Derrow, Glenn Anthony v. The State of Texas--Appeal from 339th District Court of Harris County

Affirmed and Opinion filed September 26, 2002

Affirmedand Opinion filed September 26, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-00-01285-CR

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GLENN ANTHONY DERROW, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 339th District Court

Harris  County, Texas

Trial Court Cause No. 837,936

O P I N I O N

Appellant, Glenn Anthony Derrow, appeals the denial of a pretrial motion to suppress evidence. Appellant argues that the trial court erred in denying the motion to suppress evidence seized in his residence under a search warrant because the affidavit used to secure the warrant was not sufficient to establish probable cause. We disagree and affirm the trial court s decision.

PROCEDURAL AND FACTUAL BACKGROUND

On February 27, 2000, a Houston police officer obtained a search warrant for a residence and vehicle in Harris County. Appellant was subsequently arrested at the residence and charged with possession of cocaine weighing more than 4 and less than 200 grams. Appellant filed a motion to suppress the evidence obtained from the search, arguing that the affidavit lacked probable cause to support the issuance of a search warrant. The trial court denied the motion, ruling facts in the affidavit indicated the existence of ongoing drug activity in the residence sufficient to establish probable cause. Appellant plead guilty to the offense as part of a plea agreement and was sentenced to twenty-five years in the Texas Department of Criminal Justice, Institutional Division. This appeal followed.

DISCUSSION

In a single issue on appeal, appellant contends the trial court erred in finding the warrant affidavit sufficient to show probable cause. In the affidavit, the officer described an anonymous informant s purchase of crack cocaine at the appellant s residence. The officer indicated that he worked with the informant on three prior investigations and found the informant reliable each time. The officer s affidavit stated in relevant part:

At approximately, 19:00 hours your Affiant met with the informant and searched the informant. Your Affiant did not find any contraband on the person of the informant. Your Affiant gave the informant a single, city owned twenty dollar bill. Your Affiant instructed the informant to go to the residence located at 1702 Cleveland, Houston, Harris County Texas and to purchase crack cocaine. The informant walked to and entered the residence at 1702 Cleveland, Houston, Harris County Texas and spoke with the Black female known as Sue Sue . The informant told Sue Sue that he wanted to buy crack cocaine and the informant gave Sue Sue the city owned twenty dollar bill. Sue Sue told the informant she was currently out of crack cocaine. Sue Sue told a Black male she called T to get some crack cocaine out of the car he was driving. The Black male went to and opened the trunk of a vehicle that bears Texas License Number Plates KVJ73W . The Black male known as T got a small piece of clear plastic out of the trunk and returned to the residence. T opened the clear piece of plastic and took out two pieces of beige colored rock like substance and handed them to the informant. The informant stated that there were approximately 20 pieces of crack cocaine remaining in the clear piece of plastic. T then went back to the listed vehicle and put the remaining pieces of crack cocaine back in the trunk. Sue Sue told the informant to come back later because she was going to get another shipment of crack cocaine delivered later this date.

The informant then returned directly to the Affiant and gave your Affiant the substance sold to him by the Black female known as Sue Sue and the Black male known as T . Your Affiant maintained constant visual contact with the informant throughout this transaction. Your Affiant again searched the informant and did not find any contraband. The substance sold to the informant weighed approximately .40 grams and field tested positive for cocaine content by your Affiant.

Based on the aforesaid facts, it is the opinion of your Affiant that the Black female known as Sue Sue and the Black male known as T ; and other persons unknown are in possession of the controlled substance, crack cocaine, concealed within the address known as 1702 Cleveland, Houston, Harris County Texas and the 1993 Oldsmobile bearing Texas License Number Plates KVJ73W .

The trial court denied appellant s motion to suppress, ruling that the search warrant was properly issued based upon the facts presented in the affidavit.

Standard of Review

We review a trial court s ruling on a motion to suppress evidence under an abuse of discretion standard. Alvarado v. State, 853 S.W.2d 17, 23 (Tex. Crim. App. 1993). If supported by the record, a trial court s ruling on a motion to suppress will not be overturned. Brooks v. State, 76 S.W.3d 426, 430 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (citing Hill v. State, 902 S.W.2d 57, 59 (Tex. App.CHouston [1st Dist.] 1995, pet. ref d)). At a suppression hearing, the trial court is the sole finder of fact and may believe or disbelieve any or all of the evidence presented. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996).

In reviewing a trial court s ruling on a motion to suppress, we afford almost total deference to the trial court s determination of historical facts that the record supports, especially when the trial court s findings turn on evaluating a witness=s credibility and demeanor. State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000). We afford the same amount of deference to the trial court s ruling on mixed questions of law and fact if resolving those ultimate questions turns on evaluating credibility and demeanor. Id. We review de novo issues that are purely questions of law, such as whether reasonable suspicion or probable cause existed at the time of the search or seizure. Brooks, 76 S.W.3d at 430 (citing Guzman v. State, 55 S.W.2d 85, 89 (Tex. Crim. App. 1997)). If the trial court s ruling is reasonably supported by the record and is correct on any theory of law applicable to the case, the reviewing court will sustain it upon review. Villarreal, 935 S.W.2d at 138.

Probable Cause

The Fourth Amendment of the United States Constitution and article one, section nine of the Texas Constitution guarantee individuals the right to be free from unreasonable searches and seizures. U.S. Const. Amend. IV; Tex. Const. Art. I, ' 9. In Texas, the affidavit supporting a search warrant must state probable cause. Zarychta v. State, 44 S.W.3d 155, 165 (Tex. App.CHouston [14th Dist.] 2001, pet. ref d), cert. denied, Zarychta v. Texas, 122 S. Ct. 2312 (2002).

Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of circumstances. See Illinois v. Gates, 462 U.S. 213, 238 (1983); Ramos v. State, 934 S.W.2d 358, 362 63 (Tex. Crim. App. 1996). The allegations in a probable cause affidavit are sufficient if they would justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d at 363. Only the facts found within the four corners of the affidavit may be considered. Jones v. State, 833 S.W.2d 118, 123 (Tex. Crim. App. 1992), cert. denied, Jones v. Texas, 507 U.S. 921 (1993). However, the magistrate is permitted to draw reasonable inferences from the facts and circumstances alleged, and the affidavit must be interpreted in a common sense and realistic manner. Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987) (en banc), cert. denied, 485 U.S. 937 (1988).

Our after-the-fact scrutiny of the sufficiency of an affidavit does not take the form of a de novo review; instead, we determine whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrongdoing. Gates, 462 U.S. at 236; Daniels v. State, 999 S.W.2d 52, 54 (Tex. App.CHouston [14th Dist.] 1999, no pet.). In conducting this review, we give great deference to the magistrate s determination of probable cause. Ramos, 934 S.W.2d at 363; Daniels, 999 S.W.2d at 54. If in a particular case 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 warrants. Lopez v. State, 535 S.W.2d 643, 647 (Tex. Crim. App. 1976).

Appellant s Complaint

In a sole point of error, appellant asserts that the trial court erred in overruling his motion to suppress evidence found during the search of appellant s residence. Appellant argues that the affidavit fails to allege sufficient facts upon which an independent magistrate could conclude that a fair probability existed that cocaine would be at the residence at the time the warrant was issued. Specifically, appellant contends that the affidavit lacks any allegation that cocaine was being stored or sold in the residence, that the informant ever observed contraband in the residence, or that there was supporting police surveillance linking the contraband in the car to the residence. We disagree with appellant s characterization of the contents of the affidavit.

In the affidavit, the officer stated that the informant entered the residence, handed the city-owned twenty dollar bill to Sue Sue and in return received crack cocaine from T inside the residence. Although the affidavit indicated that the cocaine sold to the informant was not stored in the residence, Sue Sue directed T to retrieve the cocaine from the trunk of the vehicle and bring it into the residence, where the transaction was completed. Appellant s contention that there is nothing linking the contraband to the residence ignores the fact that the informant s observations, and the sale of cocaine, took place inside the residence. Additionally, the officer=s affidavit indicated that following the sale of the cocaine, Sue Sue told the informant to come back later because she was expecting a delivery of additional cocaine that day. This statement, made in the context of a drug sale in the residence, is sufficient to support the conclusion that the residence was a site of ongoing drug activity.

Moreover, the officer maintained visual contact with the informant during the transaction, and appellant does not challenge the informant s reliability. Given the totality of the circumstances, we find that a reasonable inference could be drawn that cocaine would likely be found in the residence when the warrant was obtained two days later. See Sadler v. State, 905 S.W.2d 21, 22 (Tex. App.CHouston [1st Dist.] 1995, no pet.) (holding that circumstances of a controlled buy, standing alone, may be sufficient to reasonably confirm an informant s information and give probable cause to issue search warrant); Bodin v. State, 782 S.W.2d 258, 260 (Tex. App.CHouston [14th Dist.] 1989), rev d on other grounds, 807 S.W.2d 313 (Tex. Crim. App. 1991) (holding that search warrant based on informant=s controlled buy provided reasonable basis to infer that additional drugs would be found on the premises). We do not believe additional corroboration by police surveillance was required.

 

Accordingly, we conclude the affidavit supported a finding of probable cause and affirm the judgment of the trial court.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Opinion filed September 26, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).