Opinion
NO. 01-16-00860-CR
11-30-2017
MIGUEL C. CHAVEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court Harris County, Texas
Trial Court Case No. 1497537
MEMORANDUM OPINION
A jury found Miguel C. Chavez guilty of the offense of possession with intent to deliver a controlled substance, cocaine, weighing more than 4 grams but less than 200 grams. Chavez pleaded true to an enhancement allegation, and the trial court assessed Chavez's punishment at 17 years in prison. In two issues, (1) Chavez challenges the trial court's denial of his motion to suppress evidence obtained by a search warrant, asserting that the warrant was not based on probable cause, and (2) he contends that the trial court abused its discretion by denying his motion for new trial, which alleged juror misconduct. Because the record does not reflect that the trial court erred in denying the motion to suppress or the motion for new trial, we affirm.
See TEX. HEALTH & SAFETY CODE ANN. § 481.002(5), §§ 481.102(3)(D), 481.115(a), (d) (West 2017).
Background
On February 3, 2016, Officer R. Keller of the Houston Police Department signed an affidavit for a search warrant pertaining to a residence located in the 6000 block of Sayers Street. In his affidavit, Officer Keller alleged that it was suspected that a Hispanic male, believed to be named "Mike," was concealing cocaine at the target residence.
To demonstrate that he had probable cause to believe illegal narcotics were located at the target residence, Officer Keller's affidavit testimony included the following information:
• Officer Keller has been employed by the Houston Police Department for six years, primarily conducting narcotics investigations. He is "an experienced
investigator" assigned to the Special Investigations Command, Narcotics Division.
• On January 20, 2016, Officer Keller and another officer met with a confidential informant. Officer Keller had used the confidential informant on three previous occasions to recover illegal narcotics. He knew the informant to be "reliable and credible." Officer Keller also knew that the informant was a past user of cocaine who could identify cocaine by sight and smell.
• Officer Keller provided the informant with "city money" to purchase cocaine at the target residence.
• Maintaining visual surveillance, Officer Keller watched the informant as he went to the front door of the of target residence. "Mike" answered the door and allowed the informant to enter. Officer Keller watched the informant return to him from the target residence with "a quantity of powder cocaine," which field-tested positive "for cocaine content."
• The confidential informant told Officer Keller that "he/she observed several handguns lying on the kitchen table alongside the cocaine." The informant recounted that "Mike" had said "to come back if they needed more cocaine or other types of narcotics and provided [the informant] with a phone number."
• On February 1, 2016, Officer Keller had the informant conduct another controlled narcotics buy at the target residence. Like the January 20 drug buy, Officer Keller provided the informant with money to purchase cocaine at the target residence. Officer Keller again observed "Mike" let the informant into the residence and later saw the informant leave. While at the residence, the informant had purchased a powdery substance, which field-tested positive for cocaine.
Based on Officer Keller's affidavit, a magistrate signed a search warrant on February 3, 2016. The magistrate found that "verified facts stated by [Officer Keller] in [his] affidavit show that [Officer Keller] has probable cause for the belief [he] expresses" and "establishes existence of proper grounds for issuance of this Warrant." The warrant authorized the police to search the target residence and to seize "illegal narcotics including but not limited to Cocaine."
Pursuant to the warrant, the police searched the target residence. During the search, the police seized 20.4 grams of powder cocaine and 3.1 grams of marijuana. At the time the warrant was executed, Chavez, his wife, and their two children were in the home. While still at the scene, Chavez signed a statement averring, "The cocaine that y'all found is mine and [my] wife has nothing to do with it."
Based on the evidence found during the search, Chavez was indicted for the offense of possession with intent to deliver a controlled substance, cocaine, weighing more than 4 grams but less than 200 grams. Chavez filed a motion to suppress the evidence seized pursuant to the search warrant. In the motion, Chavez argued that the search warrant was invalid because the supporting affidavit did not reflect probable cause.
The trial court conducted a hearing on the motion to suppress during which Officer Keller's affidavit and the search warrant were admitted into evidence. Chavez asserted that probable cause was lacking because Officer Keller's affidavit did not contain sufficient information for the magistrate to conclude that illegal narcotics were located at the target residence. Chavez pointed out that the confidential informant had not stated that he or she had seen additional illegal drugs at the target residence during the second drug buy. The State responded that Officer Keller's affidavit testimony regarding the two controlled cocaine buys at the target residence—the first buy being 14 days before the warrant's issuance and the second buy being only two days before its issuance—provided a sufficient basis for the magistrate to find that there was probable cause that illegal narcotics would be found there.
After hearing the parties' arguments, the trial court denied Chavez's motion to suppress. The court found that probable cause supported the search warrant based on "the totality of what the magistrate had at the time [it was issued] and the close proximity of the first controlled buy and the second controlled buy[,] establishing a pattern of conduct[.]"
The case was tried to a jury, which found Chavez guilty as charged in the indictment. Chavez pleaded true to an enhancement allegation before the trial court sentenced him to 17 years in prison.
Chavez filed a motion for new trial, alleging jury misconduct. Specifically, Chavez alleged that he had learned that, during jury deliberations, one of the jurors had conducted research "via cell phone . . . regarding the value of the evidence in this case."
The trial court conducted a hearing on the motion for new trial. Five of the jurors and the alternate juror testified at the hearing. The alternate juror did not recall seeing any of the jurors conducting research on a cell phone. The alternate juror did, however, recall hearing, before the jury went to deliberate, the jury foreman stating to the other jurors that the foreman had spoken to someone the night before and had learned that the street value of the seized cocaine was $20,000.
In contrast to the alternate juror, each of the other five jurors who testified at the hearing indicated that he had not heard anyone make a statement to the effect that he had received information about the cocaine's value from an outside source. The five jurors also did not recall that any juror had conducted research on a cell phone regarding the value of the cocaine, as had been alleged in the motion for new trial.
At the end of the hearing, the trial court stated, "Based on the testimony that I have heard here today, I cannot make a finding that there's been any outside influence that affected this jury's decision in this case that likely resulted in any harm to your client." The court then denied the motion for new trial. This appeal followed.
Motion to Suppress
In his first issue, Chavez contends that the trial court erred when it denied his motion to suppress.
A. Standard of Review & Applicable Law
The Fourth Amendment establishes a constitutional preference that a search be conducted pursuant to a warrant. Jones v. State, 364 S.W.3d 854, 856-57 (Tex. Crim. App. 2012) (citing Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983)); see also U.S. CONST. amend. IV. "The core of the Fourth Amendment's warrant clause and its Texas equivalent is that a magistrate may not issue a search warrant without first finding 'probable cause' that a particular item will be found in a particular location." State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012); see also TEX. CONST. art. 1, § 9. Probable cause exists when, under the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found at the specified location. Duarte, 389 S.W.3d at 354. "[A] magistrate, in assessing probable cause, may draw inferences from the facts." Lopez v. State, 535 S.W.2d 643, 647 (Tex. Crim. App. 1976).
Because of the constitutional preference for searches to be conducted pursuant to a warrant, we apply a highly deferential standard of review to a magistrate's probable-cause determination. Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013); State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011). Pursuant to this highly deferential standard, we interpret the supporting affidavit in a commonsensical and realistic manner, and we defer to all reasonable inferences that the magistrate could have made. Bonds, 403 S.W.3d at 873. We consider the totality of the circumstances and determine whether sufficient facts are stated within the four corners of the affidavit, coupled with inferences from those facts, to establish a fair probability that evidence of a particular crime would be found at a given location. See Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007). If the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable-cause determination. McLain, 337 S.W.3d at 271 ("When in doubt, we defer to all reasonable inferences that the magistrate could have made."); see also Gates, 462 U.S. at 238-39. "This substantial basis standard of review does not mean the reviewing court should be a rubber stamp but does mean that the magistrate's decision should carry the day in doubtful or marginal cases, even if the reviewing court might reach a different result upon de novo review." Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (internal quote omitted). Thus, we will uphold the trial court's denial of the motion to suppress if Officer Keller's affidavit established sufficient probable cause to support the magistrate's decision to issue the search warrant.
B. Analysis
Chavez argues that the trial court erred in denying his motion to suppress because the search-warrant affidavit did not contain sufficient information to provide the issuing magistrate with a substantial basis to determine that illegal narcotics would be found at the target residence. To support his argument, Chavez asserts as follows on appeal:
The search warrant affidavit contains information from a confidential informant that he/she purchased cocaine from an unknown male suspect known as "Mike" on January 10, 2016. Most notably, there is no indication in the search warrant whatsoever that any contraband may be located in the house at any time reasonably close to that of February 3, 2016 [when the search warrant was issued]. There is simply no inference that can be reasonably made, or direct statement made, which shows any likelihood that officers would find the controlled substance when they executed the warrant. While, arguably, there was indeed a controlled buy through a confidential informant on January 10, 2016, the affidavit is wholly lacking [i]n any additional information to support a pattern of conduct to show that controlled substances were indeed present on February 3, 2016.
However, in making this argument, Chavez materially misreads the record. Officer Keller's affidavit shows that the first drug buy from the target residence was on January 20, not on January 10; thus, the first drug buy was only 14 days before the issuance of the warrant, not 24 days as Chavez avers.
Chavez is also incorrect in his claim that Officer Keller's affidavit showed only one drug buy at the target residence. To the contrary, Officer Keller's affidavit reflects that there was a second drug buy at the target residence on February 1, less than 48 hours before the magistrate issued the search warrant on February 3.
Providing a fuller picture, we note that Officer Keller's affidavit reflects that, during the first drug buy—14 days before issuance of the search warrant—he used a confidential informant to purchase cocaine at the target residence. Officer Keller indicated that the informant was reliable because he had used the informant in at least three other cases to recover illegal narcotics. Before the January 20 drug buy, Officer Keller had provided the informant with money to purchase cocaine at the target residence and had patted the informant down to ensure that he or she did not have contraband. Officer Keller stated that he had watched the informant enter and leave the target residence. Officer Keller field-tested the substance purchased by the informant at the target residence to verify that it was cocaine. The informant had reported to Officer Keller that, while in the residence, the informant had observed "several handguns lying on the kitchen table alongside the cocaine." The informant had also reported that the drug dealer, "Mike," had said "to come back if they needed more cocaine or other types of narcotics" and provided a phone number to call.
Officer Keller's affidavit provides that the confidential informant did return to the target residence 11 days later on February 1, two days before the issuance of the warrant. Officer Keller testified that he had again provided money to the informant and patted the informant down. He observed the informant enter and leave the target residence. Officer Keller field-tested the substance obtained by the informant, confirming that the informant had, during the second buy, purchased cocaine at the target residence.
We acknowledge that Officer Keller's affidavit did not state that the informant saw additional narcotics in the residence during the second drug buy; however, the magistrate could have reasonably inferred that additional narcotics would be found based on the facts contained in Officer Keller's affidavit regarding the two drug buys. See State v. Griggs, 352 S.W.3d 297, 304 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd) ("[A]lthough the affidavit did not reflect that the informant had seen additional narcotics in the residence, the magistrate could have inferred that additional narcotics were in the residence from the facts provided."); Davis v. State, 27 S.W.3d 664, 666 (Tex. App.—Waco 2000, pet. ref'd) (responding to appellant's argument that "police lacked probable cause because they could not be certain that more drugs were in the house after the informant made his controlled buy," court determined that "[w]here facts and circumstances within the knowledge of a police officer, arising from a reasonably trustworthy source, would warrant a person of reasonable caution in the belief that items of contraband or evidence of a crime may presently be found in a specified place, there is probable cause to issue a warrant to search that place"); see also Orozco v. State, No. 08-12-00051-CR, 2013 WL 1342497, at *2 (Tex. App.—El Paso Apr. 3, 2013, pet. ref'd) (mem. op., not designated for publication) (concluding that, even though affidavit did not state that informant saw additional contraband in the residence, "the magistrate could have reasonably inferred that additional contraband would be found" based on facts in affidavit discussing three controlled drug buys performed by confidential informant, last one of which was two days before supporting affidavit was signed).
When viewed as a whole, and in a common-sense manner, we conclude that sufficient facts are stated within the four corners of Officer Keller's affidavit, coupled with inferences from those facts, to establish a fair probability that illegal narcotics would be found at the target residence; that is, there was a substantial basis for the magistrate's probable cause finding. See Jones, 364 S.W.3d at 857, 862 (Tex. Crim. App. 2012) (holding that supporting affidavit in which officer stated that an informant had recently told officer that drugs were present at residence and then conducted a controlled buy using a second informant provided probable cause justifying search warrant); Griggs, 352 S.W.3d at 300, 304 (holding that affidavit reciting affiant received tip from "credible and reliable" informant, coupled with a controlled narcotics buy, was sufficient to establish probable cause that narcotics would be found at residence); Davis, 27 S.W.3d. at 667-68 (holding that magistrate had probable cause to issue search warrant based on single controlled drug buy).
We hold that the trial court properly deferred to the magistrate's probable cause determination and did not err when it denied Chavez's motion to suppress.
We overrule Chavez's first issue
Motion for New Trial
In his second issue, Chavez contends the trial court abused its discretion in overruling his motion for new trial because the jury received "other evidence"—not admitted at trial—that was detrimental to him. Chavez focuses on the testimony of the alternate juror, who testified that the jury foreman told the other jurors that, the night before, he had learned from someone outside the court that the cocaine involved in the case had a street value of $20,000.
A. Standard of Review & Applicable Law
Chavez relies on Texas Rule of Appellate Procedure 21.3(f) in urging that the jury received other evidence that was detrimental to him. Rule 21.3(f) provides that a defendant must be granted a new trial "when, after retiring to deliberate, the jury has received other evidence." TEX. R. APP. P. 21.3(f). In such cases, a two-prong test must be satisfied for the defendant to obtain a new trial: (1) the evidence must have been received by the jury, and (2) the evidence must be detrimental or adverse to the defendant. Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim. App. 2003).
On appeal, we review a trial judge's denial of a motion for new trial under an abuse of discretion standard. Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014). "We do not substitute our judgment for that of the trial court; rather, we decide whether the trial court's decision was arbitrary or unreasonable." Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006). A trial court abuses its discretion in denying a motion for new trial when no reasonable view of the record could support his ruling. Id.
B. Analysis
Here, Chavez contends that he is entitled to a new trial based on the alternate juror's testimony that the jury foreman told the other members of the jury that he had learned from an outside source that the street value of the cocaine was $20,000. In his brief, Chavez acknowledges that, in contrast to the alternate juror's testimony, "[t]he other five [juror] witnesses, including the foreman of the jury, testified that . . . no person [juror] volunteered information about the street value of drugs . . . ." At the new trial hearing, the jury foreman testified that he had not discussed the value of the cocaine with anyone outside the jury. The foreman also indicated that the jury had followed the trial court's instruction that it should deliberate based solely on the evidence presented at trial. Chavez recognizes that, contrary to the alternate juror's testimony, the other five jurors each indicated that he had not heard anyone make a statement regarding the street value of the cocaine based on an outside source. Nonetheless, Chavez urges that the alternate juror's testimony, regarding what the jury foreman had shared about the cocaine's street value, should be taken "on [its] face." We disagree.
We view the evidence in the light most favorable to the trial court's ruling on the motion for new trial, and we presume that all reasonable factual findings that could have been made against the losing party were made against that losing party. Colyer, 428 S.W.3d at 122 (citing Quinn v. State, 958 S.W.2d 395, 402 (Tex. Crim. App. 1997) (upholding trial court's denial of motion for new trial based on juror misconduct, noting that court of appeals had failed to give appropriate deference to trial court's credibility determinations)). The trial court alone determines the credibility of the witnesses. Id. (citing Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001)). If there are two permissible views of the evidence, the trial court's choice between them cannot be held to be clearly erroneous. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). Here, the trial court could have chosen to discredit the alternate juror's testimony while crediting that of the other five jurors. See Colyer, 428 S.W.3d at 126. In other words, the trial court could have found the alternate juror's testimony not to be credible.
After resolving the conflict between the alternate juror's testimony and the other five juror's testimony, we conclude that the trial court could have determined that Chavez failed to establish that the jury actually received "other evidence" from the jury foreman about the street value of the cocaine. See id. at 126-27 ("[T]he trial judge was not required to credit [witness's] post-trial testimony and would not have abused his discretion by denying appellant's motion for new trial on that ground alone."); Reed v. State, 841 S.W.2d 55, 60 (Tex. App.—El Paso 1992, pet. ref'd) (affirming denial of new trial because evidence of juror misconduct was conflicting). We hold that Chavez has not shown that the trial court abused its discretion when it denied his motion for new trial.
We overrule Chavez's second issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice Panel consists of Chief Justice Radack and Justices Higley and Bland. Do not publish. TEX. R. APP. P. 47.2(b).