Charles Wilson v. State ( 2001 )

NUMBER 13-99-578-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

CHARLES WILSON

, Appellant,

v.

THE STATE OF TEXAS

, Appellee.

___________________________________________________________________

On appeal from the 23rd District Court of Matagorda County, Texas.

___________________________________________________________________

O P I N I O N

Before Justices Dorsey, Yañez, and Castillo Opinion by Justice Dorsey

Appellant, Charles Wilson, was convicted of possession of a controlled substance with intent to deliver, and was assessed punishment of life imprisonment. He filed a pro se brief with this Court, complaining of two points.⁽¹⁾

First, Wilson complains that the affidavit supporting the search warrant allowing his home to be searched was inadequate. The right of a citizen to be secure from unreasonable searches and seizures is guaranteed under the United States Constitution, the Texas Constitution and various statutory provisions. Article 18.01(b) of the code of criminal procedure states that no search warrant shall issue for any purpose in Texas unless sufficient facts are first presented to satisfy the issuing magistrate that there is probable cause for its issuance. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2000). A sworn affidavit setting forth substantial facts establishing probable cause shall be filed in every instance in which a search warrant is requested. Id. Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Illinois v. Gates, 462 U.S. 213, 238-39 (1983).

The search warrant allowing the police to search Wilson's residence was issued by a magistrate, who relied on information contained in an affidavit sworn out by a police officer. That affidavit stated that Wilson was suspected to be manufacturing crack cocaine at his residence at 1113 Fourth Street in Bay City. The facts upon which the police officer's suspicions were based also were contained in the affidavit. It said:

(1) Crack and powder cocaine, along with certain items used in manufacturing crack cocaine, were seized from the same residence--which belonged to Wilson at that time as well--seven months prior to the date of the affidavit;

(2) Numerous confidential informants had said that Wilson was still manufacturing and distributing crack cocaine;

(3) Wilson still lived in the same residence where the cocaine and manufacturing equipment were found previously;

(4) Wilson had made noticeable improvements to the residence, yet had no obvious means of income;

(5) A fellow police officer said that Wilson had purchased two boxes of baking soda at a convenience store;

(6) That police officer also said that a clerk at the convenience store told him that Wilson had been buying up to 15 boxes of baking soda there each week;

(7) The police officer swearing out the affidavit swore that from extensive training, he knew that baking soda is used to manufacture crack cocaine and that the amount of baking soda purchased by Wilson is more than the amount typically purchased for normal use.

Wilson contends that this is not enough information to create the probable cause that criminal activity was underway necessary for the issuance of a search warrant. He argues that because each of these facts, taken individually, would be insufficient, they may not be combined to form sufficient suspicion upon which to base a search warrant. We disagree.

The question of whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of circumstances. See Gates, 462 U.S. at 228-229; Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Johnson v. State, 803 S.W.2d 272, 288 (Tex. Crim. App. 1990), rev'd on other grounds, Heitman v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991).⁽²⁾

The court of criminal appeals has stated that the task of a magistrate who is requested to issue a search warrant is to:

make a practical common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The affidavit must be more than a mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause. The magistrate must be presented with sufficient information to allow that individual to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. The magistrate should not be bound by standards such as proof beyond a reasonable doubt or by a preponderance of the evidence. The magistrate's sole concern should be probability.

Johnson, 803 S.W.2d at 288 (internal quotations and cites omitted). "An affidavit must allege substantial facts establishing probable cause to believe that the items would be found at the identified place." Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). We look at the four corners of the affidavit to determine whether "the facts submitted to the magistrate are sufficient to justify a conclusion that the property that is the object of the search probably is on the premises to be searched at the time the warrant issues." Id.

The United States Supreme Court has explained:

The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same--and so are law enforcement officers. . . . [T]he evidence . . . must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.

As these comments illustrate, probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules. Informants' tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S. Ct. 1921, 1924, 32 L. Ed. 2d 612 (1972), "Informants' tips, like all other clues and evidence coming to a policeman on the scene may vary greatly in their value and reliability." Rigid legal rules are ill-suited to an area of such diversity. "One simple rule will not cover every situation." Ibid.

Gates, 462 U.S. at 231.

Moreover, great deference must be given to the magistrate's decision. Johnson, 803 S.W.2d at 289; Gates, 462 U.S. at 236. The reason for this deference is that without it, there would be little or no incentive for a police officer to go to the trouble of first obtaining a warrant in order to conduct a search. Gates, 462 U.S. at 236. Thus, the deferential standard is in keeping with our preference that searches be conducted only under the authority of a warrant. Id.; see U.S. Const. amend. IV.

Accordingly, "appellate court review of the sufficiency of an affidavit is not a de novo review." Johnson, 803 S.W.2d at 289. "[T]he traditional standard for review of an issuing magistrate's probable cause determination has been that so long as the magistrate had a substantial basis for . . . conclud[ing] that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Id. (internal quotations omitted). "A grudging or negative attitude by reviewing courts toward warrants . . . is inconsistent with the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, [and thus,] courts should not invalidate . . . warrant[s] by interpreting affidavit[s] in a hypertechnical, rather than a commonsense, manner." Gates, 462 U.S. at 236 (internal quotations omitted).

We realize that some courts have adopted a de novo standard of review, relying on Guzman v. State, which held that where a trial court's decision does not turn on the credibility of any witnesses, no deference is to be accorded to that decision. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.1997); see Ramos v. State, No. 01-99-00188-CR, 2000 WL 1593837, *2 (Tex. App.--Houston [1st Dist.] Oct. 26, 2000, no pet. h.); Wynn v. State, 996 S.W.2d 324, 326-27 (Tex. App.--Fort Worth 1999, no pet.). The Guzman court relied, in part, on Ornelas v. United States, 517 U.S. 690 (1996). In Ornelas, the U.S. Supreme Court held that appellate review of reasonable suspicion and probable cause should be conducted de novo. Ornelas, 517 U.S. at 697­98. However, the Ornelas Court noted that the de novo standard would not apply to determinations regarding issuance of a search warrant. It stated:

The Fourth Amendment demonstrates a 'strong preference for searches conducted pursuant to a warrant,' Gates, supra, at 236, 103 S. Ct., at 2331, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.

Ornelas, 517 U.S. at 698. Accordingly, we will continue to follow Johnson and Gates, and accord great deference to the decision of the magistrate who issued the warrant. See also State v. Bradley, 966 S.W.2d 871, 873-74 n.1 (Tex. App.--Austin 1998, no pet.); Daniels v. State, 999 S.W.2d 52, 54 (Tex. App.--Houston [14th Dist.] 1999, no pet.).

Wilson also challenges the reliability of the police officer who swore the affidavit and the sources of his information. The Texas high court, in Johnson, spoke to that issue as well:

The reliability of the affiant and his sources of information are part of the "totality of the circumstances" that the magistrate should evaluate in making his probable cause determination. A magistrate, however, is entitled to rely on source information supplied by an average citizen, since, unlike many police informants, they are "much less likely to produce false or untrustworthy information." Jaben v. United States, 381 U.S. 214, 85 S. Ct. 1365, 14 L. Ed. 2d 345 (1965); see Esco v. State, 668 S.W.2d 358 (Tex. Crim. App.1982). The same rule applies to law enforcement officers. The magistrate may rely on the affidavit of a police officer based on his knowledge or the knowledge of other officers. "Observations of fellow officers of the Government engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number." United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).

Johnson, 803 S.W.2d at 236. Also, Texas courts have noted that information may be bolstered by corroboration with independent police work or by cross-corroboration with other informants. Doescher v. State, 578 S.W.2d 385, 392 (Tex. Crim. App. 1978); Lockett v. State, 879 S.W.2d 184, 188 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd).

We hold the affidavit in Wilson's case is sufficient to justify the issuance of the warrant. Most of the information contained in the affidavit was based on the personal knowledge of the police officer who made the affidavit. The information which came from the other police officer is recognized in the law as a reliable basis for issuance of a warrant. See Ventresca, 380 U.S. at 108­09; Johnson, 803 S.W.2d at 289. The information provided by the second police officer that Wilson was currently purchasing large quantities of baking soda--a known ingredient in the manufacture of crack cocaine--from a convenience store is particularly suspicious.

Finally, the only other category of information contained in that affidavit was the statement made by the affiant that numerous confidential informants had told him that Wilson was again manufacturing and distributing drugs from that residence. That information, alone, arguably would be insufficient to support issuance of a warrant. However, that information is corroborated by the other information contained in the affidavit that creates suspicion that Wilson was again manufacturing and distributing drugs. See Doescher, 578 S.W.2d at 392; Lockett, 879 S.W.2d at 188. Based on a totality of the circumstantial evidence contained in the affidavit presented to the magistrate in this case, we believe that the affidavit was sufficient to justify issuance of the search warrant. We hold the affidavit alleges facts sufficient to justify a conclusion that the property that is the object of the search probably was in Wilson's residence or car. We overrule Wilson's first point of error.

By his second point of error, Wilson contends that he received ineffective assistance of counsel. The only instance of ineffectiveness he points to on the part of his trial counsel is that his trial counsel stipulated to the authenticity of the affidavit and the search warrant at the suppression hearing. This allegation does not meet the standard for proving ineffective assistance of counsel.

Texas courts follow the test established in Strickland v. Washington to determine whether counsel's representation was inadequate so as to violate a defendant's Sixth Amendment right to counsel. Strickland v. Washington, 466 U.S. 668; see Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App.1999). The Strickland test requires appellant to: (1) prove that counsel's performance was below an objective standard of reasonableness and (2) prove that this deficient performance prejudiced the defense. To make out a claim of ineffective assistance, an appellant must show ineffective assistance firmly rooted in the record. Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). Wilson has failed to show either inadequate representation or prejudice to his case.

The record shows that during the suppression hearing, Wilson's counsel stipulated to the authenticity and admissibility of the search warrant and the affidavit. The Texas Rules of Evidence require, as a predicate to admissibility, that evidence be properly authenticated or identified. See Tex. R. Evid. 901. That is, the proponent must show the trial court that the document or evidence in question is what he purports it to be. See id. The rule lists several ways that authentication might be accomplished; for example, evidence may by authenticated by the testimony of a witness with knowledge. See id. at 901(b)(1).

Wilson was not harmed by his counsel's stipulating to the authenticity and admissibility of the documents in question. To the contrary, he needed those documents in order to support his argument that the facts contained in the affidavit were an insufficient basis for the magistrate's issuance of the search warrant. Likewise, in that setting, we cannot say that counsel's stipulation fell below the standards of adequate representation. We overrule Wilson's point on ineffective assistance of counsel.

Because we have overruled all of Wilson's points of error, we affirm his conviction.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 8th day of February, 2001.

1. We have liberally construed the arguments contained in Wilson's pro se brief, and address them as two discrete points of error.

2. The court of criminal appeals disapproved Johnson to the extent that it held that the Texas Constitution should always be interpreted in conformity with U.S. Supreme Court opinions interpreting the Fourth Amendment. Heitman v. State, 815 S.W.2d 681, 685 n. 6 (Tex. Crim. App. 1991). However, the court has not overruled the substantive holding in Johnson that the Gates analysis should be applied to the review of a magistrate's probable cause determination. See State v. Bradley, 966 S.W.2d 871, 876 n.1 (Tex. App.--Austin 1998, no pet.)