*1 appeal, there- point of error on The sole
fore, objections and comport Texas, Appellant, with the fails to STATE proper objections below. The sole lacks the point is overruled.
Furthermore, CARTER, Appellee. clearly, Roger Meloy di- the evidence is sup- overwhelmingly probative in rectly, and CR. No. 09-93-058 jury’s verdict. port of the No error is shown. Appeals of Court of Beaumont. AFFIRMED. 24, 1994. March Submitted
BURGESS, Justice, concurring. majority’s I in the result. The concur Sept. 1994. Decided and rele- reliance habit discussion and appellant’s com- vancy unnecessary since procedural
plaints resolved on can be
grounds. testimony that he Brown’s
As to Mirner gun on a few appellant seen night question, prior to the occasions Honor, object.
objection I This was: ‘Tour of the evi- possibly go into Rule 404
could provided notice
dence which I have not been it.” This
if intends to introduce The State preserve error.
objection insufficient to ap testimony that Amanda Barnes’
As to gun”, “every day
pellant he shoots objection and in appellant’s
court sustained disregard non-re jury to
structed the was suffi This instruction
sponsive answer. harm. Tennard any possible to cure
cient (Tex.Crim.App.), 802 S.W.2d denied, 1259, 111 S.Ct.
cert. Furthermore, (1991). ap 115 L.Ed.2d mistrial, thereby
pellant to move for a failed State, 827 preserved. Fuller v. no error (Tex.Crim.App.1992), cert. S.W.2d - denied, U.S. -, Davis’ after Ronald
Likewise joint smoking a appellant
about in- objection and appellant’s
court sustained disregard the non-re- jury to
structed suffi- instruction was
sponsive answer. This Tennard, any possible harm. to cure
cient Furthermore, appellant
802 S.W.2d mistrial, thereby no for a
failed to move Fuller, preserved.
error is
other informants. Information six prior times occasion always having proven to be correct resulted drugs in the seizure of or contraband and the making of arrests on four of those occasions. *3 Three of those occasions had resulted issuance of a search warrant. The informant related to Detective Baise Maness, Atty., Tom Ramon L. Dist. Rodri- possession that two black males were Jr., Beaumont, quez Atty., Asst. Dist. for selling passing and cocaine to motorists near
State. apartment Argosy Apartment 35 at the Com- plex Arthur, in Port located Jefferson Coun- Beaumont, Kinder, appellee. Rife for S. ty, Argosy Apartment Complex Texas. The WALKER, C.J., high trafficking area known to be for Before and The two were BURGESS, narcotics. black males de- BROOKSHIRE and JJ. build, being heavy each of a scribed as one shirt, wearing gray jogging pants, a black OPINION cap, and black other described as WALKER, Chief Justice. wearing jogging pants. a red shirt and blue provided by Baise that no stated names were Carter, Appellee, Roger Meloy was indict- prior the informant and that infor- he had by County Jury Grand ed Jefferson for described, subjects, mation the two al- on possession the offense of of a controlled sub- though he had received reliable infor- other stance, Appellee to wit: cocaine. filed pertaining mation to oth- from this informant complaining motion to evidence selling Argosy people er narcotics in the officers, police and Alton Baise Detective Apartment Complex. Levy, seizing appellee pur- cocaine from Following the infor- his conversation with to a search of his suant without mant, police contacted three other de- Baise presiding judge The court warrant. Bievenu, tectives, Duriso, Sergeant Detective heard the motion and entered an order below Levy. It approximately took Detective the appellee suppressing favorable to the evi- for the to arrive at the minutes three as dence seized a result of search of police to meet Baise. Baise station appellee, to wit: the cocaine. is an This magistrate not testified that a contacted interlocutory appeal by the State of Texas of the two to secure a search warrant for sub- suppressing the order of trial court said jects it would have taken from two because wit- evidence.1 Detective Baise was half to receive two and one hours testify during called to of the ness course informant, prepare an information from unavailable, hearing. Levy was Detective warrant, secure the affidavit for search prior hearing. having ap- died to said presence magistrate,- get the war- of a nor pellee tendered no evidence called time, By rant executed. issued and Ar- witnesses. Detective Baise Port suspects opinion, the would Baise’s Department Police and the thur Jefferson report- they were been at the location where County Force testified that Narcotics Task edly further stated selling cocaine. Baise 27, 1992, approximately March at 12:00 on given that he re- the information he received a call from reliable confi- noon confidential informant and ceived from the informant. Baise had used the infor- dential complex apartment what he knew about approximately past mant six times reasonably expect question, he would not. time had received reliable information each suspects after there have found from from the individual. Past information passage much of this time. by informant had corroborated both been by Upon by the four officers personal Detective Baise and arrival observation Argosy they able to cor- Apartments, were by cross-referencing information with that (Vernon Supp.1994). 44.01 art. 1. See Tex.R.Crim.Proc.Ann. Appeals recognized in Eisenhauer given the information the infor-
robórate Criminal matching applied to warrant- two black that the standard mant because males “totality is of circum in- less searches description given test as enunciated in Illinois v. coming stances” apartment out of formant were Gates, 103 S.Ct. door to which was next the location (1983); Eisenhauer, 678 S.W.2d L.Ed.2d 527 informant, apartment effectively ease overrules the at 952. This approached subjects and detectives the two forth in stringent pronged two test set more them. detained Aguilar v. U.S. stated that the detectives identified Baise A warrantless themselves, subjects they informed the subject to certain per se unreasonable being detained matched were because (1) (2) consent, including exceptions incident description of two were individuals who *4 (3) arrest, probable cause to to a lawful with possession by in of cocaine. asked When (4) circumstances, exigent in but with search subjects responded, Baise re- State how the (5) pursuit, stop and frisk. Carde hot plied: “They myself both advised State, (Tex.App.— 857 707 nas v. S.W.2d they selling that other officers weren’t ref'd). In pet. Dist.] [14th Houston that we them.” cocaine and could search exigent cir alleges us the State case before searching Baise then concentrated on one cumstances, the on the State to burden is subject, Levy and Detective searched justify facts the action. show sufficient appellee away approximately yards from five (Tex.Crim. State, Russell v. 717 7 See S.W.2d Levy by Baise. A search of Carter Detective App.1986). State must show exis produced of several rocks crack cocaine from probable time of tence of cause at the pants pocket. his left front search and the existence of circumstances impractica procuring which made a warrant reviewing In a ruling on a motion (Tex. State, 338 ble. Crane v. 786 S.W.2d evidence, the evi must view Crim.App.1990). light most to the trial dence favorable Gilliam, ruling. State v. 832 S.W.2d court’s reliability, veracity, The informant’s (Tex.App. 121 [14th Dist.] —Houston highly of and his basis remain recognized It pet.). no must also determining in value of the in relevant judge that the the sole and exclusive totality report, but it is the of formant’s credibility trier of fact and of the and not reliance indi circumstances weight as well to be witnesses as the Aguilar criteria of that determines vidual hearing them at a on a mo probable for a warrant- whether cause exists State, suppress. tion Romero v. State, search. Saenz v. less (Tex.Crim.App.1990). S.W.2d On ref'd). (Tex.App. Corpus pet. Christi — appeal, reviewing engage court does not from an informant whom the Information in its own factual review2 but decides wheth specific reliable is a police officer considers sup judge’s findings er fact are justifying and articulable circumstance inves ported by the record. Id. If the trial court’s Saenz, 670 tigation. S.W.2d record, supported findings by of fact are State, In the case of Gomez v. liberty appellate court is to disturb pet.), (Tex.App. Corpus no Christi — review, them, appellate and on we address given approval a warrantless search was court whether the trial police officers accurate informa where applied the the facts. Id. improperly law to particular that a tion from a reliable informer selling particular a consti was heroin at In search matters there is by gave reasonably preference place for a and the informant tutional warrant issued State, description clothing worn Eisenhauer 678 S.W.2d accurate magistrate. held that (Tex.Crim.App.1984). That court also Our Court the defendant. 1990). very Except narrow See circumstances. (Tex.Crim.App. S.W.2d 146 Meraz Argosy Apartment them in Complex. where the informer is shown accurate, description given by and the is detailed and the informant location was Gomez, then cause exists. In ar- proximity suspects close to where the were resting solely on officers acted the informa- Argosy located. that We also note a confidential informant who Apartment Complex high crime was area told one of the officers that was Jesse Gomez trafficking. for drug known The detectives a certain block of certain street and was required quickly were to act because the selling clothing He described cocaine. contraband was sold described and dis- suspect particularity. with Both arrest- posed passed. of as time The detective in his ing officers testified were familiar with experience procuring knew informant and the defendant. While to two warrant would take at least two given, route to the address informant had one half and there hours to obtain was away seen four the defendant was blocks expectation reasonable substantially clothing wearing the same de- would be at the location described placed the informant. He scribed great expiration find of time. We that the under arrest and the court held exigent requiring suspension circumstances have existed. cause to of the need for a search warrant satis- fied.
Any discussion of a warrantless
*5
complete
would not
search and seizure
be
We further find that the
of De-
recognition
without
of Illinois v.
In
Gates.
points
all
tective
uncontradicted on
Baise is
Gates,
arresting
officers acted on an
only
he
because
witness who testified
was
anonymous letter with details of an imminent
suppression hearing.
at the
which was
transaction
corroborated
court made no written find
trial
independent investigation. The
officers in an
ings
previously
of fact.
stated that a
We
an
verac
court in Gates held that
informant’s
fact,
findings
supported by
if
trial court’s
of
ity, reliability,
basis of
are all
and
record,
appeal.
not be disturbed on
shall
determining
in
relevant in
the value of the
imply
that
This should not and does
showing probable
report
in
cause
formant’s
findings
fact,
a
makes no
of
where
trial court
not entirely separate
but these elements are
conclusions,
those
legal
but
conclusions
requirements
rigidly
independent
to be
and
support
receive
where
appellate
will
same
every
They
un
exacted in
case.
should be
obviously disregard uncontradicted evidence.
closely
that
derstood as
intertwined issues
sense,
usefully illuminate the
may
common
look
The trial court must
to the
practical
to
question as whether under the
officers’ activities in
reasonableness of the
circumstances,
totality
proba
there is
light
surrounding
all
of
the circumstances
that
or evi
ble cause to believe
contraband
questioned
reviewing
legality
activity in
Gates,
particular place.
in a
dence is located
Higbie
of a seizure.
230, 103
2328,
S.Ct. at
76 L.Ed.2d
U.S. at
(Tex.Crim.App.1989). Under
Fourth
practical
at
therefore take a
543. We should
of
Amendment the determination
reasonable
approach
all the
to examine
common sense
of
ness of a
is a conclusion
law.
seizure
affidavit,
in
in
set forth
circumstances
Mendenhall,
446 U.S.
United States v.
knowledge,
of
to
cluding veracity and basis
stances adherence *6 Aguilar1 two-pronged test of that was
abandoned; Aguilar the elements of the test 230, highly
remain relevant. 462 U.S. 2327-28,
S.Ct. at
missing equa- element cause basis infor- MALONE, Appellant, Lee Aaron gave mant. Officer no Baise evidence con- v.
cerning Did this. the informant see the drugs being sold or was the informant told Texas, Appellee. The STATE so, person? a third If that person did No. 09-92-302 CR. person see the transactions or told so, of them? If what factors indicate Texas, Appeals Court or the fourth third Beaumont. person? knowledge” prong The “basis of 13, Jan. 1994. Submitted there to determine if the information is based suspi- fact rather than mere rumor or 7, Sept. Decided 1994. gave cion. If the informant Officer Baise information, presented it such was not judge. The trial was correct
determining the to show state failed
cause to search. Hammitt, refd); v. pet. State Aguilar 1. v. ref'd); pet. (Tex.App. L.Ed.2d 723 State —Beaumont (Tex.App. Vasquez, S.W.2d 841 v. —Beau the advent of Crim.Proc Ann. art. Since Tex.Code once, ref'd); 1992, pet. State and affirmed mont 44.01, a(5) (Vernon Supp.1994), § re Clouse, (Tex.App. v. S.W.2d 459 —Beaumont times, James, versed four State pet.). no pet.); (Tex.App. State —Beaumont Como, (Tex.App. S.W.2d 742 —Beaumont