Castillo v. State

• Decision Date: 06 November 1991
• Docket Number: 1412-89,Nos. 1411-89,s. 1411-89
• Citation: Castillo v. State, 818 S.W.2d 803 (Tex. Crim. App. 1991)
• Parties: Ralph CASTILLO and Christopher Castillo, Appellants, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 803

818 S.W.2d 803

Ralph CASTILLO and Christopher Castillo, Appellants, v.The STATE of Texas, Appellee.

Nos. 1411-89, 1412-89.

Court of Criminal Appeals of Texas En Banc.

Nov. 6, 1991.

Renie McClellan, Cedar Hill, for appellantRalph Castillo.

John D. Nation, Dallas, for appellantChristopher Castillo.

Patrick C. Batchelor, Dist. Atty., Corsicana, Jim Vollers, Austin, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANTS' PETITIONS FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellants, Ralph Castillo and Christopher Castillo, were tried jointly and found guilty of the offense of engaging in organized criminal activity.Tex.Penal Code § 71.02(a)(5).The jury assessed punishment for each at imprisonment for 65 years and a fine of $100,000.The Tenth Court of Appeals subsequently affirmed both convictions in an unpublished opinion.Castillo v. State, Nos. 10-88-044-CR and 10-88-034-CR (Tex.App.--Waco, Aug. 10, 1991).We granted Appellants' petitions for discretionary review, pursuant to Tex.R.App.Proc. 200(c)(4), in order to determine whether certain wiretap evidence should have been suppressed under Tex.Code Crim.Proc. art. 18.20, § 2(the wiretap statute exclusionary rule).We will affirm the judgment of the court of appeals.

On March 23, 1987, the Ellis County district attorney and the Navarro County criminal district attorney submitted sworn applications to Mace Thurman, 147th district court judge of Travis County, for orders authorizing wiretaps on two Ellis County telephones.Later that day, Judge Thurman issued the intercept orders as requested.On March 31, 1987, the Navarro County criminal district attorney submitted a third sworn application to Judge Thurman requesting a third wiretap, this time on a residential telephone, subscribed to by Josephine Castillo, located at Route 1, Box 42, Blooming Grove, Navarro County.Again, Judge Thurman issued the intercept order as requested.The application for the third wiretap contained information derived from the first two wiretaps.

Officers of the Texas Department of Public Safety later tape-recorded several conversations acquired through the third wiretap.Transcripts of these conversations were admitted in evidence at Appellants' trial over their objection.

Appellants argue that the contents of the tape-recorded conversations should have been suppressed under Article 18.20, § 2, because the third (Navarro County) wiretap was not lawfully authorized.More specifically, Appellants contend that the Ellis County wiretaps were unlawful because Judge Thurman had no power to authorize them, that all information derived from the Ellis County wiretaps was therefore tainted, that the Navarro County wiretap was also unlawful because the authorization for it was based in part on the tainted information derived from the Ellis County wiretaps, and that all information derived from the Navarro County wiretap was therefore also tainted.¹Appellants argue further that the Navarro County wiretap was unlawfully authorized because the application for it failed to explain why "normal" investigative procedures were inadequate.

The State argues in response (1) that the Ellis County and Navarro County wiretaps were all lawfully authorized; (2) that, in any event, Appellants suffered no harm from the inclusion of the Ellis County wiretap information in the application for the Navarro County wiretap because that application clearly established probable cause independent of the Ellis County information; and (3) that the application for the Navarro County wiretap did in fact show that normal investigative procedures were inadequate.²

The court of appeals held that the Ellis County wiretaps were, in all respects, lawfully authorized.Given that holding, the court of appeals had no need to consider the State's argument that the Navarro County wiretap application clearly established probable cause independent of the Ellis County wiretap information.

I

Last term, in Castillo v. State, 810 S.W.2d 180(Tex.Cr.App.1990), the companion case to the one at bar, we considered the legality of the intercept orders for the three wiretaps in question.We determined in that first case that Judge Thurman had no authority to issue the intercept orders for the Ellis County wiretaps and that all information derived from those wiretaps was therefore tainted.We determined, too, that the information derived from the Navarro County wiretap was similarly tainted--and thus excludable under Article 18.20, § 2--because that wiretap was authorized in part based on the tainted Ellis County information.We had no occasion in Castillo, however, to consider the State's present argument that the Navarro County wiretap application established probable cause independent of the tainted Ellis County wiretap information.SeeCastillo v. State, 810 S.W.2d at 182 n. 2.

In Brown v. State, 605 S.W.2d 572(Tex.Cr.App.1980), we recognized that the inclusion of tainted allegations in an affidavit does not necessarily render a resulting search warrant invalid.Rather, the relevant inquiry on a motion to suppress evidence seized pursuant to such a warrant is whether, putting aside all tainted allegations, the independently acquired and lawful information stated in the affidavit nevertheless clearly established probable cause.The rationale for the rule is obvious: if the tainted information was clearly unnecessary to establish probable cause for the search warrant, then the defendant could not have been harmed by the inclusion of the tainted information in the affidavit.This rule is plainly applicable to Article 18.20 wiretap orders, which are simply a particular type of search warrant.

Given the rule recognized in Brown, we must determine next whether the application for the Navarro County wiretap clearly established the necessary probable cause independent of the tainted Ellis County wiretap information.To make such a determination, we must consider only the facts, and not the mere conclusions, sworn to by the applicant.³

Probable cause ⁴ to support a wiretap order is delineated by Tex.Code Crim.Proc. art. 18.20, §§ 4and9, which provide in relevant part:

§ 4 A judge may issue an order authorizing interception of wire, oral, or electronic communications only if the prosecutor applying for the order shows probable cause to believe that the interception will provide evidence of the commission of a felony (other than felony possession of marihuana) under the Texas Controlled Substances Act ... or of a felony under the Texas Dangerous Drug Act[.]

§ 9(a) On receipt of an application [for an intercept order], the judge [authorized to issue such orders] may enter an ex parte order, as requested or as modified, authorizing interception of wire, oral, or electronic communications if the judge determines from the evidence submitted by the applicant that:

(1) there is probable cause to believe that a person is committing, has committed, or is about to commit a particular offense enumerated in Section 4 of this article;

(2) there is probable cause to believe that particular communications concerning that offense will be obtained through the interception; [and]

* * * * * *

(4) there is probable cause to believe that the facilities from which or the place where the wire, oral, or electronic communications are to be intercepted are being used or are about to be used in connection with the commission of an offense or are leased to, listed in the name of, or commonly used by the person[.]

The sworn application for the Navarro County wiretap, dated March 31, 1987, incorporated into it by reference an affidavit, also dated March 31, 1987, of D.P.S. officer George Herbert.Herbert's affidavit, in turn, incorporated by reference another affidavit of his, dated March 23, 1987, which, again in turn, incorporated by reference the February 4, 1987, affidavit of Linda McCallister.All these sworn statements were before Judge Thurman at the time he considered the application.

Putting aside the tainted Ellis County wiretap information, Herbert's allegations were, in relevant part:

(1) Telephone company records revealed that the residential telephone located at Route 1, Box 42, Blooming Grove, i.e. the telephone sought to be tapped, was subscribed to by Josephine Castillo.

(2) Analysis of pen register ⁵ data for that telephone showed that during the period of March 6-17, 1987, nine calls were made from the Castillo residence to the W.T. Brown residence in Corsicana, Navarro County.

(3) According to information obtained from the Oakland County, Michigan, sheriff's office, a pickup truck registered to W.T. Brown and carrying some 500 pounds of marihuana was involved in an accident in Oakland County on March 14, 1987.

(4) On January 25, 1987, informant Linda McCallister told D.P.S. officer Danny Green that an associate of Ysidro Castillo had once paid her for transporting marihuana for Ysidro Castillo.⁶

(5) On January 27, 1987, McCallister told Herbert that Ysidro Castillo was a trafficker in marihuana.

(6)Ysidro Castillo was known to reside at Route 1, Box 42, Blooming Grove.⁷

In her own affidavit, McCallister alleged in relevant part:

Sometime between the 1st and the 12th of December 1986, Nickey [Rutledge] called me and asked that I come to his house [in Alma, Texas].When I arrived at Nickey's, Lico Castillo was there.Nickey, Lico and I drove to Ysidro Castillo's house in Blooming Grove.During the trip to Blooming Grove, Nickey and Lico related how important it was for Ysidro to like me, because Ysidro was the "Big Man" in the marijuana business.They told me how cautious Ysidro was and that he did not trust very many people.Lico told me that if Ysidro did not like me, that I would not be able to make deliveries for them any longer.

When we got to Ysidro's I was really scared because I know how big the Castillo's [sic] are in the drug business and I...