DONALD ROBERT POE, FROM A DISTRICT COURT APPELLANT, v. THE STATE OF TEXAS, APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00690-CR
 
DONALD ROBERT POE,                                FROM A DISTRICT COURT
 
 
        APPELLANT,
 
 
v.
 
 
THE STATE OF TEXAS,
 
 
        APPELLEE.                                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, LAGARDE AND KINKEADE
OPINION BY JUSTICE KINKEADE
JULY 19, 1989
        Donald Robert Poe appeals his conviction for possession of marijuana. In a trial before the court, Poe pleaded guilty. He received deferred adjudication and was placed on probation for four years. Subsequently, the State moved to proceed to an adjudication of guilt. The trial court found Poe guilty and assessed punishment at ten years confinement and a $5,000.00 fine. Poe contends that 1) article 42.12 § 3d of the Code of Criminal Procedure is unconstitutional; and 2) the trial court erred in overruling his motion to suppress evidence. We disagree and affirm the trial court's judgment.
        Article 42.12 § 3d provides:
                    (a) Except as provided by Subsection (d) of this section, when in its opinion the best interest of society and the defendant will be served, the court may, after receiving a plea of guilty or plea of nolo contendere, hearing the evidence, and finding that it substantiates the defendant's guilt, defer further proceedings without entering an adjudication of guilt, and place the defendant on probation. In a felony case, the period of probation may not exceed 10 years. In a misdemeanor case, the period of probation may not exceed the maximum period of confinement prescribed for the offense. The court may impose a fine applicable to the offense and require any reasonable terms and conditions of probation, including any of the conditions enumerated in Sections 6 and 6a of this Article. However, upon written motion of the defendant requesting final adjudication filed within 30 days after entering such plea and the deferment of adjudication, the court shall proceed to final adjudication as in all other cases.
 
                    (b) On violation of a condition of probation imposed under Subsection (a) of this section, the defendant may be arrested and detained as provided in Section 8 of this Article. The defendant is entitled to a hearing limited to the determination by the court of whether it proceeds with an adjudication of guilt on the original charge. No appeal may be taken from this determination. After an adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and defendant's appeal continue as if the adjudication of guilt had not been deferred.
        Poe argues that the elimination of the right to appeal from the trial court's decision to proceed to an adjudication of guilt violates his right to due process of law. This Court has found that article 42.12, § 3d does not unconstitutionally deprive an appellant of due process. Mayers v. State, 735 S.W.2d 550, 551 (Tex. App.--Dallas 1987, no pet.). We overrule the first point of error.
        In his second point of error, Poe contends that the trial court erred in overruling his motion to suppress evidence. No hearing was conducted on the motion, and Poe did not object or raise the issue during the trial. However, the trial court made findings of fact and conclusions of law as follows:
I.
            Exhibit "B" in the Court's file is the affidavit supporting the search warrant and Exhibit "A" is the warrant authorizing Officer Skinner to search the premises at 5200 Meadowcreek, Dallas, Texas.
 
 
II.
            No formal hearing has been had on defendant's Motion to Suppress.
 
III.
            Although the affidavit supporting the warrant contains conclusions when facts would be preferable in meeting the Aguilar test, this court believes that the affidavit is sufficient under the Gates test of the US Supreme Court.
 
            Therefore the fruits of the search will be admitted into evidence.
The State contends that findings of fact and conclusions of law are not authorized for this purpose in criminal cases. It asserts that Poe has waived any error regarding the motion to suppress by failing to have a hearing on it and failing to object at trial. However, the trial court admitted the "fruits of the search" into evidence, thereby implicitly overruling the motion of suppress. We hold that Poe has preserved his error. Because the motion to suppress was a written motion filed prior to trial on the underlying offense, the motion may be appealed with permission of the trial court. TEX. CODE CRIM. PROC. ANN. art. 26.13(a)(3).
        Poe contends that the motion to suppress should have been granted because the search warrant and supporting affidavit were insufficient. The affidavit states in pertinant part:
                    My name is R.O. Skinner #208. I am employed by the City of Richardson Police Department and have been so employed for the past 3 years. I am currently assigned to the special investigations division of the Richardson Police Department as an investigator.
 
                    On 01-10-84 I was advised by a confidential informant that he personally observed and recognized marihuana in the above described location within the past 72 hours. This confidential informant has provided what this investigator believes to be true and reliable information. He has made statements against his penal interest, and the information given by him has been verified through surveillance and the contact of other reliable sources.
        In order for an affidavit to be sufficient to support a search warrant, the issuing magistrate should be able to determine, from a totality of the circumstances, that there was a fair probability that the contraband would be found in a particular place. Illinois v. Gates, 462 U.S. 213 (1983). The magistrate should consider whether the affidavit contains sufficient information to reflect the credibility of the informant and the underlying facts upon which the informant based his beliefs. Aguilar v. Texas, 378 U.S. 108 (1964). The Aguilar test should not be rigidly applied, but the entire affidavit must be examined to determine whether probable cause was established. Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986).
        The affidavit states that the investigator who signed the affidavit believed the informant's information to be true and correct. It further states that the informant made statements against his penal interest, and that the information had been verified by reliable sources. This tends to show that the informant was credible. The affidavit states that the informant personally saw marijuana at the location described in the affidavit within the past seventy-two hours. This information reflects time, place and type of contraband. Taken as a whole, we hold that the affidavit is sufficient to establish probable cause. Doescher v. State, 578 S.W.2d 385, 388 (Tex. Crim. App. 1978). We overrule the second point of error and affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          ED KINKEADE
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00690.F
 
 
File Date[01-02-89]
File Name[880690]