Torres v. The State Of Tex.

• Decision Date: 27 January 2011
• Docket Number: NUMBER 13-09-00264-CR
• Citation: Torres v. State, NUMBER 13-09-00264-CR (Tex. App. Jan 27, 2011)
• Parties: SAMUEL TORRES, Appellant, v. THE STATE OF TEXAS, Appellee.
• Court: Texas Court of Appeals

SAMUEL TORRES, Appellant,

v.THE STATE OF TEXAS, Appellee.

NUMBER 13-09-00264-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI OF EDINBURG

Delivered: January 27, 2011

On appeal from the 107th District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Yanez, Rodriguez, and Garza¹

Memorandum Opinion by Justice Rodriguez

Pursuant to a plea bargain agreement with the State, appellant Samuel Torres pleaded guilty to five counts of possession of child pornography and was sentenced to four years' confinement for each count to run concurrently. See Tex. Penal Code Ann. § 43.26 (Vernon 2003). By two issues, Torres contends that the trial court erred in denying his motion to suppress evidence because (1) the magistrate had no authority to sign the warrant, and (2) there was no probable cause. We affirm.

I. Background

Magistrate Valerie Garcia of the Harlingen Municipal Court issued a search warrant for Torres's residence on December 19, 2006. Attached to the search warrant is Detective Rebecca Cruz's sworn affidavit stating that a person who wished to remain anonymous had called the police department reporting that another unnamed female had informed the anonymous person that "Anna Sanchez" found sexually explicit material involving children stored on Torres's home computer and tape recordings of Torres having sex with teenage girls. Detective Cruz's affidavit states:

IT IS THE BELIEF OF AFFIANT [Detective Cruz], AND AFFIANT HEREBY CHARGES AND ACCUSES THAT:

1. On December 16, 2006, at approximately 10:00 p.m., Detective Sergeant Steve Meyer was contacted by Patrol Sergeant Daniel Villarreal reference [sic] a call that came in regarding child pornography and sexual assault of a child.

2. A person who wished to remain anonymous called the Harlingen Police Department to provide information relating to possible offenses specified in the Texas Penal Code including Sexual Assault of a Child and Possession of Child Pornography. The source of information insisted on remaining anonymous due to fear of destroying the trust between herself and another female who provided the anonymous source with the information. The source alleges that a female named Anna Sanchez (24-25 years old) foundrecordings in her residence of her common-law husband having sex with girls who appeared to be eleven to fifteen years of age. It is alleged that Anna Sanchez also found child pornography stored within the home computer. It is also alleged that Anna Sanchez located a journal in a room that is occupied by Anna's common law father-in-law whose name is unknown at this time. The journal details offenses of child molestation. The common law spouse of Anna was said to be a local pediatrician at the time of the first information. The anonymous caller advised Sergeant Daniel Villarreal that when Anna Sanchez viewed the Child Pornography she recognized an undetermined number of victims at that time as she went [sic] to school with them when she was younger. That is to say, Anna Sanchez recognized the girls in the video(s) as classmates from school. (Your affiant reports to the magistrate reviewing this Search Warrant that the information contained in this affidavit was provided through third party source. Your affiant as of this time has not been able to contact with the second party or Anna Sanchez even though lengthy surveillance has been conducted at the residence since the initial call came was received in an effort to contact Anna Sanchez in person.)

2. On December 17, 2006, Detective Sergeant Steve Mayer and Detective Robert Gonzalez looked into this. Anna Sanchez resides with her common law spouse Samuel Torres and her common law father[-]in[-]law (unknown name) on 1909 S. Palm Ct. Drive in Harlingen, Texas. There is a black 2006 Chrysler 4-door vehicle parked in front of the residence bearing Texas license plates 884DLX. Detective Robert Gonzalez and Detective Robert Salinas conducted surveillance from noon to 6:00 p.m. The only reported activity is that Samuel Torres went outside of his residence to smoke a cigarette and he took a white heavy looking bag out of his vehicle and took it inside his residence.

3. Samuel Torres is a Registered Nurse at Valley Baptist Medical Center. It is unknown at this time what section of the hospital Samuel is assigned to. Samuel does have a twin brother that is a pediatrician.

4. On December 18, 2006, I received a tip from a second party alleging that Anna had been in a fight with her common law spouse Samuel Torres when she confronted him about what she found in their household. There was a knife involved and the two had a long heated argument. It is unknown if either of the two were injured. Anna was not answering her phone and there was concern forAnna's well being. This second party provided me the same information that the third party had mentioned December 16, 2006. (Your affiant reports to the magistrate reviewing this Search Warrant that the information contained in this affidavit was provided through second source. Your affiant as of this time has not been able to contact Anna Sanchez even though lengthy surveillance has been conducted at the residence since the initial call came was received in an effort to contact Anna Sanchez in person.)

Pursuant to the warrant, the Harlingen Police Department executed a search of Torres's residence and seized computer equipment, CDs, DVDs, diskettes, VHS tapes, and digital cameras. After reviewing some of the CDs seized by police, Dr. Stanley Fisch of Harlingen Pediatrics Clinic identified seventy-two images as child pornography.²

After Torres was indicted with possession of child pornography, he filed a motion to suppress the evidence. Detective Cruz testified at the motion to suppress hearing that she received a call from a person who wanted to remain anonymous and who was concerned about Anna Sanchez. Detective Cruz explained that the caller stated that the caller's sister received a call from Sanchez claiming that Torres had child pornography and a "log of underaged girls that he had been having sexual contact with." According to Detective Cruz, the caller and her sister wanted police to "follow up on this welfare concern."³ Detective Cruz testified that the anonymous caller's identity is Elizabeth Gonzalez and her sister's identity is Cynthia Flues. Detective Cruz clarified that Sanchez saw the pornographic material in Torres's possession and that neither Gonzaleznor Flues witnessed the possession of the child pornography. Detective Cruz did not speak with Sanchez.⁴

On cross-examination, Detective Cruz stated that, pursuant to the search warrant, the police seized a journal from Torres's residence. According to Detective Cruz, the tip she received was vague concerning the journal and there was nothing indicating who had written the journal. Detective Cruz stated that although the journal found in Torres's residence contained writings, it did not contain "anything illegal."

Detective Cruz claimed that she had corroborated several things that Gonzalez told her, such as Torres's address and his occupation. However, on cross-examination, Detective Cruz admitted that she did not include those facts in her affidavit. When asked by defense counsel if she "put anything in this affidavit that would have indicated to the judge that this anonymous tip was a reliable tip," Detective Cruz replied, "No, sir, I did not." On redirect examination, however, the State asked Detective Cruz to read portions of the affidavit that included Detective Cruz's corroborations that Torres was a nurse and that his twin brother was a pediatrician.

The trial court denied Torres's motion to suppress; however, it did suppress the journal found in his residence. Then, pursuant to a plea bargain agreement with the State, Torres pleaded guilty to five counts of possession of child pornography. The trial court sentenced Torres to four years' confinement for each count, with the sentences to run concurrently. See Tex. Penal Code Ann. § 43.26. This appeal ensued.

II. Standard of Review

Whether the trial court properly denied a defendant's motion to suppress is reviewed under a bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Scardino v. State, 294 S.W.3d 401, 405 (Tex. App.-Corpus Christi 2009, no pet.). We give almost total deference to the trial court's determination of historical facts and review de novo the trial court's application of law to facts not turning on credibility and demeanor. Scardino, 294 S.W.3d at 405; see Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005). When, as in this case, the trial court makes no explicit findings of historical fact, the evidence must be viewed in the light most favorable to the trial court's ruling. St. George, 237 S.W.3d at 725. We must uphold the trial court's ruling if it is correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006); Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005). "Absent a clear abuse of discretion, the ruling on the admissibility of evidence will not be disturbed." Fonseca v. State, 881 S.W.2d 144, 149 (Tex. App.-Corpus Christi 1994, no pet.) (citing Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991)).

III. Discussion

A. Did the Magistrate Have Authority to Issue the Search Warrant?

By his first issue, Torres contends that the magistrate did not have the authority to sign an evidentiary search warrant under article 18.02(10) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 18.02(10) (Vernon 2005). The State concedes that the magistrate who issued the search warrant in this case was not a courtof record, and therefore, it did not have the authority to issue an evidentiary search warrant pursuant to article 18.02(10). See id. However, the State asserts that the search warrant was not an evidentiary search warrant and that the magistrate had the authority to issue...