Carroll v. State

• Decision Date: 08 November 1995
• Docket Number: No. 03-94-00407-CR,03-94-00407-CR
• Citation: 911 S.W.2d 210
• Parties: Barry McBride CARROLL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 210

911 S.W.2d 210

Barry McBride CARROLL, Appellant, v. The STATE of Texas, Appellee.

No. 03-94-00407-CR.

Court of Appeals of Texas,

Austin.

Nov. 8, 1995.

David A. Sheppard, Austin, for appellant.

Sam Oatman, District Attorney, William F. Lewis, Jr., Assistant District Attorney, Llano, for appellee.

Before POWERS, B.A. SMITH and ONION, ^* JJ.

ONION, Justice.

This appeal is taken from a conviction for possession of marihuana in an amount of more than five pounds but less than fifty pounds. Controlled Substances Act, 71st Leg., R.S., ch. 678, § 481.121, 1989 Tex.Gen.Laws 2230, 2939 (Tex.Health & Safety Code Ann. § 481.121, since amended). After a pretrial hearing, the trial court overruled appellant's motion to suppress evidence of the fruits of a search executed by virtue of a search warrant. Appellant then entered a plea of guilty to the indictment in a bench trial. In accordance with the plea bargain, the trial court assessed punishment at ten years' imprisonment and a fine of five hundred dollars. The imposition of the sentence was suspended and appellant was placed on probation for ten years subject to certain conditions.

Appellant's notice of appeal was in compliance with Rule 40(b)(1). Tex.R.App.P. 40(b)(1). Two points of error are advanced. First, appellant contends that the trial court erred in overruling his suppression motion because the search warrant affidavit failed to reveal "any basis of knowledge to establish how the confidential informant knew the plants were marihuana." Second, appellant urges that the trial court's ruling was in error because the "search warrant was obtained as a result of information gained from a criminal trespass on the property of appellant."

Suppression Hearing

At the evidentiary hearing, the State introduced the search warrant and the affidavit upon which it was based. The affidavit was sworn to by Chief Deputy Gary W. Rowe of the Blanco County Sheriff's Office on August 28, 1993. The affidavit described the property in some detail, and a map pinpointing the property's location was attached to the affidavit. Chief Deputy Rowe stated that the property was in the control of "John Doe" and other persons unknown and that there was on the property "marihuana under cultivation" possessed by "John Doe" and unknown persons on or about August 28, 1993. The affidavit then reflects:

Affiant was advised by a confidential informant that the said John Doe has a large quantity of marihuana on or about the property described above. Informant advised affiant that he has been to said property within the past 24 hours and had personally observed approximately twenty (20) marihuana plants under cultivation. Affiant believes that the said informant is credible and his information reliable because informant has been known in the community for thirty (30) years. Informant is a resident of Blanco County, Texas where he has never been charged or convicted of any criminal offense. Informant was gainfully employed until a debilitating illness forced him onto disability. Affiant has interviewed members of the community concerning informant's general reputation for truth and veracity and has thereby established that informant's general reputation is excellent.

When a defendant seeks to suppress evidence on the basis of a violation of the Fourth Amendment or Article I, section nine of the Texas Constitution, the burden of proof is upon the defendant. Russell v. State, 717 S.W.2d 7, 9 (Tex.Crim.App.1986); Johnson v. State, 834 S.W.2d 121, 122 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). As a movant in a motion to suppress evidence hearing, a defendant must produce evidence that defeats the presumption of proper police conduct and shift the burden to the prosecution. Russell, 717 S.W.2d at 9; Musick v. State, 862 S.W.2d 794, 799 (Tex.App.--El Paso 1993, pet. ref'd). A defendant meets his initial burden by establishing that the search and seizure occurred without a warrant. Russell, 717 S.W.2d at 9. When the validity of a search is challenged and the State produces a warrant, the defendant must go forward to establish the warrant's invalidity on some ground such as the lack of probable cause. Russell, 717 S.W.2d at 9-10; Rumsey v. State, 675 S.W.2d 517, 520 (Tex.Crim.App.1984); State v. Morgan, 841 S.W.2d 494, 496 (Tex.App.--El Paso 1992, no pet.).

At the suppression hearing in the instant case, the parties agreed to stipulate the testimony of Tom Gourley, the informant. Gourley was a rancher living in Blanco County and raising sheep. He had loaned a ram to Robert Zercher whose property was adjacent to the property in question. On August 28, 1993, Zercher contacted Gourley and informed him that the ram and six or seven of Zercher's ewes "had gotten loose" on the Zercher property. Gourley, his brother, and several other men went to the Zercher property to look for the missing sheep. They were able to trap the ram and some of the ewes. Three or four ewes, however, went down the Cottonwood Creek and under a fence separating the Zercher property and the adjacent property. Gourley and others went to the front gate of the adjoining property from where they could see an abandoned house with no door and no windows intact. Gourley knew that no one actually lived on the property and thought it belonged to an heir of Ben Smith. Under the circumstances, Gourley and his brother lifted the gate off its hinges and entered the property to retrieve Zercher's ewes. The ewes were located in the back part of the property, but ran back towards the creek and the Zercher property. As Gourley and the others followed, Gourley came upon a clump of cedar trees where he observed marihuana plants growing and an irrigation system for the plants. Gourley had earlier seen marihuana growing, had seen pictures of marihuana, and had watched a television show demonstrating the appearance of marihuana. Gourley knew at the time that the plants were marihuana.

When the ewes returned to the Zercher property by crossing under the fence, Gourley returned to the gate and rehung it. Upon leaving the property, Gourley contacted the Sheriff's Office. It was also stipulated that Gourley was not employed by any law enforcement agency and that he received no compensation for his information.

Appellant called Chief Deputy Rowe as a witness. Rowe agreed that Gourley's stipulated testimony was what Gourley had told him. Rowe stated that he interrogated Gourley to determine just how Gourley was able to determine the plants were marihuana rather than other vegetation. Rowe knew that he was dealing with a citizen-informant. He was satisfied with Gourley's knowledge of marihuana, although the facts surrounding Gourley's knowledge were not included in the search warrant affidavit. When the search warrant was executed, Rowe noted that the property was fenced "in the front," but he did not go around the perimeter. He did not see any "posted" sign on the property.

Appellant's affidavit, executed nine months after the alleged offense, was admitted into evidence without objection. Appellant stated that he was owner of the property in question, that he had not given the informant permission to be on the property at the time, that the property was fenced with a locked gate, and that he had erected a "Posted" sign on the road side of the fence. At the conclusion of the hearing, the trial court denied the motion to suppress evidence. No written findings were filed.

Validity of Warrant as to Informant's Basis of Knowledge

A search warrant may not legally issue unless it is based on probable cause. U.S. Const.Amend. IV; Tex. Const. art. I, § 9; Tex.Code Crim.Proc.Ann. art. 1.06 (West 1977); Hughes v. State, 843 S.W.2d 591, 593 (Tex.Crim.App.1992). Under both the Fourth Amendment of the United States Constitution and article I, section 9 of the Texas Constitution, an affidavit is sufficient to establish probable cause if, from the totality of the circumstances reflected in the affidavit, the magistrate was provided with a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); Bower v. State, 769 S.W.2d 887, 902 (Tex.Crim.App.), cert. denied, 492 U.S. 927, 109 S.Ct. 3266, 106 L.Ed.2d 611 (1989). Probable cause sufficient to support a search warrant exists if the facts contained within the four corners of the search warrant affidavit ¹ and the reasonable inferences drawn therefrom justify the magistrate's conclusion that the object of the search is probably on the premises at the time of the warrant's issuance. Cassias v. State, 719 S.W.2d 585, 587-88 (Tex.Crim.App.1986).

The "totality of circumstances" test permits the magistrate to assess and balance the relative weights of all the various indicia of reliability pertaining to an informant's tip. Gates, 462 U.S. at 234, 103 S.Ct. at 2330. An affiant must present the magistrate with sufficient information to allow him to determine probable cause; a mere conclusory statement will not do. Id. at 239, 103 S.Ct. at 2332; Trevino v. State, 875 S.W.2d 373, 375 (Tex.App.--Corpus Christi 1994, no pet.).

In making the determination, the affidavit is interpreted in a commonsense, realistic manner. A hypertechnical analysis should be avoided. 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). The magistrate's determination of probable cause is given great deference by the reviewing court. Gates, 462 U.S. at 236, 103 S.Ct. at 2331; Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App.1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L.Ed.2d 1078 (1991).

Gates abandoned the rigid two-pronged test for determining whether an informant establishes probable cause as delineated in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Gates, 462 U.S. at 223, 103 S.Ct. at 2324; Mayfield v. State, 800 S.W.2d 932, 934 ...