THE STATE OF TEXAS, Appellant v. ATENAEL RIVERA JIMENEZ, Appellee

REVERSE and REMAND and Opinion Filed August 18, 2008
 
 
                                
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01000-CR
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THE STATE OF TEXAS, Appellant
V.
ATENAEL RIVERA JIMENEZ, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F05-47904-WR
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OPINION
Before Chief Justice Thomas and Justices Moseley and Lang
Opinion By Justice Lang
        The State appeals the trial court's order granting Atenael Rivera Jimenez's motion to suppress evidence.   See Footnote 1  See Tex. Code Crim. Proc. Ann. art. 44.01(a)(5) (Vernon Supp. 2008). Jimenez was indicted for the offense of murder. In its sole issue, the State argues the trial court erred when it granted Jimenez's motion to suppress evidence because the magistrate had a substantial basis for concluding the arrest warrant was supported by probable cause.
        We conclude the trial court erred when it granted Jimenez's motion to suppress evidence. The trial court's order granting Jimenez's motion to suppress evidence is reversed. The cause is remanded for further proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        On January 2, 2005, Luis Francisco Montoya was murdered. He was stabbed and run over by a motor vehicle. A witness identified Jimenez as the person who stabbed and drove over Montoya in a Nissan Xterra.
        Det. John Palmer and Det. McNulty of the Dallas Police Department went to Jimenez's house. When they drove past the house, they observed a black, Nissan Xterra in the driveway. The detectives drove down the street and parked behind a Carrollton Police Department squad car. While talking to the Carrollton officer, the detectives learned the house was under surveillance by the Carrollton police, and Jimenez's wife, Maria Navaret, had come out of the house and was cleaning the Nissan Xterra.
        After talking to the Carrollton officer, the detectives returned to the house and observed Navaret inside the Nissan Xterra. The detectives asked Navaret to step away from the vehicle and she complied. When Navaret left the vehicle, she was holding a spray bottle and paper towels, which appeared to have blood on them. The police took the paper towels.
        With the assistance of Hernandez, a Spanish-speaking officer, the detectives asked Navaret for her consent to search the house. Navaret stated she did not know what to do, which the detectives concluded was not consent. Navaret was free to leave, but to ensure safety, the detectives asked her to wait outside of the house until they obtained and executed search and arrest warrants.
        After learning an arrest warrant had been obtained, the police entered Jimenez's house at 1:30 p.m. and found him asleep. Palmer observed blood on the bed sheets, some clothing, and a pair of shoes. The police awakened Jimenez and arrested him. Because Jimenez was not fully dressed, they directed Navaret to get him some clothing and allowed Jimenez to dress before taking him out of the house.
        Outside, the police asked for Jimenez's consent to search the house and Hernandez read the Spanish consent form to Jimenez out loud. Both Jimenez and Navaret signed the consent form. Then, the police searched the house and surrounding area. The bloody bedding, clothing, and shoes were seized from the house. At some point prior to obtaining Jimenez's and Navaret's consent, the police seized and towed the Nissan Xterra.
        Jimenez filed a pretrial motion to suppress the evidence arguing, in part, the search was unreasonable and illegal, claiming it was “the product of an illegal arrest because the police were without probable cause to approach, question, detain and/or request a consent to search.” During the hearing, Jimenez argued the arrest warrant was defective and insufficient because the complaint was conclusory for several reasons which were enumerated for the trial court. He claimed that because the arrest warrant was not based on probable cause, the police illegally entered his house to arrest him and any evidence they observed in plain view or as a result of Jimenez's consent to search were the “fruit of the poisonous tree” and should be suppressed. The trial court granted Jimenez's motion to suppress evidence. The trial court made findings of fact and conclusions of law: (1) finding, in part, that the first paragraph of the complaint was conclusory and the second paragraph listed statements made by an unidentified witness without any details as to that witness's reliability; and (2) concluding, in part, the complaint lacked probable cause and, as a result, Jimenez's consent to search was tainted and all evidence seized as result of Jimenez's arrest and consent must be suppressed. The State appealed.
II. MOTION TO SUPPRESS
 
        In its sole issue, the State argues the trial court erred when it granted Jimenez's motion to suppress evidence because the magistrate had a substantial basis for concluding the arrest warrant was supported by probable cause. The State contends the trial court failed to give the appropriate deference to the magistrate's reasonable conclusions and inferences, examined the complaint in a hypertechnical manner, and failed to consider the totality of the circumstances presented in the complaint. Jimenez responds the trial court properly suppressed the evidence because the complaint failed to set forth probable cause for the following reasons: (1) paragraph one does not reveal how the officer who swore to the complaint received the information or from whom he received it; (2) the complaint does not identify the witness, his background, or any information regarding his credibility; (3) the State relies on the second paragraph of the complaint to correct the deficiencies of the first paragraph; (4) the second paragraph of the complaint does not specifically state the witness saw the stabbing, only that he positively identified Jimenez, and nothing in the complaint indicates the witness was an innocent bystander who happened to see the stabbing; (5) paragraph two of the complaint mistakenly refers to “suspect Montoya,” suggesting Montoya stabbed himself, which diminishes the accuracy and reliability of the complaint; and (6) paragraph two of the complaint refers to “a witnesses,” which does not necessarily mean eyewitnesses. Also, Jimenez argues that, even if the arrest was legal, Jimenez and Navaret's consent to search was not voluntary and the evidence was not seized under the plain view doctrine because it was not seized at the time of Jimenez's arrest.
A. Standard of Review
 
        Generally, the appropriate standard for reviewing a trial court's motion to suppress is a bifurcated standard. See St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). This standard of review gives almost total deference to a trial court's determination of historical facts and applies a de novo review of a trial court's application of the law to those facts. See St. George, 237 S.W.3d at 725; Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
        However, when reviewing a magistrate's decision to issue a warrant, both trial and appellate courts apply a highly deferential standard in keeping with the constitutional preference for a warrant. See Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). Reviewing courts must pay great deference to a magistrate's finding of probable cause to encourage police officers to use the warrant process, rather than making a warrantless arrest or search and later attempting to justify their actions by invoking some exception to the warrant requirement. See Illinois v. Gates, 462 U.S. 213, 236 (1983); Rodriguez, 232 S.W.3d at 59-60.
        A reviewing court is simply to ensure the magistrate had a substantial basis for concluding probable cause existed. See Gates, 462 U.S. at 238-39; Rodriguez, 232 S.W.3d at 60. A reviewing court should not invalidate a warrant by interpreting the affidavit or complaint in a hypertechnical manner. See Gates, 462 U.S. at 236; Rodriguez, 232 S.W.3d at 59. When a court reviews an issuing magistrate's determination, the court should interpret the affidavit or complaint in a commonsensical and realistic manner, recognizing the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at 61. When in doubt, a reviewing court defers to all reasonable inferences the magistrate could have made. Id. The issue is not whether there are other factors that could have, or even should have, been included in the affidavit or complaint. See id. at 62. Rather, reviewing courts focus on the combined logical force of facts that are in the affidavit or complaint, not those that are omitted. See id. The same standards apply to any challenge to the adequacy of an affidavit or complaint presented for issuance of a search or arrest warrant. Glaze v. State, 230 S.W.3d 258, 259 (Tex. App.-Waco 2007, pet. ref'd) (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004)).
B. Applicable Law
 
        The Fourth Amendment to the United States Constitution and article I, section 9 of the Texas Constitution command that no warrants, either for searches or for arrests, shall issue except on probable cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; see Rodriguez, 232 S.W.3d at 59. This reflects our preference for the warrant process in which police officers present their facts to a neutral magistrate to decide if there is probable cause to issue the warrant. See Rodriguez, 232 S.W.3d at 59.
        The cornerstone of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a warrant without first finding probable cause. See id. at 60. The magistrate's sole concern should be probability. Id. Probable cause is “a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a set of neat legal rules.” Gates, 462 U.S. at 232; Rodriguez, 232 S.W.3d at 64. Neither federal nor Texas law defines precisely what degree of probability suffices to establish probable cause, but that probability cannot be based on mere conclusory statements of an affiant's beliefs. Rodriguez, 232 S.W.3d at 61.
        An affidavit made before a magistrate is called a “complaint” if it charges the commission of an offense. Tex. Code Crim. Proc. Ann. art. 15.04 (Vernon 2005). An affiant must present a complaint that allows the magistrate to independently determine probable cause and the magistrate's actions cannot be a mere ratification of the bare conclusions of others. See id. The complaint shall be sufficient, without regard to form, if it has the following substantial elements: (1) it must state the name of the accused, if known, and if not known, must give some reasonably definite description of him; (2) it must show the accused has committed some offense, either directly or the affiant has good reason to believe and does believe the accused has committed such offense; (3) it must state the time and place of the offense as definitely as can be done by the affiant; and (4) it must be signed by the affiant by writing his name or affixing his mark. Id. art. 15.05.
        There is no requirement that “each and every fact which contributed to the [affiant's] conclusions be spelled out in the complaint.” See Gates, 462 U.S. at 230 n.6. (quoting Jaben v. United States, 381 U.S. 214, 224-25 (1965)). Complaints are usually drafted by nonlawyers in the midst and haste of a criminal investigation. See Ventresca v. United States, 380 U.S. 102, 109 (1965); Rodriguez, 232 S.W.3d at 61 n.25. Technical requirements of elaborate specificity once exacted under common law have no proper place in this area. See Ventresca, 380 U.S. at 109; Rodriguez, 232 S.W.3d at 61 n.25. It is not surprising that a police officer, in haste, may not compose a polished complaint that dots every “i” and crosses every “t.” See Rodriguez, 232 S.W.3d at 63-64.
        An informant's “veracity,” “reliability,” and “basis of knowledge” are all highly relevant in determining the value of a complaint. See Gates, 462 U.S. at 230. However, the use of an eyewitness does not raise the unusual concerns involved in weighing the credibility of a confidential informant. Belton v. State, 900 S.W.2d 886, 894 (Tex. App.-El Paso 1995, pet. ref'd); see also Gates, 462 U.S. at 234 (“[E]ven if we entertain some doubt as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that event was observed first- hand, entitles his tip to greater weight than might otherwise be the case.”). Where the victim or eyewitness to the offense is the direct source of the information conveyed to the magistrate by way of the police officer, neither facts independently corroborative of the occurrence nor the basis for the claimed reliability of the eyewitness need be recited. White v. State, 746 S.W.2d 775, 778 (Tex. App.-Dallas 1985, no pet.); Belton, 900 S.W.2d at 894; Cummings v. State, 651 S.W.2d 14, 15 (Tex. App.-Amarillo 1983, no pet.). Although an eyewitness is not named in a complaint, information from an unnamed eyewitness can be sufficient to establish probable cause for an arrest warrant. See Belton, 900 S.W.2d at 894; see also Barton v. State, 962 S.W.2d 132, 140 (Tex. App.-Beaumont 1997, pet. ref'd) (Stover, J., concurring). A magistrate has a sufficient basis for concluding there was probable cause to issue an arrest warrant where a complaint states the investigation revealed an unnamed eyewitness, who was present when the criminal activity took place, provided the name of and positively identified the defendant. See Belton, 900 S.W.2d at 894.
C. Application of the Law to the Facts
 
        Although Jimenez states the totality-of-the-circumstances analysis applies, he relies on the Texas Court of Criminal Appeals's opinion in Avery for the proposition that “if the informant is unnamed, the minimal requirement is that the affidavit recite that the informant has no criminal record, and enjoys a good reputation among his associates and in the community.” Avery v. State, 545 S.W.2d 803, 804 (Tex. Crim. App. 1977). However, Avery relied on the United States Supreme Court's opinion in Aguilar, which applied the “two-pronged test.” See Aguilar v. State, 378 U.S. 108 (1964). In Gates, the United States Supreme Court abandoned the “two-pronged test” of Aguilar, and reaffirmed the “totality-of-the-circumstances” analysis. Gates, 462 U.S. at 238; see also Bellah v. State, 653 S.W.2d 795, 796 (Tex. Crim. App. 1983) (per curiam) (adopting and applying “totality-of-the-circumstances” analysis in Gates).
        The findings of fact and conclusions of law demonstrate the trial court failed to defer to the reasonable inferences the magistrate could have drawn from the facts in the complaint   See Footnote 2  and instead, focused on the various facts the complaint did not contain.   See Footnote 3  First, we address the second paragraph of the complaint. The trial court found the second paragraph of the complaint listed statements made by an unidentified “witness who knew the suspect by name and face” and focused on the absence of facts relating to the witness's name and reliability. There is nothing in the complaint indicating the witness was a confidential informant as argued by Jimenez. Rather, the complaint specifically refers to the person as a “witness.” Also, the complaint states the officer received the information through his investigation and he interviewed the witness. Because it is reasonable to conclude the witness, who was the direct source of the information, was an eyewitness, the complaint did not need to provide facts independently corroborating the occurrence or the basis for the witness's reliability as argued by Jimenez. See Belton, 900 S.W.2d at 894.
        Second, we address the first paragraph of the complaint. The trial court found the first paragraph of the complaint contained a litany of conclusory statements that were not attributed to any identified source. However, although the first paragraph provides vital background, its total absence would still leave the complaint sufficient to support the magistrate's determination of probable cause. Moreover, viewed in its entirety, the complaint demonstrates it is reasonable to conclude: (1) the unnamed witness mentioned in the first paragraph at whose apartment Jimenez was playing cards and in whose apartment parking lot the murder occurred is the same unnamed witness mentioned in the second paragraph who was interviewed by the police and positively identified Jimenez as the person who stabbed Montoya; and (2) the unnamed witness in the second paragraph provided the information contained in the first paragraph. See Ventresca, 380 U.S. at 109; Rodriguez, 232 S.W.3d at 63-64.
        We conclude the magistrate had a substantial basis for concluding there was probable cause to issue the arrest warrant. Because the trial court concluded Jimenez's and Navaret's consent to search were tainted by the illegality of Jimenez's arrest, we need not address Jimenez's argument that, even if the arrest was legal, their consent to search was not voluntary and the evidence was not seized under the plain view doctrine.
        Issue one is decided in the State's favor.
 
 
 
 
III. CONCLUSION
 
        The trial court erred when it granted Jimenez's motion to suppress evidence.
        The trial court's order granting Jimenez's motion to suppress evidence is reversed. This cause is remanded to the trial court for further proceedings consistent with this opinion.
 
 
 
                                                          
                                                          DOUGLAS S. LANG
                                                          JUSTICE
 
 
 
Do Not Publish
Tex. R. App. P. 47
071000F.U05
 
Footnote 1 The State does not appeal the trial court's order granting Jimenez's motion to suppress his statements.
Footnote 2 In support of the request for an arrest warrant, the complaint stated:
 
 
Affiant's belief is based upon the following facts and information which Affiant received from : [] Affiant's personal investigation of this alleged offense . . . .
 
 
 
On January 2, 2005 at approximately 5:00 a.m. suspect Atenael R. Jimenez, L/M/10-06-55, committed the offense of Murder, P.C. 10.02, F/1, against the complainant, Luis Francisco Montoya, by stabbing him with a cutting instrument, and driving over him with a motor vehicle. The offense occurred at 13659 Preston Road, Dallas, Dallas County, Texas.
 
 
 
The facts are as follows:
In the early morning hours of January 2, 2005 complainant Luis Montoya and several co-workers were at a witnesses [sic] apartment playing cards and drinking beer. Suspect Atenael Jimenez was one of the individuals present. As the party ended around 5:00 a.m., suspect Jimenez and complainant Montoya along with six or seven other individuals left the apartment and entered the parking lot. Once in the parking lot Suspect Jimenez became involved in a dispute with a third party causing complainant Montoya to intervene ending the disturbance. At that time complainant Montoya, for reasons unknown, produced a knife showing it to suspect Jimenez. Suspect Jimenez then took the knife from complainant Montoya saying he could kill him easily with the knife if he wanted to. Suspect Jimenez then stabbed complainant Montoya one time in the chest and as witnesses fled suspect Jimenez entered his Nissan Extera [sic], Texas license plate 4TD-L53, and backed over complainant Montoya who was lying on the ground. Suspect Jimenez then drove over complainant Montoya several more times and fled the scene.
 
 
 
A witnesses [sic] who knew the suspect by name and face was interviewed and positively identified suspect Montoya [sic] as the person who stabbed and drove over complainant Montoya. The suspect vehicle was discovered in the driveway of suspect Jimenez's home at 1839 Pleasant Run, Carrollton, Texas. While detectives were at that location Det. Palmer observed suspect Jimenez's wife cleaning what appeared to be blood from inside the vehicle.
Footnote 3 After the hearing on Jimenez's motion to suppress evidence, the trial court made the following finding regarding the arrest warrant:
 
 
 
6.
 
The Court finds that the [Complaint] for Arrest Warrant upon which the police relied in arresting [Jimenez] consists of two paragraphs. The first paragraph contains a litany of conclusory statements that are not attributed to any identified source. The second paragraph lists statements made by an unidentified “witness who knew the suspect by name and face.” No additional details about the witness's reliability are included in the [complaint].
 
Also, the trial court made the following conclusions of law relating to the arrest warrant:
 
 
1.
 
The Court concludes that the [complaint] supporting the arrest warrant lacks probable cause and is invalid.
 
 
 
2.
 
The Court concludes that the State failed to prove any valid excuse to the warrant requirement for [Jimenez's] arrest under Texas Code of Criminal Procedure Chapter 14.
 
 
 
3.
 
The Court concludes that [Jimenez's] arrest was illegal.
 
 
 
4.
 
The Court concludes that all evidence seized as a result of [Jimenez's] arrest, including evidence found in his vehicle and seen in plain view in his home and any oral statements made at the time of his arrest, must be suppressed as a matter of law.
 
 
 
5.
 
The Court concludes that the consents to search were tainted by the illegality of [Jimenez's] arrest. All evidence seized pursuant to the consent to search forms must be suppressed.