Ashcraft v. State, 13-92-264-CR

• Decision Date: 22 August 1996
• Docket Number: No. 13-92-264-CR,13-92-264-CR
• Citation: 934 S.W.2d 727
• Parties: Jon Alan ASHCRAFT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 727

934 S.W.2d 727

Jon Alan ASHCRAFT, Appellant, v. The STATE of Texas, Appellee.

No. 13-92-264-CR.

Court of Appeals of Texas,

Corpus Christi.

Aug. 22, 1996.

Rehearing Overruled Dec. 5, 1996.

Glen A. Barnard, Harlingen, Alfredo Padilla, Brownsville, for Appellant.

Luis V. Saenz, District & County Attorney, John A. Olson, Asst. County & District Attorney, Robert H. Moore, Jr., Assistant County (Criminal Dist.) Attorney, Brownsville, Robert Huttash, State Prosecuting Attorney, Matthew W. Paul, Assistant State Attorney, Austin, for Appellee.

Before SEERDEN, C.J., and YANEZ and CHAVEZ, JJ.

OPINION

YANEZ, Justice.

Appellant, Jon Alan Ashcraft, was convicted of burglary of a habitation and assessed punishment at seventy-five years in prison and a $5,000 fine. On original submission, the majority of this Court held that the search warrant failed to show probable cause for the search and seizure of stolen property from appellant's home, and we reversed the trial court's judgment and remanded the cause for a new trial. Ashcraft v. State, No. 13-92-264-CR (Tex.App.--Corpus Christi, August 31, 1996) (not designated for publication). The State challenged our holding and sought discretionary review from the Court of Criminal Appeals. That Court summarily granted review of ground two of the State's petition and remanded the case to us to consider 1) whether the State sufficiently established probable cause as to the heroin portion of the search warrant and 2) whether the invalid portion of the search warrant could be severed from the valid portion. ¹ Ashcraft v. State, No. 1182-94 (Tex.Crim.App. December 21, 1994) (per curiam) (not designated for publication). We affirm the trial court's judgment.

Appellant was arrested after police executed a search warrant purporting to authorize a search for both heroin and stolen property. We held that the search warrant was invalid because the affidavit supporting the warrant failed to allege sufficient facts to establish probable cause that appellant was in possession of stolen property located at his residence. In its petition for discretionary review, the State did not dispute that the warrant was defective as to the search for stolen property. However, the State contends that the warrant affidavit alleged sufficient facts to establish probable cause that appellant sold heroin from his residence. Therefore, the State argues that the valid portion of the warrant authorized the police officers' search of the premises and the seizure of stolen property found on the premises pursuant to the plain view doctrine.

On remand, appellant asserts, in point one, that the search warrant was not based on probable cause, that the evidence seized was the result of an illegal search, and that the trial court erred in admitting that evidence. Appellant contends that probable cause is lacking because the warrant's supporting affidavit, based upon information gained by informant hearsay and by police observation, fails to establish the informants' credibility, reliability, and basis of knowledge.

A warrant may issue for the police to search a certain place and seize certain items only if supported by an affidavit showing facts and circumstances within the affiant's knowledge that would warrant a person of reasonable caution to believe that a specific offense has been committed and that property resulting from or evidencing the offense is located at the particular place to be searched. See U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; TEX.CODE CRIM. PROC. ANN. arts. 18.01(b), (c) and 18.02(1), (7) (Vernon 1977 & Supp.1995); see also Berger v. New York, 388 U.S. 41, 55-56, 87 S.Ct. 1873, 1881-82, 18 L.Ed.2d 1040 (1967). The existence of probable cause is determined upon "sufficient and substantial facts," based upon a practical common sense consideration of the "totality of the circumstances." Illinois v. Gates, 462 U.S. 213, 230, 238-39, 103 S.Ct. 2317, 2328, 2332-33, 76 L.Ed.2d 527 (1983); Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App.1990); Mason v. State, 838 S.W.2d 657, 659-60 (Tex.App.--Corpus Christi 1992, pet. ref'd). Credibility, reliability, and basis of knowledge no longer need to be established by separate and independent facts. However, they remain highly relevant factors in determining, by the totality of the circumstances, whether probable cause exists. Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101 (1988); Morin v. State, 800 S.W.2d 328, 329 (Tex.App.--Corpus Christi 1990, no pet.); Dees v. State, 722 S.W.2d 209, 215 (Tex.App.--Corpus Christi 1986, pet. ref'd). We do not engage in a de novo review of the affidavit's sufficiency. We give the magistrate's determination great deference. Johnson, 803 S.W.2d at 289. The adequacy of the affidavit is determined by the information contained within its four corners. Cerda v. State, 846 S.W.2d 533, 535 (Tex.App.--Corpus Christi 1993, no pet.).

Here, the officers secured their search warrant on the strength of the following affidavit:

On June 23, 1991 about 3:30 p.m. Detective John Byrum and Detective Nicholas Araiza were on surveillance of a suspected drug dealer residing at 1710 South Parkwood Harlingen, Texas. Affiant has received reliable information from several informants[,] and the information obtained appeared to be in accordance with what information affiant was already aware of. The information received was that the suspect, Jon Ashcraft[,] was selling heroin to heroin addicts at the residence located at 1710 South Parkwood[,] Harlingen, Texas. The suspect was also known to be involved in burglaries of residences in the area known as the Parkwood Subdivision in Harlingen, Texas. On this particular day affiant and Detective John Byrum set up surveillance of the residence at 1710 South Parkwood[,] Harlingen, Texas. Affiant and Detective Byrum observed a yellow Nissan truck with two passengers arrive at the residence at 1710 South Parkwood. The male and female passengers were waiting around a carport for about 15 minutes until the suspect John Ashcraft came out of the house. The three appeared to be in the process of making a drug deal as is common practice with drug dealers and users. The couple left right after an apparent exchange and were later stopped by a Harlingen police unit away from the suspect's residence. The couple was identified as Augustin Pena and Juanita Torres of San Benito. The couple gave voluntary statements after being warned of their constitutional rights. Information obtained from the couple verified that heroin was being sold by John Ashcraft at his residence at 1710 South Parkwood[,] Harlingen, Texas.

When information is supplied by informants, the totality of circumstances outlined in the affidavit must establish probable cause. Gates, 462 U.S. at 232-38, 103 S.Ct. at 2329-32; Cassias v. State, 719 S.W.2d 585, 588 (Tex.Crim.App.1986); Dees, 722 S.W.2d at 215. While probable cause may be based upon hearsay, the hearsay must be credited at each level in order to meet constitutional requirements. Hennessy v. State, 660 S.W.2d 87, 91 (Tex.Crim.App.1983). Informant hearsay may be credited by showing that the informant has given reliable, credible information in the past, or by police corroboration. Cerda, 846 S.W.2d at 535; see also Polanco v. State, 475 S.W.2d 763, 766 (Tex.Crim.App.1971). Here, the affiant officer made no attempt to identify the informant or to demonstrate the reliability, credibility, or basis of the informant's knowledge. However, the police may corroborate informant hearsay by their own surveillance. Polanco, 475 S.W.2d at 766.

Based upon the hearsay information, Officers Araiza and Byrum became suspicious of appellant for heroin dealing. They began watching appellant's house for more indicia of such criminal involvement. The magistrate is entitled to rely upon information supplied by the police officers' own observations and upon information supplied by fellow officers engaged in a common investigation. Johnson, 803 S.W.2d at 289. In Texas, the affidavit must be more than a "mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause." Id. at 288. The magistrate must not be asked merely to ratify the bare conclusions of others. Id.

Here, affiant's statements that "the three appeared to be in the process of making a drug deal as is common practice with drug dealers and users" and that "the couple left after an apparent exchange," are too conclusory by themselves to establish probable cause. However, at least one Texas case has held that a similar statement--"[the officer] observed the appellee engaged in a narcotics transaction"--was sufficient when accompanied by other credible, reliable information. See State v. Cantu, 785 S.W.2d 181, 184-85 (Tex.App.--Houston [14th Dist.] 1990, no pet.). We therefore examine the adequacy of other information in this affidavit for corroboration of the officers' observations.

An informant's declarations against the informant's own penal interest may be used to corroborate the reliability of information in an affidavit. See Abercrombie v. State, 528 S.W.2d 578, 583-85 (Tex.Crim.App.1974) (opinion on reh'g) (where search warrant affidavit revealed that unnamed informer made a declaration against penal interest, the affidavit sufficiently established the reliability and credibility of the informer). Araiza's affidavit says that the couple in the truck was stopped, given constitutional warnings, and gave statements confirming police suspicions that a drug transaction had occurred. The magistrate is authorized to make reasonable inferences from the facts stated in the affidavit. Gibbs v. State, 819 S.W.2d 821, 830 (Tex.Crim.App.1991), cert. denied, 502 U.S. 1107, 112 S.Ct. 1205, 117 L.Ed.2d 444 (1992); Hennessy, 660 S.W.2d at 90. We hold that the magistrate could reasonably have concluded that the...