Jacqueline Erin Tucker v. State ( 2006 )

IN THE

TENTH COURT OF APPEALS

 

Nos. 10-05-00272-CR, 10-05-00273-CR,

& 10-05-00281-CR

Jacqueline Erin Tucker,

                                                                      Appellant

 v.

The State of Texas,

                                                                      Appellee

From the Criminal District Court No. 2

Tarrant County, Texas

Trial Court Nos. 0901803A, 0901805A & 0901817A

MEMORANDUM  Opinion

          Jacqueline Erin Tucker appeals the denial of her suppression motion in her prosecution for possession of three different controlled substances.  Tucker contends in her sole issue that the affidavit presented to the magistrate for a search warrant in her case did not provide sufficient chronological information to supply probable cause that controlled substances would be found at her residence.  We will affirm.

Under Illinois v. Gates, “the traditional standard for review of an issuing magistrate’s probable cause determination has been that so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.”  462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527 (1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)); accord Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004).

Tucker cites the familiar Guzman v. State for the proposition that we conduct a de novo review on the question of probable cause, presumably because there are no credibility issues arising from the face of the affidavit.  955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  However, the Court of Criminal Appeals recently clarified that Guzman articulates only a general principle for determining when such issues should be reviewed de novo and when deference should be given to the lower court’s ruling.  See Swearingen, 143 S.W.3d at 811.  The Court explained that, under Gates and as an exception to the general principle articulated in Guzman, an appellate court is required to give deference to a magistrate’s determination that probable cause exists for a search warrant and not conduct a de novo review of that determination.  Id.; accord Ornelas v. United States, 517 U.S. 690, 698-99, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).

An appellate court examines only the four corners of an affidavit to determine whether probable cause exists for a search warrant.  Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); State v. Stone, 137 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d); Morris v. State, 62 S.W.3d 817, 821 (Tex. App.—Waco 2001, no pet.). Though we are limited to the facts contained in the affidavit, the affidavit must be interpreted in a common sense and realistic manner.  Lagrone v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Stone, 137 S.W.3d at 175; Morris, 62 S.W.3d at 823.  Thus, reasonable inferences may be drawn from the facts set forth in the affidavit, and the determination of whether the affidavit provides probable cause is made by examining the totality of the circumstances.  Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim. App. 1996); Stone, 137 S.W.3d at 175; Morris, 62 S.W.3d at 823.

To provide probable cause for a search warrant, the facts submitted must be sufficient to justify a conclusion that the object of the search is probably on the premises to be searched at the time the warrant issues.  Ramos, 934 S.W.2d at 363; Stone, 137 S.W.3d at 175; Morris, 62 S.W.3d at 821-22.  On the specific issue of the amount of chronological information necessary to provide probable cause for a search warrant, we “examine, in light of the type of criminal activity involved, the time elapsing between the occurrence of the events set out in the affidavit and the time the search warrant was issued.  When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant.”  Stone, 137 S.W.3d at 178 (citation omitted); accord Morris, 62 S.W.3d at 823.

Here, the affidavit recites in pertinent part:

In the last forty-eight hours, your Affiant was contacted by a credible and reliable confidential informant (CI) who has provided investigators of MNICU-NE with information leading to the seizure of narcotics in the past.  The CI advised that he/she knew of a subject by the name of Jacqueline Tucker, who lives in a house at [Tucker’s address] who is selling methamphetamine.  The CI advised that he/she could go to the residence at this time and purchase an amount of methamphetamine from Jacqueline Tucker.

Investigator Huski and your affiant met with the CI at a predetermined location.  The CI was searched as was his/her vehicle and no methamphetamine or related contraband was located.  Your affiant gave the CI a quantity of government funds to buy an amount of methamphetamine for evidentiary purposes.  Investigator Huski and your affiant then followed the CI to [Tucker’s address].  We observed the CI enter the residence by walking up the stairs to the front porch.  The CI stayed inside for about twenty minutes at which time we observed him/her exit the residence.

We met with the CI at a predetermined location. The CI handed me a container containing a crystallized powder substance.  The substance had the appearance of crystallized methamphetamine.  The substance when tested using a presumptive test for methamphetamine, tested positive for methamphetamine.  The substance was taken out of the container and weighed. The substance was found to weigh .40 grams.  The CI was searched as was his/her vehicle and no narcotics or related contraband was located.

The CI advised your affiant that he/she knocked on the door, which was answered by Tucker.  The CI asked her if she had any speed, and she said she did and handed him/her a container, which held a crystallized rock substance.  The CI then left and met with investigators.

The CI advised that Tucker has installed two or three cameras that monitor the front door area of the house, as well as the front yard and down to the street.  .  .  .  The CI advised that Tucker spends a lot of time in the office and closely monitors the cameras, so that she can observe anyone coming to her residence.  Furthermore, Tucker typically keeps a shotgun in the living room, leaning against the wall.  .  .  .  The CI also advised that Tucker keeps a handgun in the office, which is commonly kept unconcealed and accessible to anyone in the office.

The magistrate issued the search warrant within minutes after the affidavit was signed.

          The CI told the primary investigator (the affiant) that Tucker was selling methamphetamine from her home.  During the 48-hour period immediately preceding issuance of the warrant, the CI carried out a controlled buy and purchased .40 grams of methamphetamine from Tucker.  The CI’s statement that Tucker “is selling methamphetamine” together with Tucker’s installation of video cameras and deployment of weapons indicates “activity of a protracted and continuous nature.”  See Stone, 137 S.W.3d at 178; Morris, 62 S.W.3d at 823.

          Therefore, under the totality of the circumstances, the facts stated in the affidavit gave the magistrate a “substantial basis for . . . [concluding]” that methamphetamine would be found at Tucker’s residence.  See Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Swearingen, 143 S.W.3d at 810.  Thus, the affidavit contained sufficient facts to provide probable cause for issuance of the search warrant.  See Patterson v. State, 138 S.W.3d 643, 648 (Tex. App.—Dallas 2004, no pet.); Blake v. State, 125 S.W.3d 717, 725 (Tex. App.—Houston [1st Dist.] 2003, no pet.); White v. State, 932 S.W.2d 593, 595-96 (Tex. App.—Tyler 1995, pet. ref’d).

Accordingly, we overrule Tucker’s sole issue and affirm the judgment in each case.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed October 4, 2006

Do not publish

[CR25]

ion>America.  Two months later, Martinez non-suited YST and WLE.  Prior to the two requests for non-suit, YST and WLE filed several motions for sanctions against Martinez and his attorneys.  These motions requested sanctions under Rule 13 and Rule 215 of the Texas Rules of Civil Procedure and Chapters 9 and 10 of the Texas Civil Practice and Remedies Code.  After an evidentiary hearing, the trial judge denied all motions for sanctions.

          We agree with YST and WLE that the standard by which we review a sanctions order is for abuse of discretion.  Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992).  A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  When reviewing matters committed to the trial court's discretion, a court of appeals may not substitute its own judgment for the trial court's judgment.  See Flores v. Fourth Court of Appeals, 777 S.W.2d 38, 41-42 (Tex. 1989).

          YST and WLE point to Rules of Civil Procedure 13, 191.3, and 215 and to sections 9.011 through 9.014 and 10.001 through 10.006 of the Civil Practice and Remedies Code as the legal bases for sanctions.  Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011-.014, 10.001-.006 (Vernon 2002); Tex. R. Civ. P. 13, 191.3, 215.  They also point to seven factual bases, which they contend required the trial court to impose sanctions: (1) filing of the original class action petition, which contained material allegations that were untrue; (2) filing a false affidavit; (3) filing an amended class action petition, which added a groundless claim and a claim on which limitations had expired; (4) filing false assertions in response to a request for disclosure; (5) failing to produce documents at a deposition after the court directed him to do so; (6) discovery requests made to YST and WLE after Martinez and his attorneys knew their claims had no merit; and (7) false corrections to a deposition concerning ownership of the personal watercraft.  Martinez points to: (1) publication of a “Safety Study” by the National Safety Transportation Board (NTSB) concerning the characteristics of personal watercraft based on their involvement in boating accidents; the study resulted in nine conclusions and recommended that PWC manufacturers evaluate the design of and make changes in personal watercraft; (2) title documents related to two Yamaha PWCs, a 1996 and a 1997, showing the details of transfers of title and registration of the two PWCs; (3) evidence that Martinez’ attorneys had authority to investigate and did investigate the ownership of the personal watercraft registered to Martinez and his wife; (4) evidence that Martinez and his wife were married throughout the course of the legal proceedings, Martinez’ wife did not own a personal watercraft as her separate property, and Martinez’ wife transferred title to a personal watercraft to her father without Martinez’ knowledge; (5) evidence that Martinez did not understand, know of, or appreciate the risks and dangers alleged to be inherent in the design and operation of personal watercraft; (6) evidence that Martinez believed that the information about ownership contained in an affidavit was true when he signed it; (7) evidence that  Martinez’ attorneys took reasonable steps to have Martinez produce the documents the court ordered; and (8) evidence showing that YST and WLE’s attorneys knew before Martinez and his attorneys that the personal watercraft had been transferred by Martinez’ wife to her father.

          To apply an abuse-of-discretion standard, we defer to the trial court's factual determinations but review questions of law de novo.  Castellano v. Garza, 110 S.W.3d 70, 73 (Tex. App.—San Antonio 2003, no pet.).  Our review of the record convinces us that no abuse of discretion occurred in the denial of the motions for sanctions.  Blackmon, 841 S.W.2d at 852; see also Elkins v. Stotts-Brown, 103 S.W.3d 664, 668-70 (Tex. App.—Dallas 2003, no pet.).  To hold otherwise would be to substitute our view of disputed evidence for that of the trial judge.  Flores, 777 S.W.2d at 41-42.

            The order denying sanctions is affirmed.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna[1]

          (Chief Justice Gray dissenting)

Order affirmed

Opinion delivered and filed July 14, 2004

[CV06]

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[1]  This case was submitted with former Chief Justice Davis on the panel, but he resigned effective August 4, 2003.  Justice Reyna, who took office on January 5, 2004, participated in the decision.