RONNEALL JONES, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion Filed December 30, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00411-CR
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RONNEALL JONES, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 283rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-34536-PT
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MEMORANDUM OPINION
Before Moseley, FitzGerald, and Lang-Miers
Opinion By Justice FitzGerald
        Ronneall Jones appeals his conviction for possession of four grams or more but less than 200 grams of cocaine. Pursuant to a plea agreement, appellant pleaded guilty and agreed to findings that he possessed the cocaine in a drug-free zone and that he used or exhibited a deadly weapon. The trial court accepted the plea agreement and sentenced appellant to ten years' imprisonment and a $1500 fine. Appellant brings three issues on appeal asserting (1) the trial court erred in denying appellant's motion to suppress because the evidence was obtained pursuant to a search warrant that became stale before it was executed; (2) appellant's lawyer rendered ineffective assistance by failing to assert the staleness of the search warrant in the motion to suppress; and (3) the trial court erred in denying appellant's motion to suppress because the affidavit in support of the search warrant failed to establish the reliability and credibility of the confidential informant. We affirm the trial court's judgment.
STALENESS
        In his first issue, appellant asserts the trial court erred in denying his motion to suppress because the search warrant was stale by the time it was executed. Article 18.06(a) of the code of criminal procedure requires that a search warrant “must be executed within three days from the time of its issuance.” Tex. Code Crim. Proc. Ann. art. 18.06(a) (Vernon 2005). The affidavit was signed and the warrant was issued March 10, 2006. The inventory and return state the warrant was executed on June 10, 2006, but the inventory and return were verified on March 10, 2006. In his motion to suppress, appellant argued, “That the arrest of the Defendant and search of the Defendant's residence were pursuant to a warrant and affidavit which was improperly perfected, therefore, issued without probable cause in violation of Defendant's rights.” At the hearing on the motion to suppress, appellant's only argument was that the affidavit in support of the warrant did not establish the reliability of the confidential informant.
        To preserve a complaint for appellate review, a party must assert a timely request, objection, or motion stating the specific grounds for the desired ruling from the trial court. Tex. R. App. P. 33.1(a)(1). “A general or imprecise objection may be sufficient to preserve error for appeal, but only if the legal basis for the objection is obvious to the court and to opposing counsel.” Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). Appellant did not assert the staleness of the warrant in his motion to suppress or at the hearing on the motion to suppress. Because appellant did not present this argument to the trial court and the grounds for the argument were not obvious to the trial court and opposing counsel, he has not preserved this issue for appellate review. See Rice v. State, 195 S.W.3d 876, 882 (Tex. App.-Dallas 2006, pet. ref'd). We overrule appellant's first issue.
INEFFECTIVE ASSISTANCE OF COUNSEL
        In his second issue, appellant asserts his trial counsel was ineffective because he failed to raise the staleness of the search warrant in the motion to suppress. We examine ineffective assistance of counsel claims under well-known standards. See Strickland v. Washington, 466 U.S. 668 (1984); Hernandez v. State, 726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). It is appellant's burden to show by a preponderance of the evidence that trial counsel's performance was deficient in that it fell below the prevailing professional norms and the deficiency prejudiced the defendant; in other words, but for the deficiency, there is a reasonable probability that the result of the proceeding would have been different. See Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
        We examine the totality of counsel's representation to determine whether appellant received effective assistance but do not judge counsel's strategic decisions in hindsight; rather, we strongly presume counsel's competence. Id. at 813. Any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Id. The court of criminal appeals has made clear that in most cases, a silent record providing no explanation for counsel's actions will not overcome the strong presumption of reasonable assistance. See Rylander v. State, 101 S.W.3d 107, 110-11 (Tex. Crim. App. 2003); Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). Further, counsel should ordinarily be given an opportunity to explain his actions before being condemned as unprofessional or incompetent. Rylander, 101 S.W.3d at 111.
        In this case, the record provides no explanation for counsel's actions. Appellant filed a motion to set aside his plea of guilty, but he did not assert ineffective assistance of counsel for failing to raise the staleness of the search warrant. We conclude appellant has failed to meet his burden of proving ineffective assistance of counsel. We overrule appellant's second issue.
RELIABILITY OF THE CONFIDENTIAL INFORMANT
        In his third issue, appellant asserts the trial court erred in denying his motion to suppress because the affidavit for the warrant failed to establish the reliability and credibility of the confidential informant. We review a trial court's ruling on a motion to suppress evidence under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility and demeanor. Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We do not engage in our own factual review; instead, the trial judge is the sole trier of fact and judge of the credibility of the witnesses and the weight to be given to their testimony. St. George, 237 S.W.3d at 725; Guzman, 955 S.W.2d at 89. We review the record to determine whether the trial court's ruling is supported by the record and is correct under some theory of law applicable to the case. St. George, 237 S.W.3d at 725.
        Appellate and trial courts review a magistrate's decision to issue a search warrant under a highly deferential standard because “the informed and deliberate determinations of magistrates empowered to issue warrants . . . are to be preferred over the hurried action of officers . . . who may happen to make arrests.” Aguilar v. Texas, 378 U.S. 108, 110-11 (1964) (quoting United States v. Lefkowitz, 285 U.S. 452, 464 (1932)), overruled on other grounds by Illinois v. Gates, 462 U.S. 213, 238 (1983). Search warrant affidavits must be interpreted in a commonsense manner and not a hypertechnical manner. Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007) (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). Probable cause exists when, under the totality of the circumstances, there is a “fair probability” that contraband or evidence of a crime will be found at the specified location. Id. (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). Thus, the inquiry for reviewing courts is whether there are sufficient facts, coupled with inferences from those facts, to establish a “fair probability” that evidence of a particular crime will likely be found at a given location. Id. “The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit.” Id. “We must defer to the magistrate's finding of probable cause if the affidavit demonstrates a substantial basis for his conclusion.” Id.
        When the affidavit is based on information provided to the affiant by a confidential informant, one of the considerations in the analysis of the totality of the circumstances is the reliability and credibility of the informant. See Gates, 462 U.S. at 230; Dixon v. State, 206 S.W.3d 613, 616 (Tex. Crim. App. 2006). The affidavit in this case states,
 
On 03-10-06, the affiant was contacted by a confidential informant, herein referred to as C.I., in reference to narcotic sales, namely, “crack” cocaine, which is a violation of the Texas Health and Safety Code. The C.I. advised the affiant that the C.I. knew of a subject positively identified as the suspected party Ronneall Jones, Male/Black, date of birth 07-10-82; who is involved in the illegal distribution of “crack” cocaine which is being stored for the purposes of re-sale at the suspected place 1814 W.E. Roberts Street #2, Grand Prairie, Dallas County, Texas. The affiant knows that the C.I. is familiar with the controlled substance “crack” cocaine by its appearance and the manner in which the “crack” cocaine is distributed.
 
 
 
In the past, most recently being within the past twenty four hours from the date of application, the affiant has initiated a series of controlled buy procedures utilizing the mentioned C.I. During each controlled buy, the C.I. met with the affiant at a pre- determined location. The C.I. and the Confidential Informant's vehicle was [sic] searched and found to be free of contraband and monies.
 
 
 
The affiant provided the C.I. with monies from the narcotic fund and instructed the C.I. to go to the suspected place and purchase a quantity of “crack” cocaine from the suspected party. The C.I. then left the affiant and the affiant followed the C.I. to the suspected place and the C.I. entered the suspected place. Shortly thereafter, the C.I. left the suspected place and was followed, by the affiant, back to the pre-determined location. It was then that the C.I. handed the affiant a quantity of a white in color, rock-like substance that the affiant believed, through his training and experience, to be “crack” cocaine. The C.I. advised that the “crack” cocaine was purchased from the suspected party at the suspected place. The affiant retained control of the suspected “crack” cocaine which subsequently was processed with a presumptive analysis. The result from the analysis indicated a presumptive positive for containing the controlled substance cocaine.
 
Appellant criticizes the affidavit for not stating whether the informant had previously supplied credible information, had provided information verified by independent investigation, was employed, had a good reputation, or lacked a criminal record. Appellant also states the affidavit did not explain how the informant was able to identify appellant by name. However, the affidavit states the affiant-a Grand Prairie police officer-had used the informant multiple times in controlled buys, in which the affiant had met the informant at a predetermined location and searched both the informant and his car and found them “to be free of contraband and monies.” A commonsense reading of this paragraph would permit a magistrate to infer that the affiant had found the informant reliable in previous controlled buys. Likewise, the affidavit states the informant made a controlled buy from appellant in which the affiant gave the informant the money for the drug buy, followed the informant to the location, saw the informant enter and leave the location, and the informant gave the affiant a rock of what appeared to be crack cocaine the informant purchased from appellant, and presumptive testing showed the material may have been cocaine. These facts corroborated the informant's initial information that appellant was selling crack cocaine at the location.
        Appellant also criticizes the affidavit because the informant contacted the officer to provide information in exchange for an unspecified benefit. The affidavit makes no mention of any benefit given to the informant in exchange for the information or for participation in the controlled buy.
        Appellant also observes that the officer “gave no information to explain or corroborate his 'presumptive analysis' that the substance purchased by the informant was crack cocaine.” The magistrate could infer that the “presumptive analysis” was the usual field testing employed to determine if a substance probably contains cocaine. See, e.g., Gabriel v. State, 842 S.W.2d 328, 330 n.1 (Tex. App.-Dallas 1992) (describing field testing for cocaine and stating a positive field test permits an inconclusive presumption the substance contains cocaine), aff'd, 900 S.W.2d 721 (Tex. Crim. App. 1995).
        Considering the totality of the circumstances and giving proper deference to the magistrate's determination, we conclude the affidavit contains sufficient facts, coupled with inferences from those facts, to establish a “fair probability” that cocaine would be found at the address. Accordingly, we conclude the trial court did not err in denying appellant's motion to suppress. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          KERRY P. FITZGERALD
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
080411F.U05