Philip Chang v. State ( 2016 )

NO. 12-16-00020-CR
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
PHILIP CHANG, § APPEAL FROM THE 3RD
APPELLANT
V. § JUDICIAL DISTRICT COURT
THE STATE OF TEXAS,
APPELLEE § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
Philip Chang appeals his convictions for possession or delivery of between one and four
grams of a controlled substance in Penalty Group 2 and manufacture of a simulated controlled
substance in Penalty Group 2. In one issue, Appellant argues that the trial court erred in
overruling his motion to suppress. We affirm.
BACKGROUND
Appellant was charged by indictment with one count of possession of between one and
four grams of K-2 with intent to deliver and four counts of manufacture of simulated K-2 with
intent to deliver. Appellant filed a motion to suppress, which the trial court overruled. A jury
found Appellant “guilty” as charged on all counts and, thereafter, Appellant entered into a plea
agreement with the State. Ultimately, the trial court sentenced Appellant to imprisonment for ten
years on count one, but suspended the sentence and placed Appellant on community supervision
for ten years. On the remaining convictions, the trial court sentenced Appellant to imprisonment
for two years on each count, but suspended these sentences and placed Appellant on community
supervision for five years on each count. This appeal followed.
MOTION TO SUPPRESS
In his sole issue, Appellant argues that the trial court erred in denying his motion to
suppress. Appellant’s motion to suppress was based on alleged deficiencies contained in Police
Chief Darren Goodman’s search warrant affidavit.
Standard of Review
We review a trial court's ruling on a motion to suppress evidence for abuse of discretion.
Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); State v. Elrod, 395 S.W.3d 869, 876
(Tex. App.–Austin 2013, no pet.). A trial court abuses its discretion when its ruling is arbitrary
or unreasonable. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). The trial
court's ruling on the motion to suppress will be affirmed if it is reasonably supported by the
record and is correct under any theory of law applicable to the case. Young v. State, 283 S.W.3d
854, 873 (Tex. Crim. App. 2009).
In reviewing a trial court's ruling on a motion to suppress, we apply a bifurcated standard
of review. Wilson v. State, 311 S.W.3d 452, 457–58 (Tex. Crim. App. 2010); Carmouche v.
State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000). Although we give almost total deference to
the trial court’s determination of historical facts, we conduct a de novo review of its application
of the law to those facts. See Wilson, 311 S.W.3d at 458; Carmouche, 10 S.W.3d at 327. We
afford almost total deference to the trial court’s rulings on mixed questions of law and fact when
the resolution of those questions depends on an evaluation of credibility and demeanor. See
State v. Johnston, 336 S.W.3d 649, 657 (Tex. Crim. App. 2011); Guzman v. State, 955 S.W.2d
85, 89 (Tex. Crim. App. 1997). We review de novo mixed questions of law and fact that do not
depend on an evaluation of credibility and demeanor. Johnston, 336 S.W.3d at 657; Guzman,
955 S.W.2d at 89. All purely legal questions are reviewed de novo. Johnston, 336 S.W.3d at
657; Kothe v. State, 152 S.W.3d 54, 62–63 (Tex. Crim. App. 2004).
At the suppression hearing, the trial court is the sole trier of fact and exclusive judge of
the credibility of the witnesses and the weight to be given to their testimony. See St. George v.
State, 237 S.W.3d 720, 725 (Tex. Crim. App. 2007); Guzman, 955 S.W.2d at 89. Unless the
trial court abuses its discretion by making a finding unsupported by the record, we defer to the
trial court's findings of fact and will not disturb them on appeal. Johnston, 336 S.W.3d at 657;
Guzman, 955 S.W.2d at 89; Elrod, 395 S.W.3d at 876–77. When, as here, the trial court makes
no findings of fact and conclusions of law, and none are requested, we review the evidence in the
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light most favorable to the trial court’s ruling and assume that the trial court made implicit
findings of fact that support its ruling so long as those findings are supported by the record.
Wiede v. State, 214 S.W.3d 17, 25 (Tex. Crim. App. 2007); Carmouche, 10 S.W.3d at 328.
Search Warrant Affidavit
No search warrant may issue unless a sworn affidavit is first presented to the magistrate
setting forth sufficient facts to show that probable cause exists for its issuance. TEX. CODE CRIM.
PROC. ANN. art. 18.01(b) (West Supp. 2015); Elrod 395 S.W.3d at 880–81. The sworn affidavit
must set forth facts sufficient to establish probable cause that (1) a specific offense has been
committed, (2) the specifically described property or items that are to be searched for or seized
constitute evidence of that offense or evidence that a particular person committed that offense,
and (3) the property or items constituting evidence to be searched for or seized are located at or
on the particular person, place, or thing to be searched. See TEX. CODE CRIM. PROC. ANN. art.
18.01(c) (West Supp. 2015). Probable cause for a search warrant exists if, under the totality of
the circumstances presented to the magistrate, there is at least a “fair probability” or “substantial
chance” that contraband or evidence of a crime will be found at the specified location. Flores v.
State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
When reviewing a decision by a judge or magistrate to issue a search warrant, we apply a
deferential standard of review because of the constitutional preference for law enforcement
officials to obtain warrants rather than conduct warrantless searches. State v. McLain, 337
S.W.3d 268, 271 (Tex. Crim. App. 2011). The facts submitted for the magistrate’s probable
cause determination are those contained within the four corners of the affidavit and are to be read
in a common sense and realistic manner. McLain, 337 S.W.3d at 271; Rodriguez v. State, 232
S.W.3d 55, 61 (Tex. Crim. App. 2007). A magistrate may draw reasonable inferences from the
facts stated in the affidavit. Rodriguez, 232 S.W.3d at 61; Hedspeth v. State, 249 S.W.3d 732,
737 (Tex. App.–Austin 2008, pet. ref’d). When in doubt about the propriety of the magistrate’s
conclusion, we defer to all reasonable inferences the magistrate could have made. Rodriguez,
232 S.W.3d at 61; see McLain, 337 S.W.3d at 271. Our inquiry, then, is 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. See Rodriguez, 232 S.W.3d at 62.
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Informant’s Familiarity with Controlled Substances
Appellant contends on appeal that the affidavit fails to provide any documentation as to
how it was determined that the substance alleged to have been purchased was, in fact, K-2 and
fails to demonstrate that the informant was knowledgeable about K-2. An affidavit in support of
a warrant to search for narcotics need not provide more specific details about the informant’s
reliability than to state the informant provided information in the past regarding narcotics
trafficking, which information had proved correct. State v. Walker, 140 S.W.3d 761, 766 (Tex.
App.–Houston [14th Dist.] 2004, no pet.). Furthermore, because such a statement, when
interpreted in a realistic and common sense manner, indicates the informant’s familiarity with
controlled substances, the affiant need provide no additional details to describe the informant’s
qualifications in recognizing drugs. Id.
Here, Goodman’s affidavit describes a previous occasion where a concerned citizen, who
later became a confidential informant, gave true and reliable information concerning the
commission of a crime. The affidavit reads, in pertinent part, as follows:
On the 15th day of February, a concerned citizen reported to this Officer that illegal
substances were being sold at the P.C. Corner Store, 201 Pine St.[,] Frankston, Texas. The citizen
stated that he believed that he could purchase illegal substances from the owner of the store, Mr.
Philip Chang. On February 16th[,] while under the supervision of this Officer, the citizen
attempted to make a purchase of illegal substances from Mr. Philip Chang. The citizen was able
to purchase a quantity of K-2, a synthetic chemical compound cannabinoid receptor agonist, from
Philip Chang, just as he had stated. Philip Chang received $10.00 in currency from the citizen as
remuneration for the purchase of the illegal substance. It was at this time that this agency
established the credibility of the citizen and of the information gained from the citizen. This
agency has established this citizen as an informant and has created a file under the name of C.I.
001 showing this citizen’s information and credibility as a credible witness.
The affidavit goes on to list three additional K-2 transactions between C.I. 001 and Chang under
Goodman’s supervision. The last of these transactions occurred within twenty-four hours of
Goodman’s making the search warrant affidavit.
Thus, Goodman’s affidavit establishes that C.I. 001 provided information in the past
regarding narcotics trafficking, which information had proved correct. Therefore, it was not
necessary to describe C.I. 001’s qualifications in recognizing drugs. See id. C.I. 001’s
description of the substance he purchased and observed in the subject location is sufficient to
permit the magistrate to conclude that the substance was what C.I. 001 conveyed to Goodman
that it was. We conclude that Goodman’s statements in his affidavit are sufficient to support the
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reliability of this confidential informant. Accordingly, we hold that the trial court did not abuse
its discretion in overruling Appellant’s motion to suppress on that basis. Appellant’s sole issue is
overruled.
DISPOSITION
Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.
BRIAN HOYLE
Justice
Opinion delivered July 29, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(DO NOT PUBLISH)
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COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
JULY 29, 2016
NO. 12-16-00020-CR
PHILIP CHANG,
Appellant
V.
THE STATE OF TEXAS,
Appellee
Appeal from the 3rd District Court
of Anderson County, Texas (Tr.Ct.No. 3CR-15-32358)
THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.