Implicit in this ruling is the holding that the trial court was satisfied that the information on which the warrant was based was received from an informant reasonably believed to be reliable or credible.  In his bill of exception, appellant argued that the informant was unreliable because only appellant was seen transporting marijuana back to Houston even though the informant told Burns that both appellant and Isbell would be transporting cocaine and marijuana back to appellant=s house.  Burns testified he had used the informant in the past and the informant had proven credible. The trial court is the exclusive judge of credibility of witnesses and the weight to be given their testimony. The trial court did not abuse its discretion in determining that disclosure of the informant=s identity was not necessary.  See id.

Appellant also argues that the trial court erred in failing to conduct an in camera hearing to determine the informant=s identity and to preserve the trial court=s determination of the informant=s credibility for appellate review.  The plain wording of Texas Rule of Evidence 508(c)(3) requires an in camera hearing only if the trial court requires the disclosure of an informant=s identity.  See Tex. R. Evid. 508(c)(3).  We have concluded that the trial court did not abuse its discretion in not requiring this disclosure.  Therefore, an in camera hearing was not required.  Accordingly, we overrule appellant=s second issue.

Having overruled both of appellant=s issues on appeal, we affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Judgment rendered and Memorandum Opinion filed April 14, 2005.

Panel consists of Justices Anderson, Hudson, and Frost.

Do Not Publish C Tex. R. App. P. 47.2(b).