Jose Eduardo Orozco A/K/A Jose Martinez Orozco v. State ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
§
JOSE EDUARDO OROZCO a/k/a JOSE No. 08-12-00051-CR
MARTINEZ OROZCO, §
Appeal from the
Appellant, §
Criminal District Court No. 1
v. §
of Tarrant County, Texas
THE STATE OF TEXAS, §
(TC# 1208005D)
Appellee. §
OPINION
Jose Orozco appeals from the trial court’s judgment convicting him of unlawful possession
of cocaine in an amount of four grams or more, but less than two hundred grams, with intent to
deliver, and sentencing him to 30 years’ imprisonment.1 In a single issue, Orozco contends that
the trial court erred by denying his motion to suppress evidence found pursuant to a search warrant
because the search warrant affidavit failed to meet the minimum requirements to establish
probable cause. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 4, 2010, a magistrate found that probable cause existed to support the issuance of
1
This is a companion case to Cause No. 08-12-00052-CR and, like it, involves the same issue on appeal.
a search warrant for a residence located at 2307 Dell Street, Fort Worth, Texas. The magistrate’s
probable-cause determination was based on the affidavit of Fort Worth Police Officer Alfredo
Dominguez.
Officer Dominguez’s affidavit recited, in April 2010, he received a tip from a confidential
informant that a Hispanic male named Jose Martinez Orozco was trafficking methamphetamine
and cocaine from the Dell Street residence. Officer Dominguez averred, during the next two
months, he conducted surveillance on the residence, observed activity consistent with the sale and
distribution of illegal drugs, and used a reliable and confidential informant to make two controlled
buys, one of cocaine and one of methamphetamine, from the residence.2 Officer Dominguez
stated that when he met with the informant after each purchase, the informant told him that the
narcotics were purchased from “Jose Orozco” while inside the residence. Officer Dominguez
further stated, after he obtained a photograph of a man named Jose Martinez Orozco, he identified
Orozco as the Hispanic male he had observed exit the residence on the date the informant
purchased cocaine.
After Officer Dominguez obtained the warrant to search the Dell Street residence for
cocaine and methamphetamine, SWAT officers executed it. Upon entering the residence, one of
the SWAT officers saw Orozco throw an item out of a window. The item recovered directly
beneath that window was a baggie of cocaine. Larger quantities of cocaine and
methamphetamine were found inside the residence.
MOTION TO SUPPRESS EVIDENCE
Orozco contends that Officer Dominguez’s affidavit in support of the search warrant is
insufficient to establish probable cause because it contains inconsistencies, half-truths, and
2
The informant purchased cocaine on May 11 and methamphetamine on June 2.
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conclusory statements as to the reliability and credibility of the informant. We disagree.
Standard of Review
When reviewing a magistrate’s probable cause determination, we apply the deferential
standard of review articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S.
213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). Swearingen v. State, 143 S.W.3d 808, 811
(Tex.Crim.App. 2004). Under that standard, we uphold the probable cause determination “so
long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a search would uncover
evidence of wrongdoing . . . .” Gates, 462 U.S. at 236, 103 S.Ct. at 2331, quoting Jones v. United
States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960), overruled on other grounds by
United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980); see Swearingen,
143 S.W.3d at 811; see also State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011); Flores
v. State, 319 S.W.3d 697, 702 (Tex.Crim.App. 2010).
Applicable Law
In determining whether sufficient facts have been presented to support probable cause for
the issuance of a search warrant, we consider the totality of the circumstances set forth within the
four corners of the affidavit. Gates, 462 U.S. at 238, 103 S.Ct. at 2332; State v. Bradley, 966
S.W.2d 871, 873 (Tex.App.--Austin 1998, no pet.). Probable cause exists when the facts
presented to a magistrate sufficiently justify a determination that the object of the search is
probably on the premises to be searched when the warrant is issued. Cassias v. State, 719 S.W.2d
585, 587 (Tex.Crim.App. 1986); Bradley, 966 S.W.2d at 873. The trial court should review the
affidavit in a common sense and realistic manner instead of a hyper-technical one and make
reasonable inferences from the information contained within the affidavit. McLain, 337 S.W.3d
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at 272; see also Davis v. State, 202 S.W.3d 149, 154 (Tex.Crim.App. 2006)(affidavit must be read
with common sense and in a realistic manner). In cases of doubt, we must defer to all reasonable
inferences that the magistrate could have made. Rodriguez v. State, 232 S.W.3d 55, 61
(Tex.Crim.App. 2007).
Discussion
Based on the totality of the facts and the reasonable inferences drawn from them, we
conclude that the affidavit supported the magistrate’s probable-cause finding. The affidavit
reflects that Officer Dominguez received a tip that cocaine and methamphetamine were being sold
out of the Dell Street residence and that a Hispanic male named Jose Martinez Orozco was
involved. Officer Dominguez used police records to identify Orozco as the Hispanic male he
observed exiting the residence. Further, the affidavit reflects, on two separate occasions, Officer
Dominguez used an informant, whom he describes as credible and reliable, to effectuate two
controlled buys from Orozco – both times confirming by presumptive drug testing that the
substances purchased from the residence were cocaine and methamphetamine. The last
controlled purchase occurred two days before the search warrant was issued. Admittedly, the
affidavit fails to state that the informant saw additional contraband in the residence. However, the
magistrate could have reasonably inferred that additional contraband would be found from the
facts highlighted above. See Davis v. State, 27 S.W.3d 664, 667-68 (Tex.App.--Waco 2000, pet.
ref’d)(facts in affidavit supported inference that contraband were readily available for sale within
residence where affiant described controlled buy); Bodin v. State, 782 S.W.2d 258, 259-60
(Tex.App.--Houston [14th Dist.] 1989), rev’d on other grounds, 807 S.W.2d 313 (Tex.Crim.App.
1991)(holding that search warrant based on informant’s controlled buy provided reasonable
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grounds to infer that additional contraband would be located inside apartment).
Attacking Officer Dominguez’s affidavit paragraph by paragraph, Orozco argues that the
statements concerning the reliability and credibility of the informant are conclusory because their
validity cannot be corroborated or verified by any other information in the affidavit. We do not
dispute that Officer Dominguez’s statements in the affidavit that the informant is “credible and
reliable” are conclusory and inadequate by themselves to establish probable cause. Barraza v.
State, 900 S.W.2d 840, 842 (Tex.App.--Corpus Christi 1995, no pet.). The issue, however, is not
whether there are other facts that could have, or even should have, been included in the affidavit,
but whether the combined logical force of the facts in the affidavit, coupled with inferences from
those facts, establish a “fair probability” that evidence of a particular crime will likely be found at
a given location. State v. Duarte, 389 S.W.3d 349, 354-55 (Tex.Crim.App. 2012); Rodriguez,
232 S.W.3d at 62. Here, the affidavit contains additional details in Officer Dominguez’s affidavit
bolstering the conclusion that the informant was credible and reliable.
Officer Dominguez asserted that the informant had assisted in past, multiple investigations
in which the informant accurately identified controlled substances, confirmed as such by testing,
and that the confidential informant had provided information in the past that was correct and
reliable. An assertion in an affidavit that the officer knows a confidential informant and that the
confidential informant had provided reliable information in the past is sufficient to establish the
reliability of the confidential informant. Capistran v. State, 759 S.W.2d 121, 128
(Tex.Crim.App. 1982); Blake v. State, 125 S.W.3d 717, 726 (Tex.App.--Houston [1st Dist.] 2003,
no pet.). Further, Officer Dominguez averred, when he met with the confidential informant to
perform the controlled purchases, he searched the informant without finding any illegal
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contraband and provided the informant with U.S. currency to make the purchases. An
informant’s credibility and reliability concerning the delivery of narcotics may be supported, in
part, by evidence of successful controlled purchases of narcotics from the defendant. See Salazar
v. State, 806 S.W.2d 291, 294 (Tex.App.--Amarillo 1991, no pet.)(“We find that a ‘controlled buy’
under the circumstances set out in this affidavit is sufficient evidence of the reliability of the
informant’s information to justify a magisterial conclusion that probable cause for issuance of a
search warrant was shown.”).
In light of the preceding, we hold that the trial court did not err by finding that Officer
Dominguez’s affidavit contained sufficient facts to justify a conclusion that a search of the
residence would probably uncover cocaine and methamphetamine on the premises. See State v.
Griggs, 352 S.W.3d 297, 300, 304 (Tex.App.--Houston [14th Dist.] 2011, pet. ref’d)(holding that
affidavit reciting affiant received tip from “credible and reliable” informant, coupled with a
controlled buy of alleged narcotics, sufficient to establish probable cause that narcotics would
exist at residence). Orozco’s sole issue on appeal is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
April 3, 2013
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
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