Olivarez v. State

• Decision Date: 02 June 2005
• Docket Number: No. 14-03-01252-CR.,14-03-01252-CR.
• Citation: 171 S.W.3d 283
• Parties: Johnny Joe OLIVAREZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

171 S.W.3d 283

Johnny Joe OLIVAREZ, Appellant, v. The STATE of Texas, Appellee.

No. 14-03-01252-CR.

Court of Appeals of Texas, Houston (14th Dist.).

June 2, 2005.

Rehearing Overruled August 18, 2005.

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Michael R. De La Paz, San Antonio, TX, for appellant.

Kelly Ann Smith, Houston, TX, for appellee.

Panel consists of Chief Justice HEDGES and Justices FOWLER and SEYMORE.

OPINION

SEYMORE, Justice.

A jury found appellant, Johnny Joe Olivarez, guilty of possession of a controlled substance and sentenced him to fifteen years' imprisonment. In six issues, appellant contends the trial court erred by (1) overruling his motion to suppress, (2) failing to grant a new trial because the State withheld exculpatory evidence, (3) failing to order disclosure of the identity of a confidential informant, and (4) failing to conduct a proper inquiry pursuant to Texas Rule of Evidence 508, concerning the disclosure of a confidential informant. We affirm.

I. BACKGROUND

While conducting surveillance on a drug "stash" house, task force officers observed a Sears van and a black Grand Prix simultaneously pull up to the house. Several individuals transported three large, black duffel bags from the van into the house. Shortly thereafter, the officers saw the driver of the Grand Prix exit the house, place a box in the trunk of the Grand Prix, and drive away. The police conducted a traffic stop of the Grand Prix and obtained the driver's consent to search the car.¹ During the search, the officers recovered approximately ten pounds of marijuana from the box in the trunk.

Based on these events, the officers decided to approach the house to request consent to search. The officers approached the house and knocked on the door, which was opened by appellant. At that time, the officers could smell marijuana. The officers asked appellant if he lived there, and appellant stated that he rented the house. When the officers requested consent to search, appellant stepped outside, closed the door behind him, and refused to give consent. The officers then discussed their next course of action and decided to procure a search warrant.

Before issuance of the warrant, the officers knocked on the door to ascertain whether anyone else was inside. Abel Reyes and Juan Hernandez came to the door, and the officers explained that a search warrant for the house was being obtained. The officers then entered the house to determine whether any other individuals were present who could destroy evidence or pose a threat to the officers' safety. Upon entering the house, the officers saw marijuana on the table and scattered on the floor, but they did not seize any evidence. No other occupants were found inside.

While awaiting issuance of the warrant, appellant, Hernandez, and Reyes were handcuffed and placed on the couch. Although the officers remained in the residence, they did not conduct a search for narcotics until receiving notice that a warrant had been signed. When the search warrant had been signed, the officers commenced searching the house and found a key that unlocked a padlock on one of the bedroom doors. In the bedroom, the officers discovered three black duffel bags containing a large amount of marijuana.

II. MOTION TO SUPPRESS

In his first three issues, appellant contends the trial court erred by denying his motion to suppress evidence in violation of the Fourth and Fourteenth Amendments of the United States Constitution, Article I, Section 9 of the Texas Constitution, and Article 38.23 of the Texas Code of Criminal Procedure.² We review a trial court's ruling on a motion to suppress for abuse of discretion. Alvarado v. State, 853 S.W.2d 17, 23 (Tex.Crim.App.1993). Accordingly, we must give great deference to the trial court's findings of historical facts as long as the record supports the findings, especially when the findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We afford the same amount of deference to the trial court's ruling on "mixed questions of law and fact" when those issues turn on an evaluation of witnesses' credibility and demeanor. Id. Where rulings on "mixed questions of law and fact" do not turn on an evaluation of credibility and demeanor, we review the rulings de novo. Id. If the trial court's decision is correct on any theory of law applicable to the case, the decision must be sustained. State v. Ross, 32 S.W.3d 853, 855-56 (Tex.Crim.App.2000).

Warrantless searches and seizures inside a home are presumptively unreasonable. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). However, a warrantless entry into a home may be justified if (1) the police have probable cause, and (2) exigent circumstances exist that make procurement of a warrant impracticable. McNairy v. State, 835 S.W.2d 101, 106 (Tex.Crim.App.1991). Exigent circumstances that may excuse an otherwise unconstitutional intrusion into a home include (1) the need to aid persons reasonably believed to require assistance, (2) the possible destruction of evidence, and (3) the need to protect officers or others from perceived danger. Id. at 107.

Here, appellant does not contest that the officers had probable cause to enter the house. Rather, appellant contends exigent circumstances did not justify the warrantless entry.³ Alternatively, appellant maintains that any exigency to enter the house was created by the officers revealing themselves to appellant prior to obtaining a search warrant. See United States v. Munoz-Guerra, 788 F.2d 295, 298 (5th Cir.1986) (holding that officers cannot base a warrantless search on an exigent circumstance of their own creation).

Assuming, without deciding, that the warrantless entry into the house did constitute an illegal search, we nonetheless find that the trial court did not abuse its discretion by denying appellant's motion to suppress. Under the Fourth Amendment, evidence will not be excluded as "fruit of the poisonous tree" unless the alleged illegality is at least the "but for" cause of the discovery of the evidence. State v. Guo, 64 S.W.3d 662, 667 (Tex.App.—Houston [1st Dist.] 2001, no pet.). In other words, suppression of evidence is not required unless "the challenged evidence is in some sense the product of illegal governmental activity." Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (quoting United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)). In this case, the officers discovered 110 pounds of marijuana during a search pursuant to a warrant, the validity of which is not contested.⁴ The record is clear that the officers decided to procure this search warrant before the initial entry into the house. Moreover, the record reflects that the probable cause relied upon to obtain the warrant was based on information gathered by the officers before the initial entry into the house. Therefore, the officers' initial entry into the house did not contribute in any way to the discovery of the marijuana appellant was charged with possessing. Cf. Guo, 64 S.W.3d at 668 (holding that where information obtained from illegal warrantless search of a briefcase was used to establish probable cause for the warrant to search briefcase, evidence obtained pursuant to the warrant was properly suppressed); State v. Aguirre, 5 S.W.3d 911, 914-15 (Tex.App.—Houston [14th Dist.] 1999, no pet.) (holding that because evidence supporting search warrant was illegally obtained, evidence recovered by executing warrant was fruit of the illegal search). Because the warrantless entry was not even the "but for" cause of the discovery of the marijuana, the trial court did not abuse its discretion by denying appellant's motion to suppress.⁵

We overrule appellant's first, second, and third issues.

III. EXCULPATORY EVIDENCE

In his fourth issue, appellant contends that the trial court erred by failing to grant a new trial because the prosecution withheld favorable, material evidence. When the prosecution withholds evidence favorable to the defendant, due process is violated when the evidence is material to either guilt or punishment, irrespective of the good faith or bad faith of the prosecution. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Wyatt v. State, 23 S.W.3d 18, 27 (Tex.Crim.App.2000). However, there is no general right to discovery in a criminal case, and Brady does not create one. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). To invoke Brady, the accused must present evidence that (1) the prosecution suppressed or withheld evidence, (2) this evidence was favorable to the accused, and (3) this evidence would have been material to the accused's defense. Ex Parte Kimes, 872 S.W.2d 700, 702-03 (Tex.Crim.App.1993). Favorable evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense, the outcome of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The mere possibility that undisclosed evidence may have helped the defense or affected the trial's outcome does not establish "materiality" in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612 (Tex.Crim.App.2002). Whether the evidence is material is viewed in the context of the overall strength of the State's case. Id. at 613.

During Agent Bruce Williford's testimony, he revealed that he had prepared a report that was not turned over to the prosecutor.⁶ Although the report is not part of the appellate record, Agent Williford's testimony indicates that the report contains (1) the identity of the purchaser of utilities at the house where appellant was arrested, and (2) registration information on the Sears van parked at the house. Appellant...