Opinion
NO. 03-16-00723-CR
05-03-2017
Raul Jose Valencia, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT
NO. B-15-0260-SB , HONORABLE BEN WOODWARD, JUDGE PRESIDING MEMORANDUM OPINION
After a bench trial, the trial court found Raul Jose Valencia guilty of possession with intent to deliver a controlled substance, heroin, in an amount of four grams or more but less than 200 grams. See Tex. Health & Safety Code § 481.112(d). Valencia also pleaded true to an enhancement paragraph, making the punishment range for the offense 15 years to 99 years or life. See Tex. Penal Code § 12.42(c)(1). The trial court sentenced Valencia to 20 years in prison, and Valencia appealed. In his first appellate issue, Valencia contends that the trial court should have granted his motion to suppress evidence because the search-warrant affidavit did not support a finding of probable cause justifying issuance of the warrant. In his second issue, Valencia contends that the evidence was insufficient to support his conviction because it did not prove that Valencia, and not his spouse, possessed heroin with intent to deliver. We will affirm the trial court's judgment of conviction.
BACKGROUND
The following facts are undisputed on appeal. On February 18, 2015, officers with the San Angelo Police Department executed a search warrant for Valencia's home. In the bedroom that Valencia shared with his wife, officers found approximately 11 grams of heroin, a digital scale, a plastic bag that had been cut up, scissors, pieces of cut foil, a plastic bag with heroin residue on it, a ceramic plate with heroin residue on it, and $7,178 in cash. After the trial court denied his motion to suppress, Valencia pleaded guilty to possession of heroin but not guilty to possession with intent to deliver. Valencia was later found guilty of possession with intent to deliver, and this appeal followed.
DISCUSSION
First Issue: Probable Cause
In his first appellate issue, Valencia contends that the trial court should have granted his motion to suppress evidence because the search-warrant affidavit did not support a finding of probable cause justifying issuance of the warrant.
In most cases, "[a]ppellate courts review a trial court's ruling on a motion to suppress by using a bifurcated standard, giving almost total deference to the historical facts found by the trial court and analyzing de novo the trial court's application of the law." State v. Cuong Phu Le, 463 S.W.3d 872, 876 (Tex. Crim. App. 2015) (citing Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997)). "However, when the trial court is determining probable cause to support the issuance of a search warrant, there are no credibility determinations, rather the trial court is constrained to the four corners of the affidavit." State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011); see Ahern v. State, No. 03-14-00090-CR, 2016 WL 7046813, at *1 (Tex. App.—Austin Dec. 1, 2016, pet. filed) (mem. op., not designated for publication). Similarly, the reviewing court "may look only to the four corners of the affidavit," and we "should view the magistrate's decision to issue the warrant with great deference." Jones v. State, 364 S.W.3d 854, 857 (Tex. Crim. App. 2012). "[W]e apply a highly deferential standard because of the constitutional preference for searches to be conducted pursuant to a warrant as opposed to a warrantless search." McLain, 337 S.W.3d at 271 (citing Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex. Crim. App. 2004)). "As long as the magistrate had a substantial basis for concluding that probable cause existed, we will uphold the magistrate's probable cause determination." Id. (citing Illinois v. Gates, 462 U.S. 213, 236 (1983)); see Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013).
Moreover, we are "not to analyze the affidavit in a hyper-technical manner." McLain, 337 S.W.3d at 271. Instead, we "should interpret the affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw reasonable inferences." Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007). "When in doubt, we defer to all reasonable inferences that the magistrate could have made." Id. "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." Id. at 62. "The issue is not whether there are other facts that could have, or even should have, been included in the affidavit; we focus on the combined logical force of facts that are in the affidavit, not those that are omitted from the affidavit." Id. "Although the reviewing court is not a rubber stamp, 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." Jones, 364 S.W.3d at 857 (internal quotation marks omitted).
Here, Officer Hank Hethcock completed the probable-cause affidavit that was the basis of the search warrant. In the affidavit, Officer Hethcock made the following sworn statements:
• Confidential Informant #1 told Officer Hethcock that Valencia "is involved in the sale/distribution of Heroin in San Angelo." Officer Hethcock believes this accusation because "Confidential Informant #1 has provided [Officer Hethcock] with information concerning illegal drug activity on more than three (3) occasions in the past two (2) months and on each occasion the information has been proven to be reliable, true and correct."
• Detective Eddie Chavarria told Officer Hethcock that he had spoken with Confidential Informant #2, who said that he has purchased heroin from Valencia on "numerous different occasions." Detective Chavarria also told Officer Hethcock that he believes Confidential Informant #2 is trustworthy because Detective Chavarria "has been able to corroborate several pieces of the information given by Confidential Informant #2." Detective Chavarria later told Officer Hethcock that Confidential Informant #2 told him that he had seen Valencia "in possession of Heroin at the Suspected Place and Premises."
• Confidential Informant #3 told Officer Hethcock that Valencia "is involved in the sale/distribution of Heroin in San Angelo" and that Valencia "supplies numerous people in San Angelo." Officer Hethcock believes these accusations because "Confidential Informant #3 has provided [Officer Hethcock] with information concerning illegal drug activity on more than four (4) occasions in the past two (2) months and on each occasion the information has been proven to be reliable, true and correct."
• Officer Hethcock reviewed reports showing that Detective Chavarria collected trash from Valencia's address on several occasions and that the trash contained hypodermic needles, some of which contained a brown tar like substance, empty balloons, several pieces of plastic that were cut into smaller pieces, and a plastic bag containing heroin residue.
• Officer Hethcock reviewed reports showing that Detective Chavarria and Confidential Informant #2 "conducted a controlled purchase of Heroin from [Valencia's wife]."
• A Texas Department of Public Safety special agent told Officer Hethcock that Confidential Informant #4 told him that Valencia is a heroin dealer in San
Angelo and described Valencia's vehicle. The special agent also told Officer Hethcock that he believed this information because Confidential Informant #4 "has provided [the special agent] with information concerning illegal drug activity on more than four (4) occasions in the past three (3) months and on each occasion the information has proven to be reliable, true and correct."The dates for these alleged events spanned from July 3, 2014, to February 17, 2015, the day before the warrant was executed.
Valencia argues that the search warrant affidavit did not support a finding of probable cause because "the 'facts' [the confidential informants] provided and on which the magistrate relied to establish probable cause consisted in the main of generalized conclusions and assertions by informants who failed to supply the kind of information necessary to support their factual averments." Valencia further argues that "in at least two instances where Hethcock quotes from so-called confidential informants, he neglects to provide dates when the informants allegedly witnessed the broad allegations they make," and that "[i]n more than one instance, the so-called confidential informants are not credited with the necessary indices of credibility." In addition, Valencia asserts that the "trash runs" did not support probable cause because "[t]he officers offered no proof that they recovered anything tying Valencia to the receptacles searched or the trash recovered from those receptacles." Finally, Valencia argues that most of the affidavit's accusations were "stale" because they allegedly occurred "five, and in some instances, more than six months" before the warrant was executed.
"Hearsay from unnamed informants may be credited by showing the informant has given reliable, credible information in the past." State v. Hill, 299 S.W.3d 240, 244 (Tex. App.—Texarkana 2009, no pet.); see Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977) ("We hold therefore that the affidavit supporting the search warrant presented sufficient underlying circumstances for the magistrate to determine that the informant was reliable and that the heroin was where the informer said it was."); Harmon v. State, No. 14-14-00529-CR, 2015 WL 5436847, at *3 (Tex. App.—Houston [14th Dist.] Sept. 15, 2015, no pet.) (mem. op., not designated for publication) (noting that statements that informant has been reliable in the past are "sufficient to support a finding of an informant's credibility"); Reyes v. State, No. 02-11-00327-CR, 2013 WL 1338023, at *6 (Tex. App.—Fort Worth Apr. 4, 2013, no pet.) (mem. op., not designated for publication) ("Allegations that an informant has proven reliable on previous occasions may establish an informant's credibility."); Cerda v. State, 846 S.W.2d 533, 534 (Tex. App.—Corpus Christi 1993, no pet.) ("The Court of Criminal Appeals has generally accepted that an unnamed informant's reliability may be established by the affiant's general assertions stated in the affidavit concerning the informant's prior reliability."). Here, the affidavit states that Confidential Informants ##1, 3, and 4 had all provided accurate information in the past. Giving "great deference" to the magistrate's decision, see Jones, 364 S.W.3d at 857, we conclude that the affidavit contained sufficient information to support a finding that these confidential informants were reliable.
Moreover, the affidavit asserts that Detective Chavarria and Confidential Informant #2 "conducted a controlled purchase of Heroin from [Valencia's wife]," who lived at the same address as Valencia. "The circumstances of a controlled buy, standing alone, may corroborate an informant's tip and provide probable cause to issue a warrant." Loften v. State, No. 09-13-00543-CR, 2015 WL 6121372, at *8 (Tex. App.—Beaumont Oct. 14, 2015, no pet.) (mem. op., not designated for publication) (quoting State v. Griggs, 352 S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2011, pet. ref'd)). In addition, although the affidavit did not indicate that officers found items in the Valencia residence's trash that affirmatively linked the trash to Valencia, the affidavit does assert that the trash was collected from the Valencia residence, and the magistrate could have inferred that the trash was theirs. See Rodriguez, 232 S.W.3d at 61 ("When in doubt, we defer to all reasonable inferences that the magistrate could have made.").
Finally, we note that, while some of the conversations between the confidential informants and the police happened months before the warrant was executed, some of the conversations, and two of the "trash runs," happened within a week of the warrant's execution. Moreover, the confidential informants provided information indicating that Valencia was engaged in an ongoing course of conduct. Therefore, giving great deference to the magistrate, we conclude that the affidavit's accusations were not too "stale" to support a finding of probable cause to issue the warrant. See Aguirre v. State, 490 S.W.3d 102, 115 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("[W]hen the affidavit properly recites facts indicating activity of a protracted and continuous nature—a course of conduct—the passage of time becomes less significant. The proper method to determine whether the facts supporting a search warrant have become stale is to examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of events set out in the affidavit and the time the search warrant is issued.") (citations omitted).
Given our deferential standard of review, and in light of the totality of the facts contained in the affidavit, we conclude that there was "fair probability" that evidence of heroin possession would be found in Valencia's home, see Rodriguez, 232 S.W.3d at 62, and that "the magistrate had a substantial basis for concluding that probable cause existed," see Bonds, 403 S.W.3d at 873. Accordingly, we overrule Valencia's first appellate issue.
Second Issue: Sufficiency of the Evidence
In his second appellate issue, Valencia contends that the evidence was legally insufficient to support his conviction because the evidence did not prove that Valencia, and not his spouse, possessed heroin for delivery.
In evaluating the sufficiency of the evidence supporting the trial court's verdict in a bench trial, we view the evidence in the light most favorable to the verdict and ask whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) (quoting Brooks v. State, 323 S.W.3d 893, 902 n.19 (Tex. Crim. App. 2010)). We treat direct and circumstantial evidence equally. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In a bench trial, the trial court "is the sole judge of the credibility of the witnesses and may accept or reject any part or all of the testimony given by State or defense witnesses." Johnson v. State, 571 S.W.2d 170, 173 (Tex. Crim. App. [Panel Op.] 1978); see also Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995); Deloach v. State, No. 03-13-00049-CR, 2015 WL 756759, at *1 (Tex. App.—Austin Feb. 19, 2015, pet. ref'd) (mem. op., not designated for publication).
Here, the State was required to prove beyond a reasonable doubt that Valencia knowingly possessed heroin with the intent to deliver it. See Tex. Health & Safety Code § 481.112(a). In addition, because the evidence of Valencia's guilt was seized in the bedroom that he shared with his wife, the State was required to prove that his connection to the drugs was more than just fortuitous. See Blackman v. State, 350 S.W.3d 588, 594 (Tex. Crim. App. 2011) ("[S]ince appellant was not in exclusive possession of the van, the State was also required to prove beyond a reasonable doubt that appellant's connection to the . . . cocaine 'was more than just fortuitous.'") (quoting Poindexter v. State, 153 S.W.3d 402, 406 (Tex. Crim. App. 2005)); Poindexter, 153 S.W.3d at 406 ("[I]t 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."). "Reviewing courts have developed several factors showing a possible link between the accused and contraband . . . ." Roberts v. State, 321 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) (listing factors). However, "[t]he number of linking factors present is not as important as the 'logical force' they create to prove the accused knowingly or intentionally possessed the controlled substance." Id.
Valencia was not present when officers executed the search warrant and seized the drugs and other materials from his residence because he was arrested beforehand at a methadone clinic. Nevertheless, the State presented evidence that officers seized the materials in Valencia's bedroom and that at least some of the material seized was in plain view. In addition, an officer testified that Valencia appeared to be "under the influence" when arrested on the day that the warrant was executed. An officer also testified that Valencia had abscesses on his body caused by heroin use. From this evidence, the trial court could have concluded that Valencia was a heroin user and was in possession of the drugs found in his bedroom. Indeed, at trial, Valencia pleaded guilty to possession of heroin. The fact that Valencia's wife may also have possessed the heroin and distributed it on occasion does not render the evidence insufficient to support Valencia's conviction. See White v. State, No. 02-16-00158-CR, 2017 WL 1089691, at *2 (Tex. App.—Fort Worth Mar. 23, 2017, no pet. h.) (mem. op., not designated for publication) ("Possession . . . need not be exclusive.") (citing Henry v. State, 409 S.W.3d 37, 42 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (same)).
Moreover, the State presented evidence that Valencia possessed the heroin with the intent to deliver it and not merely to use it himself. The State presented evidence that officers seized about 11 grams of heroin, and an officer testified that this amount represented about 110 doses and was worth approximately $2,700. In addition, Valencia's wife testified that she would purchase an ounce or two of heroin every three days in Dallas. An officer testified that there are 28 grams in an ounce and that each gram of heroin costs $150-$225 dollars. An officer also testified that "a Workforce Commission check" on Valencia did not reveal any legitimate sources of income. From this evidence, the trial court could have concluded that the Valencias were distributing heroin, not merely using it.
The State also presented evidence that officers seized a digital scale, a plastic bag that had been cut up, scissors, pieces of cut foil, a plastic bag with heroin residue on it, and $7,178 in cash. An officer testified that these items were used for packaging heroin for sale and not merely for personal use:
There was the scissors, the plastic bag that had been cut up already, or cut on, and then there was several pieces of—of foil already cut into small squares. The way they make heroin paper, a paper is just a piece of heroin. They normally place it on a small piece of plastic, and then they'll take that plastic and roll it up, and then they'll put it in foil. And then they kind of make it into a ball or a square, and that's what they refer to [as] a paper. So all the things were located in the bedroom with the heroin.
In summary, the State presented evidence that officers seized a large amount of heroin in Valencia's bedroom along with equipment used to package heroin for sale and a large amount of cash, that the Valencias were purchasing large amounts of heroin on a regular basis, and that Valencia was arrested at a methadone clinic while under the influence of a controlled substance. Viewing this evidence in the light most favorable to the trial court's verdict, giving equal weight to direct and circumstantial evidence, and mindful of the fact that the trial court was the sole judge of the witnesses' credibility, we conclude that the evidence was sufficient to support the trial court's finding that Valencia's connection to the heroin was more than fortuitous and that he possessed the heroin with the intent to deliver it. Accordingly, we overrule Valencia's second appellate issue.
CONCLUSION
We affirm the trial court's judgment of conviction.
/s/_________
Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Affirmed Filed: May 3, 2017 Do Not Publish