Robertson v. State

• Decision Date: 08 January 2020
• Docket Number: No. 10-18-00228-CR,10-18-00228-CR
• Parties: FREDRICK VONSHA ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

FREDRICK VONSHA ROBERTSON, Appellant v. THE STATE OF TEXAS, Appellee

No. 10-18-00228-CR

STATE OF TEXAS IN THE TENTH COURT OF APPEALS

January 8, 2020

From the 85th District Court Brazos County, Texas

Trial Court No. 15-04071-CRF-85

MEMORANDUM OPINION

In two issues, appellant, Fredrick Vonsha Robertson, challenges his conviction for unlawful possession with intent to deliver a controlled substance—cocaine—four grams or more but less than 200 grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017). Specifically, Robertson contends that the trial court erred by denying his motion to suppress evidence due to the absence of probable cause to support a warrant to search his residence and by denying his request for an article 38.23(a) jury instruction. See TEX. CODE CRIM. PROC. ANN. art. 38.23(a) (West 2018). We reverse and remand.

I. THE SEARCH WARRANT & SUPPORTING AFFIDAVIT

In his first issue, Robertson contends that the trial court erred by denying his motion to suppress evidence due to the absence of probable cause to support a warrant to search his residence.

A. Standard of Review

"A trial court's ruling on a motion to suppress is reviewed for abuse of discretion." Kelly v. State, 529 S.W.3d 504, 508 (Tex. App.—Texarkana 2017, no pet.) (citing Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999)). In performing this review, we generally use a bifurcated standard of review, affording deference to the trial court's determination of historical facts and reviewing de novo the application of law to the facts. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). However, when the question before the trial court is whether probable cause supported the issuance of a search warrant, as is the case here, the trial court does not make credibility determinations but is instead limited to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) (citing Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004)). When we review a magistrate's decision to issue a warrant, we apply a highly-deferential standard, and we will uphold the magistrate's probable-cause determination as long as the magistrate had a substantial basis for determining that probable causeexisted. Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004).

"Probable cause exists when, under the totality of the circumstances, there is a 'fair probability' that contraband or evidence of a crime will be found at the specified location." Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (citing Gates, 462 U.S. at 238, 103 S. Ct. 2317). It is a 'flexible and nondemanding' standard." Id. (citing 40 GEORGE W. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE & PROCEDURE § 5.03 at 292 (2d ed. 2001)). To justify the issuance of a search warrant, the affidavit in support thereof must set forth facts sufficient to establish probable cause:

(1) that a specific offense has been committed, (2) that the specifically described property or items that are to be searched for or seized constitute evidence of that offense or evidence that a particular person committed that offense, and (3) that the property or items constituting evidence to be searched for or seized are located at or on the particular person, place, or thing to be searched.

TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (West Supp. 2018).

B. Discussion

In his motion to suppress, Robertson asserted that the affidavit in support of the search warrant stated that a confidential informant went to the address of 2408 Old Hearne Road—an address that is about a mile away from 2408 Old Kurten Road—and purchased cocaine from "Fred." However, using this information, police obtained a search warrant for 2408 Old Kurten Road, the address of Robinson's residence. After ahearing, at which two witnesses testified, the trial court overruled Robertson's motion to suppress. The trial court then entered numerous findings of fact and conclusions of law.

In his affidavit in support of the complained-of search warrant, Bryan Police Officer Randell Hall stated the following:

1. There is in the City of Bryan, Brazos County, Texas, a suspected place and premises described and located as follows: 2408 Old Kurten Road, Bryan, Brazos County, Texas. Further described as a single story, white and gray framed house with a gray shingled roof. Also, in front of the house, at the curb, is a mailbox. "See Attached embedded photo."[¹]

. . .

2. The suspected place is in control of each of the following person or persons: Fredrick Vonsha Robertson, B/M and DOB: September 27, 1972.

3. It is the belief of affiant that at the above described premises is the following property or items: implements used in the commission of the offense of possession and delivery of a controlled substance, to wit: cocaine, drug paraphernalia and evidence of cocaine trafficking including but not limited to, scales, containers, packaging materials, sealing devices, as well as documentary, electronic and digitally stored records of sales receipts, purchases, customers and suppliers. . . .

4. Affiant has probable cause for said belief by reason of the following facts and circumstances . . .

Within the past 72 hours, I [Officer Hall] was working in an under[cover] capacity. Within the past 72 hours, I conducted a controlled buy with the assistance of a Confidential Informant (CI). For the safety of the CI[,] they will not be named in this affidavit. This CI has assisted The Bryan Police Department in the past and had proven to be both credible and reliable. The CI came forward and stated that a black male who goes by the name of "Fred" was distributing cocaine from an address on Old Kurten Road inBryan[,] Texas. The CI's motivation was law enforcement related. I was familiar with the address and "Fred" due to a citizen coming forward recently who is a tax paying, employed resident of the City of Bryan who also has law enforcement motives, stated that a black male whose name is "Frederick Robertson" was selling narcotics within the City of Bryan at an address on Old Kurten Road. Based upon the prior knowledge provided to me, I had researched the name "Frederick Robertson". I discovered that "Frederick Robertson" is Frederick Vonsha Robertson Sr., B/M and date of birth September 27, 1972 (Said Suspected Party). He had a listed address is Bryan Police Department's record system of 2408 Old Hearne Road (Said Suspected Place). He also has this same listed address in the Brazos County Jail's system. A utilities check of 2408 Old Kurten Road via Bryan Texas Utilities also confirmed that the utilities are under the name of Frederick Robertson.

Within the past 72 hours, the CI agreed to make a controlled buy of cocaine from "Fred". I met the CI at a predetermined location and conducted a check of his person to insure [sic] that he was not concealing any narcotics on his person. The CI was then given a specific amount of Bryan Police Department imprest funds. The CI then went to the address of 2408 Old Hearne Road and purchased a quality [sic] of cocaine an [sic] exchange for the Bryan Police Department imprest funds from "Fred". While the CI was conducting the buy[,] surveillance was conducted. Officer Cottle[,] who is a member of the Bryan Police Department's Drug Enforcement Team[,] saw the male that the CI called "Fred" enter the front door of the house located at 2408 Old Hearne Road during the time of the purchase of cocaine. The CI then returned back to the location[;] upon his return[,] I recovered a usable amount of cocaine.

At the hearing on Robertson's motion to suppress, Officer Kyle Cottle of the Bryan Police Department testified that he was involved in the investigation of drug sales occurring on Old Kurten Road; that he observed the controlled buy that was referenced in Officer Hall's affidavit; and that the controlled buy took place at 2408 Old Kurten Road,not Old Hearne Road.² Officer Cottle emphasized that the reference to Old Hearne Road was a discrepancy and that the affidavit should have read 2408 Old Kurten Road at all times. Moreover, according to Officer Cottle, no law-enforcement activity was conducted at 2408 Old Hearne Road.

In its findings of fact, the trial court stated the following:

15. The Court finds that, based on the four corners of the affidavit, the magistrate who issued the search warrant could have reasonably inferred that the informant who made the buy observed the defendant in possession of cocaine at his house at 2408 Old Kurten Road within 72 hours of the date the affidavit was sworn to:

• The affiant particularly described the place to be searched as 2408 Old Kurten Road, Bryan, Brazos County, Texas and described it as a single story, white and gray framed house with a gray shingled roof and included a photo of the house located at 2408 Old Kurten Road.

• A CI came forward and stated that a black male who goes by the name of "Fred" was distributing cocaine from an address on Old Kurten Road in Bryan[,] Texas.

• An employed resident of the City of Bryan stated that a black male whose name is "Frederick Robertson" was selling narcotics within the City of Bryan at an address on Old Kurten Road.

• A utilities check of 2408 Old Kurten Road via Bryan Texas Utilities also confirmed that the utilities are under the name of Frederick Robertson.

• Within the past 72 hours, the CI agreed to make a controlled buy of cocaine from "Fred," and Officer Cottle observed that controlled buy.

16. The Court also finds that any reference to "Hearne" in the affidavit was a clerical error.

17. The Court finds that the facts contained in the affidavit in support of the search warrant for 2408 Old Kurten Road set forth probable cause that would justify its search.

As mentioned above, in reviewing the sufficiency of an affidavit to support a search warrant, the trial court is generally limited to that which is contained...