                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00560-CR
                              NO. 02-11-00561-CR


MICHAEL FRED WEHRENBERG                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                           STATE


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          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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                MEMORANDUM OPINION ON REMAND1

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      We held in the original opinion in this cause that the trial court had erred by

denying in part Appellant Michael Fred Wehrenberg’s motion to suppress

evidence because (1) exigent circumstances did not justify the initial warrantless

entry into the residence by police and (2) the federal independent source doctrine



      1
       See Tex. R. App. P. 47.4.
did not apply to except the challenged evidence from the Texas exclusionary

rule. See Wehrenberg v. State, 385 S.W.3d 715, 717 (Tex. App.—Fort Worth

2012) (Wehrenberg I), rev’d, 416 S.W.3d 458 (Tex. Crim. App. 2013)

(Wehrenberg II). The court of criminal appeals subsequently granted the portion

of the State’s petition for discretionary review challenging our holding regarding

the independent source doctrine; reversed our judgment, concluding that code of

criminal procedure article 38.23 is consistent with, and does not preclude

application of, the independent source doctrine; and remanded the cause to this

court “for further consideration of [Wehrenberg’s] argument that the trial court

erroneously denied his motion to suppress.”2 Wehrenberg II, 416 S.W.3d at 464,

467–73.

      “[T]he core function of the independent source doctrine is to remove from

the scope of the federal exclusionary rule evidence that is actually discovered

through an independent source and thus is untainted by the prior instance of

unlawful police conduct.” Id. at 467. Although we ultimately declined to apply the

doctrine in our original opinion, we did make the following observation:

      Investigator Montanez testified that all of the information contained
      in the search warrant affidavit was derived from facts that were
      made known to him by the confidential informant before the
      warrantless entry into the residence. We have reviewed the
      affidavit, and Investigator Montanez’s testimony is accurate.

      2
       In a footnote, the court stated, “Regarding appellant’s argument that the
independent source doctrine, even if generally applicable, does not apply to the
facts of this case, we do not address that argument in this opinion because it is
more properly addressed upon remand.” Wehrenberg II, 416 S.W.3d at 464 n.3.


                                         2
      Because the police did not rely upon any of the information that they
      may have gleaned during the initial warrantless entry to support their
      request for a search warrant, this case would appear to fall squarely
      within the parameters of the independent source doctrine.

Wehrenberg I, 385 S.W.3d at 727. Our opinion of the record evidence has not

changed on remand. Investigator Montez testified at the suppression hearing,

            Q. . . . . The confidential informant gave           you   all   this
      information contained in the Affidavit, correct?

            A.     Yes.

            Q. All right. So any -- if you saw any items of contraband or
      items that may be used in the manufacture of methamphetamine in
      your protective sweep of the residence, did you tell Judge Merkley in
      your Affidavit, “Hey, I also saw these things on my own,” or is it just
      from what the confidential informant told you?

            A.     It’s just from what the confidential informant told me.

            ....

            Q. The confidential informant who relayed this information
      about what was going on at 501 Center Point Road, really when did
      he give you that information? Ball park.

            A. A few hours before we detained everybody at the
      residence.

             Q. Okay. So you had information a couple hours before you
      all go up to the house that there was an active or potentially an
      active meth lab going on in the house right there?

            A.     Yes.

      Wehrenberg argues that “the search warrant was not based entirely on

information obtained before the illegal entry,” but he provides no further analysis




                                           3
or citation to the record, and his argument conflicts with Investigator Montanez’s

unambiguous—and undisputed—testimony from the suppression hearing.

      Accordingly, because the facts contained in the search warrant affidavit

were derived from a source independent of the information that the police may

have gleaned during their initial warrantless entry into the residence, and

because the court of criminal appeals has clarified that the independent source

doctrine applies in Texas, we now hold that the trial court did not err by denying

Wehrenberg’s motion to suppress evidence. We overrule Wehrenberg’s sole

point and affirm the trial court’s judgment.


                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 6, 2014




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