Opinion
No. 04-17-00436-CR No. 04-17-00437-CR
05-09-2018
David Stuart BISHOP, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 144th Judicial District Court, Bexar County, Texas
Trial Court Nos. 2015CR3325 & 2015CR3326
The Honorable Laura Lee Parker, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
David S. Bishop was convicted by a jury of possession of a controlled substance and of being a felon in possession of a firearm. On appeal, Bishop contends: (1) the trial court erred in denying his motion to suppress because the search warrant failed to contain sufficient facts to establish probable cause; and (2) the evidence was insufficient to support his conviction for possession because it failed to establish an affirmative link between Bishop and the controlled substance. We affirm the trial court's judgment.
BACKGROUND
Detective Melissa Terrazas with the Bexar County Sheriff's Office received a tip from a confidential informant stating that, within the past twenty-four hours, the informant had seen Bishop in possession of methamphetamine at his residence. The informant had provided reliable information in the past. Detective Terrazas then conducted her own surveillance on the residence and confirmed that Bishop lived there. The detective observed Bishop drive a white car described by the informant to the residence and enter the residence. Based on the confidential informant's tip and her independent investigation, Detective Terrazas obtained a search warrant based on her affidavit on September 4, 2014.
On the morning of September 8, 2014, the detective and her team executed the search warrant. When they entered the residence, Bishop and a female were asleep in the far righthand bedroom and were detained; another female was detained on the couch, and a third female was detained in the master bedroom in the back of the residence. Once detained, Bishop and the three females were taken into the living room and read their Miranda rights. Following the reading of the search warrant, Detective Terrazas asked a series of questions. The detective asked Bishop for the address of his residence, and Bishop confirmed that he resided at the address listed in the search warrant. The detective also asked whether there were any firearms in the home, and Bishop voluntarily stated there were two firearms located in his room under the mattress. Bishop led the detectives to his bedroom and pointed out the firearms under the mattress. Bishop then pointed to a pair of jeans in the room and stated he had money in the front pocket of his jeans. Detective Terrazas picked up the jeans and found approximately $800 to $900 in the front pocket. A small zipper pouch containing methamphetamine was also found inside the pocket. The room also contained a small refrigerator. Inside the refrigerator, the Detective discovered a canister, and within the canister was a clear plastic bag containing a crystalline substance, later identified and measured by a forensics expert as 90 grams of methamphetamine. Detective Terrazas testified that Bishop admitted the methamphetamine found at the residence belonged to him.
Bishop was subsequently indicted for possession with intent to deliver a controlled substance, possession of a controlled substance, and being a felon in possession of a firearm. Prior to trial, Bishop filed a motion to suppress in which he asked the trial court to suppress the evidence seized as a result of the search warrant because the affidavit did not contain sufficient facts to support a finding of probable cause. The trial court carried the motion to suppress with the trial and ultimately denied the motion after finding the affidavit sufficient to establish probable cause. A jury found Bishop guilty of possession of a controlled substance and of being a felon in possession of a firearm, but found him not guilty of possession with intent to deliver a controlled substance. Bishop pled true to an enhancement for a prior felony conviction, and was sentenced to 15 years' imprisonment. Bishop now appeals.
MOTION TO SUPPRESS
In his first issue, Bishop contends the trial court erred in denying his motion to suppress the search warrant because the warrant did not contain sufficient facts to establish probable cause. Specifically, Bishop argues the affidavit was insufficient because: (1) there was not a substantial basis for crediting the statements made by the informant; and (2) there was a lack of sufficient particularized facts about Bishop's drug possession to allow for a magistrate to find probable cause.
Generally, we review a trial court's denial of a motion to suppress under a bifurcated standard of review "where we give almost total deference to the historical facts found by the trial court and review de novo the trial court's application of the law." State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); State v. Evans, 486 S.W.3d 636, 638 (Tex. App.—San Antonio 2016, pet. ref'd). However, when determining whether probable cause exists to support the issuance of a search warrant, the trial court does not make credibility determinations, but rather is limited to the four corners of the affidavit. McLain, 337 S.W.3d at 271. Thus, when reviewing a magistrate's decision to issue a warrant, we apply "a highly deferential standard" and "as long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination." Id.
The test for determining whether probable cause exists is "whether a reasonable reading by the magistrate [of the affidavit in support of a warrant] would lead to the conclusion that the four corners of the affidavit provide a 'substantial basis' for issuing the warrant." State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012). "Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location." McLain, 337 S.W.3d at 272. Although "it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Duarte, 389 S.W.3d at 354; Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007) (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). Therefore, reviewing courts should not scrutinize the supporting affidavit in a "hyper-technical" manner, but rather in a "commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences." McLain, 337 S.W.3d at 271. Therefore, we must uphold the magistrate's probable cause determination so long as the magistrate had a substantial basis for concluding that probable cause existed. McLain, 337 S.W.3d at 271; Duarte, 389 S.W.3d at 354; Evans, 486 S.W.3d at 638-39.
Confidential Informant Bishop first argues the affidavit supporting the search warrant was insufficient because there was not a substantial basis for crediting the statements made by the informant. The affidavit supporting the search warrant stated the detective received "information from a credible and reliable person" on September 3, 2014, "concerning Methamphetamine being possessed at [5510 Firestar Trail, Bexar County, Texas] by David Bishop." Specifically, the informant pointed out the residence, identified David Bishop through a photo provided by the detective, and stated that he or she did within the past twenty-four hours see David Bishop in unlawful possession of methamphetamine at the residence referenced above. The detective had advised the informant that any false information given would lead to the filing of criminal charges against him or her, and the informant indicated he or she understood the legal implications of giving such false information. The informant maintained the information he or she provided to the detective was true and correct. Finally, the affidavit stated, "the informant has given the [detective] information in the past which has proven to be true and correct and has demonstrated his [or] her ability to identify Methamphetamine and the paraphernalia related to its ingestion, packaging, and sale."
When an affidavit for a search warrant is supported by information from a confidential informant, the credibility of the informant's statements may be established by the detective's general assertions that the informant has proven reliable and truthful on previous occasions, i.e., has a reliable track record. See, e.g., Dixon v. State, 206 S.W.3d 613, 616-17 (Tex. Crim. App. 2006) (evidence that agent had known informant for over one year and had received true and correct information in the past that led to arrest of five drug offenders established the confidential informant was credible and reliable); Hegdal v. State, 488 S.W.2d 782, 785 (Tex. Crim. App. 1972) (declaring an informant's statements credible when the affidavit stated the detective "ha[d] received information from said reliable and credible informant on previous occasions and such information has proven to be true and correct"); Blake v. State, 125 S.W.3d 717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (finding an informant's credibility established through the detective's general assertions that the informant had proven reliable on previous occasions). In this case, the credibility of the informant's statements was established when Detective Terrazas stated within the affidavit that the informant was "credible," "reliable," and had "given the [detective] information in the past which has proven to be true and correct." Based on these assertions in the affidavit, we conclude the magistrate had a substantial basis for crediting the statements made by the informant to the detective. See Duarte, 389 S.W.3d at 357-58 (distinguishing first time confidential informants of unknown reliability from confidential informants who have a successful track record).
Sufficient Facts Regarding Drug Possession Bishop next argues the supporting affidavit lacked a sufficient amount of detail regarding his alleged drug possession, and, therefore, was insufficient to support a finding of probable cause. Bishop asserts the affidavit lacked the following particularized facts: the amount of methamphetamine involved; where the methamphetamine was located; descriptions of any drug-related transactions; and any surveillance by the detective other than the verification of the address given by the informant. However, the "proper analysis of the sufficiency of a search-warrant affidavit is not whether as much information that could have been put into an affidavit was actually in the affidavit." Rodriguez, 232 S.W.3d at 64. Bishop's argument is misplaced because the focus is not on the information omitted from the affidavit, but rather, the focus is on "whether the facts that actually were in the affidavit, combined with all reasonable inferences that might flow from those facts, are sufficient to establish a fair probability" that David Bishop was in possession of methamphetamine at the designated address. Id. "The focus is not on what other facts could or should have been included in the affidavit; the focus is on the combined logical force of facts that are in the affidavit." Duarte, 389 S.W.3d at 354-55.
As noted, the affidavit stated: (1) the informant had, within the past twenty-four hours, seen methamphetamine being unlawfully possessed by Bishop at the residence referenced above, after which, the informant was able to point out both Bishop and the residence to the detective; (2) the informant has demonstrated his or her ability to identify methamphetamine and the paraphernalia related to its ingestion, packaging, and sale; and (3) the informant was a credible and reliable person who had given information in the past which had proven to be true and correct. We hold that the facts stated within the affidavit, "combined with all reasonable inferences that might flow from those facts," were sufficient for the magistrate to conclude there was a fair probability that Bishop was in possession of methamphetamine at the designated location.
Bishop contends that the detective's testimony raised questions about the freshness of the confidential informant's statements concerning Bishop's drug possession, arguing that the twenty-four hour period referenced in the affidavit actually occurred in late August, rather than closer in time to the issuance of the warrant on September 4, 2014. However, as stated, our review of the magistrate's probable cause finding is constrained to the four corners of the affidavit and our consideration of the totality of the circumstances is limited to the circumstances included in the affidavit. See McLain, 337 S.W.3d at 271; see also Okorie v. State, No. 04-16-00615-CR, 2017 WL 4518292, at *1 n.1 (Tex. App.—San Antonio Oct. 11, 2017, no pet.) (mem. op., not designated for publication).
We conclude the supporting affidavit contained sufficient facts to establish probable cause and the magistrate had a substantial basis for issuing the search warrant; therefore, the trial court did not err in denying Bishop's motion to suppress.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Bishop contends the jury did not have sufficient evidence to support its finding that he was in possession of a controlled substance. Specifically, Bishop asserts that the trial evidence did not establish an affirmative link between him and the methamphetamine seized from the residence.
When determining whether the evidence is legally sufficient to support a conviction, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Griffin v. State, 491 S.W.3d 771, 774 (Tex. Crim. App. 2016); Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). Under the sufficiency standard of review, the trier of fact is the sole judge of the weight and credibility to be given to the evidence, and the reviewing court must give deference to the reasonable inferences drawn by the trier of fact in their evidence determinations. Griffin, 491 S.W.3d at 774; Adames, 353 S.W.3d at 860. In conducting a sufficiency review, the reviewing court's sole task is to "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Hooper v. State, 214 S.W.3d 9, 17 (Tex. Crim. App. 2007); Griffin, 491 S.W.3d at 774; Adames, 353 S.W.3d at 860.
A conviction for unlawful possession of a controlled substance requires the State to prove: "(1) the appellant exercised control, management, or care over the substance; and (2) the appellant knew the matter possessed was contraband." Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Additionally, when the accused is not in exclusive possession of the place where the contraband was found, the State is required to show "additional affirmative links" between the contraband and the accused. Poindexter, 153 S.W.3d at 406; Deshong v. State, 625 S.W.2d 327, 329 (Tex. Crim. App. 1981). An accused may be affirmatively linked to the contraband in question when the following factors are present:
(1) the defendant's presence when a search is conducted;
(2) whether the contraband was in plain view;
(3) the defendant's proximity to and the accessibility of the narcotic;
(4) whether the defendant was under the influence of narcotics when arrested;
(5) whether the defendant possessed other contraband or narcotics when arrested;
(6) whether the defendant made incriminating statements when arrested;
(7) whether the defendant attempted to flee;
(8) whether the defendant made furtive gestures;
(9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present;
(11) whether the defendant owned or had the right to possess the place where the drugs were found;Tate v. State, 500 S.W.3d 410, 414 (Tex. Crim. App. 2016) (quoting Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006)). The number of factors present linking the accused to the contraband is not determinative. Rather, their importance comes from the combined "logical force" they create to prove the accused knew of the contraband's existence and exercised control over it. Evans, 202 S.W.3d at 162.
(12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt.
Here, at the time the search warrant was executed, at least three other individuals, plus Bishop, were residing at the residence. Thus, it is clear Bishop was not in exclusive possession of the residence. The State therefore had the burden of proving additional affirmative links between Bishop and the methamphetamine. When Bishop affirmatively stated that his place of residence was the address listed on the search warrant, he became "affirmatively linked to the house" where the methamphetamine was found "despite the fact that other individuals may have [resided] in the house." Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.); see also Evans, 202 S.W.3d at 163 (holding the accused lived in the residence where the drugs were found, "which, in turn, raises a reasonable inference that he had actual care, custody, and control of" the drugs found); Edwards v. State, 813 S.W.2d 572, 579 (Tex. App.—Dallas 1991, pet. ref'd) (finding an affirmative link between the accused and the contraband when the accused stated he resided in the apartment where the drugs were found). In addition, Bishop was present at the residence, asleep, when the officers arrived to conduct the search. The methamphetamine was discovered in the bedroom where Bishop was sleeping, along with a female, and the small quantity was seized from a pair of jeans that Bishop identified as his. The larger quantity of methamphetamine was found in a refrigerator located in the same bedroom that Bishop admitted was his bedroom. These facts establish Bishop's presence, accessibility, and proximity to the methamphetamine. See Evans, 202 S.W.3d at 162 (holding that the affirmative links of "presence or proximity, when combined with other [affirmative links], may well be sufficient to establish" the essential elements of the crime beyond a reasonable doubt).
Moreover, additional affirmative links were established when Bishop admitted the drugs belonged to him, and also told the officers that he had cash in his jeans pocket and the officers found between $800 and $900 dollars in the pocket. See id. at 163 (finding an affirmative link when, at the time of the search, the accused was found with a large amount of cash). Finally, the confidential informant's statement that she or he had seen Bishop in possession of the methamphetamine provided an additional affirmative link. See Poindexter, 153 S.W.3d at 409 (stating that a confidential informant's statements, "in and of themselves, establish an affirmative link between appellant and the crack cocaine found in his home"). Viewing the evidence in the light most favorable to the jury's verdict, and considering the combined logical force of the established affirmative links, a rational trier of fact could conclude beyond a reasonable doubt that Bishop knowingly exercised control, management, and care over the methamphetamine. We conclude the evidence is sufficient to establish beyond a reasonable doubt that Bishop knowingly exercised control, management, and care over the illegal controlled substance.
Based on the foregoing reasons, we overrule Bishop's issues on appeal and affirm the trial court's judgment in each case.
Rebeca C. Martinez, Justice DO NOT PUBLISH