Rogelio Oceguera v. The State of Texas--Appeal from 81st Judicial District Court of La Salle County

MEMORANDUM OPINION

No. 04-03-00329-CR

Rogelio OCEGUERA,

Appellant
v.
The STATE of Texas,
Appellee
From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 02-01-00011-CRL
Honorable Donna S. Rayes, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 12, 2004

AFFIRMED

A jury found defendant, Rogelio Oceguera, guilty of possession of a controlled substance with the intent to deliver and assessed his punishment at a $2,500 fine and fifteen years' confinement. Defendant complains of his conviction in a single issue on appeal. Finding no error, we affirm.

BACKGROUND

Narcotics Sergeant Joseph Canales of the La Salle County Sheriff's Office applied for a search warrant, attaching his affidavit in which he stated that sources of information, including a fellow officer and a cooperating individual, presented the basis for his belief that defendant possessed cocaine.

Based on the affidavit, the magistrate issued a warrant for defendant's arrest and for the search of his premises. When the officers executed the warrant, they found cocaine on the defendant's property. The State indicted defendant charging him with possession of cocaine with the intent to deliver. Defendant filed a pre-trial motion to suppress the evidence asserting that the affidavit upon which the magistrate issued the warrant did not comply with Chapter 18 of the Texas Code of Criminal Procedure. After the trial court denied the motion, defendant was tried and found guilty of the charged crime.

SUFFICIENCY OF AFFIDAVIT

In his single issue on appeal, defendant contends the affidavit supporting the search warrant was deficient. More specifically, defendant argues that the affidavit failed to adequately identify or describe what the police were to search and seize. Further, defendant argues that the affidavit did not provide the magistrate with sufficient information to deem the informant reliable or credible.

Standard of Review

A search warrant may be issued only when there is probable cause for its issuance. Tex. Code Crim. Proc. Ann. art. 18.01(b) (Vernon Supp. 2004). To be valid, a search warrant must be supported by an affidavit setting forth substantial facts establishing probable cause. Id. Probable cause exists when the facts given to the magistrate are sufficient to conclude that the object of the search is probably on the premises at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986).

We review the trial court's ruling on a motion to suppress, giving almost total deference to the trial court's determinations of historical facts and credibility. Johnson v. State, 68 S.W.3d 644, 652 (Tex. Crim. App. 2002). However, in reviewing the application of law to fact questions, not dependent upon an evaluation of credibility or demeanor, we exercise a de novo review. Id. at 652-53. In reviewing the sufficiency of an affidavit, a trial court is not required to make evaluations of credibility or demeanor; therefore, we review the trial court's ruling de novo. State v. Ozuna, 88 S.W.3d 307, 310 (Tex. App.--San Antonio 2002, pet. ref'd). In reviewing the trial court's ruling de novo, we afford great deference to the magistrate's decision on the sufficiency of the affidavit, just as the trial court must do when it reviews the magistrate's decision. Id.

Specificity

Defendant argues the search warrant did not contain the information required by article 18.04(2) of the Texas Code of Criminal Procedure. However, defendant fails to provide clear and concise arguments, makes no reference to the specific parts of the affidavit, and fails to provide any case law upon which he relies. We will review only those contentions supported by clear and concise arguments with appropriate citations to authorities and to the record. See Tex. R. App. P. 38.1(h). Therefore, because defendant inadequately briefed this argument, we will not address it on appeal. See Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000).

Informant's Reliability and Credibility

Defendant also asserts the affidavit did not provide sufficient information to lead the magistrate to believe that the informant was credible or reliable. In determining the sufficiency of an affidavit to support the issuance of a warrant, we limit our review to the four corners of the affidavit. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996). As long as the affidavit informs the magistrate of the underlying circumstances that led the affiant to believe the informant was credible or that his information was reliable, the affidavit does not need to disclose the affiant's personal observations. Ozuna, 88 S.W.3d at 310. The trial court may determine the credibility of an informant based on a consideration of: (1) whether the informant presented first hand observations; (2) the degree of detail provided by the informant; (3) whether reasonable corroboration of the informant's statements existed; and (4) whether the informant testified at the probable cause hearing. Id. at 311. An informant's statements may also serve as the basis of an affidavit when other matters within the affiant's knowledge reasonably corroborate it. Id. at 310. Moreover, if the affidavit is evaluated in a common sense and realistic manner, the magistrate may draw reasonable inferences from the facts and circumstances contained within the affidavit's four corners. Cassias, 719 S.W.2d at 587-88. In determining the basis of knowledge, veracity, and reliability of the informant, we review these closely interrelated issues with the purpose of discerning whether there is a substantial basis, considering the totality of the circumstances, to lead a man of reasonable caution to believe that contraband was present in a specific location at the time the magistrate issued the warrant. Id. at 587. If so, then probable cause exists to support the issuance of a warrant. Id. at 587-88.

Here, the magistrate could conclude the informant was reliable because the informant's knowledge came about through personal observations. See Lockett v. State, 879 S.W.2d 184, 188 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). The affidavit reveals the informant observed defendant "in possession of a usable amount of cocaine" on defendant's property, including the garage, the kitchen area, and the barbeque grill next to the garage. The affidavit also includes the informant's personal observations of: (1) the manner in which defendant sold the cocaine; (2) the type of packing used for the cocaine; (3) where defendant stored the cocaine within his property; (4) how defendant sold the cocaine; and (5) the amount of money for which he sold the cocaine.

In addition to the informant's statements, the affidavit includes a fellow law enforcement officer's statement that defendant was distributing cocaine from his residence. The affidavit also contains information of suspicious activity, namely that the vehicular traffic to defendant's home, located on a semi-isolated road, increased in the evenings on weekdays and on the weekends. These independent observations served to corroborate the informant's statement that defendant sold cocaine in small packages to individuals who approached defendant's home in vehicles.

Finally, the magistrate may have found probable cause based on an experienced narcotics officer's reliance on an informant who has previously provided similar information that resulted in arrests and seizures of narcotics. See Capistran v. State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1988) (stating that the reliability of an informant has been established when the informant has previously provided reliable information). Therefore, based on the totality of the circumstances, the magistrate could conclude that the informant's statements were credible.

Because Canales' affidavit expressly sets out the underlying circumstances confirming the informant's credibility and reliability, we conclude that under the totality of the circumstances, the magistrate had a substantial basis for finding probable cause to issue the search warrant. Therefore, the search and seizure of defendant's property pursuant to the warrant were reasonable and not in violation of Chapter 18 of the Texas Code of Criminal Procedure.

CONCLUSION

We overrule defendant's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH