Dimas Moreno v. The State of Texas--Appeal from 137th District Court of Lubbock County (per curiam)Annotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
NOVEMBER 14, 2012
THE STATE OF TEXAS,
FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-426,193; HONORABLE JOHN J. "TREY" McCLENDON, PRESIDING
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Appellant Dimas Moreno was convicted after a guilty plea of possession with
intent to deliver cocaine in an amount between two hundred and four hundred grams.
The sole issue on appeal is whether probable cause to search appellant’s residence
was established by an affidavit executed in support of a search warrant. We affirm the
We review the trial court’s ruling on a motion to suppress under the standard
discussed in State v. Stevens, 235 S.W.3d 736, 739-40 (Tex. Crim. App. 2007) and
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).
Our review of the
magistrate’s determination of probable cause is constrained to the four corners of the
affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). Moreover, we
will uphold the magistrate’s determination so long as the affidavit provides sufficient
information to have allowed the magistrate to make a practical, common sense decision
that, under the totality of the circumstances, there was a fair probability that evidence of
a crime would be found in a particular place, Carillo v. State, 98 S.W.3d 789, 791 (Tex.
App.–Amarillo 2003, pet. ref’d), and considerable deference must be given to the trial
court’s decision. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).
In the affidavit, Officer Misti Snodgrass averred that 1) within the past seventytwo hours, a confidential informant made a controlled purchase of crack cocaine from
the residence sought to be searched, 2) the confidential informant is able to recognize
crack cocaine, has provided information to police in the past, and has been proven to be
credible and reliable, 3) the confidential informant was searched prior to and after the
controlled buy, 4) constant surveillance was maintained on the confidential informant, 5)
the confidential informant made contact with another unnamed participant to purchase
the cocaine and the other participant went to the residence in question to pick up the
cocaine, 6) the participant was observed by police going to the residence, entering it for
a few minutes, returning to the confidential informant, and handing a substance to the
informant, 7) the participant did not stop at any other location and was under constant
visual surveillance, 8) police took custody of the substance from the confidential
informant, and 9) the substance field tested positive for cocaine. Appellant challenges
the fact that an unidentified participant was used and no attempt was made to establish
the reliability of that person. Moreover, no attempt was made to establish appellant’s
connection to the house other than through this unnamed participant.
Under almost identical facts involving the use of an unidentified participant, this
court has previously found probable cause to believe that evidence of a crime would be
found at the house where the drugs were purchased. Bibbs v. State, No. 07-11-00064CR, 2011 Tex. App. LEXIS 7552, at *7-9 (Tex. App.–Amarillo September 15, 2011, no
pet.) (not designated for publication). That decision was based on a logical inference
that the unidentified participant went to the house to pick up cocaine.
Id. at *9.
Moreover, the probable cause here is not based so much on statements of the
unidentified participant but upon police observations of the confidential informant and
the unidentified participant both before and after the alleged purchase. Because that is
so, we find no abuse of discretion on the part of the trial court in denying the motion to
Accordingly, the judgment is affirmed.
Do not publish.