Opinion
No. 08-03-00200-CR
July 29, 2004. DO NOT PUBLISH.
Appeal from the 238th District Court of Midland County, Texas, (TC# CR-27,721).
Before Panel No. 1 LARSEN, McCLURE, and CHEW, JJ.
OPINION
This is an appeal from a conviction for the felony offense of possession of marihuana over four ounces but under five pounds. Pursuant to a plea agreement, the Appellant, Jesus Salas Rivera, pled guilty and was sentenced 2 years' in the state jail, suspended for 5 years' community supervision and a $1,500 fine. On appeal, Appellant challenges the trial court's denial of his motion to suppress the evidence seized. We affirm. At the motion to suppress hearing, the only testimony presented was that of Officer Mitch Russell, of the Midland Police Department. Officer Russell testified that he has been employed with the Midland Police Department for twelve years, eight of which he has worked with the narcotics division. On September 6, 2000, he and Detective Herman, were conducting a marihuana investigation involving Marshal Ray Willis. Both of them, along with a cooperating individual, negotiated a purchase of marihuana from Mr. Willis. Subsequent to taking the delivery of approximately four pounds of marihuana from Mr. Willis, he agreed to provide the source of his supply, which turned out to be Jesus Salas Rivera, the Appellant. Mr. Willis told Officer Russell that he had made previous purchases of marihuana from the Appellant, dating as far back as to about a year and half. Mr. Willis further agreed to cooperate and order another quantity of marijuana from the Appellant. He provided Officer Russell with Appellant's address, cellular number, and a description of Appellant's vehicle, which he described as an off-yellowish van with a sign on it that read "First Class Painting," the name of Appellant's company. That same day, Officer Russell placed a recording device on Mr. Willis's cell phone. Mr. Willis placed a call to Appellant's cellular number which sent his call to the voice mail system indicating that they had reached First Class Painting. Mr. Willis left a message for Appellant at his place of business, and Appellant returned his call shortly thereafter. The following conversation took place:
C.S.: Hello
Jessie: Hey.
C.S.: Hey Jess.
Jessie: . . . inaudible . . . What's up?
C.S.: What's up man?
Jessie: Kickin' it . . . inaudible . . .
C.S.: Uh . . . shit I don't know. Uh . . . can we do something today or what?
Jessie: Yeah brother, that's what I'm telling you.
C.S.: What do you . . . what do you want? What do you want to do? Can you get me five?
Jessie: Well I'll go . . . I'll be over there in a minute man. I'll talk to you.
C.S.: Huh?
Jessie: I'll be over there in a minute to talk to you.
C.S.: Well hey can you . . . can you . . . can you wait a little bit because my mom is getting ready to come home so.
Jessie: Ok, that's cool. That's cool.
C.S.: All right.
Jessie: I'll . . . I'll . . . I'll give you a holler before I stop by.
C.S.: Ok, bye.
Jessie: All right man.According to Officer Russell's testimony, the deal had to be postponed until the following day in order to prepare some things before the deal. Mr. Willis therefore made up a story as to why they could not go through with the deal and it was postponed to the following day. The next day, Mr. Willis met Detective Herman at the police station and placed another call to the Appellant. After several attempts, Appellant answered the telephone and he and Mr. Willis made small talk regarding some job that required laying tile. Then the following conversation transpired:
C.S.: So . . . uh . . . what do you want to do dude?
Jessie: Same thing as yesterday we was talking about?
C.S.: Yeah.
Jessie: Ok. Well I'll . . . I'll be over there man.
C.S.: Well you gonna go by my house or what?
Jessie: Yeah.
C.S.: All right.
Jessie: Yeah. I'll be by there.
C.S.: Hey.
Jessie: Huh?
C.S.: Jess, you don't think we can go somewhere else? Cause I'm paranoid about going around there.
Jessie: Well shit man . . . uh . . .
C.S.: I mean we can but, you know . . . inaudible . . .
. . .
C.S.: [D]ude if you have to meet me at my house that's cool. But just let me go by and make sure that I can do something about those girls there. Because I don't want them girls to know what's up. You know what I mean?
. . .
Jessie: Ok. . . . give me about an hour then. I'll be over there in about an hour.After Appellant agreed to go over to Mr. Willis's house, about eight to ten surveillance units surrounded the house. Based on previous deals between Mr. Willis and the Appellant, Mr. Willis was able to provide the police with information as to where Appellant would park his vehicle and how he would proceed to enter the residence. The plan was to wait for Appellant to arrive and park his vehicle under the carport and walk into the fenced area of Mr. Willis's front yard. At that point, Appellant would be arrested so that in case he tried to run, he would at least be in a fenced area. Once the surveillance units saw a vehicle approach the house, Detective Herman, who was in contact with Mr. Willis via cell phone, confirmed that it was in fact Appellant's vehicle. The van also matched the description provided by Mr. Willis; it was an off-yellow color and white color and had a sign that read, "First Class Painting" on the side. Appellant parked the vehicle under the carport, stepped out of the vehicle, and made his way towards the fenced front yard. At that point, police officers approached and detained him. The officers proceeded to search his van where a couple of bricks of marijuana, weighing less than four pounds, were located inside a tool box. Officer Russell then interviewed the Appellant who agreed to take the officers back to his residence and gave consent to have his home searched. Officer Russell testified that only a small quantity of marijuana was found in an outbuilding on Appellant's property. Appellant was not immediately arrested because he agreed to cooperate in some other investigations to help himself out of this marijuana deal. Officer Russell testified that he knew the Appellant prior to September 6, 2000. On a few previous narcotics investigations, specifically dealing with marihuana, Officer Russell testified that he had made personal contact with the Appellant. On previous occasions, Officer Russell had received information from three different sources that Appellant was dealing marihuana. Additionally, in April of 1999, an individual arrested for possession of marihuana cooperated with police, telling them his supply source was the Appellant. He also provided Appellant's address, vehicle description, and telephone number. That incident and information provided led to a search of Appellant's home where a small amount of marihuana was discovered. After the hearing on the motion to suppress, the trial court entered an order denying Appellant's motion. Having retained his right to appeal the trial court's denial of his motion to suppress, Appellant timely filed this appeal. In his sole point of error, Appellant asserts the trial court abused its discretion in denying his motion to suppress evidence obtained as a result of the search of his vehicle and statements made thereafter. Specifically, Appellant contends that the officers lacked probable cause to search his vehicle and that his statements were a result of being unlawfully detained.