Vanessa Marie Van-Ness v. State ( 2015 )

Opinion issued May 7, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00607-CR
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VANESSA MARIE VAN-NESS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 11CR1523
MEMORANDUM OPINION
Vanessa Marie Van-Ness pleaded guilty to the second-degree felony offense
of possession with intent to deliver a controlled substance and the trial court
assessed her punishment at four years’ confinement. On appeal, she contends that
the trial court erred in denying her motion to suppress evidence obtained as a result
of a search warrant because the affidavit supporting the warrant was insufficient to
establish probable cause for the search. We affirm.
Background
On May 6, 2011, appellant was arrested for possession with intent to deliver
a controlled substance, namely, methamphetamine, in an amount weighing four
grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN.
§ 481.112 (a) (West 2010). Appellant subsequently filed a motion to suppress
alleging that the affidavit on which the warrant was based lacked sufficient
probable cause to support the search of her house. Following a hearing, the trial
court orally denied appellant’s motion. Appellant thereafter pleaded guilty to the
charged offense and the trial court assessed punishment at four years’ confinement.
This appeal followed.
Discussion
A. Standard of Review and Applicable Law
A trial court’s ruling on a motion to suppress is reviewed for an abuse of
discretion. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under
this standard of review, we will uphold the trial court’s ruling if it is reasonably
supported by the record and is correct under any applicable legal theory. Id. We
give the trial court almost complete deference in determining historical facts, while
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reviewing de novo its application of the law to those facts. Johnson v. State, 68
S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
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. amend. IV; Henry v. United States, 361 U.S. 98, 100, 80 S. Ct. 168
(1959); Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007).
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,
104 S. Ct. 2085 (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.
Rodriguez, 232 S.W.3d at 60. 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, 103 S. Ct. 2317 (1983). When reviewing an issuing magistrate’s
determination, we should interpret the affidavit in a commonsensical and realistic
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manner, recognizing that the magistrate may draw reasonable inferences.
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. When in doubt, we
defer to all reasonable inferences that the magistrate could have made. Id. In
assessing whether sufficient facts were included in the affidavit to support probable
cause to conduct the search, we are limited to the four corners of the affidavit.
Hankins v. State, 132 S.W.3d 388 (Tex. Crim. App. 2004).
B. The Affidavit
In his search warrant affidavit, League City Police Officer Eric Leland,
stated, in relevant part:
On May 3, 2011, your Affiant spoke with Brittany Germany, who was
arrested on the same day by the League City Police Department
(LCPD) for an outstanding municipal warrant through the city of
Humble, Texas. Germany provided your Affiant with the following
information through a videotaped statement:
On May 2, 2011, Germany was picked up at her residence in Tomball,
Texas by David McMillen II. According to Germany, her friend,
Tanya, was supposed to pick her up and take her to La Marque, Texas.
Instead, Tanya sent her ex-husband, McMillen, to pick her up, whom
Germany had never met before. Upon picking her up, McMillen
drove her to his residence, located at 1802 Cardinal Drive in League
City, Galveston County, Texas. Germany stated that she and
McMillen arrived at McMillen’s residence at approximately 9:30 or
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10:00 p.m. When they arrived, Germany said Vanessa (later
identified as Vanessa Vanness), Misty, (later identified as Misty
Devlin), and an unknown white male, possibly named Scott, were
already inside the residence. At some point, methamphetamine was
produced in the residence. According to Germany, McMillen,
Vanness, Devlin, and Scott all had methamphetamine in their
possession, which was provided by McMillen. Germany said they all
used methamphetamine, to include her. Sometime during the night of
May 2–May 3, 2011, McMillen sold 1/8 ounce of methamphetamine
to an unknown female. Germany said the female made the purchase
from McMillen inside the residence, but she doesn’t know how much
the 1/8 ounce cost. According to Germany, McMillen was secreting
his methamphetamine behind his bed mattress, and Vanness was
keeping her methamphetamine inside her white and blue striped purse.
Germany further stated Vanness was living at the residence with
McMillen, and that McMillen, Vanness, and Devlin all sell
methamphetamine. At some point during the morning of May 3,
2011, Germany got into an altercation with McMillen and left the
residence. She stated she knows there is more methamphetamine in
the residence, but is unsure as to the quantity.
On May 3, 2011, your Affiant showed Germany a picture of Vanessa
Vanness, and she positively identified her as the person she knows as
Vanessa that was at the suspected place and premises. . . .
On May 3, 2011, your Affiant checked the criminal histories of David
McMillen II and Vanessa Vanness. According to McMillen’s
criminal history, he has at least nine criminal convictions, including
one possession of a controlled substance. According to Vanessa
Vanness’ criminal history, she has six drug related arrests with one
conviction.
On May 3, 2011, LCPD Detectives S. Yount and S. Antley told your
affiant they conducted drive-by surveillance of the suspected place.
Det. Antley stated he observed a green Mitsubishi 4 door passenger
vehicle, bearing Texas registration GRF750, parked in front of the
driveway of the suspected place. According to police records located
by Det. Antley, this vehicle was stopped on this same day by the
Friendswood Police Department. As a result of this stop a
methamphetamine smoking pipe was seized from the vehicle and
Ashley Padel was arrested for possession of narcotic paraphernalia.
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On July 22, 2009, your Affiant participated in a Texas Department of
Public Safety (DPS) Narcotics Service search warrant at the said
suspected place and premises. This search warrant was for
methamphetamine and listed McMillen and Vanness as the
individuals in control of the suspected place. The search warrant
resulted in the seizure of approximately 1/8 ounce of
methamphetamine and an amount of U.S. currency. McMillen was
charged with possession of methamphetamine and Vanness was
charged with Manufacture/Delivery of methamphetamine as a result.
C. Analysis
Appellant contends that the affidavit was insufficient to support the issuance
of a warrant to conduct the search of the residence. Specifically, she argues that
the warrant is largely based on the uncorroborated hearsay of a first-time informant
under arrest with no record of reliability and is, therefore, insufficient to support a
finding of probable cause.
When an affidavit contains information from a named informant, the
affidavit will be sufficient if the information given is sufficiently detailed so as to
suggest direct knowledge on the informant’s part. Matamoros v. State, 901 S.W.2d
470, 478 (Tex. Crim. App. 1995). There are, however, varying degrees of
credibility with respect to informants. For instance, where a named informant is a
private citizen whose only contact with the police is a result of having witnessed a
criminal act committed by another, the credibility and reliability of that
information is inherent. Esco v. State, 668 S.W.2d 358, 360–61 (Tex. Crim. App.
[Panel Op.] 1982); Tribble v. State, 792 S.W.2d 280, 284 (Tex. App.—Houston
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[1st Dist.] 1990, no writ). The citizen-informer is presumed to speak with the
voice of honesty and accuracy. State v. Duarte, 389 S.W.3d 349, 356 (Tex. Crim.
App. 2012). By contrast, “the criminal snitch who is making a quid pro quo trade
does not enjoy any such presumption; his motive is entirely self-serving.” Id.
Appellant contends that the affidavit in this case is based almost entirely on
information provided by a first-time informant under arrest with the hope of
leniency. However, there is no evidence in the record of a quid pro quo
relationship or that an offer of leniency was made to Germany in exchange for the
information. The affidavit reflects that when Officer Leland spoke to Germany
following her arrest by League City police on a municipal warrant, she told him
that she, along with appellant, McMillen, Devlin, and Scott, all used
methamphetamine at appellant and McMillen’s residence on May 2, 2011. As the
State notes, it is illogical to conclude that Germany would implicate herself for
possession of methamphetamine—a felony offense punishable by a term of
confinement 1—in the hope of an offer of leniency for an offense punishable only
by a fine. 2
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(b)-(f) (West 2010) (governing
punishment for possession of penalty 1 controlled substances); see id. §481.102(6)
(stating methamphetamine is penalty group 1 controlled substance).
2
See TEX. GOV’T CODE ANN. § 29.003(a)(2) (West Supp. 2014) (categorizing
offenses arising under municipal ordinances, resolutions, rules, or orders as
punishable by fine only).
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Appellant also argues that the affidavit is based largely on hearsay because it
does not state that Germany saw the events described in the affidavit. However, it
is clear from the affidavit that Germany witnessed the events she described to
Officer Leland. Germany told Officer Leland that McMillen picked her up, took
her to his and appellant’s house, provided methamphetamine to her, appellant,
Devlin, and Scott, that they all used the drugs, and that she spent the night at the
house. It is reasonable to conclude that, as an overnight guest, Germany would
know who lived in the house. It is also reasonable to infer that because Germany
accepted drugs from McMillen, used them with him and appellant, and witnessed
McMillen sell 1/8 ounce of methamphetamine to an unknown female inside the
house, that Germany would know where they hid their drugs. Rodriguez, 232
S.W.3d at 61 (noting reviewing courts should interpret affidavit in
commonsensical and realistic manner, recognizing that magistrate may draw
reasonable inferences). Further, Germany’s statement that McMillen hid his
methamphetamine behind his bed mattress and that appellant hid hers in her white
and blue-striped purse are details that reinforce her personal knowledge.
Appellant also complains that the statements in the affidavit are largely
uncorroborated. However, the affidavit states that Germany identified appellant in
a photograph as the person she knows as the “Vanessa” who was present at the
house. The affidavit also states that, on July 22, 2009, Officer Leland participated
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in the execution of a narcotics search warrant which named McMillen and
appellant as the individuals in control of the same residence identified in the
present affidavit. The search resulted in the seizure of methamphetamine, and
appellant was subsequently charged with manufacture/delivery of
methamphetamine. This information corroborates Germany’s statement by
establishing the officer’s knowledge that, at a time previous, the same house had
been occupied by the same individuals who had been found in possession of the
same illicit drugs as set out in the statement. Further, although appellant was not
convicted of the 2009 charge, 3 the information in the affidavit stating that
McMillen had at least nine prior criminal convictions including one for possession
of a controlled substance and that appellant had six previous drug-related arrests
with one conviction, corroborates Germany’s statement that McMillen and
appellant possessed and sold methamphetamine. Moreover, Germany’s admission
to possessing methamphetamine was a statement against her own penal interest
and, as such, can be used to corroborate the reliability of her information in the
affidavit. See Abercrombie v. State, 528 S.W.2d 578, 583–85 (Tex. Crim. App.
1974); Mejia v. State, 761 S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.] 1998,
pet. ref’d) (concluding named informant’s credibility reinforced when he admitted
to being drug trafficker).
3
At the hearing on appellant’s motion to suppress, defense counsel advised the
court that the 2009 charge against appellant was dismissed.
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Appellant also relies on Wester v. State, 109 S.W.3d 824 (Tex. App.—Dallas
2003, no pet.), in support of her argument that the affidavit is insufficient to
support a finding of probable cause. Aside from the fact that Wester is not binding
precedent on this Court, we find it factually distinguishable from the case before
us. In Wester, the Dallas Court of Appeals held that an affidavit was insufficient to
support a search warrant where the informant was “a suspect under arrest for the
very drugs he claimed to have purchased from [the defendant] and was being
interrogated at the police station when he gave his statement.” Id. at 827. There,
however, the court questioned the extent to which the informant’s admission
carried the weight of a statement against penal interest because the police had
already found the drugs when the informant made his statement. Id.; see Mejia v.
State, 761 S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (“An
admission against penal interest, even by a first-time informant, is a factor
indicating reliability.”). Here, however, at the time Germany made her statement,
there was nothing connecting her with the crime under investigation. Unlike in
Wester, where the informant was under arrest for possession of the very drugs he
claimed to have purchased from the defendant, Germany was arrested on a
municipal warrant and not for her suspected involvement with narcotics.
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Wester is also distinguishable from the facts of this case in another respect.
In Wester, the court emphasized that the information contained in the affidavit was
not detailed. See Wester, 109 S.W.3d at 827. The court noted,
the only fact that specifically related to Wester was [the informant]’s
statement that he purchased the drugs from Wester at Wester’s
residence just prior to being stopped. No other independently
verifiable facts related to Wester, such as previous drug transactions,
the location of the marijuana in the house, or the layout of the house,
were alleged.
Id. As described above, Germany provided a detailed account of the events on
May 2, 2011, including a description of who was present, the drugs provided, who
used them, and where McMillen and appellant hid their drugs. Further, the
affidavit contains information related to appellant and McMillen’s criminal history,
thereby providing independently verifiable facts related to appellant’s previous
drug-related activity.
In sum, the affidavit contained sufficient information for the magistrate to
conclude that there existed a fair probability that contraband or other evidence of a
crime would be found at appellant’s residence at the time the warrant was issued.
Consequently, the trial court did not abuse its discretion in denying appellant’s
motion to suppress evidence obtained as a result of the search warrant. We
overrule appellant’s sole issue on appeal.
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Conclusion
We affirm the trial court’s judgment.
Russell Lloyd
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Do not publish. TEX. R. APP. P. 47.2(b).
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