Shedden v. State

• Decision Date: 29 August 2008
• Docket Number: No. 13-07-409-CR.,No. 13-07-170-CR.,13-07-170-CR.,13-07-409-CR.
• Citation: 268 S.W.3d 717
• Parties: John SHEDDEN, Appellant, v. The STATE of Texas, Appellee. Nicole Montignani, Appellant, v. The State of Texas, Appellee.
• Court: Texas Court of Appeals

268 S.W.3d 717

John SHEDDEN, Appellant, v. The STATE of Texas, Appellee.

Nicole Montignani, Appellant, v. The State of Texas, Appellee.

No. 13-07-170-CR.

No. 13-07-409-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

August 29, 2008.

Scott M. Ellison, Law Office of Scott M. Ellison, P.L.L.C., Corpus Christi, for appellant in 13-07-170-CR.

Reynaldo A. Peńa, Law Office of Reynaldo A. Peńa, PLLC, Scott M. Ellison, Law Office of Scott M. Ellison, P.L.L.C., Corpus Christi, for appellant in 13-07-409-CR.

Carlos Valdez, Dist. Atty., Douglas K. Norman, Corpus Christi, for appellee.

Before Chief Justice VALDEZ and Justices YAÑEZ and BENAVIDES.

OPINION

Opinion by Justice BENAVIDES.

Appellants, John Shedden and Nicole Montignani, appeal their convictions for possession of more than four grams but less than 200 grams of methamphetamine, with the intent to deliver, and possession of more than four grams but less than 200 grams of cocaine. TEX. HEALTH & SAFETY CODE ANN. § 481.115(a), (f) (Vernon 2003). Both parties were indicted by a single indictment, but the trial court severed the cases for trial. After a jury trial, Shedden was found guilty of both charges. He was sentenced to 40 years' imprisonment and fined $75,000 fine for possession with intent to distribute methamphetamine. Shedden was further sentenced to 25 years' imprisonment and fined $5,000 for possession of cocaine. After her separate jury trial, Montignani was also found guilty of both charges. She was sentenced to 25 years' imprisonment and fined $25,000 fine for possession with intent to distribute methamphetamine, and she was sentenced to 10 years' imprisonment and fined $10,000 for possession of cocaine.

On appellants' motion, we consolidated the cases for appeal. By their first two issues, appellants argue that (1) the trial court abused its discretion and violated their Sixth Amendment right to confront the witnesses against them by denying their motion to discover the identity of the State's informant, and (2) the trial court erroneously denied their motions to suppress evidence obtained as a result of an illegal search. Individually, Montignani also argues that the trial court erroneously admitted extraneous offense evidence. We affirm.

I. Background

Shedden and Montignani are husband and wife. On June 1, 2006, a search warrant was signed providing for a search at 5613 Tanglewood, Corpus Christi, Texas, where Shedden and Montignani reside. The search warrant was supported by an affidavit submitted by Officer Steve Day of the Corpus Christi Police Department. The warrant affidavit states:

On May 30, 2006, your affiant received information from a reliable and credible informant, whose name will not be revealed for security reasons, that said informant had been inside the suspected place within the past forty eight (48) hours. The informant told your affiant that the suspected parties were selling methamphetamine from the suspected place. While inside the suspected place, said informant observed the above suspected parties to be in possession of a quantity of methamphetamine. Your affiant believes this informant to be reliable and credible for the following reasons: the informant has given information to your affiant that has led to the seizure of illegal narcotics and arrest of narcotics violators. The informant has made purchases in the past of methamphetamine under the supervision of the affiant. The informant is familiar with the appearance of methamphetamine. An investigation of suspected party (1) [Shedden] revealed arrests for possession of a controlled substance. The suspected party (1) is currently on parole for a possession of a controlled substance conviction. An investigation of the suspected party (2) [Montignani] revealed an arrest for hindering apprehension and a suspect in possession of a controlled substance.

The Corpus Christi Police Department executed the search warrant on June 2, 2006, the day after its issuance. During the search, officers discovered large quantities of cocaine and methamphetamine. Subsequently, on November 30, 2006, Shedden and Montignani were indicted by a Nueces County grand jury for possession with intent to deliver methamphetamine and possession of cocaine. They were reindicted on January 18, 2007 for the same offenses, except that a repeat felony offender enhancement paragraph was added with respect to Shedden.

Both Shedden and Montignani filed motions to suppress evidence and requested a hearing under Franks v. Delaware, 438 U.S. 154, 171-72, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (requiring trial court to hold a hearing if the defendant makes a showing of a deliberate or recklessly made false statement in a warrant affidavit). The motion attached several affidavits from various witnesses who claimed that over the weekend of May 26, 2006, and through the evening of May 30, 3006, Shedden and Montignani were vacationing in San Antonio. Essentially, Shedden and Montignani claimed that because they had been out of town until the evening of May 30, it was impossible for the confidential informant to have been inside their home as alleged in the warrant affidavit. Thus, they argued that Officer Day intentionally, knowingly, or recklessly made a false statement in his warrant affidavit, and there was no probable cause to support the search warrant. Shedden and Montignani also filed motions to require the State to disclose the identity of the confidential informant who supplied the information that Officer Day used to support his search warrant affidavit. See TEX.R. EVID. 508(c)(3).

A. Hearing on Motion to Suppress and to Disclose Identity of Informant

On January 29, 2007, the trial court held a hearing on the motions to suppress and the motions to reveal the confidential informant's identity. Officer Day testified that he was an officer with the Corpus Christi Police Department. He stated that he had worked with informants for over six years. Officer Day stated that on May 30, 2006, he was at work and received a phone call from one of his informants.

The trial court inquired how many times Officer Day had used this particular informant, and Officer Day stated that the informant had "done three—three or more buys for us in the past and has also provided information that we've used for—in the past to obtain a search warrant and make an arrest." Officer Day clarified that he had known the informant for a year prior to the date of the search warrant, that he had checked the informant's criminal record, and that he was not aware of any prior convictions the informant had or of any felony cases pending against the informant. He testified that after receiving the information, he did not conduct any other investigation to corroborate the information. He testified that he did not conduct a controlled buy between this informant and Shedden because he believed that the informant was reliable.

Furthermore, he stated that the informant was paid by the F.B.I. after the police recovered narcotics at the Tanglewood residence. He testified that the informant was a friend of Shedden and Montignani. He was not aware of any grudge that the informant had against them. Officer Day stated that at the time he received the information from the informant, he had no reason to believe that the information the informant provided was false. He testified that he had no reason to believe that the informant had misled him in the past, and he rated the informant as "better than average."

The informant told Officer Day that he¹ had been inside the residence located at 5613 Tanglewood, which was the home of Shedden and Montignani, and that he observed them to be in possession of a gallon-sized Ziploc bag that was approximately half full of methamphetamine. Officer Day testified that after receiving the phone call on May 30, he and his supervisors decided to prepare an affidavit and seek a search warrant for the residence. He testified that he made the decision "that night." He prepared the affidavit for the search and arrest either in the evening or late night of May 30, or the next day, on May 31. After he prepared the affidavit, his supervisor reviewed it, and Officer Day presented the affidavit to Judge Flores on June 1, 2006. The officers executed the warrant on June 2, 2006.

Shedden and Montignani's counsel questioned Officer Day extensively about the exact time frame that the informant had allegedly been inside the residence. On direct examination, Officer Day clarified the time frame for receiving the information from the informant:

Q: Okay. So, on May 30th you say in your affidavit that you received information 48 hours prior, okay? Does that include the May 30th date, the 48 hours that we're talking about?

A: Yes, it does.

. . .

Q: Did you present your affidavit and search warrant to the Judge on June 1st?

A: Yes, I did.

Q: Okay. Now, let's talk about the 48-hour time frame. Why do you use that?

A: I—I am not aware of like a time frame that's in the Code of Criminal Procedure. We use 48 hours because it's a—you know, the information would be current and not stale, so we use 48 hours. I know of officers that have used 72 hours, but I—48 hours is what we like to use and so we have current information and the information is not termed where, you know, there is nothing at the house, no more drugs, or they are gone or whatever.

Q: Okay. Now, do you also use that 48 hour time period to protect your informant?

A: Yes.

Q: And why is that important?

A: If—if the identity of any informant is, you know, revealed and, you know, for one, their life could be in danger, you know, for two, you're not going to have any informants to help you with other investigations, if you have to give their identity.

On cross-examination, Officer Day testified that the informant had been in the house within 48 hours prior when Judge Flores signed the warrant on June 1, and he clarified that the informant had been in the home on ...