Opinion
No. 04-03-00522-CR
Delivered and Filed: February 2, 2005. DO NOT PUBLISH.
Appeal from the 284th Judicial District Court, Montgomery County, Texas, Trial Court No. 02-05-03567-CR, Honorable Putnam Reiter, Judge Presiding. Affirmed.
Sitting: Karen ANGELINI, Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Terry Tyrone Sanford appeals from his conviction for possession of cocaine and sentence of thirty-two years imprisonment. Sanford's sole issue on appeal is that the trial court erred in denying his request for an instruction informing the jury to disregard evidence they believe was obtained in violation of the state or federal laws or constitutions. We affirm the trial court's judgment.
Background
On February 19, 2002, Detective Elias Perez of the Conroe Police Department and other law enforcement officers executed a search warrant at a residence located at 211 Avenue E in Conroe, Texas. The search warrant was based in part on a confidential informant's tip that the house was being used for drug trafficking. Sixteen packages of crack cocaine were seized, along with other drug paraphernalia and several types of firearms. Sanford was one of four people inside the residence who were arrested. He was charged with possession of 200 grams or more of cocaine, but less than 400 grams. At trial, Sanford challenged the validity of the search warrant through a motion to suppress, arguing that there was insufficient probable cause because the confidential informant's tip was not adequately corroborated by the detective. The court denied Sanford's motion to suppress after a hearing. Sanford now brings this appeal.Analysis
In his sole issue on appeal, Sanford asserts the trial court erred in denying his request for a jury instruction under article 38.23 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 38.23 (Vernon Supp. 2004-05). Sanford contends he was entitled to the jury instruction because he raised a fact issue at trial as to the legality of the search warrant, specifically, as to the corroboration and reliability of the informant's tip. The State argues that the informant's tip was sufficiently corroborated, and that any error in omission of the instruction was harmless. We must determine whether Sanford was entitled to the instruction, and, if so, whether its omission was harmful error. Article 38.23 provides in pertinent part,(a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case. In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.Tex. Code Crim. Proc. Ann. art. 38.23(a). During the charge conference on guilt/innocence, Sanford verbally requested a jury instruction based on article 38.23(a). The State initially concurred that the instruction "probably should be" in the charge, but then argued that a legitimate fact issue on the admissibility of the seized evidence was not raised during trial. Defense counsel responded that a fact issue was raised through cross-examination concerning whether Detective Perez was sure he saw Sanford at the house before issuance of the warrant. The trial court denied Sanford's request for the instruction. A defendant is entitled to an instruction under article 38.23 only if the trial evidence creates a factual dispute about how the evidence was obtained, i.e., whether it was obtained illegally. Garza v. State, 126 S.W.3d 79, 85 (Tex.Crim.App. 2004) (citing Thomas v. State, 723 S.W.2d 696, 708 (Tex.Crim.App. 1986)); see also Bell v. State, 938 S.W.2d 35, 48 (Tex.Crim.App. 1996). A fact issue about whether evidence was legally obtained may be raised from any source, and the evidence may be "strong, weak, contradicted, unimpeached, or unbelievable." Garza, 126 S.W.3d at 85. There is no issue for the jury when the question is one of law only, such as whether undisputed facts constitute probable cause. See Pierce v. State, 32 S.W.3d 247, 251 (Tex.Crim.App. 2000). At trial, Detective Perez testified that one month prior to the search, he received information from other officers and arrestees that the house at 211 Avenue E had a lot of foot and vehicle traffic, and had the characteristics of drug trafficking. In response to that information, Perez personally conducted surveillance by driving by the house in an unmarked car between five and ten times at various times of the day during the month preceding the search. On three to five of those occasions, he observed several young males standing in front of the house and several vehicles parked at the house, at different times of day and night. Perez never saw any drugs being used or transferred, but testified that in his professional experience, the constant foot and vehicle traffic at the house was characteristic of drug trafficking. On the morning of February 19, 2002, Perez received a phone call in which a confidential informant stated the informant had just left the house and had seen a large amount of cocaine being converted into crack and packaged into baggies, and had seen several weapons in the house. The informant also gave Perez the names of people inside the house at that time, one of which was Terry Sanford. Detective Perez testified the informant had given him reliable information in the past leading to successful prosecutions. Based on the informant's tip and corroboration through his own observations and information received from other officers, Perez executed an affidavit of probable cause and obtained a search warrant signed by a magistrate. During the search later that morning, the officers found weapons and crack cocaine packaged into baggies in the rooms identified by the informant, and arrested two of the named people, including Sanford. In evaluating whether Sanford was entitled to an article 38.23 jury instruction, we must determine whether the trial evidence raised a disputed issue of fact concerning whether the evidence was illegally obtained. When requesting the instruction from the trial court, Sanford argued a contested fact issue was raised by Detective Perez's testimony on cross-examination that he was only "90% certain" that he had seen Sanford at the house prior to issuance of the warrant; Sanford claimed that testimony contradicted Perez's affirmative statement in his affidavit that he had seen Sanford at the house. Sanford argues this evidence was sufficient to raise a fact question as to whether Perez sufficiently corroborated the informant's tip to establish probable cause for the search warrant. Sanford also argues that his questioning of Perez about the confidential informant's reliability was sufficient to raise a fact issue about the legality of the search warrant. We do not agree that Perez's testimony that he was less than 100% certain he saw Sanford at the house is sufficient to raise a contested issue of fact about whether the evidence was legally obtained. Detective Perez's trial testimony that he was "90% certain" it was Sanford that he saw in front of the house did not differ significantly from the statement in his affidavit that he had seen Sanford at the house; the testimony does not rise to the level of creating a disputed fact issue. See Garza, 126 S.W.3d at 86. Similarly, Detective Perez's trial testimony about the informant's reputation and reliability did not differ from the statement in his affidavit, and was not contradicted by any other trial evidence; therefore, it did not create an issue of fact for the jury. The gist of Sanford's argument on appeal is that there was a question as to whether Detective Perez sufficiently corroborated the informant's tip to support a finding of probable cause. "That appellant `disagrees with the conclusion that probable cause was shown as a matter of law' is not the same as appellant controverting the facts." Garza, 126 S.W.3d at 86 (quoting Luna v. State, No. 03-97-00605-CR, 1999 WL 11183, at *6 (Tex.App.-Austin Jan. 14, 1999, pet. ref'd) (not designated for publication)). The question of whether the search warrant was legal is a question of law, as the essential facts concerning probable cause were not in dispute. See id. We hold that the trial court did not err in refusing to give an article 38.23 jury instruction. Because we conclude the court did not commit error, we need not address the issue of harm. We overrule Sanford's sole issue on appeal and affirm the judgment of the trial court.