Alexis Silva Rosa v. State

Affirmed and Memorandum Opinion filed July 24, 2008

Affirmed and Memorandum Opinion filed July 24, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00209-CR

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ALEXIS SILVA ROSA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court

Harris County, Texas

Trial Court Cause No. 1079307

M E M O R A N D U M  O P I N I O N

A jury found appellant Alexis Silva Rosa guilty of murder and assessed punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division.  The trial court sentenced appellant accordingly.  In a single issue, appellant contends the trial court erred in denying his motion to suppress his oral statement given after his arrest pursuant to a warrant.  We affirm.

I.  Factual and Procedural Background

The decedent=s daughter, Ana Oviedo, found the body of her mother, Aurelia Ybarra, on Saturday July 8, 2006.  Before her death, Oviedo or her brother talked with their mother by telephone every day.  Oviedo last spoke with her mother on Wednesday, July 5. When Oviedo was unable to reach her mother by telephone on Thursday and Friday, she was worried, so Oviedo, her brother, and her sister-in-law, drove to Houston from Mt. Vernon, Texas.  They arrived around 4:00 a.m., Saturday morning.  Ybarra=s trailer door was locked, and Ybarra=s car was gone. Oviedo crawled through a window in the master bedroom, and let her brother and sister-in-law in through the door.  As Oviedo walked from the master bedroom to the door, she saw nothing out of place.  Oviedo subsequently discovered her mother=s body, completely covered with a blanket, on the floor of the second bedroom.  Oviedo=s brother and sister-in-law called 911.

Harris County Sheriff=s Department Officer Shawn Woelk arrived at the trailer at 5:35 a.m.  By that time, other officers had secured the trailer as a crime scene.  The officers observed no signs of a forced entry.  With the exception of the second bedroom, the trailer was neat, clean, and orderly, with no sign of a struggle or disturbance.  Other than Ybarra=s vehicle, nothing was obviously missing.  Woelk believed Ybarra=s killing had occurred in the second bedroom because of the blood spatter he observed there.

Oviedo told Woelk she and her brother and sister-in-law drove to Houston because she feared her mother might have been involved in an altercation with appellant.  Just days earlier, Ybarra related to Oviedo that appellant had been very upset when Ybarra told him she did not love him and did not know why he stayed around.  Ybarra also told Oviedo that appellant had threatened to kill her.  Oviedo told Woelk she last spoke with her mother July 5 around 10:00 p.m.

Three male friends of the family, one of whom was Benjamin Aguilar, told Woelk they were at Ybarra=s home around 9:00 or 9:30 p.m. July 1 watching movies with Ybarra when Aan older Hispanic fellow@ appeared on Ybarra=s porch.  The man was extremely upset that the three of them were at Ybarra=s trailer.

While Woelk was at the crime scene, one of appellant=s past employers arrived, possibly in response to a call from Oviedo.  The employer provided a copy of appellant=s employment papers, including a copy of his Immigration and Naturalization Service identification, a copy of his driver=s license, picture identification, and addresses.

Woelk later spoke with Immigration and Customs Enforcement (ICE) agents who directed Woelk to Felipe Martinez, the agent monitoring appellant=s actions in the United States.  According to Martinez, appellant was supposed to be in the Fort Worth area where he was working.  Martinez also provided appellant=s cellular telephone number.

Woelk obtained a court order for Ybarra=s cellular and home telephone numbers and for appellant=s cellular telephone number.  From July 3 through July 5, there were  twenty-nine outgoing calls from appellant=s cellular telephone to Ybarra=s home or cellular  telephone.  The calls on July 4 and 5 were all dialed using star 67, which is an anonymous caller code.  The records indicated appellant=s last call from Fort Worth on July 5 was at 9:39 p.m.  He then used his phone in Houston at 2:15 a.m. July 6, and again in Fort Worth on 10:26 a.m. the same morning. There were no calls July 6 and 7.  On July 9 and 11, there was one call each day from the Miami area, using star 67.

Woelk contacted Agent Martinez and requested that he call appellant into his office so they could meet with him.  Woelk executed an arrest warrant affidavit and obtained a warrant for appellant=s arrest.  On August 4, Woelk and Sheriff=s Department Deputy Investigator Officer Mario Quintanilla went to ICE headquarters in Fort Worth and took appellant into custody.  Officer Quintanilla read appellant the Miranda warnings in Spanish.  Appellant waived his rights and gave a statement, which was audio-taped.  A Tarrant County judge subsequently gave appellant the magistrate warnings, and Woelk and Quintanilla transported appellant to Houston.

Appellant was charged with murder.  He filed a motion to suppress, which the trial court heard and denied.  At trial, the State introduced appellant=s statement, in which he confessed to being at Ybarra=s home July 6, at Ybarra=s request, but stated Ybarra attacked him with a knife, he pushed her, and she fell.  The jury found appellant guilty and assessed punishment at confinement for life.  The court rendered judgment on the jury=s verdict.

II.  Issue Presented

In a single issue, appellant contends the trial court reversibly erred in denying his motion to suppress his oral statement because the affidavit in support of the arrest warrant did not contain sufficient facts to establish probable cause he committed Ybarra=s murder.

III.  Analysis

A.      Standard of Review and Legal Principles

When reviewing a ruling on a motion to suppress evidence, we afford almost total deference to the trial court=s determination of the historical facts.  Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007).  We review de novo questions of law and mixed questions of law and fact not turning on an evaluation of credibility and demeanor.  Id.

An arrest warrant affidavit must provide the magistrate with sufficient information to support an independent determination that probable cause exists to believe the accused has committed a crime. McFarland v. State, 928 S.W.2d 482, 509B10 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v. State, 983 S.W.2d 249, 263 n.18 (Tex. Crim. App. 1998).  In assessing the sufficiency of an affidavit for an arrest or a search warrant, we are limited to the four corners of the affidavit and are to interpret the affidavit in a common sense and realistic manner, recognizing the magistrate is permitted to draw reasonable inferences.  Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).  We should give the issuing magistrate=s determination great deference and sustain it so long as there was a substantial basis for issuing the warrant.  See Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983).^[1]

B.      Application of the Law to the Facts

Detective Woelk=s affidavit for appellant=s arrest set forth the following facts:

$ appellant was Ybarra=s boyfriend and had dated Ybarra for the last two to three years;

$ appellant did not live with Ybarra, but lived in Fort Worth, Texas, and Miami, Florida;

$ Benjamin Aguilar told Woelk he had been at Ybarra=s trailer watching movies with Ybarra around 9:30 p.m. on July 1, 2006, when he saw appellant standing on the porch looking upset and angry;

$ Ybarra told Oviedo she wanted to end the relationship with appellant and had told Oviedo that about a year ago;

$ Ybarra told Oviedo appellant was a very jealous person and told her he would rather see her dead than see her with another man;

$ Oviedo had heard appellant make the same statement during the past year;

$ Oviedo last spoke with Ybarra on Wednesday, July 5, 2006, about 10:00 p.m.;

$ during the July 5 conversation, Ybarra told Oviedo appellant had become angry with her, broken a wine glass, acted as if he were going to cut his wrist with the broken glass, and told Oviedo he was going to kill her so she would not be with anyone elseCthese events occurred on Tuesday (July 4), and appellant left on Wednesday;

$ on Wednesday (July 5) around 3:00 p.m., Ybarra told Oviedo appellant had told her he had been listening on the other telephone line, believed Ybarra was cheating on him, and ripped up the agenda Ybarra used as a telephone book;

$ the telephone records for appellant=s cellular telephone number reflected six star 67 calls originating from the Fort Worth area from appellant=s number to Ybarra=s home telephone on July 5 from 9:27 p.m. to 10:24 p.m.;

$ the telephone records also showed one call from appellant=s number, originating from the Houston area, to Miami around 2:15 a.m.; and

$ the assistant medical examiner who perform the autopsy of Ybarra=s body stated, in her opinion, Ybarra died as a result of a blunt impact trauma of the head and upper extremities.

The affidavit compares favorably to that held sufficient to establish probable cause in Earhart v. State, 823 S.W.2d 607, 631 (Tex. Crim. App. 1991), vacated on other grounds, 509 U.S. 917, 113 S. Ct. 3026 (1993).  In Earhart, the affiant alleged (1) the child victim had disappeared, (2) the defendant encountered the victim about a week before her disappearance, at which time the defendant Apaid a lot of attention@ to her, (3) the defendant was seen by several people in the victim=s neighborhood on the day she disappeared, (4) the defendant specifically asked a neighbor when the victim=s family was expected home on the date of her disappearance, (5) a car matching the description of the defendant=s car was seen at the victim=s home, (6) the victim was seen talking to the car=s occupant on the afternoon of her disappearance, and (7) the defendant left town within two days of the victim=s disappearance.  Id.

Analogous to the defendant=s alleged actions in  Earhart, appellant=s alleged actions in the present case included (1) recent contact with the decedent, (2) behavior consistent with having committed the alleged offense (paying a lot of attention to the kidnapped and murdered child victim in Earhart; expressing and exhibiting jealousy and making threats to kill Ybarra here), (3) presence near the scene at the time the offense was committed (supported by witnesses= observations in Earhart and by appellant=s cellular telephone records here), and flight shortly after the apparent time of the crime (two days in Earhart and the same night here).  In addition, the affidavit in the present case referred to the fact appellant had used star 67 to call Ybarra on July 5, supporting an inference appellant believed Ybarra would not answer if she knew appellant was calling her; yet he traveled from Fort Worth to Houston the same night.  Just as the alleged facts in the Earhart arrest warrant were sufficient to establish probable cause in Earhart, so the facts are sufficient in the present case.^[2]

We conclude the facts contained in the four corners of the arrest warrant affidavit provided sufficient information to support the magistrate=s independent determination that probable cause existed to believe the appellant had committed a crime.  See McFarland, 928 S.W.2d at 509.  We overrule appellant=s sole issue.

IV.  Conclusion

Having overruled appellant=s sole issue, we affirm the judgment of conviction.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed July 24, 2008.

Panel consists of Justice Yates, Guzman, and Brown.

Do Not Publish C Tex. R. App. P. 47.2(b).

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^[1]  Although Gates involved a search warrant, rather than an arrest warrant, the standards used to judge the showing of probable cause are the same for both.  Ware v. State, 724 S.W.2d 38, 40 (Tex. Crim. App. 1986).

^[2]  We acknowledge the Court of Criminal Appeals found an affidavit insufficient in Hankins v. State, 132 S.W.3d 380, 388B89 (Tex. Crim. App. 2004).  In Hankins, the Court of Criminal Appeals further held the defendant=s statement was not tainted by his illegal arrest and affirmed the judgment of conviction.  Id. at 390.

We conclude Hankins is distinguishable from the present case.  In Hankins, the court discounted allegations in the arrest warrant that would have connected the defendant with the crime scene and with the victim=s home and car, stating:

There were no facts that would lead a neutral and detached magistrate to conclude that appellant was the perpetrator and not merely living with his wife and driving her car.  There is nothing to show that the note was written by appellant. Even if the envelope on which the note was written was, as alleged, addressed to appellant, it was found at the crime scene where appellant was living.  The note [found on an envelope at the crime scene] could have been written by anyone who picked up the envelope while inside the residence.

Id. at 389. Importantly, in Hankins there were no recent threats or arguments, as we have here. Further, unlike the victim and the defendant in Hankins, appellant and Ybarra were not married.  Additionally, appellant did not live with Ybarra, but lived in Fort Worth, a city over two hundred miles from Houston. Finally, appellant=s trip to Houston on July 5 was preceded by six anonymous telephone calls from appellant to Ybarra.  There is no information appellant had any legitimate reason to be in Houston on July 5.  Cf. Strickland v. State, No. 05-04-00405-CR, 2005 WL 248629, at *3 (Tex. App.CDallas Feb. 3, 2005, pet. ref=d) (not designated for publication) (distinguishing Hankins on ground Strickland and decedent were not married and there was no information Strickland had any reason to be driving decedent=s truck).