Hector Sifuentes, Sr. v. The State of Texas--Appeal from 22nd District Court of Caldwell County

Sifuentes TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00360-CR
Hector Sifuentes, Sr., Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF CALDWELL COUNTY, 22ND JUDICIAL DISTRICT
NO. 94-198, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

Hector Sifuentes, Sr. appeals his conviction for possession of a controlled substance, cocaine, with the intent to deliver. Tex. Health & Safety Code Ann. 481.112 (West Supp. 1996). (1) By three points of error, appellant contends that the trial court erred in: 1) overruling his motion to suppress evidence because the informant's identity was not revealed to the magistrate who issued the search warrant; 2) admitting several incriminating oral statements; and 3) admitting evidence of an extraneous offense. Finding no error, we will affirm the judgment of the trial court.

In September 1994, Kenneth Don Kaigler, an officer with the Capitol Area Narcotics Task Force, set up what is known as a "controlled buy" of narcotics from appellant by a confidential informant. (2) Kaigler made a probable cause determination based on this "controlled buy," and on three years of independent investigations that indicated appellant's involvement in narcotics trafficking. Moreover, Kaigler considered the informant to be trustworthy and credible because he had provided correct and reliable information in the past that resulted in seizures of narcotics. Kaigler listed all these factors in his probable cause affidavit, which the issuing magistrate examined before issuing a warrant for appellant's arrest and for the search of his residence. Kaigler did not name the informant in his affidavit.

After obtaining the warrant, Kaigler and other police officers entered appellant's residence, where they discovered cocaine and other incriminating items, such as weighing scales, several cellular telephones, and a police scanner. After the officers placed appellant under arrest and read Miranda warnings to him, Sifuentes voluntarily admitted that all the cocaine was his. A jury found appellant guilty of the possession of a controlled substance with the intent to deliver.

Appellant contends in his first point of error that the trial court erred in overruling his motion to suppress all evidence obtained under the authorization of the search warrant. Appellant claims the warrant is defective because the magistrate issued it based on information supplied by an unidentified informant. Appellant recognizes the right of informants to remain confidential but maintains that their identity should be revealed to the issuing magistrate in order for the magistrate to independently judge their credibility and reliability rather than rubber-stamp the representations of those seeking the warrant.

In bringing this point of error, appellant asks us to reverse long-standing authority upholding search warrants when the underlying information is supplied by an unnamed informant, if the affiant can corroborate the informant's reliability based on personal knowledge that the informant has given reliable narcotics information in the past or that the informant was present in the place to be searched when narcotics were present or sold. Illinois v. Gates, 462 U.S. 213, 238 (1983); Lockett v. State 879 S.W.2d 184, 187-89 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd); Meeks v. State, 851 S.W.2d 373, 376-77 (Tex. App.--Houston [1st Dist.] 1993, pet. ref'd). Notwithstanding this authority, and the lack of any case law supporting his position, appellant contends that his constitutional right against unreasonable search and seizure is violated when a magistrate must rely solely on personal knowledge of the affiant about the reliability of an informant unknown to the magistrate. We decline appellant's invitation to rewrite the law governing probable cause determinations and instead follow our duty as prescribed by the United States Supreme Court to ensure that the magistrate had a substantial basis for concluding that probable cause existed. Gates, 462 U.S. at 238. We conclude that the issuing magistrate here fulfilled his duty as spelled out in Gates:

 

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, 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. (citations omitted).

In the instant case, independent police investigations indicated appellant's involvement in narcotics trafficking. Additionally, an informant who had given the police accurate information leading to other narcotics seizures observed appellant in possession of cocaine shortly before the arrest. Based on these circumstances, as set forth in the affidavit, the magistrate reasonably determined the informant was credible and found probable cause to issue the search warrant. We overrule the first point of error.

In his second point of error, appellant complains that the trial court erred in admitting certain incriminating statements he made to the police at the time of his arrest in his home. In an apparent attempt to clear his wife of any blame, appellant volunteered to police: "[t]hat's all my cocaine"; "Everything you found is my dope"; "I did it"; "It's my stuff." Although unrecorded oral confessions are generally not admissible, a volunteered statement made after arrest and after receiving Miranda warnings that is not given in response to police interrogation may be admissible when relevant. Tex. Code Crim. Proc. Ann. art. 38.22, 3, 5 (West 1979 & Supp. 1996); Lewis v. State, 630 S.W.2d 285, 287-88 (Tex. Crim. App. 1981); Cannon v. State, 807 S.W.2d 632, 634 (Tex. App.--Houston [14th Dist.] 1991, no pet.).

Appellant asserts that his incriminating statements are not relevant and that their prejudicial impact outweighs their probative value. Appellant failed to assert this argument to the trial court. In the motion to suppress and the objection at trial, appellant challenged the voluntariness of his statements and claimed he did not understand his Miranda warnings. Because appellant did not object to the relevance or the prejudicial value of the statements at the trial court, he has waived this complaint. Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1213 (1991) (objection at trial which differs from the complaint on appeal preserves nothing for review).

Were we to reach this point of error we would overrule appellant's complaint that the statements were not relevant. The State was required to prove intent and possession by affirmatively linking appellant to the drugs and items associated with drug trafficking found in the residence he shared with his wife and son. The probative value of the statements in this context outweighed their obvious prejudice to appellant. We accordingly overrule appellant's second point of error.

In his third point of error, appellant claims that the trial court erred in allowing evidence of an extraneous offense. The extraneous offense offered by the State was the informant's "controlled buy" of cocaine from appellant by the informant, the incident sponsored by the narcotics officers prior to obtaining the search warrant.

The record indicates that appellant objected once during the redirect testimony of Officer Kaigler, immediately after the State inquired about the "controlled buy," but before Kaigler responded with any substantive testimony. Shortly after the judge overruled this objection, however, appellant stated that he had no objection to the admission of Kaigler's probable cause affidavit, which described the "controlled buy" at length. The State utilized the affidavit in trial court to counter appellant's suggestion that the magistrate did not have adequate reason to issue the search and arrest warrant. Again, Kaigler's testimony described the "controlled buy" in substantial detail without any objection from appellant.

By failing to object to the admission of the affidavit and the substantive testimony concerning the extraneous offense, appellant waived any complaint about the admission of the extraneous offense into evidence. See Ethington v. State, 819 S.W.2d 854, 858-859 (Tex. Crim. App. 1991); Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984); see also Brown v. State, 692 S.W.2d 146, 151 (Tex. App.--Houston [ 1st Dist.] 1985), aff'd on other grounds, 757 S.W.2d 739 (Tex. Crim. App. 1988). The court in Ethington, which dealt with a similar issue, discussed the applicable rules that govern preservation of error concerning the admission of evidence in criminal cases. See Tex. R. Crim. Evid. 103; Tex. R. App. P. 52. The court stated that "with two exceptions, the law in Texas requires a party to continue to object each time inadmissible evidence is offered." Ethington, 819 S.W.2d at 858. The first of these exceptions is the "running" objection, which allows an attorney, with the express permission of the judge, to object to an entire line of testimony from a witness. Id. The second exception allows an attorney to pursue an admissibility hearing that enables the trial court to hear objections to offered evidence out of the jury's presence; although the judge may allow the evidence to be offered, error is preserved. Id. at 859. Appellant neither made a "running" objection nor pursued an admissibility hearing on the matter.

The Brown court further clarified the necessity of objecting each time allegedly inadmissible evidence is offered:

 

We are further of the view that any error in the admission of such testimony was waived and/or cured by defense counsel's failure to object to similar testimony later elicited. Although defense counsel did timely object to certain portions of the testimony regarding complainant's emotional injuries when it was first elicited, he did not obtain a running objection to such testimony, and complainant later testified, without objection: that she had attempted suicide twice . . . and that she had had continuing counseling since the rape. It is defense counsel's responsibility to object every time allegedly inadmissible evidence is offered, and when counsel objects to certain inadmissible testimony, but then permits similar evidence to come in without objection, the complaint is deemed cured.

 

Brown, 692 S.W.2d at 151. Accordingly, appellant has waived any complaint about the admission of the extraneous offense evidence. We overrule appellant's third point of error.

Finding no error, we affirm the judgment of the trial court.

 

Bea Ann Smith, Justice

Before Justices Powers, Jones and B. A. Smith

Affirmed

Filed: April 24, 1996

Do Not Publish

1. 1 The instant case is governed by section 481.112 of the 1994 Texas Health and Safety Code. Because the section has not substantively changed, however, we have cited to the 1996 Code for convenience.

2. 2 In the "controlled buy," Kaigler conducted a strip search of the informant, drove him to appellant's residence, and gave him money to purchase narcotics. While Kaigler maintained surveillance of the residence, the informant entered and purchased narcotics from appellant, which the informant in turn gave to Kaigler. Afterwards Kaigler conducted a second strip search of the informant to ensure that he was not concealing additional evidence, contraband, or money.

traneous offense offered by the State was the informant's "controlled buy" of cocaine from appellant by the informant, the incident sponsored by the narcotics officers prior to obtaining the search warrant.

The record indicates that appellant objected once during the redirect testimony of Officer Kaigler, immediately after the State inquired about the "controlled buy," but before Kaigler responded with any substantive testimony. Shortly after the judge overruled this objection, however, appellant stated that he had no objection to the admission of Kaigler's probable cause affidavit, which described the "controlled buy" at length. The State utilized the affidavit in trial court to counter appellant's suggestion that the magistrate did not have adequate reason to issue the search and arrest warrant. Again, Kaigler's testimony described the "controlled buy" in substantial detail without