Eversole, Terry P. v. The State of Texas--Appeal from 178th District Court of Harris County

Opinion issued December 12, 2002

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-01081-CR

TERRY P. EVERSOLE, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 178th District Court

Harris County, Texas

Trial Court Cause No. 872930

O P I N I O N

Appellant was charged by indictment with possession of a controlled substance, cocaine. After appellant s motion to suppress the cocaine seized at his residence during a search pursuant to warrant was denied by the trial court, appellant pleaded guilty in accordance with an agreed recommendation as to punishment. The trial court deferred adjudication of guilt and placed him on three years community supervision.

In his first point of error, appellant asserts that the trial court committed reversible error in overruling his motion to suppress the cocaine. In his second point of error, appellant complains that his plea of guilty was jurisdictionally defective. We affirm. Background

Appellant filed a pre-trial written motion to suppress evidence, namely cocaine, seized pursuant to a search of his premises. Appellant asserted that the affidavit in support of the warrant was insufficient to support a finding of probable cause. On October 8, 2001, the trial court conducted a hearing on appellant s motion to suppress.

Richard Corrales, a narcotics officer with the Houston Police Department (HPD), was the only witness to testify at the suppression hearing. Officer Corrales testified that several complaints had been received by the HPD that narcotics were being sold out of a house located at 305 Red Ripple, Houston (the residence ). Based on these complaints, Corrales began an investigation of the residence with the assistance of a confidential informant with whom Corrales had dealt on several prior occasions. The informant was searched for contraband and taken to the residence where he was able to purchase cocaine from an individual known as Black or Mr. Jones. Black appeared to have care, custody and control of the residence because he answered the door and allowed the informant to enter. According to the informant, appellant was present at the time he purchased the cocaine from Black.

Based on information provided by the informant and Corrales observations of the events, a warrant was obtained to search the residence for any controlled substances, including cocaine, and for the arrest of Black. The officers conducted surveillance on the residence, watching for Black before executing the warrant. On the day that the warrant was actually executed, Black s car was initially at the residence, but he left before the officers arrived. Black was stopped by a patrol vehicle while the search warrant was executed on the residence. Appellant and his wife were inside the residence when the search warrant was executed, and narcotics were found on both persons. Motion to Suppress

In his first point of error, appellant asserts that the trial court committed reversible error in overruling his motion to suppress the cocaine. Specifically, he asserts that the search warrant and supporting affidavit failed to state probable cause to search the residence where the cocaine was discovered. In reviewing the trial court s ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). We give almost total deference to the trial court's determination of historical facts, while we conduct a de novo review of the trial court s application of the law to those facts. Id. During a motion to suppress hearing, the trial court is the sole trier of fact; accordingly, the trial judge may choose to believe or disbelieve all or any part of a witness s testimony. See State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000); King v. State, 35 S.W.3d 740, 742 (Tex. App. Houston [1st Dist.] 2000, no pet.). When, as here, no findings of fact are filed, we must view the evidence in the light most favorable to the ruling and sustain the decision if it is correct on any applicable theory of the law. Ross, 32 S.W.3d at 855-56; King, 35 S.W.3d at 742.

Whether the facts alleged in a probable cause affidavit sufficiently support a search warrant is determined by examining the totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Ramos v. State, 31 S.W.3d 762, 764-65 (Tex. App. Houston [1st Dist.] 2000, no pet.) (citing Illinois v. Gates, 462 U.S. 213, 228-30, 103 S. Ct. 2317, 2326-28 (1983)); see also Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2002). The allegations are sufficient if they justify a conclusion that the object of the search is probably on the premises. Ramos, 934 S.W.2d at 363; Ramos, 31 S.W.3d at 765. Reviewing courts should accord great deference to the magistrate s determination. 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). However, reasonable inferences may be drawn from the affidavit. Gibbs v. State, 819 S.W.2d 821, 830 (Tex. Crim. App. 1991). We interpret an affidavit in a common sense and realistic manner. Id.

The affidavit reveals the following:

1. Affiant, Officer Corrales, received a complaint that narcotics were being sold from 305 Red Ripple.

2. Affiant contacted an informant, whom he knew to be a credible and reliable source, and obtained the informant s assistance in making a controlled buy of cocaine at 305 Red Ripple.

3. The informant was searched for contraband before entering the residence. 4. The informant entered the residence and purchased crack cocaine from a male known as Black, who answered the door and allowed the informant entry into the residence.

5. Corrales field-tested the substance brought back from the residence by the informant and confirmed the substance was cocaine.

6. The informant told Corrales that Black told him to return anytime he needed more cocaine.

7. The informant described the person who sold him the cocaine as a black male, approximately five feet ten inches to six feet tall, and weighing approximately 190 to 200 pounds.

The circumstances of a controlled buy, standing alone, may be sufficient to reasonably confirm an informant s information and give probable cause to issue a search warrant. Sadler v. State, 905 S.W.2d 21, 22 (Tex. App. Houston [1st Dist.] 1995, no pet.).

To be sufficient, these allegations must support a probable cause finding that the items to be seized cocaine or other controlled substances would be on the property at the time the warrant was issued. Ramos, 934 S.W.2d at 363; Ramos, 31 S.W.3d at 765. We find that, in their totality, the allegations are sufficient. Accordingly, the trial court did not abuse its discretion in denying the motion to suppress.

Plea of Guilty Jurisdictionally Defective

In his second point of error, appellant states that if this Court finds that the error presented in appellant s pre-trial motion to suppress was not properly preserved, then this Court should find that appellant s plea of no contest was not constitutionally valid because it would then have deprived appellant of the right to appeal the trial court s denial of appellant s motion to suppress.

Because we have given full and complete review to the merits of his first point of error, appellant s second point of error is moot.

Conclusion

We affirm the judgment of the trial court.

Frank G. Evans

Justice

Panel consists of Justices Hedges, Keyes, and Evans //

Do not publish. Tex. R. App. P. 47