Abdon Aguinaga v. the State of Texas ( 2022 )

Opinion filed October 13, 2022
In The
Eleventh Court of Appeals
__________
No. 11-21-00129-CR
__________
ABDON AGUINAGA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 220th District Court
Comanche County, Texas
Trial Court Cause No. CR04537
OPI NI ON
Appellant, Abdon Aguinaga, was indicted for the first-degree felony offense
of possession with intent to deliver a controlled substance—namely,
methamphetamine—in the amount of four grams or more but less than two hundred
grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(d) (West 2017).
Appellant later moved to suppress evidence obtained during the search of his
residence, asserting that the search warrant obtained by law enforcement was not
supported by probable cause. After the trial court denied his motion to suppress,
Appellant pleaded guilty to the indicted offense but reserved his right to appeal the
trial court’s suppression ruling.
Appellant thereafter proceeded to trial on punishment only. The jury, after
considering the punishment evidence, assessed Appellant’s punishment at
imprisonment for sixteen years in the Institutional Division of the Texas Department
of Criminal Justice and a fine of $10,000. The trial court sentenced Appellant
accordingly. In two issues, Appellant challenges the trial court’s denial of his motion
to suppress. We affirm.
I. Procedural Background
On July 21, 2020, Billy Bloom, an investigator for the District Attorney’s
Office of the 220th Judicial District, signed a search warrant affidavit that was
intended to accompany a warrant for the search of Appellant’s residence. In the
affidavit, Investigator Bloom stated that he had extensive training and experience in
investigating offenses that involved the possession, distribution, and trafficking of
illegal drugs and other narcotics. The affidavit further stated, among other things,
that (1) Appellant was the subject of “an on-going investigation concerning
methamphetamine trafficking within the Comanche County area” and (2) Appellant
possessed and had used a cellphone to coordinate methamphetamine trafficking from
his residence.
The substance of Investigator Bloom’s affidavit was based, in part, on
information obtained from a reliable confidential informant, who had been present
at Appellant’s residence while Appellant used his cellphone on numerous occasions
to engage in methamphetamine trafficking, “most recently within the past fourteen”
days. The purpose and intent of Investigator Bloom’s warrant request was to search
Appellant’s residence for any cellphones, telephonic devices, electronic
communications and storage devices, and drug paraphernalia possessed by
Appellant at his residence. The magistrate approved the warrant request and issued
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the search warrant later that day. Following the subsequent execution of the warrant
and resulting search of his residence and based on the evidence that was seized
during the search, Appellant was indicted for possession with intent to deliver a
controlled substance, namely methamphetamine.
Appellant filed a motion to suppress evidence and globally asserted that the
search warrant was issued without probable cause in violation of his constitutional
and statutory rights. During the hearing on the motion, Appellant’s trial counsel
argued, exclusively, that the warrant affidavit could not support probable cause
because the information recited in the affidavit was “stale” when law enforcement
applied for the warrant. In response to a question posed by the trial court, Appellant’s
trial counsel confirmed that the staleness argument he was advancing was “limited
to the staleness associated with” the following paragraph in the affidavit:
This same confidential informant advised your affiant [that] this same
confidential informant has observed [Appellant] use his cellular
telephone to conduct methamphetamine trafficking from [Appellant’s
residence] on numerous occasions, most recently within the past
fourteen (14) days.
Appellant’s trial counsel asserted that “fourteen days” amounted to “two weeks, half
a month, [a] fortnight” and, thus, the affidavit was not specific in regard to when the
confidential informant had seen Appellant using his cellphone to engage in
methamphetamine transactions. After considering the arguments presented, the trial
court denied Appellant’s motion to suppress.
Appellant raises two issues on appeal. First, Appellant contends that the trial
court erred when it denied Appellant’s motion to suppress because the information
recited by Investigator Bloom in the warrant affidavit was “stale” and consisted of
conclusory statements that did not constitute probable cause for the issuance of the
search warrant. Second, Appellant contends that because the warrant affidavit did
not include or specify a search for methamphetamine at Appellant’s residence, the
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drugs that were seized from his residence as a result of the search should have been
(1) severed from the warrant and (2) inadmissible against Appellant at his trial.
II. Standard of Review
Ordinarily, we review a trial court’s ruling on a motion to suppress under a
bifurcated standard of review. Brodnex v. State, 485 S.W.3d 432, 436 (Tex. Crim.
App. 2016); Turrubiate v. State, 399 S.W.3d 147, 150 (Tex. Crim. App. 2013);
Martinez v. State, 348 S.W.3d 919, 922–23 (Tex. Crim. App. 2011). We afford
almost total deference to the trial court’s determination of historical facts, especially
when a trial court’s fact findings are based on an evaluation of credibility and
demeanor. Brodnex, 485 S.W.3d at 436; Derichsweiler v. State, 348 S.W.3d 906,
913 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App.
1997).
The trial court’s determination of pure questions of law, the application of the
law to established facts, and the legal significance of those facts are reviewed de
novo. Lerma v. State, 543 S.W.3d 184, 190 (Tex. Crim. App. 2018); Wade v. State,
422 S.W.3d 661, 667 (Tex. Crim. App. 2013); Derichsweiler, 348 S.W.3d at 913;
Kothe v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004) (citing United States v.
Sharpe, 470 U.S. 675, 682 (1985)). We also review de novo mixed questions of law
and fact that are not dependent upon credibility determinations. Brodnex, 485
S.W.3d at 436; Derichsweiler, 348 S.W.3d at 913 (citing Amador v. State, 221
S.W.3d 666, 673 (Tex. Crim. App. 2007)).
When the issue to be determined by the trial court concerns the existence of
probable cause to support the issuance of a search warrant, there are no credibility
or factual determinations for the trial court to make. State v. McLain, 337 S.W.3d
268, 271 (Tex. Crim. App. 2011). Rather, the trial court’s probable cause
determination is restricted to the four corners of the warrant affidavit. Id.; see also
Bonds v. State, 403 S.W.3d 867, 873 (Tex. Crim. App. 2013). Therefore, when we
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review a trial court’s ruling on a motion to suppress that concerns a magistrate’s
decision to issue a search warrant, we are highly deferential to the magistrate’s
decision because of the constitutional preference that searches be conducted
pursuant to a warrant. Bonds, 403 S.W.3d at 873 (citing Swearingen v. State, 143
S.W.3d 808, 810–11 (Tex. Crim. App. 2004)); McLain, 337 S.W.3d at 271.
In our review, we do not analyze the warrant affidavit in a hyper-technical
manner. Rodriguez v. State, 232 S.W.3d 55, 59 (Tex. Crim. App. 2007). Instead, we
analyze the affidavit in a commonsense and realistic manner because we recognize
that the magistrate may draw reasonable inferences in its determination of the
affidavit’s sufficiency. Id. at 61. If doubt exists, we defer to all reasonable inferences
that the magistrate could have made. Id.; see also State v. Duarte, 389 S.W.3d 349,
354–55 (Tex. Crim. App. 2012). Thus, we uphold the magistrate’s probable cause
determination if it had a substantial basis to conclude that probable cause existed to
issue the warrant. State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011);
McLain, 337 S.W.3d at 271.
III. Analysis
In his first issue, Appellant asserts that the trial court erred when it denied his
motion to suppress because the information recited in the warrant affidavit did not
support probable cause. Specifically, he argues that the information in the affidavit
(1) was “stale” and (2) consisted of conclusory statements. However, because
Appellant did not raise or present the latter ground to the trial court in either his
written motion or at the suppression hearing, Appellant has failed to preserve this
argument for our review. See TEX. R. APP. P. 33.1. Thus, we limit our review of
Appellant’s first issue—that the affidavit was insufficient to support probable
cause—to his staleness argument.
A warrant affidavit must allege sufficient facts that establish probable cause
to believe that the items or property to be seized will be found at the location
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identified in the affidavit. Massey v. State, 933 S.W.3d 141, 148 (Tex. Crim. App.
1996). A search warrant shall not be issued unless sufficient facts have been
presented to the magistrate that probable cause exists for its issuance. See TEX. CODE
CRIM. PROC. ANN. art. 18.01(b) (West Supp. 2021). Probable cause exists when,
based on the totality of the circumstances, there is a “fair probability” that
contraband or evidence of criminal activity will be found at the location specified in
the warrant affidavit. Rodriguez, 232 S.W.3d at 60 (citing Illinois v. Gates, 462 U.S.
213, 238 (1983)). Because the probable cause standard is a flexible one, the
information submitted to the magistrate must only be sufficient to justify the
magistrate’s conclusion that, at the time the warrant is issued, the item or property
that is the subject of the search is probably at the premises to be searched. Massey,
933 S.W.2d at 148.
To justify a magistrate’s finding that a warrant affidavit is sufficient to
establish probable cause to support the issuance of a search warrant, the information
set out in the affidavit must not have become “stale” at the time the magistrate issued
the warrant. Ex parte Jones, 473 S.W.3d 850, 856 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d); State v. Dugas, 296 S.W.3d 112, 116 (Tex. App.—Houston [14th
Dist.] 2009, pet. ref’d); Rowell v. State, 14 S.W.3d 806, 809 (Tex. App.—Houston
[1st Dist.] 2000) (citing Hafford v. State, 989 S.W.2d 439, 440 (Tex. App.—Houston
[1st Dist.] 1999, pet. ref’d)), aff’d, 66 S.W.3d 279 (Tex. Crim. App. 2001).
Information set out in an affidavit becomes “stale”—and probable cause ceases to
exist—if, at the time the search warrant is issued, it would be unreasonable to
presume that the items or property to be seized are present and remain at the
suspected place. Ex parte Jones, 473 S.W.3d at 856; Dugas, 296 S.W.3d at 116;
Rowell, 14 S.W.3d at 809 (citing Guerra v. State, 860 S.W.2d 609, 611 (Tex. App.—
Corpus Christi–Edinburg 1993, pet. ref’d)).
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In determining whether the information supporting a search warrant request
has become “stale,” we examine the temporal proximity between the occurrence of
the events set out in the affidavit and the issuance of the search warrant. Ex parte
Jones, 473 S.W.3d at 856; Rowell, 14 S.W.3d at 809 (citing Hafford, 989 S.W.2d at
440; Guerra, 860 S.W.2d at 611). That is, in light of the type of criminal activity
involved, we review the period of time that elapsed from when the events set out in
the affidavit actually occurred until when the search warrant was issued.
We are unaware of a circumstance in which a fixed or defined time period
must elapse before the facts recited in a probable cause affidavit become “stale.”
Indeed, the significance of the “delay or passage of time” that could render the
affidavit information “stale” is dependent on the particular facts of the case, the
nature of the criminal activity being investigated, and the type of evidence that is to
be searched for and possibly seized. Crider v. State, 352 S.W.3d 704, 707 (Tex.
Crim. App. 2011); Lockett v. State, 879 S.W.2d 184, 189 (Tex. App.—Houston [14th
Dist.] 1994, pet. ref’d). Nevertheless, if the warrant affidavit recites facts that
indicate law enforcement is involved in a protracted, continuing, and “ongoing
investigation,” as they were in this case, the need to show that the events upon which
probable cause is based had occurred within a certain or immediate time period
before the warrant affidavit was signed is diminished—the “delay or passage of
time” becomes less significant. See Jones v. State, 364 S.W.3d 854, 856, 860–81
(Tex. Crim. App. 2012); Kelly v. State, 529 S.W.3d 504, 508 (Tex. App.—Texarkana
2017, no pet.); Ex parte Jones, 473 S.W.3d at 856; State v. Cotter, 360 S.W.3d 647,
653–54 (Tex. App.—Amarillo 2012, no pet.); Lockett, 879 S.W.2d at 189. As such,
because the passage of time in an “ongoing investigation” scenario is diminished
and of less significance, the “ongoing” nature of law enforcement’s investigation
into Appellant’s alleged criminal activities dilutes, if not defeats, Appellant’s
staleness argument.
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Based on the record before us, we are not persuaded by Appellant’s argument
that the information contained in Investigator Bloom’s affidavit was “stale” at the
time the magistrate issued the search warrant. The magistrate issued the search
warrant on the same day that Investigator Bloom signed his affidavit. The affidavit
stated that a reliable confidential informant had, “on numerous occasions,” observed
Appellant use his cellphone to consummate methamphetamine deals from his
residence. On the date that Investigator Bloom signed the affidavit, the series of
events set out in the affidavit had occurred sometime “within the past
fourteen . . . days” (emphasis added). So, when did the confidential informant last
observe Appellant use his cellphone to engage in a methamphetamine transaction?
Fourteen days before the magistrate issued the search warrant? Ten days? Seven
days? Three days? Because of the “ongoing” nature of law enforcement’s
investigation into the “ongoing” criminal activities that Appellant was alleged to
have committed, we hold that the magistrate could have reasonably concluded and
inferred that, based on the information provided to him, sufficient probable cause
existed to issue the search warrant. Therefore, we defer to the magistrate’s
determination.
In his brief, Appellant further argues that the affidavit’s vague reference “to
when drugs were last observed at [his] residence” does not support a reasonable
presumption by the magistrate “that drugs and paraphernalia” were likely present or
remained there at the time the warrant was issued. However, Appellant’s argument
ignores that the facts and information set forth in Investigator Bloom’s affidavit did
not seek or request authorization to search for drugs at Appellant’s residence. In
fact, the staleness argument advanced by Appellant is unique only to situations
where drugs or other consumable items are the subject of the search. See, e.g.,
McKissick v. State, 209 S.W.3d 205, 215 (Tex. App.—Houston [1st Dist.] 2006, pet.
ref’d). Unfortunately for Appellant, that is not the situation here. Because the focus
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of the warrant and the items identified in the warrant affidavit that were to be
searched for and seized consisted of cellphones, telephonic devices, electronic
communications and storage devices, and drug paraphernalia—none of which are
consumable items—we hold that the magistrate, at the time the warrant was issued,
could have reasonably presumed and concluded that the items identified in the
affidavit were present and remained at the suspected place, i.e., Appellant’s
residence. As such, Appellant’s staleness argument fails. See Ryals v. State, 470
S.W.3d 141, 146 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (information in
an affidavit is less likely to become stale if the items or property sought to be seized
are not consumable); Barrett v. State, 367 S.W.3d 919, 926 (Tex. App.—Amarillo
2012, no pet.) (same); Cotter, 360 S.W.3d at 653–54 (same); Lockett, 879 S.W.2d at
184 (same).
Moreover, the warrant affidavit provided the magistrate with sufficient
information to support his conclusion that criminal activity of a protracted,
continuous, and “ongoing nature” was occurring at Appellant’s residence and that
such activity was not merely an isolated event. Specifically, the affidavit states that
Appellant is “the subject of an on-going investigation concerning methamphetamine
trafficking in Comanche County.” Information, such as this, of “ongoing” criminal
activity defeats a claim of staleness. See State v. Le, 463 S.W.3d 872, 880 (Tex.
Crim. App. 2015); Jones, 364 S.W.3d at 861; Ex parte Jones, 473 S.W.3d at 856;
Lockett, 879 S.W.2d at 189. Accordingly, and for the reasons stated above, we
overrule Appellant’s first issue.
Finally, in his second issue, Appellant asserts that, because the affidavit in
support of the search warrant did not specifically request authorization to search for
methamphetamine, the methamphetamine found at Appellant’s residence during the
search should have been severed from the warrant and suppressed. However,
Appellant did not raise or present this argument to the trial court in either his written
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motion or during the suppression hearing; thus, Appellant failed to preserve this
issue for our review. See TEX. R. APP. P. 33.1. Accordingly, we overrule Appellant’s
second issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.
W. STACY TROTTER
JUSTICE
October 13, 2022
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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