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

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[CR25]

erruled.

          Point 4 asserts the prosecutor committed prosecutorial misconduct by attempting to impeach defense witness Sonnier through questions asking if someone else testified differently, would they be lying, when no such evidence had been presented.

          Appellant contends that the cross examination of defense witness Sonnier was improper because the prosecutor made reference to a statement Appellant's girlfriend may have made about how Sonnier came in contact with the police. The prosecutor did not state that the girlfriend made such a statement but asked Sonnier whether such a statement would be true.

          Great latitude is allowed to show a witness's bias or motive. Carillo v. State, (Tex. Crim. App.) 591 S.W.2d 876. The trial judge has discretion over the extent to which a witness may be cross examined. Carillo, supra, p. 885, 886. We think the prosecutor's questioning was proper. Assuming, without deciding, that such was improper, the questions were harmless. The issue of how Sonnier came in contact with the police was a minor issue. Sonnier's testimony was put in serious question because of his prior inconsistent statement and not because of how he was led to the police. We say that, beyond a reasonable doubt, the error, if any, made no contribution to Appellant's conviction or punishment. Tex. R. App. P. 81(b)(2). Point 4 is overruled.

          The judgment is affirmed.

                                                                                 FRANK G. McDONALD

                                                                                 Chief Justice (Retired)

Before Justice Cummings,

          Justice Vance and

          Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 27, 1993

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