Nathaniel Johnson, Jr. v. The State of Texas--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-08-00123-CR

Nathaniel Johnson, Jr.,

Appellant

v.

The State of Texas,

Appellee

From the 13th District Court

Navarro County, Texas

Trial Court No. 30,590

MEMORANDUM Opinion

Johnson appeals his conviction for state-jail-felony possession of marihuana. See Tex. Health & Safety Code Ann. 481.121(a), (b)(3) (Vernon 2003). We affirm.

In two issues, Johnson contends that the trial court erred in overruling Johnson s motion to suppress evidence of the marihuana. We assume without deciding that Johnson s issues are preserved and adequately briefed. See Tex. R. App. P. 33.1(a), 38.1(h); see also, e.g., Gallo v. State, 239 S.W.3d 757, 768 (Tex. Crim. App. 2007), cert. denied, 128 S. Ct. 2872 (2008); State v. Moore, 225 S.W.3d 556, 569-70 (Tex. Crim. App. 2007); Marin v. State, 851 S.W.2d 275, 279-80 (Tex. Crim. App. 1993); Goodwin v. State, 799 S.W.2d 719, 723 n.1 (Tex. Crim. App. 1990).

1. In Johnson s first issue, he contends, The trial court committed reversible error by finding the search warrant legally sufficient to support the search of Appellant s home and the seizure of Appellant s property. (Br. at 3.) We understand Johnson to argue that the place to be searched and the items to be seized did not appear on the warrant. (Id. at 8.)

The warrant, incorporating by reference the affidavit description of Johnson s residence to be searched and his marihuana to be seized, plainly particularly describes that place and thing. See U.S. Const. amend. IV; Groh v. Ramirez, 540 U.S. 551, 557 (2004); Long v. State, 132 S.W.3d 443, 447 n.11 (Tex. Crim. App. 2004); Barnes v. State, 876 S.W.2d 316, 327 (Tex. Crim. App. 1994) (per curiam).

2. In Johnson s second issue, he contends, The trial court committed reversible error by finding the affidavit supporting issuance of a search warrant legally sufficient because the affidavit failed to establish the reliability or credibility of a confidential informant and because the state offered no evidence from the affiant at hearing. (Br. at 4.)

Considering the totality of the circumstances, the affidavit s description of the informant s history of providing reliable information to the affiant, and by incorporation of the affidavit, the warrant, plainly give probable cause to believe the credibility of the affiant s informant. See Illinois v. Gates, 462 U.S. 213 (1983).

Johnson cites no, and we are aware of no, authority that the State need offer testimony of the affiant extraneous to the affidavit. Cf. Smith v. State, 207 S.W.3d 787, 794 (Tex. Crim. App. 2006); Nicol v. State, 470 S.W.2d 893, 894 (Tex. Crim. App. 1971).

Conclusion. Viewing the record in the light most favorable to the trial court s conclusion, we hold that the trial court did not abuse its discretion in overruling Johnson s motion to suppress. See State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006) (op. on orig. submission); Montgomery v. State, 810 S.W.2d 372, 378-80 (Tex. Crim. App. 1990) (op. on orig. submission), 390-91 (1991) (op. on reh g); Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). We overrule Johnson s issues.

Having overruled Johnson s issues, we affirm.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Justice Vance concurs in the judgment with a note) *

Affirmed

Opinion delivered and filed August 6, 2008

Do not publish

[CR25]

* (We owe it to the litigants, the higher courts, the Bench and Bar, and the public generally to provide more of the facts, the arguments of the parties, and our analysis in memorandum opinions. Tex. R. App. P. 47. Although I concur in the judgment, I cannot join the majority s too-brief opinion.)