Opinion
No. 05-10-01379-CR No. 05-10-01380-CR
05-23-2012
FERNANDO HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion Filed May 23, 2012.
On Appeal from the Criminal District Court No. 4
Dallas County, Texas
Trial Court Cause Nos. F08-34206-K and F08-34207-K
MEMORANDUM OPINION
Before Justices Moseley, FitzGerald, and Richter
Opinion By Justice FitzGerald
A jury found appellant Fernando Hernandez guilty of (1) possessing, with intent to deliver, cocaine in an amount of 200 grams or more but less than 400 grams, and (2) possessing a usable quantity of marijuana in an amount of fifty pounds or more but less than 2000 pounds. The trial court assessed his punishment at fifteen years' confinement and a $10,000 fine for the cocaine offense and five years' confinement and a $5000 fine for the marijuana offense. Appellant raises a single issue in this Court: he contends the trial court abused its discretion when it denied his Motion to Suppress Evidence Obtained by Warrant. Because the issues in this appeal involve the application of well-settled principles of law, we issue this memorandum opinion. See Tex. R. App. P.47.4. We affirm the trial court's judgments.
Appellant's challenge focuses on the affidavit of Irving Police Officer S. Junker, which supported granting a warrant to search a particular residence. Within that affidavit, the specific relevant passages relate:
On 03-12-2008 at about 1:00 pm, a Drug Enforcement Administration Confidential Informant went into location #1 above with Joe Nabejar and Reynaldo Trevino. While the informant was inside the garage of the location he/she saw approximately one hundred pounds of marijuana or more and numerous sets of scales, one of which had cocaine residue on it. The informant has been a confidential informant for the D.E.A. for approximately two years and he/she has proven to be credible and reliable. The informant knows what marijuana and cocaine look like from his/her prior experience with narcotics.Appellant contends Junker's affidavit is “defective” in more than a dozen ways, but the gravamen of his complaint is that the affidavit lacks specific facts that would render the confidential informant's report credible. In the absence of that credibility, appellant argues, there was no probable cause for the search, and evidence seized during that search should have been suppressed.
On 03-12-2008 at about 2:30 pm, your affiant along with Special Agents Steve Pennington and Michael Mosley of the U.S. Treasury Department, Internal Revenue Service Criminal Investigations, drove by this location and saw Nabejar standing next to a black Ford truck that was parked in the driveway and Trevino was in the passenger's seat. This vehicle left within a matter of minutes and was stopped by Irving Police Officer B. Cunningham. Both Nabejar and Trevino were wanted out of the Western District of Texas, Waco Division for federal drug conspiracy charges and were subsequently arrested.
At its heart, the Fourth Amendment prevents a magistrate from issuing a search warrant without first finding probable cause that a particular item will be found at a particular location. Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). Probable cause for a search warrant exists if, under the totality of the circumstances presented to the magistrate, there is at least a substantial chance that evidence of a crime will be found at the specified location. Id. We review the four corners of the probable cause affidavit to ensure the magistrate had a substantial basis for concluding that probable cause existed. See id. Specifically, the affidavit must contain sufficient facts to establish probable cause that a specific offense has been committed, that the specifically described items constitute evidence of that offense, and that the items constituting evidence are located at a particular place. Tex. Code Crim. Proc. Ann. art. 18.01(c) (West Supp. 2011). We test the affidavit “in a commonsense and realistic fashion,” assessing both direct findings and reasonable inferences therefrom. United States v. Ventresca, 380 U.S. 102, 108 (1965); Flores, 319 S.W.3d at 702-03; see also State v. McLain, 337 S.W.3d 268, 274 (Tex. Crim. App. 2011) (“Reviewing courts should only be concerned with whether the magistrate's determination in interpreting and drawing reasonable inferences from the affidavit was done in a commonsensical and realistic manner.”). In doubtful or marginal cases, we defer to the magistrate's decision even if we might reach a different result upon de novo review. See Ventresca, 380 U.S. at 109; see also Flores, 319 S.W.3d at 702. In this case, the magistrate could have concluded, based on the quoted paragraphs above, that: (1) the informant provided sufficient facts to establish that unlawful possession of controlled substances (marijuana and cocaine) had been committed; (2) the 100 pounds of marijuana, residual amounts of cocaine, and numerous sets of scales described in the affidavit constituted evidence of that unlawful possession; and (3) the marijuana, cocaine, and scales were located in the garage at the identified address. See Tex. Code Crim. Proc. art. 18.01(c). Thus, the affidavit met statutory requirements as long as the information contained therein was credible.
In this case, the information concerning the contraband was reported by the informant to the affiant, probably by way of a federal law enforcement official. These layers of hearsay are not problematic if the underlying circumstances indicate a substantial basis exists for crediting each level of the hearsay. Hennessy v. State, 660 S.W.2d 87, 91 (Tex. Crim. App. 1983). The substance of the affidavit yields the reasonable inference that Junker was working with federal law enforcement agents: he testifies he was riding with IRS criminal investigators from the Treasury Department, and he reports cooperating in an arrest pursuant to a federal drug conspiracy case. As a matter of constitutional law, a police officer is presumed to be reliable, and no special showings of credibility are required for that level of hearsay in the affidavit. See Marquez v. State, 725 S.W.2d 217, 233 (Tex. Crim. App. 1987); see generally Kolbert v. State, 644 S.W.2d 150 (Tex. App.-Dallas 1982, no pet.). Moreover, observations reported to the affiant by other officers engaged in an investigation can constitute a reliable basis for issuing a warrant. Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. 1980) (citing Ventresca, 380 U.S. at 111).
Therefore, if the confidential informant is credible, the affidavit will pass scrutiny. Appellant contends the affidavit contains no facts supporting the informant's credibility. We disagree. Junker testified the informant had been a DEA informant for two years and “has proven to be credible and reliable.” In that single sentence the affidavit relates that the informant has a significant history with federal law enforcement and that the information he has shared has proven his reliability. The affidavit goes on to state the informant is able to identify both marijuana and cocaine based on his prior experience with narcotics. Junker does not detail specific reports the informant has made or specific experiences he has had with narcotics. But we do not demand that level of detail concerning an informant's past dealings. The affidavit must only set forth some of the underlying circumstances supporting the affiant's conclusions and his belief that the informant was credible and his information reliable. See Ventresca, 380 U.S. at 745-56. Junker's affidavit did precisely that. In addition, Junker also set forth a paragraph concerning his own observation of the two men-both wanted for drug-related crimes-who the informant reported had accompanied him in the garage where the contraband was located. The men were present at the same address a short time later when Junker and federal agents drove by the residence. Concerns regarding specificity in an affidavit may be reduced if the affidavit recites observations of ongoing drug activity at the proposed scene of the search. See, e.g., Jones v. State, Nos. PD-0674, PD-0675, PD-0676-11, 2012 WL 1019968, at *5 (Tex. Crim. App. March 28, 2012). In this case, the presence of the individuals identified by the informant underscored his credibility.
We conclude that-given the totality of the circumstances-the magistrate had a substantial basis for concluding probable cause existed in this case. There was a fair probability or a substantial chance that marijuana and cocaine would be found in the garage identified by the informant. See Flores, 319 S.W.3d at 703. Therefore, the trial court did not err in denying appellant's motion to suppress. We affirm the trial court's judgments.
KERRY P. FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101379F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FERNANDO HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01379-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F08- 34206-K).
Opinion delivered by Justice FitzGerald, Justices Moseley and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 23, 2012.
KERRY P. FITZGERALD
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
FERNANDO HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01380-CR
Appeal from the Criminal District Court No. 4 of Dallas County, Texas. (Tr.Ct.No. F08- 34207-K).
Opinion delivered by Justice FitzGerald, Justices Moseley and Richter participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered May 23, 2012.
KERRY P. FITZGERALD
JUSTICE