Oscar Gerardo Davila v. State , 2014 Tex. App. LEXIS 7912 ( 2014 )

Opinion issued July 22, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01–12–01174–CR
———————————
OSCAR GERARDO DAVILA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1322703
OPINION
We originally issued our memorandum opinion in this appeal on May 15,
2014. We withdraw our previous memorandum opinion and judgment, and
substitute this opinion and judgment in their place.
Oscar Davila pleaded guilty to possession with intent to deliver more than
400 grams of cocaine, and the trial court assessed punishment at 25 years’
confinement.1 In two issues, Davila contends that the trial court erred by (1)
overruling his motion to suppress evidence collected during a police search of his
home and (2) assessing $294 in court costs that were unsupported by the record.
We affirm.
Background
One October evening, a joint law-enforcement team, including United States
Drug Enforcement Agency Special Agent M. Schmidt, sent a trusted confidential
informant to Davila’s house to arrange a deal to buy two kilograms of cocaine.
Schmidt testified that he had partnered with the informant on other successful
investigations and that he was a reliable source. That evening, the informant wore a
concealed recording device, allowing Schmidt to listen to the entire conversation
between the informant, Davila, and the others inside Davila’s house. Schmidt
monitored the audio feed from the informant’s wire and other law enforcement
officers maintained visual surveillance of the outside of Davila’s house.
According to Harris County Deputy Sheriff B. Katrib, parked cars lined the narrow
street in front of Davila’s home, making surveillance difficult.
1
TEX. HEALTH & SAFETY CODE ANN. § 481.112(f) (West 2010) (establishing
criminal penalty for knowingly manufacturing, delivering, or possessing with
intent to deliver more than 400 grams of controlled substance).
2
When the informant approached the house, Davila and A. Lopez were sitting
on the bed of a pickup truck in the driveway. Davila, Lopez, and the informant
went inside the house where Davila showed the informant one kilogram of cocaine.
The informant then asked to see the other kilogram. Lopez went outside to the
truck, retrieved the other kilogram of cocaine, and brought it inside the house to
show the informant. Relying on a child who was in the house as an interpreter,
Davila and the informant discussed details of the deal.
The informant left the house and contacted Special Agent Schmidt to report
what he had seen. The informant said that he last saw the two kilograms of cocaine
on the kitchen counter and that Davila appeared “very nervous and in a hurry to do
the deal.” Based on the informant’s report, Schmidt signaled for Katrib and a team
of other law enforcement officers to conduct a protective sweep of Davila’s house
without a warrant. The team members approached the house, identified themselves,
and entered the house without consent. The team cleared the house of all of its
inhabitants, including Davila, Lopez, Davila’s wife, and several children. The law
enforcement officers handcuffed Davila and Lopez and brought everyone else into
the front yard. Lopez tried to run back into the house, but the team stopped him
and brought him back outside.
Once everyone was in the front yard, a member of the law enforcement team
used a specially-trained dog to conduct a dog-sniff test of the truck parked in the
3
driveway. The dog alerted officers that there was an odor of some narcotic on the
car.
Using a laptop computer, Harris County Deputy Sheriff A. Ortiz relied only
on information from the informant and the results of the sniff test of the truck to
complete an affidavit in support of a warrant. Ortiz e-mailed the affidavit to
another officer who submitted the request for a warrant. The affidavit stated:
On 10/06/2011, I spoke with investigator B. Katrib of the Harris
County Sheriff’s Office Narcotics Unit, who advised me of the
following facts:
Katrib told me that on 10/06/2011, he met with a confidential source,
referred to as CS for the purposes of this investigation and affidavit.
For safety purposes the name of this CS will be kept confidential.
Katrib told me that he spoke with DEA Special Agent M. Schmidt, of
the Houston Field Office, who told Katrib that this CS has provided
information in the past on several occasions, which proved to be true
and correct, and led to the seizure of narcotics and the arrest of
individuals and charging them with felony offenses.
Katrib told me that on 10/06/2011, at approximately 2100 hours, he
along with several DEA Special Agents, met with this CS, who told
them that he was going to the residence . . . in order to discuss a
cocaine deal. Katrib told me that he along with other DEA Special
Agents, maintained surveillance on the target residence. Katrib told
me that the CS went to the aforementioned location and met with two
Hispanic males at the driveway.
Katrib told me that the CS walked into said residence and walked out
shortly after, and departed the residence. Katrib told me that the CS
told S/A Schmidt that the CS and two Hispanic males entered the
kitchen of said residence and that the CS told S/A Schmidt that one
Hispanic male walked out to the driveway and retrieved what he
believed to be one kilogram of cocaine from behind the driver seat of
the tan Chevy pick up truck . . . and walked inside the kitchen.
4
Katrib told me that the CS told S/A Schmidt that the same Hispanic
male walked back out to the same aforementioned vehicle and
retrieved what the CS believed to be an additional kilogram of
cocaine. Katrib told me that the CS told S/A Schmidt that, based on
past experience, he is familiar with the physical appearance of several
controlled substances, including cocaine, and marihuana.
Katrib told me that, he along with other Special Agents maintained
surveillance on the target residence, and did not see any additional
people or vehicles arrive or depart this location. Katrib told me that on
10/06/2011, at approximately 2140 hours, he spoke with Deputy
Curtis of the Harris County Sheriff’s Office K-9 Division. Katrib told
me that Deputy Curtis told him that he deployed his K-9 partner
“ANDOR” on the tan Chevy pick up truck identified by Texas license
plate number [ ] and that “ANDOR” alerted for the odor of narcotics.
Katrib told me that Deputy Curtis told him that “ANDOR” has been
and remains certified by the National Narcotics Detector Dog
Association NNDDA, in the detection of the odors of cocaine,
marihuana, MDMA, methamphetamine, and heroin . . . .
Once the warrant was granted, Katrib and other members of the team
searched the house and backyard. They found two kilograms of cocaine buried
under construction debris in the backyard. Katrib also identified a white substance
on Davila’s face and used a field test to determine that the powder was cocaine.
Davila was arrested and charged with possession with intent to deliver more
than 400 grams of cocaine. Before trial, Davila moved to suppress the evidence
collected pursuant to the search warrant, arguing that the warrant was based on
information gathered during an illegal raid of his house. At a pre-trial hearing on
the motion, four people testified: Special Agent Schmidt, Deputy Katrib, Davila’s
wife, and his daughter. The trial court denied the motion. Davila pleaded guilty
5
with an agreed recommendation on the punishment. Pursuant to the agreement, the
trial court assessed punishment at 25 years’ confinement.
Davila timely appealed the trial court’s denial of his motion to suppress.
Motion to Suppress
In his first issue, Davila contends that the trial court erred in denying his
motion to suppress evidence because, in obtaining the warrant used to uncover the
two kilograms of cocaine, law enforcement officials relied on information
collected illegally during a warrantless search of his house and a dog sniff of his
truck.
A. Standard of review
When a defendant challenges a trial court’s denial of a motion to suppress,
we review the trial court’s ruling for an abuse of discretion. Turrubiate v. State,
399 S.W.3d 147, 150 (Tex. Crim. App. 2013). We give almost total deference to
the trial court’s determination of historical facts that depend on credibility and
demeanor. Id. We review de novo the trial court’s application of the law to the
facts if resolution of those ultimate questions does not turn on the evaluation of
credibility and demeanor. Id. When neither party requests findings of fact or
conclusions of law, as is the case here, we imply the necessary findings to support
the trial court’s ruling, so long as the evidence viewed in the light most favorable
to the trial court’s ruling supports those findings. State v. Garcia-Cantu, 253
6
S.W.3d 236, 241 (Tex. Crim. App. 2008); Jordan v. State, 394 S.W.3d 58, 61
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). We will uphold the trial court’s
ruling if it is “reasonably supported by the record and is correct on any theory of
law applicable to the case.” Turrubiate, 399 S.W.3d at 150. If a warrant is issued
on the basis of an affidavit that contained unlawfully obtained information, “the
evidence seized under the warrant is admissible only if the warrant clearly could
have been issued on the basis of the untainted information in the affidavit.”
Brackens v. State, 312 S.W.3d 831, 838 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d) (quotation omitted); see Brown v. State, 605 S.W.2d 572, 577 (Tex. Crim.
App. 1980).
We first consider whether the initial warrantless sweep of Davila’s house
was justified. If this initial search was justified, then the later-collected evidence
was admissible.
B. Legality of warrantless sweep
Davila argues that the State failed to meet its burden of demonstrating that
there were exigent circumstances that required an immediate, warrantless search of
his home. The State responds that law enforcement officials were justified in
securing Davila’s home without first obtaining a warrant because they had
concerns that the evidence would be destroyed.
7
The United States and Texas constitutions protect against unreasonable
searches and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. When law
enforcement does not have a warrant or consent to enter a residence, the search is
presumed unreasonable. See Juarez v. State, 758 S.W.2d 772, 775 (Tex. Crim.
App. 1988). “There is a strong preference for searches to be administered pursuant
to a warrant . . . [a search] without a judicially authorized warrant is presumptively
unreasonable.” Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007).
The law enforcement officers did not have consent to enter Davila’s house.
In circumstances like these, the warrant requirement may be set aside if the State
shows that (1) there was probable cause to enter the home and (2) an exigent
circumstance existed that required entry without a warrant. Id.; Carmen v. State,
358 S.W.3d 285, 292–93 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d). Davila
challenges only the exigent circumstances prong.
There are three categories of exigent circumstances: (1) aiding people whom
law enforcement officers reasonably believe require assistance, (2) protecting law
enforcement officers from people reasonably believed to be present, armed, and
dangerous, and (3) preventing the destruction of evidence or contraband. Gutierrez,
221 S.W.3d at 685; Carmen, 358 S.W.3d at 293. The State relies on the third
category.
8
For this category, the primary consideration is “whether there is proof that
the officer reasonably believed that removal or destruction of evidence was
imminent.” Turrubiate, 399 S.W.3d at 153. Courts also consider whether the
possessors of the contraband were aware that police were pursuing them, how
readily the contraband could be disposed, as well as police familiarity with
behavior characteristics of people involved in narcotics sale and distribution. Id. at
151.
Davila argues that the officers created the exigent circumstances and that
there was “no justification” for “round[ing] up” Davila and the other residents
before securing a warrant. Specifically, he argues that the sweep was unnecessary
to prevent destruction of evidence. Citing Turrubiate v. State, Davila argues that
the State did not meet its burden of offering “proof of imminent destruction based
on affirmative conduct by those in possession of narcotics . . . .” Turrubiate, 399
S.W.3d at 153. In Turrubiate, the Court held that there were no exigent
circumstances to search a house when police smelled marijuana, knocked-and-
announced their presence, and suspected that the people inside might destroy
contraband upon learning of their presence. Id. at 155. In Turrubiate, the deputy
conducting the search testified that he believed that an immediate, warrantless
search was required to “prevent [the marijuana] from being destroyed” and that if
he left the premises the evidence would be “available for destruction.” Id. at 149.
9
Mere suspicion was held insufficient evidence to merit an exigent circumstances
exception to the warrant requirement. Id. at 152–53 & n.4.
The State argues that law enforcement officers reasonably concluded that an
immediate search of Davila’s home was necessary to prevent evidence from being
disposed or moved. But information that would otherwise support a warrant does
not, in turn, justify a warrantless search. Cf. Hegdal v. State, 488 S.W.2d 782, 784
(Tex. Crim. App. 1972) (affirming legality of search warrant issued solely based
on information supplied by informant); State v. McLain, 337 S.W.3d 268, 273–74
(Tex. Crim. App. 2011) (upholding warrant relying on information from informant
that defendant possessed methamphetamine at residence and business).
Relying on the informant’s report that Davila possessed two kilograms of
cocaine and that Davila appeared “nervous [and] in a hurry,” Special Agent
Schmidt testified that he directed the warrantless sweep of the house because he
was concerned that Davila and others would destroy evidence. Schmidt and Katrib
also testified that, based on their experience with similar narcotics investigations,
the cocaine was readily disposable. Deputy Katrib testified that, based on over
1000 prior narcotic investigations, people typically employ weapons to protect the
amount of narcotics involved in this case and that the amount of cocaine may be
destroyed. Schmidt also stated that the geography of the street and the close
proximity of neighbors who were Davila’s “associates” would allow Davila to
10
easily move the cocaine. Based on these concerns, both Special Agent Schmidt and
Deputy Katrib insisted that a protective sweep was necessary to protect the
evidence from being destroyed or removed from the house.
The State did not, however, meet its burden of proving that the law
enforcement officers reasonably believed destruction or removal of the evidence
was imminent. See Turrubiate, 399 S.W.3d at 153. The State presented no
evidence that the law enforcement officers had a reasonable belief that, before the
sweep, Davila or anyone else in the house had reason to believe that law
enforcement agents were present or intended to enter the house. See, e.g., Price v.
State, 93 S.W.3d 358, 368 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d)
(“The mere fact that drugs are involved does not give the police probable cause to
believe that evidence will be destroyed so as to justify an unannounced entry.”).
Additionally, there was no evidence that the officers discovered Davila attempting
to dispose of the evidence when they entered the home. Nor did the confidential
informant report that Davila and his accomplices were armed with weapons.
Turrubiate, 399 S.W.3d at 155. Like Turrubiate, the law enforcement officers here
suspected, but had no evidence of, imminent destruction or removal. See id.;
Gutierrez, 221 S.W.3d at 685. There were no exigent circumstances justifying the
warrantless search. We conclude that the sweep of the house constituted an
unreasonable search.
11
We now turn to consider whether—the unlawful sweep notwithstanding—
the trial court properly denied the motion to suppress evidence collected pursuant
to a search warrant issued after the illegal sweep of Davila’s home.
C. Affidavit in support of warrant
After sweeping the house, the law enforcement officers obtained a warrant
to search Davila’s house. During that search, they seized two kilograms of cocaine
from Davila’s backyard. Davila argues that warrant was issued based on
information collected during the illegal sweep of the house, including the dog sniff
of a truck in the driveway “performed in the midst of the raid . . . .” He argues the
evidence obtained pursuant to the warrant was “obtained in violation of the [law]”
and was inadmissible under article 38.23 of the Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005).
A properly-granted search warrant must be supported by an affidavit that
sets forth the facts establishing probable cause to issue the warrant. Wilson v. State,
98 S.W.3d 265, 270–71 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d). When
reviewing a magistrate’s decision to issue a warrant, courts apply a highly
deferential standard because of the constitutional preference for law enforcement
officials to obtain warrants. McLain, 337 S.W.3d at 271–72. Reviewing courts are
not charged with “rubber stamp[ing]” a magistrate’s decision to issue a warrant.
Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). “The duty of a
12
reviewing court . . . is simply to ensure that the magistrate had a substantial basis
for concluding that probable cause existed.” Id. The facts alleging probable cause
must sufficiently support a search warrant when viewed in light of the totality of
the circumstances. Ramos v. State, 31 S.W.3d 762, 764–65 (Tex. App.—Houston
[1st Dist.] 2000, no pet.). We inquire whether there are sufficient facts stated
within the four corners of the affidavit, coupled with inferences from those facts, to
establish a “fair probability” that evidence of a particular crime will likely be found
at a given location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007);
Ramos, 31 S.W.3d at 764–65. When the totality of the circumstances leads to the
conclusion that the object of the search is likely on the premises, the allegations are
sufficient. TEX. CODE CRIM. PROC. ANN. art. 18.01(b), (c) (West Supp. 2013);
Ramos, 31 S.W.3d at 764–65.
Evidence collected during an illegal search may not be used against a
criminal defendant unless it was collected in a manner “sufficiently distinguishable
to be purged of the primary taint.” Carmen, 358 S.W.3d at 293. This principle is
bolstered by the Texas Code of Criminal Procedure, which provides “[n]o evidence
obtained by an officer or other person in violation of any provisions of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America, shall be admitted in evidence against the accused on the
trial of any criminal case.” TEX. CODE CRIM. PROC. ANN. art. 38.23(a). Here,
13
Davila contends that the two kilograms of cocaine were obtained in violation of
article 38.23 and, therefore, should not have been admitted into evidence.
Davila likens his circumstances to those in Wehrenberg v. State, 385 S.W.3d
715, 729 (Tex. App.—Fort Worth 2012), rev’d, 416 S.W.3d 458 (Tex. Crim. App.
2013) and argues that the federal “independent source” doctrine does not apply to
article 38.23. In Wehrenberg, the police had maintained surveillance of a residence
for about 30 days when a confidential informant reported that people inside of the
house were “‘fixing to’ cook methamphetamine.” Id. at 717. Based on the
informant’s report, the police conducted a warrantless “protective sweep” of the
house, handcuffed everyone inside the house, and placed them in the front yard. Id.
The police found no one cooking methamphetamine and no other evidence inside
the house. Id. After the sweep, an investigator submitted a warrant affidavit based
solely on facts made known to him by the confidential informant before the
warrantless sweep of the house. Id. at 727. Thus, like this case, the affidavit did not
disclose the warrantless protective sweep.
About one hour after the police had swept the house, a magistrate issued a
warrant to search the house. Id. at 717. After searching the house, the police
uncovered evidence of materials used to cook methamphetamine. Id. Based on the
results of the search, police arrested the defendant and charged him with criminal
possession of and intent to manufacture methamphetamine. Id. The defendant
14
moved to suppress the evidence collected pursuant to the warrant, arguing that the
illegal search, his detention, and his removal from the residence “tainted the
subsequently obtained search warrant” and that the warrant was not “based entirely
on information obtained before the illegal entry.” Id. at 718. Relying on the
independent source doctrine, the trial court denied the motion to suppress evidence
collected pursuant to the warrant. Id. at 717.
The court of appeals held that evidence collected pursuant to the warrant
was inadmissible because police had first conducted an illegal, warrantless search
of the house. Id. at 726–27. The court acknowledged that the circumstances of the
case “would appear to fall squarely within the parameters of the independent
source doctrine,” but ultimately refused to affirm the trial court’s denial of the
defendant’s motion to suppress based upon that doctrine as an exception to article
38.23 of the Texas Code of Criminal Procedure. Id. at 727–29.
The Texas Court of Criminal Appeals reversed, concluding that the federal
independent source doctrine does not offend article 38.23 of the Texas Code of
Criminal Procedure and that the “court of appeals erred by rejecting that doctrine
as a basis for upholding the trial court's suppression ruling.” Wehrenberg v. State,
416 S.W.3d 458, 461, 468 (Tex. Crim. App. 2013); see TEX. CODE CRIM. PROC.
ANN. art. 38.23. The Court reasoned that the federal independent source doctrine is
compatible with article 38.23 of the Texas Code of Criminal Procedure, and that
15
“[a]t its core, the independent source doctrine provides that evidence derived from
or obtained from a lawful source, separate and apart from any illegal conduct by
law enforcement, is not subject to exclusion.” Id. at 465. Therefore, the primary
inquiry in determining whether evidence should be suppressed when there is
unlawful police conduct before the issuance of the warrant is whether the
challenged evidence “was obtained by independent legal means.” Id. (citing United
States v. May, 214 F.3d 900, 906 (7th Cir. 2000)). Accordingly, the Court
remanded the case for the court of appeals to consider whether the trial court
erroneously relied upon the independent source doctrine in denying the motion to
suppress. Id. at 473. On remand, the court of appeals concluded that the trial court
did not err in denying the motion to suppress because the confidential informant’s
information provided “a source independent of the information that the police may
have gleaned during their initial warrantless entry into the residence . . . .”
Wehrenberg v. State, Nos. 02-11-00560-CR, 02-11-00561-CR, 2014 WL 890320,
at *2 (Tex. App.—Fort Worth Mar. 6, 2014, pet. filed) (mem. op., not designated
for publication).
Similarly, none of the information utilized to obtain the warrant to search
Davila’s house came from the prior, unlawful sweep of the house. Information
from a confidential informant alone may establish probable cause, provided that it
contains “some indicia of reliability or be reasonably corroborated by police before
16
it can be used to justify a search.” Blake v. State, 125 S.W.3d 717, 727 (Tex.
App.—Houston [1st Dist.] 2003, no pet.); see McLain, 337 S.W.3d at 273 (holding
probable cause existed based upon informant’s report that he saw drugs 72 hours
before entry); Hegdal, 488 S.W.2d at 784 (finding probable cause based solely on
confidential informant’s report that he saw methamphetamine at location). In
Blake, a warrant affidavit gave the magistrate a “substantial basis” to conclude that
probable cause existed when the affidavit included information from one
confidential informant who “provided specific reasons why he/she believed” that
the defendant was involved in criminal activity and the informant had previously
provided true information leading to the arrest of other defendants and seizure of
narcotics. Blake, 125 S.W.3d at 727 (noting that affidavit established informant’s
reliability and credibility and, therefore, corroboration “was not necessary”).
The affidavit in support of the warrant to search Davila’s house included
sufficient information from which the magistrate could determine the informant’s
reliability and credibility. Specifically, the affidavit stated that the informant had
“on several occasions” provided “true and correct” information that led to the
arrest of other defendants and the seizure of narcotics. See Blake, 125 S.W.3d at
727. The affidavit also included the informant’s report of observing in the house
two kilograms of cocaine and confirmed Davila’s intent to sell the cocaine to the
informant. Based on the informant’s statement, under the totality of the
17
circumstances, there was a “fair probability” or “substantial chance” that the
cocaine would be found in Davila’s house. See Flores, 319 S.W.3d at 702–03
(concluding that warrant contained sufficient facts to establish probable cause
when anonymous informant had seen drugs inside the house, residue from house
garbage can tested positive for marijuana, and marijuana stems were found in
garbage can in front of house).
The affidavit in support of the warrant also stated that a dog sniff of the
pick-up truck parked in the driveway revealed an odor of drugs. Even assuming
that the dog sniff constituted an unreasonable search, the dog sniff alone would not
invalidate the warrant and require suppression of the evidence collected during the
warranted search of Davila’s house, if the facts were otherwise sufficient to grant
the warrant.2 When reviewing whether an affidavit for a warrant provided a basis
for finding probable cause, we do not consider each fact in isolation; we consider
the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct.
2317, 2332 (1983); Rodriguez, 232 S.W.3d 59–60; Ramos, 31 S.W.3d at 764–65.
While a magistrate may not issue a search warrant based upon illegally obtained
2
The Fourth Amendment protects one from an unreasonable search of his home and
“curtilage,” which has been interpreted to include both a side garden and a front
porch. See Florida v. Jardines, — U.S. —, 133 S. Ct. 1409, 1414–15 (2013).
While Davila, in a one-sentence footnote contends that the dog sniff of his car
amounted to an unreasonable search, he does not cite any authority supporting his
position that the dog sniff conducted under these circumstances constitutes an
unreasonable search under the Fourth Amendment.
18
information, “tainted” information will not invalidate an otherwise valid warrant.
Castillo v. State, 818 S.W.2d 803, 805 (Tex. Crim. App. 1991) (“[I]f the tainted
information was clearly unnecessary to establish probable cause for the search
warrant, then the defendant could not have been harmed by the inclusion of the
tainted information in the affidavit.”); see Gates, 462 U.S. at 238; 103 S. Ct. at
2332; Brackens, 312 S.W.3d at 838; see also State v. Bridges, 977 S.W.2d 628,
632 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“The relevant inquiry into
probable cause based upon a tainted affidavit is to put aside the tainted allegations
and determine whether the independently acquired and lawful information clearly
established probable cause.”).
We have already concluded that the information from the confidential
informant stated in the affidavit was sufficient for a magistrate to conclude that
there was probable cause to search Davila’s home. Because the affidavit contained
sufficient allegations that were independent of any tainted information, we
conclude that the affidavit established a “fair probability” that cocaine would likely
be found upon searching Davila’s home. See Flores, 319 S.W.3d at 702.
Accordingly, the evidence collected was pursuant to a properly-granted
search warrant and, therefore, we hold that the trial court did not err in denying
Davila’s motion to suppress.
We overrule Davila’s first issue.
19
Court Costs
In his second issue, Davila argues that the trial court erroneously assessed
$294 in court costs. He argues that there is no evidence to support the calculation
of these costs.
A. Standard of review
A criminal defendant must pay certain statutorily mandated costs and fees,
which vary depending on the type of offense, the underlying facts, and the
procedural history of the case. See TEX. LOC. GOV’T CODE ANN. § 133.102 (West
Supp. 2013) (listing court costs upon conviction). The district court clerk must
keep a record of each fee or item of cost charged for a service rendered in a
criminal action or proceeding. TEX. CODE CRIM. PROC. ANN. art. 103.009(a)(1)
(West 2006). If a criminal action is appealed, an officer of the court must certify
and sign a bill of costs and send it to the appellate court. Id. art. 103.006 (West
2006).
Court costs do not constitute a part of the guilt or sentencing of a criminal
defendant; they are “a nonpunitive recoupment of the costs of judicial resources
expended in connection with the trial of the case.” Johnson v. State, 423 S.W.3d
385, 390 (Tex. Crim. App. 2014) (citation omitted); see also Armstrong v. State,
340 S.W.3d 759, 766–67 (Tex. Crim. App. 2011). Therefore, we review the
assessment of court costs to determine whether there is a basis for the cost; we do
20
not apply an evidentiary-sufficiency review. Johnson, 423 S.W.3d at 390; see
Cardenas v. State, 423 S.W.3d 396, 398 (Tex. Crim. App. 2014).
B. Court costs for conviction of felony possession with intent to deliver 400
grams of cocaine
Davila argues that there is no evidence of how the costs were calculated and
no evidence that the costs were available for review before the trial court entered
its judgment.
When the record includes no bill of costs, under established precedent from
this court, the JIMS “Cost Bill Assessment” meets the requirements of article
103.001 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC.
ANN. art. 103.001 (West 2006); Cardenas, 423 S.W.3d at 398. We consider the
JIMS record evidence that both the trial court and the parties had constructive
notice of court costs to be imposed before the judgment was entered. Cardenas,
423 S.W.3d at 398–99. We review the record to determine whether there is any
basis to uphold the costs. Id.; Johnson, 423 S.W.3d at 390.
The first page of the “Cost Bill Assessment” lists several costs, including:
 $5.00 “commitment fee” (See TEX. CODE CRIM. PROC. ANN.
art. 102.011(a)(B)(6) (West Supp. 2013) (“A defendant
convicted of a felony or a misdemeanor shall pay . . . $5 for
commitment or release)).
 $5.00 “release fee” (See TEX. CODE CRIM. PROC. ANN art.
102.011(a)(B)(6) (West Supp. 2013)).
21
 $5.00 “arrest without a warrant” (See TEX. CODE CRIM.
PROC. ANN. art. 102.011(a)(1) (West Supp. 2013)).
 $40.00 “clerks fee” (See TEX. CODE CRIM. PROC. ANN art.
102.005(a) (West 2006) (“A defendant convicted of an
offense in [any court] . . . shall pay for the services of the
clerk of the court a fee of $40.”)).
 $15.00 “sheriffs fee” (See TEX. CODE CRIM. PROC. ANN art.
102.011(d) (West Supp. 2013)).
 $5.00 “security fee” (See TEX. CODE CRIM. PROC. ANN. art.
102.017(a) (West 2006) (“A defendant convicted of a felony
offense in a district court shall pay a $5 security fee as a cost
of court.”)).
 $133.00 “consolidated court cost” (See TEX. LOCAL GOV’T
CODE ANN. § 133.102(a)(1) (West Supp. 2013) (“A person
convicted of an offense shall pay as a court cost, in addition
to all other costs . . . $133 on conviction of a felony.”)).
 $4.00 “jury reimbursement fee” (See TEX. CODE CRIM.
PROC. ANN. art. 102.0045(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a
court cost, in addition to all other costs, a fee of $4 to be
used to reimburse counties for the cost of juror services . . .
.”)).
 $25.00 “district court records preservation” (See TEX. CODE
CRIM. PROC. ANN art. 102.005(f) (West 2006) (“A defendant
convicted of an offense in a county court, a county court at
law, or a district court shall pay a fee of $25 for records
management and preservation services performed by the
county. . . .”)).
 $60.00 “drug court program fee” (See TEX. CODE CRIM.
PROC. ANN. art. 102.0178(a) (West Supp. 2013) (“In
addition to other costs on conviction imposed by this
chapter, a person shall pay $60 as a court cost on conviction
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of an offense punishable as a Class B misdemeanor or any
higher category of [listed] offense[s].”)).
 $2.00 “support of indigent defense” (See TEX. LOCAL GOV’T
CODE Ann. § 133.107(a) (West Supp. 2013) (“A person
convicted of any offense, other than an offense relating to a
pedestrian or the parking of a motor vehicle, shall pay as a
court cost, in addition to other costs, a fee of $2 to be used to
fund indigent defense representation . . . .”)).
 $6.00 “support judiciary fee” (See TEX. LOCAL GOV’T CODE
ANN. § 133.105(a) (West 2008) (“A person convicted of any
offense, other than an offense relating to a pedestrian or the
parking of a motor vehicle, shall pay as a court cost, in
addition to all other costs, a fee of $6 to be used for court-
related purposes for the support of the judiciary.”)).
 $4.00 “court technology fund” (See TEX. CODE CRIM. PROC.
ANN. art. 102.0169(a) (West Supp. 2013) (“A defendant
convicted of a criminal offense in a county court, statutory
county court, or district court shall pay a $4 county and
district court technology fee as a cost of court.”)).
Based on the costs listed in the cost bill assessment, the record contains a
sufficient basis for imposing court costs in the amount of $309. The record, thus,
supports charging at least $294 in costs as directed by the statutes and rules
referenced above. See Thomas v. State, No. 01-12-00487-CR, 2013 WL 1163980,
at *4 (Tex. App.—Houston [1st Dist.] Mar. 21, 2013, no pet.) (upholding court
costs of $274 when bill of costs totaled $309 due in court costs).
Accordingly, we overrule Davila’s second issue.
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Conclusion
Having overruled both of Davila’s issues, we affirm.
Harvey Brown
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
Justice Sharp, dissenting. Dissent to follow.
Publish. TEX. R. APP. P. 47.2(b).
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