Guerra v. State

• Decision Date: 31 August 1988
• Docket Number: No. 13-86-526-CR,13-86-526-CR
• Citation: 760 S.W.2d 681
• Parties: Servando GUERRA, Jr., a/k/a Sandy, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 681

760 S.W.2d 681

Servando GUERRA, Jr., a/k/a Sandy, Appellant, v.The STATE of Texas, Appellee.

No. 13-86-526-CR.

Court of Appeals of Texas Corpus Christi.

Aug. 31, 1988.

Rehearing Denied Nov. 10, 1988.

Juan Martinez Gonzales, Beeville, for appellant.

James A. Hensarling, Dist. Atty., Edna, Jim Vollers, Austin, for appellee.

Before NYE, C.J., and BENAVIDES and DORSEY, JJ.

OPINION

BENAVIDES, Justice.

A jury found appellant guilty of engaging in organized criminal activity and assessed his punishment at 99 years in the Texas Department of Corrections.Appellant raises numerous issues in 37 points of error.We vacate the judgment and remand the cause to the trial court because of error which occurred in the punishment phase of trial.

In his first point of error, appellant asserts that an order extending the grand jury which indicted appellant is void because the order failed to give a specific enough reason for the extension.Appellant was indicted by the July-January 1985-86, Jackson County Grand Jury.On December 10, 1985, the trial court extended, for a period not to exceed 90 days, the expiration date for the original term for which it was empaneled.The order extending the expiration date stated that the foreman of the Grand Jury declared to the Court that the investigation by the Grand Jury of matters before it could not be concluded before the expiration of its term, and that the term would be extended for the purpose of concluding the investigation of matters before it.The Grand Jury indicted appellant on March 31, 1986.

Appellant contends that the order is void since it did not specify the matters being investigated.The specificity suggested by appellant would appear to conflict with the requirement of, and frustrate the purpose of, the secrecy of grand jury proceedings.The order specifically recites the statutory reason for extending the term of the grand jury set out in Tex.Code Crim.Proc.Ann. art. 19.07(Vernon 1977).Appellant's first point of error is overruled.

In his second point of error, appellant contends that the trial court erred in overruling his motion to quash the indictment since Jackson County has a history of under-representing Mexican-Americans on grand juries.The parties stipulated that hispanics comprised 18.7% of Jackson County's population.One hispanic served on the grand jury which indicted appellant.The appellant has satisfied the hurdles required to challenge the make-up of the grand jury based on his claim of a historical discrimination.SeeBird v. State, 692 S.W.2d 65(Tex.Crim.App.1985).Although appellant did not pursue this issue in great detail at trial, some evidence showing the make-up of Jackson County grand juries was presented by way of stipulation of the parties.An exhibit containing the listing of names of the grand jurors that were called and those that served on the juries in Jackson County over a ten-year period was also presented by way of stipulation.

The evidence shows that over the past 10 years, 16% of those persons serving on Jackson County grand juries were hispanic (33 of 252 grand jurors).Likewise, of those initially called for grand jury service, 16% were hispanic.(71 of 440).The parties stipulated that 18.7% of Jackson County is hispanic.We do not find this disparity to be significant enough to show a prima facie case of ethnic discrimination.SeeCastaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498(1977);Elizando v. State, 649 S.W.2d 674(Tex.App.--Corpus Christi 1983, no pet.);Cerda v. State, 644 S.W.2d 875(Tex.App.--Amarillo 1982, no pet.).Appellant's second point of error is overruled.

In points of error three through twelve, appellant challenges the admissibility of evidence obtained through a wiretap of telephones in his residence and business.While each point alleges different defects in the wiretap procedure, we will address the points together.

Appellant alleges that the investigating officer's affidavit was defective in failing to set forth sufficient facts to allow the trial court which issued the wiretap authorization to find probable cause that appellant was committing a felony, a prerequisite to the issuance of a wiretap under former Tex.Code Crim.Proc.Ann. art. 18.20, § 4.Acts 1981, 67th Leg., p. 729, ch. 275 § 1, amended byActs 1983, 68th Leg., p. 4880, ch. 864 § 4.The current provision, Tex.Code Crim.Proc.Ann. art. 18.20(Vernon Supp.1988) is substantially the same as the 1983 version.

Section 4 provides:

A judge may issue an order authorizing interception of wire or oral 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(Article 4476-15, Vernon's Texas Civil Statutes) or of a felony under the Texas Dangerous Drug Act(Articles 4476-14, Vernon's Texas Civil Statutes).

We must determine whether the affidavit supporting the request for the wiretap contained the probable cause requirements prescribed by art. 18.20, § 4.The present case appears to be the first Texas case dealing with probable cause in the issuance of a wiretap authorization.

The affiant, Officer Ruben Molina of the Texas Department of Public Safety, averred that he believed appellant was involved in a conspiracy to distribute cocaine, hashish, heroin, and marihuana.He believed that appellant was using the telephone extensively to arrange his deals.

Many of the facts and circumstances detailed in Molina's affidavit concern persons who were associates of appellant.Some of the events relied upon occurred years before this affidavit was signed on October 15, 1984.Some of his information was obtained through the records of other law enforcement agencies and through other criminal investigations.The affidavit is 67 pages long.Therefore, we will summarize the portions relevant to the issue of sufficient probable cause.

The affiant set forth numerous allegations to support the wiretap request.We have summarized the allegations as follows:¹

(1) In 1980, Jose Ricardo Ruiz was arrested for delivery of cocaine.Ruiz served 18 months in federal prison.Upon his release he became an associate of appellant.

(2) In 1980, a Travis County officer received information from a reliable and credible informant that appellant was apparently conducting a narcotics transaction at the Austin airport.

(3) In 1981, a credible and reliable source informed a Drug Enforcement Agent that appellant could supply large quantities of cocaine.

(4) In January 1984, appellant and Billy Frank Webb were arrested for "hunting from a vehicle on a public road" near an area where an aircraft started and took off.

(5) In September 1983, a DPS investigator was informed by a credible and reliable source that Billy Frank Webb was engaged in the distribution of large quantities of cocaine and marihuana.

(6) Surveillance showed that whenever appellant or his associates used a telephone at an H.E.B. grocery store, they would always use the same phone.Telephone records showed that the other pay phone had no long distance calls, while the phone appellant and his associates used had calls to Florida, Illinois, Austin, and other areas.

(7) In February 1984, Noe Benavides Garza used the pay phone at the H.E.B.Shortly before that, Garza's car had been parked at appellant's residence.Telephone records showed that Garza possibly called Faustino Rios in Illinois.Rios had several arrests for marihuana violations.

(8)Noe Benavides Garza was arrested in February 1984, for possessing 50 pounds of marihuana.Shortly after his arrest, Garza twice telephoned appellant from the Live Oak County Jail.

(9) In May 1984, Sheriff Castellano observed appellant get into the passenger's side of a vehicle with R.C. Allen Company decals on the doors.

(10) In May 1984, a Brooks County Deputy Sheriff observed appellant get into a truck on U.S. 281 sometime after midnight.

(11) In May 1984, a reliable and credible informant told the Brooks County Sheriff that appellant was using vehicles from oilfield servicing and equipment companies, such as R.C. Allen, to transport marihuana, cocaine, heroin, and hashish past the Falfurrias border patrol check point.

(12) At some time unstated in the affidavit, a reliable and credible source of information told Sheriff Castellano that appellant had made numerous calls and personal visits to Lorenzo Duque.Duque had bragged in the informant's presence that it was easy to bring contraband past the check point.

(13) Telephone records indicate 179 calls were made from appellant's telephone to Lorenzo Duque.

(14) Between May 23 and June 14, 1983, appellant made fourteen telephone calls to the telephone of Terry Schopfer in Hunt County, Texas.A wiretap was authorized on that telephone on July 11, 1983.During an incoming call from appellant to that phone, appellant said that there was some number 1 grade stuff available and that the other party should get his money ready so that they could do business.

(15) On October 4, 1984, Sheriff Castello was advised by a reliable source of information that substantial quantities of cocaine were being brought into Falfurrias from Houston.

(16) In June 1984, an airplane landed at the Brooks County Airport at night without activating the runway lights.

(17) On June 23, 1984, officers had reliable information that a load of marihuana would land by airplane at a clandestine airstrip eleven miles west of Falfurrias between 11:00 and 11:30 p.m.The suspected aircraft landed at the designated strip.

(18) A Foremost Paving employee was almost always late on Mondays for work, even though the employee left his residence earlier than the usual time.The employee also acted suspiciously when loading his two suitcases onto the company truck.Telephone records showed that appellant telephoned Foremost...