Opinion
No. 04-15-00720-CR
09-14-2016
Leroy SANTOS, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 399th Judicial District Court, Bexar County, Texas
Trial Court No. 2014CR6238B
The Honorable Maria Teresa (Tessa) Herr, Judge Presiding Opinion by: Karen Angelini, Justice Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice AFFIRMED
A jury convicted Leroy Santos of the offense of possession with intent to deliver heroin in the amount of four or more grams but less than two hundred grams. On appeal, Santos presents two issues. First, Santos argues the trial court erred in not granting his motion to suppress evidence. Second, Santos argues the evidence was legally insufficient to support his conviction. We affirm.
BACKGROUND
After receiving a confidential informant's tip and conducting an independent investigation, Bexar County sheriff deputies obtained a search warrant to search the premises at 1703 Ceralvo Street in San Antonio, Texas, for heroin and any items used in the sale, packaging, weighing, or ingestion of illegal narcotics. The following day, the deputies executed the warrant. The deputies knocked and announced their presence and heard commotion inside the residence. Upon entering, the deputies saw Santos coming from the bathroom. His clothes were wet. A bag containing heroin was retrieved from the toilet and another bag of heroin was found next to the toilet. Only Santos and one other occupant of the residence were present during the execution of the search warrant. Deputies also found a scale, lactose, and sandwich baggies during the search. Santos and another occupant of the residence, Denise Benavides, were arrested.
Santos was charged by indictment with the offense of possession with intent to deliver a controlled substance. Santos pled not guilty and filed a motion to suppress in which he asked the trial court to suppress tangible evidence allegedly seized without probable cause. At the suppression hearing, Santos argued the affidavit supporting the search warrant was not sufficient to support a finding of probable cause to issue the warrant. The trial court denied the motion to suppress. A jury found Santos guilty and assessed punishment at twenty-five years in prison. Santos appealed.
MOTION TO SUPPRESS
In his first issue, Santos argues the trial court should have granted his motion to suppress because the search warrant was not supported by probable cause. The State argues this issue must be overruled because Santos failed to ensure that the affidavit and the search warrant were included in the appellate record and, therefore, the issue is not preserved for appellate review. Alternatively, the State argues the issue must be overruled because the search warrant is supported by probable cause. The State requested supplementation of the appellate record with the affidavit and the search warrant; however, the appellate record was never supplemented. The State also filed copies of the affidavit and the search warrant as attachments to its brief.
The Texas Court of Criminal Appeals has set out the procedural requirements for the preservation of error when contesting a search warrant and its accompanying affidavit. Moreno v. State, 858 S.W.2d 453, 461 (Tex. Crim. App. 1993). The initial burden of justifying a contested search is on the State. Id. Therefore, if the State intends to justify a search on the basis of a warrant, it must produce the warrant and its supporting affidavit for the trial court's inspection. Id. However, after the State produces the warrant and affidavit and they are exhibited to the trial court, the responsibility shifts to the defendant to ensure that they are included in the record for review on appeal. Id.
Here, we agree with the State that Santos' first issue is not preserved for appellate review. At the suppression hearing, the State produced the affidavit and the search warrant for the trial court to inspect. However, the affidavit and the search warrant were never admitted into evidence and, thus, are not included in the appellate record. Thus, Santos' first issue is not preserved for appellate review. See Moreno, 838 S.W.2d at 462 (concluding the legality of an arrest and search warrant was not preserved for appellate review when defense counsel failed to ensure the supporting affidavit was included in the appellate record); Broussard v. State, 312 S.W.2d 664, 666 (Tex. Crim. App. 1958) ("If the appellant wished to challenge the sufficiency of the affidavit in this Court, it became incumbent upon her to bring the instrument before us.").
But even if the issue had been preserved, we would still overrule it. Santos argues that the trial court erred in denying his motion to suppress evidence because the affidavit supporting the search warrant was insufficient. Specifically, Santos argues the affidavit was insufficient because it failed to contain (1) a substantial basis for crediting the informant's statements to the officer who signed the affidavit, and (2) sufficient particularized facts about Santos' drug possession to allow a magistrate to determine probable cause.
Under the Fourth Amendment, a search must be based on probable cause. See U.S. CONST. amend IV; Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010); Gonzales v. State, 481 S.W.3d 300, 306 (Tex. App.—San Antonio 2015, no pet.). The four corners of an affidavit supporting a search warrant are sufficient if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding probable cause existed. Flores, 319 S.W.3d at 702-03; Gonzales, 481 S.W.3d at 306. "Probable cause exists when, under the totality of circumstances, there is fair probability that contraband or evidence of a crime will be found at the specified location." Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (internal quotations omitted).
When reviewing a magistrate's decision to issue a warrant, trial and appellate courts apply a highly deferential standard in keeping with the constitutional preference for a warrant. Id. at 60; Gonzales, 481 S.W.3d at 306. Whether an affidavit provides a substantial basis for a magistrate's probable cause determination cannot be determined through a "magical formula." Tolentino v. State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982); Gonzales, 481 S.W.3d at 306. Instead, courts review a magistrate's determination of probable cause by interpreting the affidavit in a commonsense and realistic manner, recognizing that a magistrate may draw reasonable inferences. Rodriguez, 232 S.W.3d at 61; Gonzales, 481 S.W.3d at 306. "The inquiry for reviewing courts, including the trial court, is whether there are sufficient facts, coupled with inferences from those facts, to establish a 'fair probability' that evidence of a particular crime will likely be found at a given location." Rodriguez, 232 S.W.3d at 62.
In the present case, the officer's affidavit states that he had good reason to believe, and did believe, that the residence occupied by Santos and Benavides was a place where heroin was being unlawfully possessed. In support of this belief, the officer stated that he received information from a credible and reliable source that Santos and Benavides were in possession of heroin at the residence in question. The officer further stated he believed that the disclosure of the identity of the informant would be dangerous to the informant's safety and might jeopardize future investigations. Next, the officer stated that the informant had provided him information in the past that had proven to be true and correct, and that the informant had demonstrated an ability to identify heroin and paraphernalia related to its ingestion, packaging, and sale. The officer said he had advised the informant that false statements would lead to the filing of criminal charges against the informant, and the informant indicated he or she understood the legal implications of providing false information but nevertheless maintained that the information provided was true. The officer also said that the informant was shown photos of Santos and Benavides and correctly identified them. Finally, the officer said that he conducted local criminal history checks of Santos and Benavides, and these criminal history checks showed that Santos had a prior arrest for drug possession and Benavides had a prior arrest for prostitution.
Notwithstanding Santos's argument to the contrary, the affidavit contained a sufficient basis for crediting the informant's statements. The affidavit stated that the informant had a track record of providing true and correct information to the officer and that the informant had demonstrated an ability to identify heroin and paraphernalia related to its ingestion, packaging, and sale. See Hammond v. State, 898 S.W.2d 6, 7-8 (Tex. App.—Dallas 1995, no pet.) (concluding that affidavit demonstrated confidential informant's reliability when it stated that the informant furnished the affiant with other information concerning drug trafficking in the past and the information was true and correct on each and every occasion). Furthermore, the affidavit stated the informant was aware of the consequences of providing false information, but nevertheless maintained that the information provided to the officer was true.
Additionally, the affidavit contained sufficient facts about Santos's drug possession to allow a magistrate to conclude, from the totality of the circumstances, that a fair probability existed that contraband or evidence of a crime would be found at the residence. Santos argues the affidavit failed to contain sufficient detail about his drug possession to allow the magistrate to determine probable cause. Specifically, Santos complains about information that is absent from the affidavit, such as a description about how the transactions were conducted; a description of where the heroin was located; details about the amount of heroin involved; and details about the officer's surveillance of the residence. However, "[t]he proper analysis of the sufficiency of a search-warrant affidavit is not whether as much information [as] could have been put into an affidavit was actually in the affidavit." Rodriguez, 232 S.W.3d at 64. "The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; [instead,] we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit." Id. at 62 (emphasis in original).
Here, the affidavit stated that the informant saw Santos and Benavides possessing heroin at the residence in question within the past twenty-four hours; that the informant was familiar with heroin and paraphernalia related to its ingestion, packaging, and sale; and that the informant had provided the officer with reliable and credible information in the past. See Patterson v. State, 138 S.W.3d 643, 648 (Tex. App.—Dallas 2004, no pet.) (concluding that statements in an affidavit that the informant had been on the premises within the last forty-eight hours, that the informant had seen methamphetamine at the location, that the informant was familiar with methamphetamine, that methamphetamine was being sold, and that the informant had given the officer reliable information in the past, furnished probable cause for the issuance of a search warrant); see also Daniels v. State, 999 S.W.2d 52, 56 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (holding allegations in an affidavit supporting a search warrant were sufficient to justify the conclusion that the object of the search was probably on the premises when it stated that the informant had proven to be reliable and credible in the past and the informant had been inside the premises within the last forty-eight hours and had personally observed the appellant in possession of cocaine).
We conclude that the affidavit supporting the search warrant in this case contained sufficient facts from which a magistrate could have concluded that a fair probability existed that evidence of a particular crime would likely be found at the residence searched. The trial court did not err in denying Santos' motion to suppress. We overrule Santos' first issue.
SUFFICIENCY OF THE EVIDENCE
In his second issue, Santos argues his conviction should be reversed because the evidence was insufficient to support the jury's finding that he exercised care, custody, and control over the heroin because the circumstantial evidence failed to "affirmatively link" him to the heroin.
To prove unlawful possession of a controlled substance, the State must prove that: (1) the accused exercised control, management, or care over the substance; and (2) the accused knew the substance possessed was contraband. Poindexter v. State, 153 S.W.3d 402, 405 (Tex. Crim. App. 2005); King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). Whether the evidence is direct or circumstantial, it must establish that the accused's connection with the drug was more than just fortuitous. Poindexter, 153 S.W.3d at 405-06. "This is the whole of the so-called 'affirmative links' rule." Id. at 406. The affirmative links rule provides that when the accused is not in exclusive possession of the place where the substance is found, it cannot be concluded that the accused had knowledge of and control over the contraband unless there are additional independent facts and circumstances which affirmatively link the accused to the contraband. Id.
Texas courts have recognized a non-exclusive list of possible "affirmative links" as sufficient, either singly or in combination, to establish possession of contraband: (1) the defendant's presence when a search is conducted; (2) whether the contraband is in plain view; (3) the defendant's proximity to and the accessibility of the narcotic; (4) whether the defendant was under the influence of narcotics when arrested; (5) whether the defendant possessed other contraband or narcotics when arrested; (6) whether the defendant made incriminating statements when arrested; (7) whether the defendant attempted to flee; (8) whether the defendant made furtive gestures; (9) whether there was an odor of contraband; (10) whether other contraband or drug paraphernalia were present; (11) whether the defendant owned or had the right to possess the place where the drugs were found; (12) whether the place where the drugs were found was enclosed; (13) whether the defendant was found with a large amount of cash; and (14) whether the conduct of the defendant indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158, 162 n.12 (Tex. Crim. App. 2006). The absence of certain links does not weigh against those that are present. Ferguson v. State, 313 S.W.3d 419, 426 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Furthermore, the State is not required to prove sole, exclusive possession of the illegal drug. Id. at 423. "It is the logical force of the circumstantial evidence, not the number of links, that supports a jury's verdict." Evans, 202 S.W.3d at 166.
When conducting a federal due-process evidentiary-sufficiency review, we view all of the evidence in the light most favorable to the verdict to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011). The sufficiency standard of review recognizes the jury's role as the sole judge of the weight and credibility of the evidence after drawing reasonable inferences from the evidence. Adames, 353 S.W.3d at 860; see Poindexter, 153 S.W.3d at 406. In conducting a sufficiency review, we determine whether the necessary inferences made by the jury are reasonable, based on the cumulative force of all the evidence. Adames, 353 S.W.3d at 860.
Viewed in the light most favorable to the verdict, the evidence in the present case showed that when the officers arrived at the residence to execute the warrant, they knocked and announced their presence. No one answered the door. The officers then attempted to enter the residence by force, but several minutes elapsed before they could do so because the door contained burglar bars. While still outside, the officers heard what sounded like "running" and "commotion" inside the residence. The occupants were aware the officers were trying to get inside the residence. Upon entry, the officers saw Santos in the hall and coming out of the bathroom. Santos was sweaty and his clothing was wet. The officers found a baggy of heroin on the floor in the hall, just outside the bathroom and near the place where the officers first saw Santos. The officers also found a baggy containing heroin floating in the toilet and ultimately retrieved eleven other baggies containing heroin from the toilet. Testimony indicated it is common for drug traffickers to dispose of drugs in toilets when made aware of the presence of law enforcement. From this evidence, the jury could have reasonably concluded that Santos was disposing of the heroin when the officers entered the residence. Additionally, Santos admitted to the officers that he had clothing at the residence and that he had been staying at the residence for a few months. The officers further found a working digital scale, a large bottle of lactose, and two boxes of sandwich baggies in the living room of the residence. Testimony showed that these items are utilized by drug traffickers in preparing the drugs for individual sale.
Thus, the evidence in this case demonstrated sufficient affirmative links for the jury to conclude that Santos exercised control, management, or care over the heroin. Santos was present when the search was conducted and he admitted that he had been staying at the residence for the past several months. The scale, the lactose, the baggies, were found in plain view in the living room. When the officers entered the residence, a baggy of heroin was found on the hallway floor and another baggy of heroin was found floating in the toilet. Additional baggies of heroin were later retrieved from the toilet. When the officers first saw Santos, he was in close proximity to the heroin. In fact, Santos appeared to be in the process of disposing of the heroin, which amounts to conduct demonstrating a consciousness of guilt. We conclude that the logical force of all of the evidence supports the jury's verdict.
Santos relies on Roberson v. State, 80 S.W.3d 730 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd), to support his argument. Roberson, however, is readily distinguishable. In Roberson, the appellant was the driver of a car that had been pulled over for expired registration and inspection stickers. Id. at 733. A consent search of the vehicle led to the discovery of crack cocaine on the passenger side floorboard and on the roadway a few inches from the passenger side of the car. Id. at 734. The State argued that the evidence was sufficient to link the appellant to the cocaine because it showed that the appellant was the car's driver, the car's occupants had discrepancies in their stories, the appellant was the cousin of the passenger who was seated closest to the cocaine, the appellant made statements disassociating himself from one of the passengers, and the amount of cocaine found was significant. Id. at 736-42. The appellate court disagreed, concluding these factors did not create the logical force necessary to allow a rational jury to find, beyond a reasonable doubt, that the appellant had knowledge of the presence of the cocaine. Id. at 742.
We conclude that the evidence was legally sufficient to support the jury's finding that Santos knowingly possessed the heroin. We, therefore, overrule Santos's second issue.
CONCLUSION
The judgment of the trial court is affirmed.
Karen Angelini, Justice Do not publish