Bienvenido Ortega v. State ( 2011 )

NO. 07-10-00288-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 15, 2011
BIENVENIDO ORTEGA, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE
FROM THE CRIMINAL COURT NO. 1 OF TARRANT COUNTY;
NO. 1158036D; HONORABLE SHAREN WILSON, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
After the trial court had overruled appellant, Bienvenido Ortega’s, motion to
suppress evidence, appellant pleaded guilty to an indictment alleging possession with
intent to deliver a controlled substance, methamphetamine, of 200 grams or more, but
less than 400 grams.1 The trial court sentenced appellant, pursuant to a plea bargain,
to confinement in the Institutional Division of the Texas Department of Criminal Justice
(ID-TDCJ) for a period of 10 years and assessed a fine of $500. Appellant perfected his
1
See TEX. HEALTH & SAFETY CODE ANN. § 481.115(e) (West 2010).
appeal and contends that the trial court committed reversible error when it overruled his
motion to suppress the evidence. We affirm.
Factual and Procedural Background
In May of 2009, the Tarrant County Narcotics Unit executed a search warrant on
the home of Ronald Gore. In the search that followed, deputies seized controlled
substances and cash. As a result of the search, Gore and his wife were arrested and
taken to jail. Subsequently, Gore, with the assistance of his attorney, entered into an
agreement to become a confidential informant to Deputy Doug Deweese. After
agreeing to become a cooperating witness, Gore was asked if there were any other
drugs at his home of which he needed to advise the deputies. Gore replied that, while
in jail, an additional amount of marijuana, methamphetamine, and a gun had been
delivered to his home. Deputies were able to retrieve the additional contraband, which
were located where described by Gore.
Gore testified at the suppression hearing that, after getting out of jail, he got a
call from appellant stating that he, appellant, was coming from Dallas to Fort Worth
bringing Gore an additional one-quarter to one-half pound of methamphetamine. Gore
contacted Deweese and provided the deputies with an accurate description of appellant,
the color and make of the vehicle appellant would be driving, how the contraband would
be stored, where the delivery was to take place, and the time of the delivery. Gore
indicated that appellant’s brother would be a passenger in the vehicle with appellant.
However, this fact turned out to be incorrect as another unrelated person was in the
vehicle with appellant.
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Based upon the information provided by Gore, Deweese and other deputies went
to the indicated location and awaited appellant’s arrival. According to Deweese,
appellant appeared exactly where Gore said he would and within five minutes of the
exact time Gore advised appellant would appear. Based upon the information provided
by Gore, appellant was detained, and the vehicle was searched. Two bags of
suspected crystal methamphetamine were located in a metal box which was attached
by magnets to the console of the truck appellant was driving. Appellant was arrested
and indicted for the offense of possession of a controlled substance, methamphetamine,
in an amount of 200 grams or more, but less than 400 grams.
Subsequently, appellant filed a motion to suppress the results of his detention
and search of his truck. The trial court conducted an evidentiary hearing regarding the
detention and search and ruled that the search was supported by probable cause to
believe that appellant was engaged in or about to engage in the commission of a felony
offense. Therefore, the trial court overruled appellant’s motion to suppress. At the
hearing on the motion to suppress, the trial court dictated findings of fact and
conclusions of law. These were subsequently reduced to writing, and the trial court
signed the findings and conclusions and had them filed in the record of these
proceedings.
After the trial court overruled his motion to suppress the evidence of the search,
appellant entered a plea of guilty pursuant to a plea bargain and was sentenced to
serve a term of confinement of ten years in the ID-TDCJ and pay a fine of $500.
Appellant gave notice of appeal, and the trial court certified appellant’s right of appeal
as to the trial court’s ruling on the motion to suppress the evidence seized during the
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search of appellant’s truck. Appellant brings forth four issues, which when read
carefully are all complaining that the trial court erred in finding that there was probable
cause for the officers to detain appellant and search his truck. We will affirm the trial
court’s ruling.
Standard of Review
To review the denial of a motion to suppress, we apply a bifurcated standard of
review. See Hubert v. State, 312 S.W.3d 554, 559 (Tex.Crim.App. 2010). We review
the trial court’s application of the law to the facts de novo. Id. However, we defer to the
trial court’s determination of credibility and historical fact. Id. Because the trial court is
in the position to see the witnesses testify and to evaluate their credibility, we must view
the evidence in the light most favorable to the trial court’s ruling. See Wiede v. State,
214 S.W.3d 17, 24-25 (Tex.Crim.App. 2007). Where a trial court has made findings of
fact, as is the case here, we review the record to determine whether the evidence,
viewed in the light most favorable to the trial court’s ruling, supports the fact findings
entered. See State v. Kelly, 204 S.W.3d 808, 818 (Tex.Crim.App. 2006).
Applicable Law
That the search in question was conducted without a warrant is not an issue,
and, therefore, such a search is per se unreasonable. See Wiede, 214 S.W.3d at 24.
However, there is an exception for vehicles if the officer has probable cause to believe
the vehicle in question contains contraband. Id. “Probable cause exists when the
totality of the circumstances allows a conclusion that there is a fair probability of finding
contraband or evidence at a particular location.” Dixon v. State, 206 S.W.3d 613, 616
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(Tex.Crim.App. 2006). Dixon applied the totality of the circumstances analysis
promulgated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 238,
103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). The Gates test did away with the rigid two
prong analysis of “veracity” and “basis of knowledge” previously used in Aguilar v.
Texas, 378 U.S. 108, 114, 84 S. Ct. 1509, 12 L.Ed2d 723 (1964). Under Gates, the
analysis of the two prongs is not considered serially and independently, but rather as
relevant considerations in the totality of the circumstances analysis of probable cause.
Dixon, 206 S.W.3d at 616.
Analysis
Our analysis must begin with the evidence presented at the hearing on
appellant’s motion to suppress the evidence of the search. That evidence was primarily
outlined in the “Factual and Procedural Background” section of this opinion.
Additionally, we must add that the trial court did file findings of fact in this case. First,
the trial court made oral findings and then reduced those findings to writing and filed
them in this record. The trial court found the following facts:
1. Pursuant to a search warrant, the police searched confidential informant
Mr. Gore’s house which revealed the presence of drugs.
2. Informant Gore was arrested on May 5, 2009.
3. At the time of his arrest, Informant Gore met with Tarrant County Narcotics
Unit investigator Deputy Doug Deweese.
4. Informant Gore, in consultation with his attorney, entered into a written
agreement with Investigator Deweese to provide the location where drugs
would be found (i.e. a drug bust) to work off the case for him and his wife.
5. When asked if there was anything else Informant Gore needed to tell the
officer, Informant Gore revealed the presence of additional drugs at the
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house that had not been seized during the execution of the search
warrant.
6. On May 14, 2009, after additional conversations with the investigator,
Informant Gore gave police information about the drug conveyance that is
the subject of this lawsuit. He stated that he knew the drug deliverer to be
the Defendant, Mr. Bienvenido Ortega. He gave the description of a
specific location, vehicle and time as well as a specific description of the
defendant, who would be with the defendant, and a specific description of
the packaging for the drugs.
7. Based on Informant Gore’s precise descriptions and the fact that
Informant Gore had given self-incriminating evidence, the investigator
believed Informant Gore to be a credible and reliable informant.
Based on our review of the record, we find that all of the findings made by the trial court
are supported by the testimony before the trial court at the suppression hearing. The
single exception is the finding as to the person riding with appellant in the truck. Gore
misidentified that person to be appellant’s brother, and it was later shown that it was an
employee of appellant, not his brother.
Having found the findings supported by the record, we now turn to the question
of the initial detention of appellant. When appellant drove up to the location that Gore
said he would come to, he was almost immediately detained by the deputies. Did the
deputies have reasonable suspicion to detain appellant and then did the facts provide
probable cause to search the truck?
Reasonable suspicion to stop and detain a person for the purposes of
investigating possible criminal behavior requires only that the officers have specific and
articulable facts, which taken together with rational inferences from those facts
reasonably warrant the intrusion. See Terry v. Ohio, 392 U.S.1, 21, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968). This is a lesser burden on the officers than probable cause which
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requires that the totality of the circumstances form a conclusion that there is a fair
probability of finding contraband or evidence at a particular location. See Dixon, 206
S.W.3d at 616. We point this out because, in an attempt to granulate the issues,
appellant seems to try to draw a distinction between the initial detention and the search.
Suffice it to point out that if there are facts enough to provide probable cause, then there
are facts sufficient to support reasonable suspicion.
The analysis of the facts supporting probable cause turns on the indicia of
reliability of the informant Gore. The record supports that although Gore had only been
a confidential informant for a short period of time and, in fact, there were no other
instances of him providing information that proved to be accurate, there were indicia of
reliability on which the deputy was entitled to rely. Specifically, there is the revelation to
the deputy about other drugs that had come into Gore’s possession after the initial
search warrant had been executed. This act of self-incrimination by Gore provides
some of the indicia of reliability. See Abercrombie v. State, 528 S.W.2d 578, 584-85
(Tex.Crim.App. 1975) (op. on reh’g) (finding that admission against penal interest, when
combined with verified details, was sufficient to provide reliability); Marsh v. State, 2007
Tex. App. LEXIS 2931 at *5-*6 (Tex. App.—Amarillo 2007, pet. ref’d) (not designated for
publication) (statement against penal interest when combined with other facts provides
credibility); Montgomery v. State, 2005 Tex. App. LEXIS 3467 at *12 (Tex.App.—Fort
Worth 2005, pet. ref’d) (not designated for publication) (a statement against penal
interest is inherently credible and may be sufficient, in and of itself, to establish probable
cause). Not only is there the self-incrimination aspect, but also, the record reflects the
details of how the post-warrant drugs were left and hidden exactly as Gore had advised
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Deweese. This provided Deweese with enough of a sense of reliability to allow the
deputy to set up and observe the meeting place for appellant’s appearance.
Next, the record reveals and, the trial court so found, that the details Gore had
provided of appellant’s appearance were confirmed. These are what appellant
contends are innocent details that do not provide any type of probable cause. However,
appellant’s contention ignores the fact that, while some detailed facts might be acquired
by common knowledge, such as the color and make of appellant’s truck, others are
limited to this precise criminal episode, such as the exact time and place of appellant’s
arrival to conclude the transaction. Appellant would say that he had to come to Gore’s
location on business to pick up a check. However, there is nothing in the record that
would indicate that picking up a check would be done at a meeting place away from
Gore’s office, which the record shows was at his residence. The wealth of verifiable
detail that Gore provided help offset the lack of a proven track record in a totality of the
circumstances analysis. See Dixon, 206 S.W.3d at 617-18.
Based on the totality of the circumstances, we find that the decision of the trial
court was correct. See Gates, 462 U.S. at 238; Dixon, 206 S.W.3d at 616. Accordingly,
we overrule appellant’s contentions to the contrary.
Conclusion
Having overruled appellant’s contentions, the trial court’s judgment is affirmed.
Mackey K. Hancock
Justice
Publish.
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