Valeriano, Luis Ernesto v. State ( 2003 )

COURT OF APPEALS

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

LUIS ERNESTO VALERIANO,                             Appellant, v. THE STATE OF TEXAS,                             Appellee.

' ' ' ' '

No. 08-01-00363-CR Appeal from the 143rd District Court of Reeves County, Texas (TC# 93-08-5667-CRR)

MEMORANDUM OPINION

Appellant Luis Ernesto Valeriano appeals his conviction for possession of heroin with intent to deliver, less than twenty-eight grams.  For those reasons detailed below, we affirm. 

Facts

Valeriano was indicted on August 26, 1993 for possessing with intent to deliver less than twenty-eight grams of heroin.  Valeriano fled the jurisdiction of the court and was apprehended eight years later.  The State revived its prosecution against Valeriano and the case was set for trial.

Prior to trial, Valeriano filed two motions to suppress.  The first, filed on August 13, 2001 (Athe August motion@), sought suppression of all evidence obtained subsequent to the search of his residence, including Valeriano=s confession, because the warrant authorizing the search allegedly lacked probable cause and no good faith reliance on the warrant was possible.^[1]  The motion was denied by the trial court.

On September 6, 2001, Valeriano filed his second motion (Athe September motion@) to suppress stating the same grounds as those alleged in his August motion. The trial court entertained the motion immediately prior to trial.

On September 10, 2001, the jury found Valeriano guilty as charged.  Valeriano elected to have his sentence imposed by the jury. The jury sentenced Valeriano to twenty-five years in prison and imposed a fine of $10,000. Valeriano timely filed his notice of appeal and this appeal ensued.

Standard of Review

Almost total deference must be given to the trial court=s determination of historical facts in a suppression hearing.  State v. Ross, 32 S.W.3d 853, 856 (Tex. Crim. App. 2000); O=Hara v. State, 27 S.W.3d 548, 550 (Tex. Crim. App. 2000).  The appellate court must also review the evidence in the light most favorable to the trial court=s ruling and cannot reverse the trial judge=s decision on the admissibility of evidence absent a clear abuse of discretion. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); see Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App. 2000).

We review the trial court=s application of the law under a de novo standard. O=Hara, 27 S.W.3d at 550.  The trial court=s ruling will be affirmed if it is correct under any theory of law.  Laca v. State, 893 S.W.2d 171, 177 (Tex. App.--El Paso 1995, pet. ref=d); Romero, 800 S.W.2d at 543.

Defective Search and Arrest Warrant

In his first point of error, Valeriano asserts the affidavit supporting the search and arrest warrant was deficient because it contained unreliable and unconfirmed information from confidential informants upon which the police relied to obtain the warrant.

 In addressing this issue, we must consider the totality of the circumstances to determine whether the trial court=s findings are supported by the record, and the findings will not be disturbed absent a clear abuse of discretion.  State v. Morgan, 841 S.W.2d 494, 496 (Tex. App.--El Paso 1992, no pet.) (citing Dancy v. State, 728 S.W.2d 772, 777 (Tex. Crim. App.), cert. denied, 484 U.S. 975, 108 S.Ct. 485, 98 L. Ed. 2d 484 (1987)).

A search warrant must be based on probable cause.  U.S. Const. amend. IV; Tex. Const. art. I, ' 9; Hughes v. State, 843 S.W.2d 591, 593 (Tex. Crim. App. 1992);  Carroll v. State, 911 S.W.2d 210, 216 (Tex. App.--Austin 1995, no pet.); Tex. Code Crim. Proc. Ann. art. 1.06 (Vernon 1977). The warrant may be issued only if it is supported by a sworn affidavit setting forth facts sufficient to establish that the property or item to be searched for or seized is located at or on the particular person, place, or thing to be searched.  Tex. Code Crim. Proc. Ann. art. 18.01(c)(3) (Vernon Supp.  2003); Mahmoudi v. State, 999 S.W.2d 69, 71-72 (Tex. App.--Houston [14th Dist.] 1999, pet. ref=d).

The task of the issuing magistrate is to make a practical, commonsense determination whether, given all of the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found at the place described.  Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L. Ed. 2d 527 (1983). The Fourth Amendment=s requirement of probable cause for the issuance of a search warrant is to be applied not according to a fixed or rigid formula, but in light of the totality of the circumstances.  Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L. Ed. 2d 721 (1984); Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996).

Probable cause to support the issuance of a search warrant exists where the facts submitted to the magistrate are sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986). The magistrate=s determination must be based on an examination of information contained solely within the four corners of the affidavit itself.  Cassias, 719 S.W.2d at 587-88; Hackleman v. State, 919 S.W.2d 440, 447 (Tex. App.--Austin 1996, pet. ref=d, untimely filed).  The task of the reviewing court is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate=s decision to issue the warrant.  Upton, 466 U.S. at 728.  The reviewing court should accord great deference to the magistrate=s determination.  Ramos, 934 S.W.2d at 363.

In his brief, Valeriano contends that the magistrate=s issuance of the search and arrest warrant was erroneous because the affidavit setting out the facts in support of the warrant did not reveal when the police or the two CIs obtained the information concerning the alleged existence of contraband at Valeriano=s residence, or how the CIs obtained that information.  Valeriano also asserts the CIs= information was stale such that the magistrate could not have reasonably determined the contraband was presently located at Valeriano=s residence.^[2]

On September 4, 1992, the magistrate issued the warrant in question.  The affidavit supporting the application for the warrant was sworn out by Pecos Police Officer Marc Contreras on September 4, 1992.  The affidavit in salient portion states:

Affiant is a Patrolman with the Pecos Police Department . . . .  On Thursday, August 27, 1992, Investigator Orlando Orona received information from a confidential informant whose [sic] has proven truthful and reliable regarding narcotic information in the recent past. Said identity of informant must remain confidential due to safety and security reasons . . . C.I. advised Investigator Orona that he/she personally observed Ernesto Valeriano in possession of a[n] undetermined quantity of marijuana at Mr. Valeriano=s residence, which is located at 1910 Nebraska Street, Pecos, Reeves County, Texas.  C.I. further advised that the above named marijuana was kept concealed in the backyard of said residence buried underground.

On Thursday, September 03, 1992, Affiant received information from a confidential informant . . . whose identity must remain confidential for the purpose of safety and security reasons.  Informant has provided narcotic information that has been proven truthful and reliable on at least two occasions in the past.  C.I. contacted Affiant . . . and stated that Ernesto Valeriano was in possession of an undetermined quantity of cocaine . . . that said cocaine is currently buried in the backyard of >El Negro=s= house. Affiant has personal knowledge that Ernesto Valeriano is also known as >El Negro.=  Affiant has personal knowledge that Mr. Ernesto Valeriano currently resides and occupies 1910 Nebraska Pecos, Reeves County, Texas.

Bearing in mind that we must analyze the affidavit in a commonsense, not hypertechnical manner, we find that the magistrate could have reasonably concluded that the information in the affidavit demonstrated that contraband was currently hidden at Valeriano=s residence.  See, e.g., Bernard v. State, 807 S.W.2d 359, 365 (Tex. App.--Houston [14th Dist.] 1991, no pet.) (twelve days between receipt of information and issuance of warrant does not render information stale).  Indeed, the second CI=s information was relayed to the police on September 3, one day before the warrant issued.  In such circumstances, commonsense dictates that when the informant stated the Acocaine is currently buried in the backyard of >El Negro=s= house,@ he meant the contraband was presently there.

Furthermore, the affidavit states that the first CI Apersonally@ observed marijuana buried in Valeriano=s backyard.  Valeriano=s complaint that the affidavit was defective because it did not state how the CIs obtained their information thus lacks merit. Stated another way, the magistrate could have reasonably assumed that the CI=s statement that he saw marijuana buried in Valeriano=s backyard demonstrated there was a fair probability  that contraband would be found at that location.  Gates, 462 U.S. at 238; Cassias, 719 S.W.2d at 587.

Lastly, Valeriano=s contention that the affidavit did not reveal when the police obtained the information is simply without merit.  The affidavit on its face reveals that police received the first CI=s information on August 27,1992 and the second CI=s information on September 3, 1992.  We find there was probable cause for its issuance.

For these reasons and taking into account the totality of the circumstances present at the time that the magistrate issued the warrant, we hold that the search and arrest warrant in question was supported by a sufficient affidavit such that its issuance was based on probable cause.  Carroll, 911 S.W.2d at 216. The trial court=s decision to deny suppression of the evidence obtained as a result of the search of Valeriano=s residence was therefore correct.  Because we find that the search warrant was valid, Point of Error One is therefore overruled.

Admission of Defendant=s Confession

In his second point of error, Valeriano urges that the trial court erred in admitting his written confession, as the product of an illegal search.  For the following reasons, we find the point was waived.

At trial Valeriano argued that the affidavit supporting the search and arrest warrant and the warrant itself should be suppressed because the warrant was invalid.  The suppression hearing was conducted when the State sought to introduce the affidavit and the warrant in evidence.

After the trial court granted admission of the supporting affidavit, Valeriano also argued that in addition to the warrant and its supporting affidavit, all items listed on the search inventory, including the black tar heroin, the ceramic duck in which it was found, an address book, two phone bills, cash, and the measuring scales, should be suppressed. The trial court then allowed the introduction of the warrant itself, which also contained the search inventory. Valeriano then requested that he be granted a running objection to Athe search warrant and the admission of this evidence.@ The trial court then asked for clarification of which items the running objection would refer to.  Valeriano stated Athe heroin that was seized pursuant to the search warrant.@  The trial court granted that request and stated:

I=ll grant you a running objection to those two matters [the search warrant with supporting affidavit and the heroin].

.   .   .

It will not be necessary for you to further object to their admission on the grounds stated.

 At no time during the suppression hearing did Valeriano argue that his confession should be suppressed as fruit of the poisonous tree because it was obtained pursuant to the allegedly defective search warrant.

Later at the trial, the State sought to introduce Valeriano=s Aconfession@ via Peace Officer Orlando Orona.  At the close of the State=s direct examination of Orona, the trial court granted admission of the statement over the following objection by Valeriano, AI have the same objection, Your Honor.@ The statement was then published and read to the jury.

Valeriano then cross-examined Orona concerning the circumstances under which his statement was taken.  A bench conference was then called by the trial court to confirm how State=s Exhibit 4 (the evidence envelope which contained the heroin) was going to be labeled.  At that time, Valeriano made the following objection to the admission of the confession:

I want to at this point re-urge my objection to State=s Exhibit No. 6 [the confession].  I developed in my testimony that I feel that it was involuntarily given based on the promises and the inducements given to him, and for that reason I would re-urge my objection at this time.

 The objection was overruled by the trial court.  

This record thus establishes that Valeriano=s only objection to the introduction of the confession concerned whether the statement had been voluntarily given.  Stated another way, for the first time on appeal, Valeriano now contends the confession should have been suppressed as the fruit of the poisonous tree because of the allegedly defective warrant.

While an accused need not object to evidence subject to a pretrial motion to suppress that was denied, the specific nature of the objections and arguments made to the trial court must be properly preserved by counsel in the record.  Flores v. State, 840 S.W.2d 753, 755, 756 n.4 (Tex. App.--El Paso 1992, no pet.).  On this record the only objection properly preserved to the admission of Valeriano=s confession was whether it was voluntarily obtained.  The complaint on appeal must comport with the trial objection to be preserved for review. Foster v. State, 874 S.W.2d 286, 289 (Tex. App.--Fort Worth 1994, pet. ref=d); see Johnson v. State, 803 S.W.2d 272, 292-93 (Tex. Crim. App. 1990), cert. denied, 501 U.S. 1259, 111 S.Ct. 2914, 115 L. Ed. 2d 1078 (1991), overruled in part on other grounds, 815 S.W.2d 681 (Tex. Crim. App. 1991).

In the alternative, as demonstrated above, the affidavit supporting the instant search and arrest warrant was not defective or deficient.  Valeriano=s confession was not tainted and was therefore properly admitted by the trial court.  Point of Error Two is overruled.

Conclusion

Valeriano=s conviction is affirmed.

SUSAN LARSEN, Justice

January 30, 2003

Before Panel No. 4

Barajas, C.J., Larsen, and McClure, JJ.

(Do Not Publish)

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^[1]Valeriano did not bring his good faith exception argument forward into this appeal.

^[2]In the summary of the argument portion of his brief, Valeriano asserts several other alleged factual defects render the affidavit deficient.  However, only those points addressed above were actually briefed. Failure to cite authority in support of a point of error on appeal waives the complaint.  City of El Paso v. Zarate, 917 S.W.2d 326, 332 (Tex. App.--El Paso 1996, no writ); Romero v. Parkhill, Smith & Cooper, Inc., 881 S.W.2d 522, 529 (Tex. App.‑‑El Paso 1994, writ denied); Tex. R. App. P. 38.1(h).