Jones v. State

Decision Date14 April 2011
Docket Number01–08–01015–CR,01–08–01016–CR.,Nos. 01–08–00828–CR,s. 01–08–00828–CR
Citation338 S.W.3d 725
PartiesRio Shareese JONES, Appellant,v.The STATE of Texas, Appellee.
CourtTexas Court of Appeals

April 14, 2011.Dissenting Opinion by Justice Sharp

OPINION TEXT STARTS HERE

May 26, 2011.

Dissenting Opinion from Denial of En Banc

Consideration by Justice Jennings

May 26, 2011.

Discretionary Review Granted Sept. 14, 2011.

Brian W. Wice, Houston, Mark W. Stevens, Galveston, for Appellant.Kurt Sistrunk, Crim. Dist. Atty., Galveston County, B. Warren Goodson Jr., Rebecca Klaren, Asst. Crim. Dist. Attys., Galveston, for Appellee.Panel consists of Justices KEYES, SHARP, and MASSENGALE.

OPINION ON REHEARING

MICHAEL MASSENGALE, Justice.

Appellant Rio Shareese Jones has filed motions for rehearing and for reconsideration en banc. We grant rehearing and withdraw our majority opinion and judgment of January 31, 2011, issuing the following in their stead. Our disposition of the appeals remains unchanged. Because we are issuing a new majority opinion, the motion for en banc reconsideration of our prior opinion is moot. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 & n. 4 (Tex.App.-Houston [1st Dist.] 2004, pet. denied).

Jones was convicted by a jury of the offenses of (1) possession of a firearm by a felon,1 (2) possession with intent to deliver cocaine weighing more than four grams but less than 200 grams,2 and (3) possession with intent to deliver methylenedioxy methamphetamine (ecstasy) weighing more than four grams but less than 400 grams.3 Jones pleaded true in each offense to prior felony convictions for aggravated assault and arson. Finding Jones to be a habitual offender, the jury assessed punishment for each offense at 99 years in prison, and the judgments state that all three sentences will run concurrently. See Tex. Penal Code Ann. § 12.42(d) (West Supp. 2010). Jones brings six issues on appeal. He claims the trial court erred in denying his motions to suppress evidence collected pursuant to a search warrant, based on his allegations that the supporting affidavit failed to demonstrate probable cause and contained false statements. He also appeals from the trial court's denial of his requests for a jury instruction concerning the legality of the search and for disclosure of an informant's identity. Finally, he challenges the legal and factual insufficiency of the evidence supporting his conviction for possession of a firearm by a felon. We affirm.

Background

In September 2007, Officer A. Bjerke of the Texas City Police Department Special Crimes Unit met a confidential informant from whom he received information about “crack cocaine being sold” at a home located at 219 North Pine Road in Texas City, a residence occupied by appellant Rio Shareese Jones. The informant had been to the house numerous times, the latest time being about two nights prior to the meeting. Bjerke began a narcotics investigation and learned from another Texas City police officer that a City of Dickinson police officer had information from a second confidential informant about crack cocaine being sold at that address. On November 5, 2007, Bjerke arranged a meeting with the second confidential informant and, that same night, set up a “controlled buy” at the home, using the second informant. Bjerke witnessed the controlled buy and saw Jones come to the door to make the sale. The informant returned with a rock of crack cocaine weighing 0.8 grams. Just after midnight on November 6, Bjerke made statements under oath in an affidavit in support of a search warrant for 219 North Pine Road. The affidavit described the initial contact with the first informant and the subsequent controlled buy, but it did not specify the dates of the described events. The affidavit also requested authorization for a no-knock entry into the home on the basis that Bjerke had received information from a confidential informant that Jones kept handguns and long guns in the house and because he had past arrests for evading and resisting arrest. At 12:24 a.m. that same day, the magistrate issued a no-knock-entry search warrant, and Texas City police executed the warrant.

When the police arrived at 219 North Pine, there were two men and one woman in the driveway. One of the men was Jones. The woman, later identified as Tamisha Thomas, remained in the driveway as the police approached, but the two men ran into the house. One team of police followed the men into the house and found them in one of the bedrooms along with a third man. A .22 caliber rifle was seen in plain view, leaning against a dresser. In the closet, the police found women's clothing and shoes, men's and women's toiletries, a bag containing powder cocaine, a large bottle of cough syrup containing codeine, and a woman's bag, containing a letter to Misha Thomas at a Dickinson, Texas address. In that same room, police also found a shirt with a crack pipe in the pocket, a letter from the Social Security Administration addressed to Jones at a La Marque, Texas address, and a receipt for transmission service from a Texas City business, made out to Jones, dated October 24, 2007, and listing an address for Jones of “219 Pine, TC, Texas.”

Jones was captured in the bedroom containing the rifle and the letter addressed to him. Police found $199 in his pocket. According to Texas Workforce Commission records checked by police, he was not employed and had not been employed for some time. The others present were also arrested, and police found a small amount of crack cocaine in one man's pocket and a small amount of powder cocaine in Thomas's pocket.

The second bedroom in the two-bedroom home had no beds, only a counter with drawers, a television, a computer, a small coffee table, and a reclining chair. Police found ecstasy tablets in a bag in the closet and a notebook ledger on the coffee table listing names and amounts. On the counter and in drawers under the counter, police found “three to four” digital scales, a “cookie” of crack cocaine, crack cocaine in a plastic bag, powder cocaine, a bottle of codeine cough syrup, various kinds of pills, and some currency taped together in stacks of one hundred dollars. On the counter also was Jones's wallet, which contained his driver's license. The license had an expiration date of July 28, 2012 and a La Marque, Texas address. In a box on the counter near the wallet were some prescription medicines in Jones's name, filled at a clinic in Texas City. Police also found some insulin for Jones and a glucometer used to measure blood sugar. In a small black cabinet full of movie DVDs and video games, located on the same counter and near Jones's wallet and medicine, were two digital scales and a loaded .38 Special handgun. Also found in the house were numerous baby bottles, razor blades, many measuring cups, a bag containing bullets, a bag containing $1,150, and a videocamera by the front door, pointing toward the roadway. Nothing other than the baby bottles suggested the presence of a child in the house, and officers testified that codeine is often found, stored, and transported in baby bottles. Police also found a baby bottle with a spoon with what was thought to be codeine in it.

Analysis

I. Probable cause to support search warrant

Jones's first issue challenges the trial court's denial of his motion to suppress evidence from the search of his home based on an alleged lack of probable cause. He filed a motion in each case to suppress the evidence seized as a result of the search warrant. He alleged that his federal constitutional rights and his state constitutional and statutory rights were violated because the supporting affidavit did not reflect sufficient probable cause in that it: (1) failed to show that the act or event upon which probable cause was based occurred within a reasonable time period prior to making the affidavit; (2) failed to state sufficient underlying circumstances to establish the credibility and reliability of the confidential informants; and (3) lacked sufficient underlying circumstances which would permit the conclusion that the alleged contraband was at the location claimed.

At the hearing on the motions to suppress, no evidence other than the search warrant was offered by either the State or Jones. Both sides tendered argument on the issues raised in Jones's motions. The trial court denied the motions to suppress, and, on the request of Jones, entered findings of fact, including, in relevant part, the following:

1. Affiant Officer [A.] Bjerke submitted a Search Warrant with Affidavit for Search Warrant to Judge Darrell Apffel on November 6, 2007.

2. Judge Apffel signed the Search Warrant and Affidavit at 12:24 am on said date, indicating that probable cause had been satisfied.

3. Officer Bjerke and other police officers executed the search warrant on November 6, 2007 and seized 17 items including illegal narcotics, guns, and U.S. currency.

4. Officer Bjerke and other police officers arrested Rio Shareese Jones for the offense of Possession of Firearm by Felon, POCS: Cocaine With Intent to Deliver; POCS: Codeine with Intent to Deliver, and POCS: MDMA with Intent to Deliver.

The trial court also entered the following conclusions of law:

1. The Affidavit for Search Warrant does reflect sufficient probable cause to justify the issuance of the Search Warrant.

2. The Affidavit for Search Warrant contains sufficient underlying circumstances to establish the credibility and reliability of the confidential informant.

3. The Affidavit for Search Warrant contains sufficient underlying circumstances which would permit the conclusion that the alleged contraband was at the location in which it was claimed.

4. The Affidavit for Search Warrant contains sufficient information to show that the act or event upon which probable cause was based occurred within a reasonable time prior to making the affidavit.

5. The Affidavit for Search Warrant contains sufficient information to establish probable cause...

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