Robby Lee Jamison v. State ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00331-CR
Robby Lee Jamison § From the 371st District Court
§ of Tarrant County (1225740D)
v. § February 14, 2013
§ Opinion by Justice Meier
The State of Texas § (nfp)
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgments. It is ordered that the judgments
of the trial court are affirmed.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Bill Meier
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00331-CR
ROBBY LEE JAMISON APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION1
----------
I. INTRODUCTION
The State indicted Appellant Robby Lee Jamison for the offense of
possession of a controlled substance, namely cocaine of four grams or more, but
less than two hundred grams, with the intent to deliver and for the offense of
possession of a controlled substance, namely cocaine of four grams or more, but
less than two hundred grams. Jamison moved to suppress evidence seized from
1
See Tex. R. App. P. 47.4.
2
his “person and from a secondary location where [he] had an expectation of
privacy” on the grounds that his rights under the Fourth Amendment to the United
States Constitution; article 1, section 9 of the Texas constitution; and article
18.01 of the Texas Code of Criminal Procedure were violated. The trial court
denied the motion, and after a bench trial, the trial court found Jamison guilty of
both counts. Jamison brings three points on appeal. Jamison argues that the
trial court erred by denying his motion to suppress because (1) the police entered
and searched his residence pursuant to an invalid warrant and (2) the police
illegally detained him and transported him from his vehicle to his home during the
execution of the warrant. In his third point, Jamison also argues that the
evidence is insufficient to support his convictions. We will affirm.
II. BACKGROUND
On September 23, 2010, a magistrate found that probable cause existed to
support the issuance of a search warrant for a residence located at 7312 Madeira
Drive, Fort Worth, Texas. The magistrate based his probable-cause
determination on the affidavit of Fort Worth Police Department Officer Jonas
Ceja. Ceja’s affidavit recited that he had met with a “creditable, reliable informant
(CI)”2 who informed him that “they” could purchase crack cocaine from the
2
The affidavit does recite “creditable” instead of “credible.” At the
suppression hearing, among numerous hypertechnical attacks levied against the
affidavit, Jamison argued that Ceja failed to recite that his confidential informant
was “credible.” Ceja responded that he had. Jamison argued, “No, you said
creditable. Do you know what creditable means? C-R-E-D-I-T-A-B-L-E? Do you
know what that means?” Jamison also attacked other misspellings in the
3
Madeira Drive residence.3 The CI informed Ceja that a “‘Robbie Jamison’ . . . a
black male approximately 30 to 32 years of age, heavy set weighing 230 to 250
pounds and being 6’00” to 6’2” tall” lived at the residence with a female named
“Ashley” and that Jamison was the resident who sold the crack cocaine.
Ceja averred that after learning this information, he conducted two
controlled buys from the Madeira Drive residence using the CI. Ceja stated that
on both controlled buys, he searched the CI prior to and after the buys to ensure
“no evidence was withheld.” Ceja stated that presumptive tests indicated the
substances purchased were cocaine. Ceja further stated that the CI had said
that a “substantial” amount of cocaine existed in the Madeira Drive residence.
Ceja also averred that he had used “police records” to learn that a “Robby Lee
Jamison” and an “Ashley Curry” were associated with the Madeira Drive
residence. Ceja also said that Jamison’s driver license information showed
Jamison to be a black male, 5’11” tall, weighing 236 pounds. Using police
affidavit, venturing that misspellings like “by” instead of “buy,” and “whey” instead
of “when” somehow destroyed the trustworthiness of the affidavit as a whole.
The trial court’s ruling indicates that, like the magistrate who issued the warrant,
it was not confused by these misspellings.
3
Citing safety reasons, the affidavit specifically states that Ceja is intending
to keep the identity of his CI undisclosed. At the suppression hearing, and on
appeal, Jamison argued that Ceja was intentionally misleading the magistrate by
using the pronouns “they” and “them” for the CI. Jamison also professed
confusion over the colloquial use of these pronouns as non-gender identifying
pronouns. At one point, despite numerous objections from the State and multiple
statements by the trial court that there were not “two” CIs described in the
affidavit, Jamison questioned Ceja at length about “two” CIs.
4
photos from a previous arrest, Ceja averred that he showed Jamison’s picture to
the CI and that the CI identified the picture as Jamison. The affidavit also recites
that Jamison had a prior criminal history and that his computerized criminal
history showed outstanding misdemeanor warrants in Tarrant County, Texas,
and a “Possession of Cocaine charge from Colorado.” The affidavit was sworn to
on the same date the magistrate issued the warrant.
After setting up surveillance in anticipation of executing the warrant on
September 24, 2010, Ceja saw Jamison leave the Madeira Drive residence in his
vehicle. By Ceja’s account, he observed Jamison fail to use his turn signal, and
Ceja radioed to another officer to execute a stop of Jamison and to arrest him for
the traffic violation. Police then escorted Jamison to the Madeira Drive residence
and executed the search warrant. In its findings of fact and conclusions of law,
the trial court found that in a recorded conversation, Jamison willingly indicated
that he would accompany officers to execute the search warrant on his
residence. Inside the kitchen of the Madeira Drive residence, officers discovered
over ninety-seven grams of cocaine. Ultimately, the trial court found Jamison
guilty of both charges and assessed punishment at nine years’ incarceration for
the delivery charge and five years’ incarceration for the possession charge, with
the sentences to run concurrently. This appeal followed.
5
III. DISCUSSION
A. Ceja’s Affidavit and the Validity of the Search Warrant
In his first point, Jamison argues that Ceja’s affidavit supporting the search
warrant was deficient because it “contained false allegations, did not establish
that the informant was credible and reliable, and the affiant failed to corroborate
the facts alleged in the affidavit.” Jamison further argues that the information
alleged in the affidavit was conclusory. The State argues that the affidavit stated
adequate probable cause. We agree with the State.
A search warrant may not legally issue unless it is based on probable
cause. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code Crim. Proc.
Ann. art. 1.06 (West 2005). When reviewing a trial court’s decision on a motion
to suppress, we normally use a bifurcated standard of review. Guzman v. State,
955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We defer to the trial court’s
determination of historical fact or questions of mixed fact and law when they
involve credibility determinations. Id. But we review de novo the application of
law to the facts, or mixed questions that do not turn on the determination of
credibility. Id. As to search warrants, however, both appellate courts and trial
courts alike must give great deference to a magistrate’s implicit finding of
probable cause. State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App.
2011). The issuing magistrate’s determination of probable cause will be
sustained if the magistrate had a substantial basis for concluding that a search
6
would uncover evidence of wrongdoing. Illinois v. Gates, 462 U.S. 213, 236, 103
S. Ct. 2317, 2331 (1983).
When reviewing a magistrate’s determination, we should interpret the
affidavit in a “commonsensical and realistic” manner, recognizing that the
magistrate may draw reasonable inferences. McLain, 337 S.W.3d at 271
(quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App. 2007)). When
in doubt, we defer to all reasonable inferences that the magistrate could have
made. Id. A “grudging or negative attitude” by reviewing courts toward warrants
is inconsistent with the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant. Gates, 462 U.S. at 236, 103 S. Ct. at 2331.
Whether the facts alleged in a probable-cause affidavit sufficiently support a
search warrant is determined by examining the totality of the circumstances. Id.
at 230–31, 103 S. Ct. at 2328. A search warrant is supported by probable cause
when the facts set out within the “four corners” of the affidavit are “sufficient to
justify a conclusion that the object of the search is probably on the premises to
be searched at the time the warrant is issued.” Davis v. State, 202 S.W.3d 149,
154 (Tex. Crim. App. 2006).
Jamison’s arguments invite us to scrutinize numerous discrete parts of the
affidavit and to find each deficient so that the affidavit as a whole cannot support
the magistrate’s probable-cause finding. But even Jamison admits that we are
not to analyze the affidavit in a “hyper-technical manner.” See McLain, 337
S.W.3d at 271. Yet Jamison has asked this court to do just that. Using twenty-
7
five pages of briefing, Jamison attacks the affidavit line by line and paragraph by
paragraph, pointing out, much like he did at the suppression hearing,
misspellings, typos, the affiant’s attempts to keep the anonymity of the CI
safeguarded, and what he describes as “intentionally vague statements and
statements made recklessly and without corroboration or verification of their
validity.”
The proper inquiry for reviewing courts, including this court and the trial
court, is whether, under the totality of the circumstances, there are sufficient
facts, 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. Id. at
272; Rodriguez, 232 S.W.3d at 62. The issue is not whether there are other facts
that could have, or even should have, been included in the affidavit; we focus
instead on the combined logical force of facts that are in the affidavit. Rodriguez,
232 S.W.3d at 62. If in a particular case it may not be easy to determine when
an affidavit demonstrates the existence of probable cause, the resolution of
doubtful or marginal cases in this area should be largely determined by the
preference to be accorded warrants. Lopez v. State, 535 S.W.2d 643, 647 (Tex.
Crim. App. 1976) (citing United States v. Ventresca, 380 U.S. 102, 109, 85 S. Ct.
741, 746 (1965)).
Here, the affidavit reflects that Ceja received a tip that crack cocaine was
being sold out of the Madeira Drive residence. Ceja used police records to
identify that Jamison resided at the residence and that Jamison matched the
8
description given by the CI. Further, the affidavit reflects that the CI verified that
the person in a police photo of Jamison was the same person residing at the
residence who was selling crack cocaine. On two separate occasions, Ceja used
the CI, whom he describes as credible and reliable, to effectuate two controlled
buys—both times confirming by presumptive drug testing that the substance
purchased from the residence was crack cocaine. The last controlled buy
occurred within forty-eight hours of the issuance of the warrant. Based on the
totality of these facts and the inferences drawn from them, we conclude that the
affidavit supported the magistrate’s probable-cause finding. See State v. Griggs,
352 S.W.3d 297, 300, 304 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d)
(holding that affidavit reciting affiant received tip from “credible and reliable”
informant, coupled with a controlled buy of alleged narcotics, sufficient to
establish probable cause that narcotics would exist at residence); see also Profet
v. State, No. 01-97-00588-CR, 1999 WL 318811, at *1 (Tex. App.—Houston [1st
Dist.] May 20, 1999, no pet.) (not designated for publication) (holding that
affidavit, which stated that officer’s conducting a single controlled buy, coupled
with informant’s description of defendant, was sufficient to support probable-
cause determination). We hold that the trial court did not err by finding that
Ceja’s affidavit contained sufficient facts to justify a conclusion that a search of
Jamison’s residence would probably uncover cocaine on the premises. See
McLain, 337 S.W.3d at 271. We overrule Jamison’s first point.
9
B. The Traffic Stop
In his second point, Jamison argues that he was illegally detained by the
police when, after he was pulled over, he was escorted back to his residence
while police executed the search warrant; thus, Jamison argues that “the trial
court erred by denying [his] Motion to Suppress.” In his motion to suppress,
Jamison argued that “certain items were allegedly removed from [his] person and
from a secondary location where [he] had an expectation of privacy.” As the
State points out, Jamison never identifies what he is actually seeking to
suppress. Indeed, Jamison’s motion did not identify what evidence he wanted
suppressed, nor, as far as we can discern from the record, was such evidence
identified at the suppression hearing. It could be argued that under these
circumstances, the trial court could have properly denied Jamison’s motion to
suppress as inadequate. See Amador v. State, 275 S.W.3d 872, 874 n.3 (Tex.
Crim. App. 2009) (reasoning that failure to identify specific evidence desired to
be suppressed in motion to suppress supports trial court’s determination to deny
the motion).
But this court detects a larger problem with Jamison’s second point.
Jamison has failed to point to any authority that stands for the proposition that
evidence discovered pursuant to a valid search warrant of one’s residence is to
be suppressed because an alleged illegal detention related to a traffic stop at a
separate location occurred. This seems to be an argument that has no
relationship or nexus to the evidence used to convict Jamison; namely, the
10
cocaine discovered in the Madeira Drive residence pursuant to a valid search
warrant. See Wong Sun v. United States, 371 U.S. 471, 487–88, 83 S. Ct. 407,
417 (1963) (explaining that question to be asked in determining whether
evidence should be suppressed under “fruit of the poisonous tree” doctrine is
“whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or
instead by means sufficiently distinguishable to be purged of the primary taint”).
Even assuming that Jamison is correct that he was illegally detained when
officers stopped him in his vehicle and then transported him back to his
residence, the discovery of cocaine at Jamison’s residence by means of a valid
search warrant is a sufficiently distinguishable means of discovering the cocaine
to purge any potential taint related to the traffic stop. Id. We conclude that the
trial court did not err by overruling Jamison’s motion to suppress, and we
overrule his second point.
C. Sufficiency of the Evidence
In his third point, Jamison argues that the evidence is “legally and factually
insufficient to connect [him] to the residence and the contraband that was found
in the residence.” Thus, Jamison challenges only that he possessed the cocaine
found at the Madeira Drive residence. We conclude that the evidence is
sufficient to support the trial court’s determination that Jamison possessed the
cocaine found in the residence.
11
1. Standard of Review
The court of criminal appeals has held that there is no meaningful
distinction between the legal sufficiency standard and the factual sufficiency
standard. Brooks v. State, 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010)
(overruling Clewis v. State, 922 S.W.2d 126, 131–32 (Tex. Crim. App. 1996)).
Thus, the Jackson standard, which is explained below, is the “only standard that
a reviewing court should apply in determining whether the evidence is sufficient
to support each element of a criminal offense that the State is required to prove
beyond a reasonable doubt.” Id. at 912.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012).
2. Possession
A person possesses an object if he has actual care, custody, control, or
management of that object. Tex. Health & Safety Code Ann. § 481.002(38)
(West 2010). When drugs are found, the connection to the drugs must be more
than fortuitous, and to this end, Texas courts utilize a links rule that is designed
to protect innocent bystanders from conviction merely because of their proximity
to someone else’s drugs. Evans v. State, 202 S.W.3d 158, 161–62 (Tex. Crim.
12
Ohio App. 2006). Mere presence at the location where drugs are found is insufficient,
by itself, to establish actual care, custody, or control. But presence or proximity,
when combined with other evidence, direct or circumstantial, may be sufficient.
Id.
Some of the links that may establish possession include: (1) the
defendant’s presence when a search is conducted; (2) whether the contraband
was in plain view; (3) the defendant's proximity to and the accessibility of the
narcotic; (4) whether the defendant was under the influence of narcotics when
arrested; (5) whether the defendant possessed other contraband or narcotics
when arrested; (6) whether the defendant made incriminating statements when
arrested; (7) whether the defendant attempted to flee; (8) whether the defendant
made furtive gestures; (9) whether there was an odor of contraband;
(10) whether other contraband or drug paraphernalia were present; (11) whether
the defendant owned or had the right to possess the place where the drugs were
found; (12) whether the place where the drugs were found was enclosed;
(13) whether the defendant was found with a large amount of cash; and
(14) whether the conduct of the defendant indicated a consciousness of guilt.
Olivarez v. State, 171 S.W.3d 283, 291 (Tex. App.—Houston [14th Dist.] 2005,
no pet.). It is not the number of links that is dispositive but, rather, the logical
force of all of the evidence, direct and circumstantial. Evans, 202 S.W.3d at 162.
13
The evidence in this case establishes sufficient links that raise reasonable
inferences of Jamison’s knowledge and control of the cocaine. 4 After officers
arrested Jamison for the traffic violation, he willingly accompanied Officer Bolger
back to the Madeira Drive residence. Bolger testified that it did not appear that
the residence had many occupants, and he also testified that Jamison’s personal
belongings were found “[t]hroughout the house, but mainly the back bedroom.”
Bolger also found “personal paperwork” belonging to Jamison in the residence.
The logical force of this evidence is that it was Jamison’s residence.
Furthermore, once at the residence and while officers executed the search
warrant, Jamison directed officers to the cocaine that was found in the kitchen.
The logical force of this evidence is that Jamison had accessibility to the cocaine.
See Reed v. State, 158 S.W.3d 44, 47–48 (Tex. App.—Houston [14th Dist.]
2005, pet. ref’d) (reasoning that defendant’s knowledge that codeine was in the
trunk of his vehicle was a factor linking him to codeine found therein). Also, in
the audio recording of an exchange between Bolger and Jamison when he was
4
The State did not reintroduce much of the evidence presented during the
suppression hearing again at the bench trial. See Cruz v. State, 657 S.W.2d
850, 850 (Tex. App.—Texarkana 1983, no pet.) (“If there had been a jury trial on
the merits, the State would be required to prove its case without benefit of the
evidence introduced in the pretrial hearing. . . . the State should not be required
to do the same when the trier of fact is the trial judge.”) We have analyzed this
point of error using only the evidence introduced during the trial, which excludes
evidence introduced at the suppression hearing further linking Jamison to the
cocaine—namely, Ceja’s testimony that he had established through police
records that Jamison lived at the Madeira Drive residence and Ceja’s testimony
that he performed two controlled buys through a confidential informant from the
residence and by a person named Robby Jamison.
14
arrested for the traffic violation, Jamison admitted that he lived at the Madeira
Drive residence with his girlfriend “Ashley” and that there would be cocaine found
in the house.5 The logical force of these incriminating statements is that Jamison
had actual care, custody, and control over the cocaine found in the residence.
See Olivarez, 171 S.W.3d at 291. Viewing the evidence in the light most
favorable to the verdict, we conclude that the factfinder could have found that
Jamison possessed the cocaine found at the Madeira Drive residence. See
Wilson v. State, No. 01-02-01002-CR, 2004 WL 213388, at *3 (Tex. App.—
Houston [1st Dist.] Feb. 5, 2004, pet. ref’d) (mem. op., not designated for
publication) (“Appellant admitted to owning the house where the drugs were
5
Even though Jamison introduced the audio recording of his and Bolger’s
conversation for the limited purpose of taking Bolger on voir dire, at points in the
trial, the State, Jamison, and the trial court all treated the audio as if it had been
introduced into evidence; thus, we include it in our evidentiary sufficiency
analysis. See Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007)
(reasoning that Texas courts have held that documents or items in some way
made part of the trial record which are treated by the court and parties as if
formally introduced into evidence are properly considered by the factfinder on the
merits of the case). Furthermore, without briefing the point, citing any authority,
or analyzing why, Jamison argues that his statement about living at the Madeira
Drive residence was made prior to his being given Miranda warnings. But
Jamison made statements establishing that the Madeira Drive residence was his
home prior to and after officers gave him Miranda warnings. Even assuming
Jamison is correct that the statements were illegally obtained in violation of his
right against self-incrimination, in our sufficiency review, we consider all
evidence, even evidence illegally obtained and improperly introduced. See
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (reasoning that a
reviewing court must consider all the evidence admitted at trial, even improperly
admitted evidence, when performing a sufficiency review).
15
found and led officers to locations inside his house where narcotics were
found.”). We overrule Jamison’s third point.
IV. CONCLUSION
Having overruled all three of Jamison’s points, we affirm the trial court’s
judgments.
BILL MEIER
JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 14, 2013
16