in Re Ivo Nabelek ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00233-CV

In re Ivo Nabelek

Original Proceeding

MEMORANDUM  Opinion

          The petition for writ of mandamus is denied.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition denied

Opinion delivered and filed July 13, 2005

[OT06]

;                                                        Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 82nd District Court

Robertson County, Texas

Trial Court Nos. 01-0817112-CR and 99-0916719-CR

MEMORANDUM OPINION

      Carl Preston Autrey pleaded guilty to possession of amphetamine in the amount of one gram or more but less than four grams in trial court cause no. 99-09-16,719-CR (our cause no. 10-01-384-CR). Pursuant to a plea bargain, the court placed him on deferred adjudication community supervision for seven years. About one year later, the grand jury presented an indictment against Autrey for possession of less than one gram of methamphetamine. This indictment was docketed under trial court cause no. 01-08-17,112-CR (our cause no. 10-01-383-CR).

      After the court denied Autrey’s suppression motion, he pleaded guilty to the methamphetamine charge. Pursuant to a plea bargain, the court sentenced him in this case to one year’s confinement in a state jail. Autrey also pleaded true to the allegations in the State’s motion to adjudicate the amphetamine charge. The court sentenced Autrey to five years’ imprisonment in that case. Autrey appeals the court’s denial of the suppression motion.

      Autrey appeals from the court’s determination to proceed with an adjudication of guilt in cause no. 10-01-384-CR. Such an appeal is statutorily prohibited. Tex. Code Crim. Proc. Ann. art. 42.12, § 5(b) (Vernon Supp. 2004); Connolly v. State, 983 S.W.2d 738, 741 (Tex. Crim. App. 1999). Accordingly, we will dismiss the appeal in cause no. 10-01-384-CR. See Phynes v. State, 828 S.W.2d 1, 2 (Tex. Crim. App. 1992).

      Autrey’s sole issue in cause no. 10-01-383-CR challenges the court’s ruling on his suppression motion. He alleges that an affidavit presented to a magistrate for issuance of a search warrant did not provide probable cause because it: (1) contained stale information; and (2) was based in part on the uncorroborated statements of an anonymous informant.

      The affidavit was executed by Hugh Curry, an officer with a narcotics task force. The affidavit states in pertinent part that Curry “received anonymous information” that Autrey had been in possession of a “sizable amount of Methamphetamine” within the twenty-four hours immediately preceding the preparation of the affidavit. On the morning of the day Curry executed the affidavit, a confidential informant advised Curry that Autrey had instructed the informant on the preparation of methamphetamine and had assisted the informant with “several processes” during his preparation of methamphetamine. The informant told Curry that he had assisted Autrey in preparing methamphetamine and had seen Autrey prepare methamphetamine at Autrey’s residence several times during the six months before the date of the affidavit. Curry stated that he has received reliable information from the confidential informant in the past.

      We examine the totality of the circumstances to determine whether the facts alleged in an affidavit establish probable cause for issuance of a search warrant. Ill. v. Gates, 462 U.S. 213, 238-39, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527 (1983); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Burke v. State, 27 S.W.3d 651, 654 (Tex. App.—Waco 2000, pet. ref’d). Ordinarily, we do not go beyond the “four corners” of the affidavit. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); State v. Ozuna, 88 S.W.3d 307, 310 (Tex. App.—San Antonio 2002, pet. ref’d); Burke, 27 S.W.3d at 654. Thus, we conduct a de novo review of the affidavit to determine whether it establishes probable cause. Ozuna, 88 S.W.3d at 310; Burke, 27 S.W.3d at 654.

      An affidavit presenting stale information does not provide probable cause for issuance of a search warrant. Morris v. State, 62 S.W.3d 817, 823 (Tex. App.—Waco 2001, no pet.); Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d); accord Gonzales v. State, 577 S.W.2d 226, 228 (Tex. Crim. App. [Panel Op.] 1979). Accordingly, we examine how much time has elapsed between the events set out in the affidavit and the issuance of the search warrant. Id. However, “[w]hen the affidavit recites facts indicating activity of a protracted and continuous nature, i.e., a course of conduct, the passage of time becomes less significant.” Morris, 62 S.W.3d at 823; accord Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d); see also Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973).

      For information from an anonymous source to satisfy the totality-of-the-circumstances test of Gates, “the informer must assert personal knowledge or there must be additional facts showing reason to believe that the contraband sought will probably be where the information indicates it will be.” Rojas v. State, 797 S.W.2d 41, 44 (Tex. Crim. App. 1990); Garcia v. State, 3 S.W.3d 227, 236 (Tex. App.—Houston [14th Dist.] 1999), aff’d, 43 S.W.3d 527 (Tex. Crim. App. 2001); Parish v. State, 939 S.W.2d 201, 204 (Tex. App.—Austin 1997, no pet.).

      Here, Curry’s affidavit recites that an anonymous informant told Curry that Autrey “ha[d] been seen” with methamphetamine within the twenty-four hours immediately preceding issuance of the warrant. The information from this anonymous informant does not appear to have been based on the personal knowledge of the informant. However, the information provided by the confidential informant gave “reason to believe that the contraband sought [would] probably be where the information indicate[d] it [would] be.” Id.

      Even assuming the anonymous information was not sufficiently corroborated, the remaining information in the affidavit provided sufficient probable cause for issuance of the warrant. Cf. Franks v. Del., 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667 (1978) (instructing lower court to disregard false information when considering sufficiency of probable cause affidavit); Hinojosa v. State, 4 S.W.3d 240, 250 (Tex. Crim. App. 1999) (conducting this type of review).

      Autrey does not challenge the reliability of the confidential informant. The confidential informant told Curry that he had personally witnessed Autrey preparing methamphetamine in his residence and that Autrey had done so on several occasions during the preceding six months.

      Under the totality of the circumstances, this information regarding a continuing course of illegal conduct by Autrey provided the magistrate with adequate probable cause to issue the search warrant. See Morris, 62 S.W.3d at 823; Lockett, 879 S.W.2d at 189; see also Bastida, 487 F.2d at 864. Thus, we hold that Autrey’s sole issue is without merit.

      We affirm the judgment in cause no. 10-01-383-CR. We dismiss the judgment in cause no. 10-01-384-CR.

FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

      Justice Vance, and

      Justice Reyna

Judgment affirmed in cause no. 10-01-383-CR,

appeal dismissed in cause no. 10-01-384-CR,

Opinion delivered and filed February 4, 2004

Do not publish

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