Joe BARTON, Sr., Appellant, v. The STATE of Texas, Appellee.
No. 09-96-115 CR.
Court of Appeals of Texas, Beaumont.
Decided Dec. 17, 1997.
Submitted May 1, 1997. Discretionary Review Refused Feb. 25, 1998.
We have previously held that courts have no authority to put conditions on misdemeanor appeal bonds, unless specifically provided for by statute. Dallas v. State, 945 S.W.2d 328, 330 (Tex.App.---Houston [1st Dist.] 1997, pet. granted). The State contends Dallas was wrongly decided. It cites two cases stating that courts have “inherent power” to put restrictive conditions on appeal bonds. Estrada v. State, 594 S.W.2d 445, 446 (Tex. Crim.App.1980); Easton v. Rains, 866 S.W.2d 656, 659 (Tex.App. - Houston [1st Dist.] 1993, orig proceeding). Both were felony cases. The State cites no case allowing restrictions on misdemeanor bonds, based on a court‘s inherent power. We need not decide in this case, however, whether a judge has inherent power to place restrictions on misdemeanor appeal bonds. In Dallas, we recognized that a judge may place conditions on a misdemeanor appeal bond, if specifically allowed by statute. 945 S.W.2d at 330. All but one condition on appellant‘s bond, attendance at Alcoholics Anonymous meetings, are specifically allowed by statute.
Electronic monitoring and random urinalysis are allowed by
Chapter 17 applies to appeal bonds, as well as to bonds before appeal.
The rules in this Chapter [17 entitled “Bail“] respecting bail are applicable to all such undertakings when entered into the course of a criminal action, whether before or after an indictment, in every case where authority is given to any court, judge, magistrate, or other officer, to require bail of a person accused of an offense or of a witness in a criminal action.
We therefore hold that the trial judge had authority to impose restrictions on the appeal bond regarding home confinement, electronic monitoring, random urinalysis, and guardian interlock, but he had no authority to require attendance at Alcoholics Anonymous meetings.
Point of error five is sustained in part.
In point of error six, appellant complains of the amount of bail required. Appellant‘s bond before trial was $7,500 personal recognizance. His appeal bond was set at $10,000. The judge may have been influenced by appellant‘s four prior DWI convictions, by knowledge that appellant had forfeited bond in this case, delaying the trial for many months, and by the absence of evidence that appellant could not make the bond. Ex parte Mendoza, 414 S.W.2d 666, 668 (Tex.Crim.App.1967). In fact, appellant made the bond. Thus, this complaint is moot.
We overrule point of error six.
The appeal bond is reformed to strike any requirement that appellant attend Alcoholics Anonymous meetings. In all other respects, the judgment and the order imposing restrictions on the appeal bond are affirmed.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
OPINION
WALKER, Chief Justice.
Appellant Joe Barton entered an agreed plea of guilt to the offense of possessing 400 or more grams of cocaine with a recommendation of twenty years’ confinement and no fine from the State. This appeal only tests the trial court‘s denial of appellant‘s Motion to Suppress.
Point of error one contends that the trial court erred in denying the motion to suppress because the affidavit which secured issuance of the search warrant failed to provide the reviewing magistrate enough evidence so as to determine whether the unnamed informant was adequately credible or reliable. The operative portion of the probable cause affidavit reads as follows:
Affiant is a peace officer in and for the State of Texas, and is currently employed as the sheriff of San Jacinto County, Texas. Affiant will show that on October 25, 1995, he was at the Sheriffs Department and while at the office affiant received a 911 call from a residence in the Pine Valley area of San Jacinto County, in reference to narcotic trafficking. Affiant will show that he travelled to the location of the 911 call and affiant met with a confidential informant, who advised affiant that they, informant, had recovered a package wrapped in cellophane and tape, that informant believed contained illegal narcotics. Affiant observed the package and noted that the package was of the type commonly used to conceal cocaine. Affiant cut into the package, and found it to contain a white powdery substance that when field tested by affiant, showed positive for cocaine. Affiant spoke with informant in regards to where the package had been discovered, and informant advised that the package had been located in an outbuilding, located on property in the care, control and custody of Joe Barton, as described above in this affidavit. Informant advised that there were several more packages located on the same property, and wrapped in the same manner. Informant advises affiant that informant has been on the premises in the last 24 hours and resides at the location with Joe Barton, and this allowed informant access to the property, as well as the contraband turned over to affiant.
A search warrant may not legally issue unless it is based on probable cause.
Gates recognized that when basing a search warrant on information provided by a confidential informant, the issuing magistrate should generally have before her sufficient information to adequately reveal, first, the informant‘s “basis of knowledge,” which the Supreme Court described as “the particular means by which he (the informant) came by the information given in his report.” Gates, 462 U.S. at 228, 103 S.Ct. at 2326-27, 76 L.Ed.2d at 542. Additionally, the issuing magistrate should examine the affidavit for information establishing either the “veracity” of the affiant‘s informant, or, alternatively, the “reliability” of the informant‘s report. Id. at 229, 103 S.Ct. at 2327-28, 76 L.Ed.2d at 542. Gates, therefore, appears to distinguish, in some sense, between an informant‘s “veracity,” and the “reliability” of the information provided by the informant. And while the Gates court recognized that “an informant‘s ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are all highly relevant in determining the value of his report[,][it] d[id] not agree, however, that these elements should be understood as entirely separate and independent requirements to be rigidly exacted in every case[.]” Id. at 230, 103 S.Ct. at 2328, 76 L.Ed.2d at 543. The Court further loosened the grip of these three elements vis a vis appellate review by noting that they “should be understood simply as closely intertwined issues that may usefully illuminate the commonsense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Id.
We cannot emphasize enough to criminal practitioners the importance of a close and careful reading of Gates in order to get the full impact of just how much more relaxed the appellate standard of review was to be in its wake. We include the following rather lengthy quote from Gates to illustrate this point.
This totality-of-the-circumstances approach is far more consistent with our prior treatment of probable cause than is any rigid demand that specific “tests” be satisfied by every informant‘s tip. Perhaps the central teaching of our decisions bearing on the probable-cause standard is that it is a “practical, nontechnical conception.” Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302 [, 1311], 93 L.Ed. 1879 (1949). “In dealing with probable cause, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id., at 175, 69 S.Ct. at 1302, 93 L.Ed. at 1879. U.S. v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981), regarding “particularized suspicion,” is also applicable to the probable-cause standard:
“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same-and
so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”
As these comments illustrate, probable cause is a fluid concept-turning on the assessment of probabilities in particular factual contexts-not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons. As we said in Adams v. Williams, 407 U.S. 143, 147, 92 S.Ct. 1921[, 1923-24], 32 L.Ed.2d 612 (1972): “Informants’ tips, like all other clues and evidence coming to a policemen on the scene, may vary greatly in their value and reliability.” Rigid legal rules are ill-suited to an area of such diversity. “One simple rule will not cover every situation.” Ibid.
Moreover, the “two-pronged test” directs analysis into two largely independent channels-the informant‘s “veracity” or “reliability” and his “basis of knowledge.” (footnote signal omitted) There are persuasive arguments against according these two elements such independent status. Instead, they are better understood as relevant considerations in the totality-of-the-circumstances analysis that traditionally has guided probable-cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. See, e.g., Adams v. Williams, supra, 407 U.S. 143 at 146-47, 92 S.Ct. 1921 [at 1923-24], 32 L.Ed.2d 612; United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
. . . .
. . . Unlike a totality-of-the-circumstances analysis, which permits a balanced assessment of the relative weights of all the various indicia of reliability (and unreliability) attending an informant‘s tip, the “two-pronged test” has encouraged an excessively technical dissection of informants’ tips, with undue attention being focused on isolated issues that cannot sensibly be divorced from the other facts presented to the magistrate.
. . . .
We have also recognized that affidavits “are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741[, 745-46], 13 L.Ed.2d 684 (1965). Likewise, search and arrest warrants long have been issued by persons who are neither lawyers nor judges, and who certainly do not remain abreast of each judicial refinement of the nature of “probable cause.” See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 92 S.Ct. 2119[, 2121-23], 32 L.Ed.2d 783 (1972). The rigorous inquiry into the Spinelli prongs and the complex superstructure of evidentiary and analytical rules that some have seen implicit in our Spinelli decision, cannot be reconciled with the fact that many warrants are quite properly, [Id.]-issued on the basis of nontechnical, common-sense judgments of laymen applying a standard less demanding than those used in more formal legal proceedings. Likewise, given the informal, often hurried context in which it must be applied, the “built-in subtleties,” Stanley v. State, 19 Md.App. 507, 528, 313 A.2d-847, 860 (1974), of the “two-pronged test” are particularly unlikely to assist magistrates in determining probable cause.
Gates, 462. U.S. at 230-236, 103 S.Ct. at 2328-31, 76 L.Ed.2d at 543-546. (footnotes omitted)
In addition to a clearly more relaxed standard for assessing whether an informant‘s tip contains the appropriate combination of facts and circumstances permitting the issuance of a search warrant by a magistrate, the Gates court took pains to reiterate the axiom that “after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review[,]” and that a magistrate‘s determination of probable cause should be paid “great deference” by reviewing courts. Id. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. It is at this point that we
The apparent basis for the Guzman holding as set out in the opinion was the United States Supreme Court case of Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), which held that a trial court‘s determinations, for Fourth Amendment purposes, of reasonable suspicion or probable cause are to be reviewed de novo rather than “deferentially” or for “clear error.” Toward the end of the Court‘s opinion in Ornelas, the following observation appears:
The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the “great deference” paid when reviewing a decision to issue a warrant, see Illinois v. Gates, (citation omitted). See United States v. Spears, 965 F.2d 262, 269-271 (C.A.7 1992). We cannot agree. The Fourth Amendment demonstrates a “strong preference for searches conducted pursuant to a warrant,” Gates, supra, at 236, 103 S.Ct. [at 2331], 76 L.Ed.2d [at 547], and the police are more likely to use the warrant process if the scrutiny applied to a magistrate‘s probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive.
Ornelas, 517 U.S. at -, 116 S.Ct. at 1662-63, 134 L.Ed.2d at 920.
While the Guzman court is silent on the issue, the Ornelas court clearly makes a distinction between probable cause determinations for issuing warrants, and searches or seizures that take place based upon probable cause without a warrant. The Ornelas court continues to recognize the viability of the “great deference” standard reiterated in Gates. Since the instant case involves a probable cause determination by a magistrate and the subsequent issuance of a search warrant, we believe the “great deference” standard should apply to our review.
In the instant case, the face of the affidavit indicates that the informant met personally with the affiant, the Sheriff of San Jacinto County, at the same residence from which the informant had placed a “911” call to the affiant. At that location, the informant delivered to the affiant a package which contained powdered cocaine. This was confirmed when the affiant personally field tested the package‘s contents. The informant also indicated that he/she had been on the premises where said package was located within the last 24 hours and that more packages with similar wrapping were also located on said premises, specifically in an outbuilding located on the property belonging to appellant. Most important was the fact that the informant indicated that he/she resided with appellant at the premises. Living on the property allowed the informant access to the premises as well as to the contraband turned over to affiant. The informant also indicated he/she had been on the premises within the last 24 hours. On the first page of the affidavit under paragraph 3, the affiant indicates that appellant is “known to affiant.”
Under the much less rigid standards announced in Gates, and affording the proper deference to the magistrate‘s decision to issue the search warrant, we find that the probable cause affidavit in the instant case contained appropriate facts and circumstances which provided the magistrate with a “substantial basis for concluding that a search would uncover evidence of wrongdoing[.]” Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. The fact that the informant‘s “veracity” was not explicitly noted in the affidavit is not fatal to the ultimate determination of probable cause to search appellant‘s property. The informant‘s “basis
Appellant‘s second point of error complains of the trial court‘s denial of the motion to suppress “because the police search of the Appellant‘s premises and adjoining area exceeded the scope of the search warrant‘s authority,” thereby violating appellant‘s rights under both state and federal constitutions. The gist of appellant‘s argument can be found in the following language taken from his brief:
As applied to this case, the land searched by the officers was 1) some distance away; 2) outside a fenced area; and 3) where tall grass and weeds grew. There was no evidence presented by the State that this area was one which was host to regular family activity associated with the house.
As we appreciate appellant‘s position, he is contending the property upon which the contraband was located could not be considered “curtilage,” as that term has been defined by case law, and was not under appellant‘s ownership, control, or management, and, therefore, totally outside the four corners of the search warrant. The record before us does support the factual assertions made by appellant on this issue. Unfortunately for appellant, such an argument places the issue within the confines of the “open fields” doctrine.
The Fourth Amendment protection afforded to the people in their persons, houses, papers, and effects is not extended to “open fields.” Oliver v. United States, 466 U.S. 170, 176, 104 S.Ct. 1735, 1740, 80 L.Ed.2d 214, 222 (1984).
The “open fields” doctrine allows law enforcement officers to enter and search an area of land without a warrant. The term “open field” may be defined as any unoccupied or undeveloped area outside the curtilage of a dwelling. An “open field” need not be “open” or a “field” as those terms are commonly understood. A fenced, thickly wooded area may be an “open field” for the purpose of analysis under the Fourth Amendment. Carroll v. State, 911 S.W.2d 210, 217 (Tex.App.-Austin 1995, no pet.) (citations and footnote omitted).
It has been held that marijuana found in a rural area about one hundred yards from a mobile home and barn was contraband growing in an “open field.” Its seizure was legal even if the search warrant was invalid for lack of probable cause or other reason. Beasley v. State, 683 S.W.2d 132, 133 (Tex.App. -Eastland 1984, pet. ref‘d). In Beasley, the contention that
In the instant case, appellant, by arguing as he does on this issue, extinguishes any legitimate expectation of privacy in the particular piece of property upon which the contraband was ultimately located. Appellant does not argue the warrant did not permit the officers to be where they were when they first spotted the suitcase containing the contraband. Indeed, the evidence supports the fact that where Sheriff Rogers was standing when he first spotted the suitcase was included within the scope of the search warrant. We find, therefore, that no
Although we have overruled appellant‘s two points of error, we must nevertheless reverse and remand the cause to the trial court because of unassigned error on the face of the record. As we noted at the beginning of the opinion, appellant pleaded guilty to the indicted offense with the benefit of a negotiated punishment recommendation of twenty years’ confinement and no fine. Yet the statutory provision applicable to the offense in question is
Since appellant‘s sentence did not contain a fine in addition to the period of incarceration, the punishment assessed was not authorized by law. Appellant‘s sentence is therefore void. Heath v. State, 817 S.W.2d 335, 339 (Tex.Crim.App.1991)(op. on reh‘g). When faced with void sentences this Court has traditionally remanded the case back to the trial court for a new punishment hearing under the provisions of
The court of appeals, in holding that appellant was entitled to resentencing, relied upon a long line of precedent establishing that, when an error relates only to punishment and the punishment was assessed by the trial court, a defendant is entitled solely to resentencing and not to a new trial. In applying this principle of law, this Court has never before distinguished the “negotiated guilty” plea from either “not guilty” pleas or “guilty” pleas without a recommendation. We take this opportunity to do so now.
In this case the conviction is based upon a plea bargain and the punishment assessed is an integral part of the agreement to plead guilty. The idea that error is “punishment error” only is incompatible with the negotiated plea and we therefore disavow such analysis in this specific area. When a defendant attacks the sentence he received and for which he bargained, he is attacking the entire judgment of conviction. To permit resentencing in this situation is to bind only one party to the agreement. This is neither logical nor fair.
Id. at 851-52 (citations and footnote omitted).
In the instant case, although not raised by either party, the error was one that could not be ignored in the interest of justice. See
REVERSED AND REMANDED.
STOVER, Justice, concurring.
I concur with the result in the majority opinion, as well as with the majority‘s conclusion that there was probable cause sufficient to support the search warrant. In my view, the reliability of the information-provided by an unnamed informant who, from a residence, called 911 in reference to narcotics trafficking, who personally met with the offi-
BURGESS, Justice, concurring and dissenting.
I concur in the majority‘s reversal on the unassigned error. However, I respectfully dissent to the overruling of point of error one. As to a “de novo” review of the search warrant affidavit or a “great deference” standard, the majority, at page 8, believes the “great deference” standard should apply since Guzman v. State, 955 S.W.2d 85 (Tex. Crim.App. 1997), is silent on the issue, but Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996), on which Guzman relies, contains language indicating a de novo review is appropriate only in warrantless searches and the “great deference” standard should continue to apply in the review of search warrants. Guzman allows for a “de novo” review of mixed questions of law and fact in determining probable cause unless the resolution of ultimate facts turns upon an evaluation of credibility and demeanor, Guzman at 89, and specifically overruled DuBose v. State, 915 S.W.2d 493 (Tex.Crim. App.1996); State v. Carter, 915 S.W.2d 501 (Tex.Crim.App.1996); and Arcila v. State, 834 S.W.2d 357 (Tex.Crim.App.1992), all of which required deference to a trial court‘s ruling. Guzman does not mention Johnson v. State, 803 S.W.2d 272, 289 (Tex.Crim.App. 1990)3 which contains the following language:
Appellate court review of the sufficiency of an affidavit is not a de novo review. The magistrate‘s determination of probable cause should be given great deference by the reviewing court. Gates, supra 462 U.S. at 236, 103 S.Ct. at 2331.4 “[T]he traditional standard for review of an issuing magistrate‘s probable cause determination has been that so long as the magistrate had a ‘substantial basis for ... conclud[ing]’ that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.” Id. at 236, 103 S.Ct. at 2331, citing Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled on other grounds, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980). Nonetheless, “courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.” Id. 462 U.S. at 239, 103 S.Ct. at 2333.
The issue in this case is strictly one of law: did the affidavit supporting the search warrant establish probable cause? On this issue, I do not find there was sufficient evidence, even under the totality of the circumstances test, for the magistrate to determine the credibility of the informant and consequently for the affidavit to establish probable cause. The majority, at page 9, states:
Under the much less rigid standards announced in Gates, and affording the proper deference to the magistrate‘s decision to issue the search warrant, we find that the probable cause affidavit in the instant case contained appropriate facts and circumstances which provided the magistrate with a “substantial basis for concluding that a search would uncover evidence of wrongdoing[.]” Gates, 462 U.S. at 236, 103 S.Ct. at 2331, 76 L.Ed.2d at 547. The fact that the informant‘s “veracity” was not explicitly noted in the affidavit is not fatal to the ultimate determination of probable cause to search appellant‘s property. The informant‘s “basis of knowledge” was more than sufficient to make up for any “veracity” deficiency.
There is no doubt the informant asserts a “basis of knowledge,” but that basis was not verified by any independent police activity other than a “field test” of the contraband. Significantly, the police affiant does not make any conclusory statements that the confidential informant is credible nor did the police affiant verify, in the affidavit, that the informant resided at the location.
It is to be remembered that adoption of the analysis of Gates does not mean abandoning Aguilar-Spinelli.6 Gates did not dispense with the two requirements used in the Aguilar-Spinelli test. Rather, in Illinois v. Gates, supra, the United States Supreme Court criticized the strict application of the two prongs of Aguilar-Spinelli, stating that although the veracity and basis of knowledge of the informant are highly relevant factors:
“These elements are not to be understood as entirely separate and independent requirements to be rigidly exacted in every case. (462 U.S. at 228-29, 103 S.Ct. at 2327).
“Instead they are better understood as relevant considerations in the totality of circumstances analysis that traditionally has guided probable cause determinations: a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability. (462 U.S. at 231-33, 103 S.Ct. at 2329).”
See also, Whaley v. State, supra;7 Hennessy v. State, supra.8
In conclusion, Aguilar was not followed in Texas in order to satisfy
The duty of the reviewing court is to look to the totality of the circumstances to determine if there exists a substantial basis for concluding that probable cause existed at the time of the questioned action. Angulo v. State, supra, at 278.9
The task of the issuing magistrate is to make a practical common sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The affidavit must be more than a “mere conclusory statement that gives the magistrate virtually no basis at all for making a judgment regarding probable cause.” The magistrate must be presented with “sufficient information” to allow that individual to determine probable cause; “his action cannot be a mere ratification of the bare conclusions of others.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332-33, 76 L.Ed.2d 527 (1983).
. . . .
The reliability of the affiant and his sources of information are part of the “totality of the circumstances” that the magistrate should evaluate in making his probable cause determination.
The Fourteenth Court of Appeals in Avilez v. State, 796 S.W.2d 240 (Tex.App.-Houston [14th Dist.] 1990, pet. dism‘d) stated:
The informant‘s “basis of knowledge” is not contested, but the affidavit is challenged for failure to meet the second prong of the Aguilar-Spinelli test which requires that sufficient facts be shown in the affidavit to establish the informant‘s “veracity” or the “reliability” of his report. It is properly pointed out that a later holding in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), adopts a less restrictive “totality of the circumstances” standard but does not overrule the two prongs of Aguilar-Spinelli, and the combined standards of all three U.S. Supreme Court cases are used in Texas:
It is to be remembered that adoption of the analysis of Gates does not mean abandonment of Aguilar-Spinelli. Gates did not dispense with the two requirements used in the Aguilar-Spinelli test.
Eisenhauer v. State, 754 S.W.2d 159, 164 (Tex.Crim.App.1988), cert. denied, 488 U.S. 848, 109 S.Ct. 127, 102 L.Ed.2d 101.
Id. at 242 (footnote omitted).
In Lowery v. State, 843 S.W.2d 136, 140 (Tex.App.---Dallas 1992, pet. ref‘d) the court stated:
Although the informant‘s veracity and reliability no longer are separate and independent requirements for each case, they are still “highly relevant” considerations in the totality-of-the-circumstances review. Gates, 462 U.S. at 231, 103 S.Ct. at 2328. There still must be some indicia of the reliability of the tip. Knight v. State, 814 S.W.2d 545, 547 (Tex.App.-Houston [1st Dist.] 1991, no pet.).
Thus it is clear to me, that even under “the totality of the circumstances” test there must be some indicia of the reliability or veracity of the informant. This can be shown in a variety of ways: unnamed informant had given true and correct information on several past occasions, Elliott v. State, 687 S.W.2d 359, 362 (Tex.Crim.App.1985); where an anonymous tip is relied on for a search and seizure, additional facts are required to establish probable cause under the totality of the circumstances test, Amores v. State, 816 S.W.2d 407, 416 (Tex.Crim.App.1991)(citing Rojas v. State, 797 S.W.2d 41 (Tex.Crim.App. 1990)); while information from unnamed informant alone did not establish probable cause, and information from named informant alone might not establish probable cause, the two sources together with appel-