Sagastegui, Jose Luis v. The State of Texas--Appeal from 232nd District Court of Harris County

Affirmed and Opinion filed  May 16, 2002.

In The

Fourteenth Court of Appeals

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NOS. 14-01-01188-CR

14-01-01189-CR

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JOSE LUIS SAGASTEGUI, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause Nos. 876,330 and 876,331

O P I N I O N

Jose Luis Sagastegui appeals two convictions for possession of between four and 200 grams of cocaine and possession of between four ounces and five pounds of marijuana on the grounds that: (1) the trial court erred in denying his motion to suppress the drugs seized because the search warrant affidavit failed to state probable cause and there was a fatal discrepancy between the dates the search warrant affidavit and warrant were signed; (2) the trial court erroneously denied his motion to disclose the identity of the confidential informant; and (3) appellant was denied effective assistance of counsel. We affirm in part and dismiss in part.

Background

  After the trial court denied his motion to suppress the drugs seized in each case, appellant pled guilty to both offenses pursuant to agreed punishment recommendations and waived his right to appeal except for the motion to suppress issues. The trial court found appellant guilty and assessed punishment in accordance with the agreed recommendations.

Motion to Suppress

Standard of Review

In reviewing a ruling on a motion to suppress, we generally: (1) afford almost total deference to the trial court's determinations of historical facts and application of-law-to-fact questions that turn on an evaluation of credibility and demeanor; and (2) review de novo application of-law-to-fact questions that do not turn on an evaluation of credibility and demeanor. Johnson v. State, 68 S.W.2d 644, 652-53 (Tex. Crim. App. 2002).

However, the sufficiency of a search warrant affidavit is not reviewed de novo, but instead afforded great deference. Illinois v. Gates, 462 U.S. 213, 236 (1983). The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238. An affidavit need not reflect the direct personal observations of the affiant so long as the magistrate is informed of some of the underlying circumstances supporting the affiant s belief that any informant involved, whose identity need not be disclosed, was credible or his information reliable. United States v. Ventresca, 380 U.S. 102, 108 (1965). Thus, the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed, i.e., it was not a mere ratification of the bare conclusions of others. Gates, 462 U.S. at 238, 239.[1] In determining the existence of probable cause to support issuance of a warrant, we look only to the four corners of the supporting affidavit and do not consider testimony presented at a pretrial motion to suppress. See Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996).

Sufficiency of Affidavit

Appellant s first point of error argues that the trial court erred in denying his motions to suppress evidence of the cocaine and marijuana seized from his residence because the operative portion of the affidavit provided in support of the search warrant (the affidavit ) failed to state probable cause:[2]

The confidential informant stated to your affiant that within the past 72 hours the confidential informant was in the residence as described above, and observed a quantity of a green leafy substance known to the confidential informant to be marijuana. The confidential informant knows marijuana by sight and smell. The confidential informant is credible and has been reliable in the past. The confidential informant has made transactions at the residence before and has contacted the residence in the past 24 hours to make another transaction.

(emphasis added).

A complaint on appeal that does not comport with an objection at trial presents nothing for our review. See Santellan v. State, 939 S.W.2d 155, 171 (Tex. Crim. App. 1997). In this case, appellant contends on appeal that the affidavit failed to establish probable cause because it contains: (1) only a conclusory statement regarding the informant s reliability and credibility (italicized above); (2) no facts showing corroboration of any part of the informant s information by independent police work; and (3) no showing of a contact or connection between the informant and appellant.

However, appellant has cited, and we have found, no portion of the record at which appellant ever challenged in the trial court the conclusory sentence stating the informant s reliability or the lack of facts showing corroborative police work. Although appellant s motion to suppress globally asserted that the affidavit did not contain sufficient facts to show how the informant obtained his information or to establish the credibility and reliability of the informant, the motion did not specify how or in what respects the affidavit failed to do so. Moreover, at the hearing on the motion to suppress (the hearing ), appellant s only challenge to the sufficiency of the affidavit to show probable cause was very narrow:

[T]he affidavit only says the confidential informant had been in the house within 72 hours and seen Marihuana. It does not say where in the house the Marihuana was seen or if [appellant] was present. It also says that the confidential informant had contacted the house within the [past] 24 hours but it doesn t say who he contacted at the house . . . [or] what room in the house the Marihuana was found . . . .

Because appellant thus gave the trial court no opportunity to rule on the assertions that the statement regarding the informant s reliability was conclusory or that the affidavit lacked facts showing corroborative police work, those complaints present nothing for our review.

As to appellant s remaining challenge, he cites no authority suggesting that the affidavit was required to state a contact with, or connection to, him (or any particular individual), or to state that the alleged contraband was located in a specified place within the house. Therefore, his first point of error fails to demonstrate error by the trial court, and is overruled.

Date Discrepancy

Appellant s second issue contends that the trial court erred in denying his motion to suppress because there was a fatal discrepancy between the May 2, 2001 date the affidavit was signed by the affiant and the April 2, 2001 date the warrant was signed by the magistrate, and the State failed to provide sufficient evidence to overcome the discrepancy. See Green v. State, 799 S.W.2d 756, 759-61 (Tex. Crim. App. 1990) (holding that discrepancies in dates of warrant documents, such as a warrant being dated earlier than its supporting affidavit, do not invalidate the warrant if there is testimony in the record showing that the discrepancy is merely a clerical or typographical error).

In this case, the Officer who was the affiant and obtained the warrant testified that he witnessed the magistrate signing the warrant on May 2, rather than on April 2, as reflected on the face of the warrant. Appellant contends that this evidence was insufficient to overcome the date discrepancy because the magistrate who issued the warrant was not called to testify about it. However, such a stringent requirement is not imposed in any authority appellant cites, and is, if anything, contrary to the rationale of Green.[3] Because appellant s second issue thus fails to demonstrate the insufficiency of the evidence to prove that the date discrepancy resulted from a clerical error, it is overruled.

Waiver of Right to Appeal

Appellant s third and fourth issues assert that the trial court erroneously denied his motion to disclose the identity of the confidential informant and that appellant was denied effective assistance of counsel by the manner in which his counsel presented the motion to disclose.

However, a waiver of the right to appeal made as a condition of a plea bargain agreement before sentencing occurs is valid and enforceable.[4] As part of each of the plea agreements in this case, appellant signed a document before he was sentenced which states, in part: I waive any right of appeal except for the motion to suppress issues which I may have if the Court accepts the foregoing plea bargain agreement between me and the prosecutor. [5] The trial court thereafter sentenced appellant in accordance with the agreed punishment recommendation in each case. Because the matters raised in points of error three and four were not part of appellant s motion to suppress, but were asserted in a separate motion, appellant waived his right to appeal those points, and we lack jurisdiction to address them. Accordingly, we dismiss appellant s third and fourth points of error and affirm the judgment of the trial court.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed May 16, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] Although an informant's veracity, reliability, and basis of knowledge are highly relevant in reviewing the sufficiency of an affidavit, these elements are not each independent requirements, but closely intertwined issues that simply illuminate the overall question whether there is probable cause to believe that contraband or evidence is located in a particular place. Gates, 462 U.S. at 230. If, for example, a particular informant is known for the unusual reliability of his predictions of certain types of criminal activities in a locality, his failure, in a particular case, to thoroughly set forth the basis of his knowledge does not bar a finding of probable cause based on his tip. Id. at 233. Conversely, even if some doubt exists as to an informant's motives, his explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles his tip to greater weight than might otherwise be the case. Id. at 234. An affidavit may also rely on information received through an informant if the informant's statement is reasonably corroborated by other matters within the officer's knowledge. Id. at 242.

[2] Because appellant does not contend that the Texas Constitution affords greater protection in this regard than the United States Constitution, we address his complaint under only the United States Constitution.

[3] See Green, 799 S.W.2d at 757 ( The two objectives of the law concerning search warrants are to ensure there is adequate probable cause to search and to prevent a mistaken execution of the warrant against an innocent third party. . . . These objectives are not furthered by rigid application of the rules concerning warrants. ); id. at 760 (holding that the evidentiary rationale for the discrepancy need not even be in the form of extraneous testimony).

[4] Blanco v. State, 18 S.W.3d 218, 219-220 (Tex. Crim. App. 2000).

[5] The italicized portion of the waiver is handwritten on the otherwise printed form.