Rodolfo Gonzales v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00268-CR
No. 07-13-00269-CR
________________________
RODOLFO GONZALES, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2012-435,536 & 2012-435,537
Honorable Cecil Puryear, Presiding by Assignment
December __, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Following an open plea of guilty, Rudolfo Gonzales was convicted of the offense
of possession of a controlled substance (cocaine) with intent to deliver, over 4 grams
but less than 200 grams, enhanced by a prior felony conviction, and sentenced to fifty
years confinement in Cause No. 07-13-00268-CR (trial court cause no. 2012-435,536).1
At the same time, Appellant was convicted of the offense of possession of marihuana,
over 4 pounds but less than 50 pounds, and sentenced to ten years confinement in
Cause No. 07-13-00269-CR (trial court cause no. 2012-435,537).2 The trial court
ordered the two sentences to be served concurrently. By a single issue, Appellant
contends the trial court erred in denying his pretrial motion to suppress because the
officer’s affidavit did not provide sufficient probable cause for the issuance of the search
warrant that lead to the discovery of the controlled substances the subject of the
respective prosecutions. We affirm.
BACKGROUND
On July 2, 2012, Officer Brady Lewis of the Lubbock Police Department received
an anonymous tip alleging that controlled substances were being trafficked from a
specific residence in the city. Based on this tip, Officer Lewis and another officer set up
surveillance of the residence. During the surveillance he observed three vehicles arrive
at the residence. Officer Lewis observed various individuals enter the residence for a
short period of time and then leave. Based on this observation and the prior tip, Officer
Lewis followed an individual leaving the residence and made contact. During a search
of that individual’s vehicle, a white powdery substance was discovered that field tested
1
TEX. HEALTH & SAFETY CODE ANN. § 481.112(a) (West 2010). The offense is a felony of the first
degree. Id. at § 481.112(d). As enhanced, the offense was punishable by imprisonment for life, or for
any term of not more than 99 years or less than 15 years, and by a fine not to exceed $10,000. TEX.
PENAL CODE ANN. §12.42(c)(1) (West Supp. 2014).
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TEX. HEALTH & SAFETY CODE ANN. § 481.121(a) (West 2010). The offense is a felony of the third
degree. Id. at § 481.121(b)(4). The punishment range in this case was not enhanced. Accordingly, the
offense was punishable by imprisonment for any term of not more than 10 years or less than 2 years, and
by a fine not to exceed $10,000. TEX. PENAL CODE ANN. § 12.34 (West 2011).
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to be cocaine. The individual detained stated that he purchased the cocaine from a
Hispanic male named “Rudy” at the residence under surveillance.
That same day, Officer Lewis presented an affidavit for a search warrant to
Judge Drue Farmer of the Lubbock County Court at Law # 2.3 A search warrant was
signed and issued and, later that same day, the search warrant was executed at the
residence listed. A search of the residence yielded evidence which Appellant sought to
suppress via a pretrial motion to suppress. In support of that motion, Appellant argued
that the search was unreasonable and illegal under both the Fourth Amendment of the
U.S. Constitution and Article I, Section 9 of the Texas Constitution because it was
based on an affidavit that failed to give the magistrate sufficient facts to reasonable
conclude the object of the search was probably located on the premises described. The
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The probable cause affidavit provided in pertinent part as follows:
On today’s date the Lubbock Police Department narcotics unit received a tip in reference
to illegal narcotics trafficking from [residence address]. The caller observed
approximately seventeen vehicles arrive at the location for a short period of time then
leave. Through my training and experience I know this activity is common with street
level narcotics trafficking. Investigator Williams and myself set up surveillance on the
residence and observed three separate vehicles arrive at the residence. The individuals
would enter into the residence for a short period of time and then leave the residence. I
observed a Hispanic male later identified as [R.G.] arrive and park in front of the
residence driving a tan Ford expedition bearing Texas registration DF6S158. [R.G.]
entered into the residence and left approximately three or four minutes later. Through my
training, experience, and our investigation I believed [R.G.] was purchasing illegal
narcotics. We were driving an unmarked vehicle and wearing plain clothes. We were
wearing our Lubbock Police Department issued tact vest which display’s “Police” on the
front and back of the vest. [R.G.] continued looking in his rear view mirror and appeared
to have observed us following him. [R.G.] then leaned over in the vehicle and appeared
to be hiding something around the center console area. [R.G.] pulled into a parking lot
and we made contact with him. I observed a white powdery substance in the passenger
floorboard and center console area where [R.G.] had been reaching. We field tested the
white powdery substance and it tested positive for cocaine using a field test kit. [R.G.]
advised he had purchased the cocaine from a Hispanic male named “Rudy” at [the
residence.] Through my training, experience, information received, and surveillance I
believe that there are illegal narcotics and proceeds from narcotics sales inside [the
residence.] The utilities at [the residence] return to Rudolfo Gonzales. Rudolfo Gonzales
has been arrested in the past for possession of marijuana three times, manufacture /
delivery of a controlled substance, assault, burglary, and two thefts.
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trial court denied that motion and the Appellant entered a plea of guilty without a plea
recommendation. Following conviction and sentencing he brings this appeal to contest
the denial of that motion.
STANDARD OF REVIEW
Due to the constitutional preference for searches to be conducted pursuant to a
warrant as opposed to a warrantless search, a trial court’s determination whether
probable cause exists to support the issuance of a search warrant is subject to a highly
deferential standard of review, constrained solely to the “four corners” of the probable
cause affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011);
Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). An appellate court
should uphold the magistrates’ probable cause determination if it finds the affidavit in
support of the warrant provides the magistrate a ‘substantial basis’ for concluding that
probable cause existed. McLain, 337 S.W.3d at 271.
ANALYSIS
From the four corners of the probable cause affidavit we know that (1) an
anonymous informant suspected narcotics activity at the residence based on his
observation of seventeen vehicles coming and then leaving the residence after a short
interval of time, (2) traffic patterns similar to this are common with street level narcotics
trafficking, (3) officers confirmed by observation similar traffic patterns at the residence,
(4) cocaine was found in a vehicle observed at the residence, conforming to that traffic
pattern, that was stopped immediately after leaving the residence, (5) the driver of that
vehicle stated that he purchased the cocaine at that residence from someone named
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“Rudy,” (6) the utilities at the residence were in the name of Rudolfo Gonzales, and (7)
Rudolfo Gonzales had a prior criminal history including manufacture / delivery of a
controlled substance. When these facts are considered together, we believe a
reasonable magistrate could conclude that there was a ‘substantial basis’ for believing
that probable cause existed that narcotics would be found at the residence in question,
at the time the warrant was issued. Accordingly, Appellant’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
Patrick A. Pirtle
Justice
Do not publish.
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