Davila v. State

• Decision Date: 22 July 2014
• Docket Number: No. 01–12–01174–CR.,01–12–01174–CR.
• Citation: 441 S.W.3d 751
• Parties: Oscar Gerardo DAVILA, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

441 S.W.3d 751

Oscar Gerardo DAVILA, Appellant

v.The STATE of Texas, Appellee.

No. 01–12–01174–CR.

Court of Appeals of Texas, Houston (1st Dist.).

July 22, 2014.

Discretionary Review Refused Dec. 17, 2014.

Sarah V. Wood, Assistant Public Defender, Harris County, Houston, TX, for Appellant.

Devon Anderson, District Attorney, Eric Kugler, Assistant District Attorney, Harris County, Houston, TX, for Appellee.

Panel consists of Justices JENNINGS, SHARP, and BROWN.

OPINION

HARVEY BROWN, Justice.

We originally issued our memorandum opinion in this appeal on May 15, 2014. We withdraw our previous memorandum opinion and judgment, and substitute this opinion and judgment in their place.

Oscar Davila pleaded guilty to possession with intent to deliver more than 400 grams of cocaine, and the trial court assessed punishment at 25 years' confinement.¹ In two issues, Davila contends that the trial court erred by (1) overruling his motion to suppress evidence collected during a police search of his home and (2) assessing $294 in court costs that were unsupported by the record. We affirm.

Background

One October evening, a joint law-enforcement team, including United States Drug Enforcement Agency Special Agent M. Schmidt, sent a trusted confidential informant to Davila's house to arrange a deal to buy two kilograms of cocaine. Schmidt testified that he had partnered with the informant on other successful investigations and that he was a reliable source. That evening, the informant wore a concealed recording device, allowing Schmidt to listen to the entire conversation between the informant, Davila, and the others inside Davila's house. Schmidt monitored the audio feed from the informant's wire and other law enforcement officers maintained visual surveillance of the outside of Davila's house. According to Harris County Deputy Sheriff B. Katrib, parked cars lined the narrow street in front of Davila's home, making surveillance difficult.

When the informant approached the house, Davila and A. Lopez were sitting on the bed of a pickup truck in the driveway. Davila, Lopez, and the informant went inside the house where Davila showed the informant one kilogram of cocaine. The informant then asked to see the other kilogram. Lopez went outside to the truck, retrieved the other kilogram of cocaine, and brought it inside the house to show the informant. Relying on a child who was in the house as an interpreter, Davila and the informant discussed details of the deal.

The informant left the house and contacted Special Agent Schmidt to report what he had seen. The informant said that he last saw the two kilograms of cocaine on the kitchen counter and that Davila appeared “very nervous and in a hurry to do the deal.” Based on the informant's report, Schmidt signaled for Katrib and a team of other law enforcement officers to conduct a protective sweep of Davila's house without a warrant. The team members approached the house, identified themselves, and entered the house without consent. The team cleared the house of all of its inhabitants, including Davila, Lopez, Davila's wife, and several children. The law enforcement officers handcuffed Davila and Lopez and brought everyone else into the front yard. Lopez tried to run back into the house, but the team stopped him and brought him back outside.

Once everyone was in the front yard, a member of the law enforcement team used a specially-trained dog to conduct a dog-sniff test of the truck parked in the driveway. The dog alerted officers that there was an odor of some narcotic on the car.

Using a laptop computer, Harris County Deputy Sheriff A. Ortiz relied only on information from the informant and the results of the sniff test of the truck to complete an affidavit in support of a warrant. Ortiz e-mailed the affidavit to another officer who submitted the request for a warrant. The affidavit stated:

On 10/06/2011, I spoke with investigator B. Katrib of the Harris County Sheriff's Office Narcotics Unit, who advised me of the following facts:

Katrib told me that on 10/06/2011, he met with a confidential source, referred to as CS for the purposes of this investigation and affidavit. For safety purposes the name of this CS will be kept confidential. Katrib told me that he spoke with DEA Special Agent M. Schmidt, of the Houston Field Office, who told Katrib that this CS has provided information in the past on several occasions, which proved to be true and correct, and led to the seizure of narcotics and the arrest of individuals and charging them with felony offenses.

Katrib told me that on 10/06/2011, at approximately 2100 hours, he along with several DEA Special Agents, met with this CS, who told them that he was going to the residence ... in order to discuss a cocaine deal. Katrib told me that he along with other DEA Special Agents, maintained surveillance on the target residence. Katrib told me that the CS went to the aforementioned location and met with two Hispanic males at the driveway.

Katrib told me that the CS walked into said residence and walked out shortly after, and departed the residence. Katrib told me that the CS told S/A Schmidt that the CS and two Hispanic males entered the kitchen of said residence and that the CS told S/A Schmidt that one Hispanic male walked out to the driveway and retrieved what he believed to be one kilogram of cocaine from behind the driver seat of the tan Chevy pick up truck ... and walked inside the kitchen.

Katrib told me that the CS told S/A Schmidt that the same Hispanic male walked back out to the same aforementioned vehicle and retrieved what the CS believed to be an additional kilogram of cocaine. Katrib told me that the CS told S/A Schmidt that, based on past experience, he is familiar with the physical appearance of several controlled substances, including cocaine, and marihuana.

Katrib told me that, he along with other Special Agents maintained surveillance on the target residence, and did not see any additional people or vehicles arrive or depart this location. Katrib told me that on 10/06/2011, at approximately 2140 hours, he spoke with Deputy Curtis of the Harris County Sheriff's Office K–9 Division. Katrib told me that Deputy Curtis told him that he deployed his K–9 partner “ANDOR” on the tan Chevy pick up truck identified by Texas license plate number [ ] and that “ANDOR” alerted for the odor of narcotics. Katrib told me that Deputy Curtis told him that “ANDOR” has been and remains certified by the National Narcotics Detector Dog Association NNDDA, in the detection of the odors of cocaine, marihuana, MDMA, methamphetamine, and heroin ....

Once the warrant was granted, Katrib and other members of the team searched the house and backyard. They found two kilograms of cocaine buried under construction debris in the backyard. Katrib also identified a white substance on Davila's face and used a field test to determine that the powder was cocaine.

Davila was arrested and charged with possession with intent to deliver more than 400 grams of cocaine. Before trial, Davila moved to suppress the evidence collected pursuant to the search warrant, arguing that the warrant was based on information gathered during an illegal raid of his house. At a pre-trial hearing on the motion, four people testified: Special Agent Schmidt, Deputy Katrib, Davila's wife, and his daughter. The trial court denied the motion. Davila pleaded guilty with an agreed recommendation on the punishment. Pursuant to the agreement, the trial court assessed punishment at 25 years' confinement.

Davila timely appealed the trial court's denial of his motion to suppress.

Motion to Suppress

In his first issue, Davila contends that the trial court erred in denying his motion to suppress evidence because, in obtaining the warrant used to uncover the two kilograms of cocaine, law enforcement officials relied on information collected illegally during a warrantless search of his house and a dog sniff of his truck.

A. Standard of review

When a defendant challenges a trial court's denial of a motion to suppress, we review the trial court's ruling for an abuse of discretion. Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.Crim.App.2013). We give almost total deference to the trial court's determination of historical facts that depend on credibility and demeanor. Id. We review de novo the trial court's application of the law to the facts if resolution of those ultimate questions does not turn on the evaluation of credibility and demeanor. Id. When neither party requests findings of fact or conclusions of law, as is the case here, we imply the necessary findings to support the trial court's ruling, so long as the evidence viewed in the light most favorable to the trial court's ruling supports those findings. State v. Garcia–Cantu, 253 S.W.3d 236, 241 (Tex.Crim.App.2008) ; Jordan v. State, 394 S.W.3d 58, 61 (Tex.App.-Houston [1st Dist.] 2012, pet. ref'd). We will uphold the trial court's ruling if it is “reasonably supported by the record and is correct on any theory of law applicable to the case.” Turrubiate, 399 S.W.3d at 150. If a warrant is issued on the basis of an affidavit that contained unlawfully obtained information, “the evidence seized under the warrant is admissible only if the warrant clearly could have been issued on the basis of the untainted information in the affidavit.” Brackens v. State, 312 S.W.3d 831, 838 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd) (quotation omitted); see Brown v. State, 605 S.W.2d 572, 577 (Tex.Crim.App.1980).

We first consider whether the initial warrantless sweep of Davila's house was justified. If this initial search was justified, then the later-collected evidence was admissible.

B. Legality of warrantless sweep

Davila argues that the State failed to meet its burden of demonstrating that there were exigent circumstances that required an immediate, warrantless search of his home. The State responds that law enforcement officials were justified in securing Davila's home without first...