LEONARDO CAMPOS v. THE STATE OF TEXAS--Appeal from 156th District Court of Bee County

NUMBER 13-04-181-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

LEONARDO CAMPOS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 156th District Court

of Bee County, Texas.

  MEMORANDUM OPINION [1]

Before Chief Justice Valdez and Justices Castillo and Garza

Memorandum Opinion by Justice Castillo

A jury convicted Leonardo Campos of cocaine possession.[2] The trial court sentenced Campos, a repeat offender,[3] to fifty years' confinement in the Institutional Division of the Texas Department of Criminal Justice.[4] By one issue, Campos asserts the trial court erred in denying his motion to suppress.[5] We affirm.

I. Background

On February 13, 2003, a warrant was issued against "Leo Campos D.O.B. 06-02-1962" and "others unknown to the affiant but found to be occupants of said premises and in control of same" at a residence. The affidavit indicated that an informant provided the description and identity of Campos. The warrant also stated: "[Y]ou are commanded to enter the suspected place, vehicles, and premises." After a description of the location of the premises, the warrant continues:

Said suspected place, in addition to the foregoing description, also includes all other buildings, structures, places and vehicles on said premises and within the curtilage, if said premises is a residence, which are found to be under the control of the suspected party named below and in, on or around which said suspected party may reasonably reposit or secrete property which is the object of the search requested herein.

The crux of Campos's complaint was that the person named and described in both the affidavit for search, and arrest warrant did not accurately describe the person arrested and charged in the case, namely, appellant, whose birth date is February 24, 1942. Campos maintains that, because his arrest was procured through a defective arrest warrant, the arrest was illegal and, thus, the evidence was illegally seized and inadmissible.

The record demonstrates that officers of the Beeville Police Department were familiar with Campos and his residence, as they had been utilizing an informant to secure information regarding drug sales from the premises. Immediately prior to the raid, Detective Southmayd had sent in an informant with $20.00 to (1) purchase cocaine, and (2) confirm that Campos was inside. While the officers were at the location, waiting for the informant to leave so they could execute the warrant, two individuals exited the residence, entered a vehicle which was on the property, and fled the scene in the vehicle. Officers followed the vehicle and stopped it about 500 yards from the location in a nearby parking lot. The Officers detained and searched both occupants (Campos and Sonny Ojeda), and also searched the vehicle. On Ojeda, officers found a pill bottle with Campos's name on it. The bottle contained two packets of cocaine. Both Campos and Ojeda were arrested. Some of the currency given to the informant was found on Campos. Subsequently, officers searched and located cocaine in the pocket of a bathrobe found in the residence described in the search warrant and affidavit. Dalia Campos, the wife of Campos, was in the residence at the time of the search and was also arrested.

Campos filed a motion to suppress all of the evidence obtained pursuant to the warrant but later abandoned the argument concerning the cocaine found in the bathrobe, and only argued at the hearing that the evidence obtained from the search of the vehicle should be suppressed. The court overruled the motion and allowed all of the evidence to be admitted at the trial. Campos objected when the State introduced the suppression evidence, and the trial court overruled the objection. Campos then participated in the litigating of the issue of the suppressed evidence, in his cross-examination of the State's witnesses. Campos was convicted of possession and this appeal ensued.

II. Analysis

A. Scope and Standard of Review

A trial court's ruling on a motion to suppress is generally reviewed for abuse of discretion. Tex. Crim. Proc. Code Ann. art. 28.01(6) (Vernon 1989); Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985) (en banc); Ford v. State, 26 S.W.3d 669, 672 (Tex. App.BCorpus Christi 2000, no pet.). At a suppression hearing, the trial court is the sole finder of fact. Arnold v. State, 873 S.W.2d 27, 34 (Tex. Crim. App. 1993). The trial court is free to believe or disbelieve any or all of the evidence presented. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990). Thus, in reviewing a trial court's ruling on a motion to suppress, we give almost total deference to the trial court's determination of historical facts and application-of-law-to-fact questions that turn on credibility and demeanor. Perales v. State, 117 S.W.3d 434, 437 (Tex. App.BCorpus Christi 2003, pet. ref'd); Morrison v. State, 71 S.W.3d 821, 827 (Tex. App.BCorpus Christi 2002, no pet.). We review de novo application-of-law-to-fact questions that do not turn on credibility and demeanor. Morrison, 71 S.W.3d at 827. In the absence of explicit fact findings, we assume that the trial court's ruling is based on implicit fact findings supported in the record. Perales, 117 S.W.3d at 437; see Carmouche v. State, 10 S.W.3d 323, 332 (Tex. Crim. App. 2000) (recognizing implicit fact findings). We then review de novo whether the facts, express or implied, are sufficient to provide legal justification for admitting the complained-of evidence. See Morrison, 71 S.W.3d at 827 (citing Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001)).

We uphold a trial court's ruling on a suppression motion if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996); Perales, 117 S.W.3d at 437. This is true even if the decision is correct for reasons different from those espoused by the trial court. Romero, 800 S.W.2d at 543. Because the trial court did not make explicit findings of fact, we will review the evidence in the light most favorable to the trial court's ruling. Maxwell v. State, 73 S.W.3d 278, 281 (Tex. Crim. App. 2002). We will not disturb any ruling on a motion to suppress that is supported by the record. Gruber v. State, 812 S.W.2d 368, 370 71 (Tex. App.BCorpus Christi 1991, pet. ref'd); see Perales, 117 S.W.3d at 438; Villarreal, 935 S.W.2d at 138.

In determining whether a trial court's decision is supported by the record, we ordinarily consider only evidence adduced at the suppression hearing. See Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996). However, this general rule is inapplicable where, as in this case, the suppression issue has been re litigated by the parties during trial on the merits. Id. Where the State raises the issue at trial with subsequent participation in the inquiry by the defense, the defendant has made an election to re open the evidence, and consideration of the relevant trial testimony and evidence is appropriate in our review. Id. Moreover, it would be unreasonable to ignore trial evidence in our review of the trial court's suppression decision, only to be confronted by the evidence in our consideration of whether the error was harmless. See Tex. R. App. P. 44.2; Rachal, 917 S.W.2d at 809.

B. Search and Seizure

The Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution guarantee the right to be secure from unreasonable searches and seizures made without probable cause. U.S. Const. amend. IV; Tex. Const. art. I, ' 9. 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 against the accused in a criminal case. Tex. Crim. Proc. Code Ann. art. 38.23(a) (Vernon 2005);see Tex. Crim. Proc. Code Ann. art. 15.02 (Vernon 2005).

We look at both the arrest and search aspects of the warrant in determining whether the trial court abused its discretion in denying the motion to suppress. Moreno v. State, 124 S.W.3d 339, 344 (Tex. App.BCorpus Christi 2003, no pet). Just as we will evaluate the encompassing issue of probable cause by measuring the factual sufficiency when there is an affidavit and warrant, we will review the totality of the circumstances. Green v. State, 799 S.W.2d 756, 757 (Tex. Crim. App. 1990). We review technical discrepancies with a judicious eye for the procedural aspects surrounding issuance and execution of the warrant. Id. at 760. We read the affidavit and warrant together and interpret them in a common sense and realistic fashion. Id.

In this case, the warrant authorized the search of "vehicles on said premises."

Stopping the vehicle that was observed leaving the residence identified in the search warrant was an effective execution of the warrant. The officers articulated sufficient facts to demonstrate they formed a reasonable belief that the individuals in the vehicle were involved in illegal activity. Id. Accordingly, the evidence was legally obtained pursuant to the warrant.

Further, even if we were to accept Campos's argument that the warrant was defective as to his identification, it does not negate the entire warrant. Mason v. State, 838 S.W.2d 657, 660 (Tex. App. Corpus Christi 1992, pet. ref'd). If there is sufficient other information in the warrant for the arrest of other specifically identified individuals, other unknown individuals, or the search of specific property, which an executing officer can locate and distinguish the person and avoid a reasonable probability of mistaken execution, then the warrant is valid as to those persons and property. Id. at 660. In this case, Campos can also be identified as "unknown others," consistent with the language found in the warrant. It was reasonable for the police officers to suspect that the individuals, including Campos, who exited the residence and left the scene were targets of the warrant, whether named or unknown.

We conclude that the evidence obtained pursuant to the warrant was legally seized. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress. See Villarreal, 935 S.W.2d at 138; Perales, 117 S.W.3d at 437.

III. CONCLUSION

We overrule Campos's sole issue on appeal and affirm.

ERRLINDA CASTILLO

Justice

Do not publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this the 13th day of April, 2006.

[1] See Tex. R. App. P. 47.2, 47.4.

[2] See Tex. Health & Safety Code Ann. ' 481.115(d) (Vernon 2003).

[3] Campos was convicted in 1989 on seven drug related offenses involving controlled substances. He was sentenced to 30 years' imprisonment in the Institutional Division of the Texas Department of Criminal Justice. In 1995 Campos was again convicted of two drug related offenses including delivery of a controlled substance, marijuana, with a sentence of 10 years. He was on two paroles in 2003.

[4] See Tex. Pen. Code Ann. ' 12.42(d) (Vernon Supp. 2005).

[5] Campos asserts that the trial court erred when it denied his motion to suppress the illegal arrest, illegal search and seizure of the evidence, all in violation of the fourth, fifth, ninth, and fourteenth amendments to the United States Constitution and article 1, sections 9, 10 and 19 of the Texas Constitution. U.S. Const. amends. IV, V, IX, XIV; Tex. Const. art. I, '' 9, 10, 19.