                            NUMBER 13-18-00004-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

DAVID VALENTIN RODRIGUEZ,                                                   Appellant,

                                           v.

THE STATE OF TEXAS,                                                         Appellee.


                   On appeal from the 275th District Court
                         of Hidalgo County, Texas.



                       MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Hinojosa
                Memorandum Opinion by Justice Longoria

      Appellant David Valentin Rodriguez entered a plea of guilty and was convicted of

aggravated assault with a deadly weapon, a second-degree felony, and injury to a child,

a third-degree felony. See TEX. PENAL CODE ANN. §§ 22.02, 22.04 (West, Westlaw

through 2017 1st C.S.). By two issues, Rodriguez argues that the trial court erred by (1)

denying his motion to suppress evidence, and (2) naming Mission Police Department
Officer Rey Medrano as the outcry witness. We affirm.

                                           I.       BACKGROUND

        Rodriguez was charged by indictment with aggravated assault with a deadly

weapon and injury to a child. Id. In the indictment, the State alleged that on or about

December 21, 2015, Rodriguez attacked Jocelyn Riggs in her apartment and struck her

with a crowbar. The State further alleged that during the attack on Riggs, M.C. 1, a five-

year-old child, attempted to intervene and was thrown to the floor by Rodriguez, causing

M.C. to strike his head on the floor. The police were called to the scene after Rodriguez

had fled.     Riggs and M.C. were outside when the police arrived.                         Officer Medrano

interviewed both individuals. The police performed a search of Riggs’s apartment where

the incident took place and discovered marijuana and drug paraphernalia in the form of a

“bong” typically used to smoke marijuana.

        Once the apartment was processed, Mission Police Officer Yvette Martinez applied

for a search warrant to search the residence of Rodriguez. Officer Martinez’s probable

cause affidavit provided the location as “1224 Lindberg, Palmhurst, Hidalgo County, TX

78574,” and provided a detailed description of the single-family home. The affidavit

further identified the suspect as “David Valentin Rodriguez (DOB: 04-26-91)” and noted

that the following items were believed to be in the premises:

        [S]hirt, pants, beanie, socks, underwear, shoes, blunt object with victims
        [sic] blood or any other items that may have traces of the victims [sic] blood
        or hair and or: property or items, except the personal writings by the
        accused, constituting evidence of an offense or constituting evidence
        tending to show that a particular person committed an offense.

The affidavit also contained the facts of the incident as alleged by the Riggs as a basis


        1 Pursuant to rule of appellate procedure 9.8, we will utilize the minor child’s initials throughout this
opinion. See TEX. R. APP. P. 9.8.

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for probable cause. The warrant was approved by the magistrate judge. Pursuant to the

warrant, police officers then searched and collected evidence from Rodriguez’s

residence.

A.     Pretrial Hearings

       1.     Motion to Suppress

       Rodriguez filed a motion to suppress evidence claiming the warrant was fatally

defective, challenging the probable cause, and arguing that the warrant was facially

invalid. The trial court held a hearing on the motion to suppress.

       Officer Marco Antonio Basaldua, a crime scene investigator with the Mission Police

Department, testified that he processed Riggs’s apartment after the incident took place.

He testified that he was dispatched to process the crime scene and that he found

marijuana and a “bong” used to smoke marijuana in Riggs’s apartment. The drugs and

drug paraphernalia were collected, pursuant to instruction by Investigator Martinez.

       Rodriguez’s attorney also questioned Officer Basaldua regarding the probable

cause affidavit. Officer Balsadua testified that the affidavit was signed by Investigator

Martinez, whom he has worked with on many occasions. After reading through the

affidavit, Officer Balsadua confirmed that the affidavit contained no mention of the drugs

or drug paraphernalia found in Riggs’s apartment. Rodriguez’s attorney also had Officer

Balsadua confirm that the affidavit did not contain information regarding the reliability of

Riggs to provide information to support a probable cause affidavit.

       The State elicited testimony from Officer Balsadua that Officer Rey Medrano was

also present at the scene of the incident as the primary officer. The probable cause

affidavit also contained statements from Officer Medrano, who spoke to both individuals



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in the case.

       Rodriguez’s attorney argued that the probable cause affidavit was lacking insofar

as the veracity of the information of Riggs was unreliable. Further, he argued that

Investigator Martinez should have included the information regarding the drugs and drug

paraphernalia located in Riggs’s apartment because it “in and of itself, smacks of a

presumption of an unreliable witness.” As to the warrant itself, Rodriguez’s attorney

argued that it was facially invalid because it did not properly describe the “places to be

searched, as well as the things to be seized,” and therefore was inadequate.

       The State responded to these arguments stating that Riggs was not a confidential

informant, but rather an alleged victim, and therefore the information she provided for the

affidavit was reliable because it was knowledge from her personal experience. As to the

warrant itself, the State responded to the defense by arguing that the trial court was to

consider the warrant and the probable cause affidavit together because the warrant

incorporated the specific facts contained within the affidavit, including the person and

place to be searched and the items to be seized.

       The trial court denied the motion to suppress.

       2.      Outcry Hearing

       The trial court also held a hearing to determine the admissibility of the hearsay

statement of M.C., the child in the case. See TEX. CRIM. PROC. CODE ANN. art. 38.072

(West, Westlaw through 2017 1st C.S.).

       Officer Medrano testified that he was on patrol the evening of the incident. Officer

Medrano was dispatched to the scene and arrived within five minutes of receiving the

dispatch call. Upon arriving at the scene, he found Riggs and M.C. in the alleyway near



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Riggs’s apartment and stated that both Riggs and M.C. had blood on them and both were

upset and scared. Officer Medrano stated that he was the first officer to arrive on the

scene and the first person to interview Riggs and M.C. He indicated that he calmed both

individuals down before asking them specifics about what had happened.

       Officer Medrano asked M.C. questions about what he had seen and what had

happened. M.C. told Officer Medrano that “David” and Riggs were arguing inside of the

apartment and that David was choking Riggs. M.C. said that he tried to stop David and

he was pushed to the floor and hit his head. M.C. also told Officer Medrano that he saw

David hit Riggs with a “black bar.”

       M.C.’s mother, Geneva Riggs, testified that her son was available to testify should

the need arise. Her testimony was that after she got out of work and stopped for food,

she went home to the apartment. When she arrived at the apartment, the door was locked

so she went around the back to find the gate and back sliding door open and a mess in

the apartment. Geneva said she then heard her son call for her from the alleyway. She

said she arrived before Officer Medrano, but that he was the first officer on the scene.

She also testified that her son told her what had happened before he told anyone else.

       After the testimony of both witnesses, the State requested that the trial court allow

the hearsay statements of M.C. to come in through Officer Medrano as an outcry witness.

The defense argued that the witnesses contradicted each other, each claiming to be the

first person over the age of eighteen that M.C. relayed the events to. The defense stated

that the State did not meet their burden to prove that Officer Medrano was the first person

over the age of eighteen to speak with M.C. about what happened, and that the trial court

should deny the State’s motion to elicit the hearsay testimony at trial.



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       In response, the State asked the trial court to determine that Officer Medrano’s

testimony was reliable based on his training and experience as a police officer to recall

and report events that occurred in the past, arguing that Geneva’s recollection may have

been inaccurate as a witness.

       As the trier of fact, the trial court held that, based on his testimony, Officer Medrano

was the first person over the age of eighteen to speak with M.C. and therefore the hearsay

statements would be admissible through him.

B.     Plea

       After reserving his right to appeal the trial court’s ruling regarding his motion to

suppress and the outcry witness determination, Rodriguez pleaded guilty to counts one

and two of the indictment and was sentenced to the Texas Department of Criminal

Justice–Institutional Division for fourteen years and five years, respectively.

       This appeal followed.

                                II.     MOTION TO SUPPRESS

       By his first issue, Rodriguez argues that the search warrant was insufficient to

establish probable cause and the affidavit in support of the search warrant was facially

invalid.

A.     Standard of Review

       An appellate court normally reviews a trial court’s ruling on a motion to suppress

by using a bifurcated standard of review, giving almost total deference to the historical

facts found by the trial court and reviewing de novo the trial court’s application of the law.

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). However, when assessing

the sufficiency of an affidavit for a search warrant, the reviewing court is limited to the four



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corners of the affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004).

Accordingly, when we review the magistrate’s decision to issue a warrant, we apply a

highly deferential standard because of the constitutional preference for searches to be

conducted pursuant to a warrant as opposed to a warrantless search. Swearingen v.

State, 143 S.W.3d 808, 810–11 (Tex. Crim. App. 2004) (citing Illinois v. Gates, 462 U.S.

213, 234–37 (1983)). We must interpret the affidavit in a common sense and realistic

manner, recognizing that the magistrate was permitted to draw reasonable inferences.

Davis v. State, 202 S.W.3d 149, 154 (Tex. Crim. App. 2006).

B.     Applicable Law and Discussion

       Probable cause exists when the totality of the facts and circumstances presented

to the magistrate support the conclusion that there is a fair probability or substantial

chance that contraband or evidence of a crime will be found at the specified location.

Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). Our duty is not to act as a

rubber stamp for the magistrate or the trial court, however, the decision of the magistrate

should carry the day in a doubtful or marginal case, even when the reviewing court might

reach a different conclusion in a de novo review. Id.

       A search warrant shall be sufficient under article 18.04 of the code of criminal

procedure if it contains the following requisites:

       1.     that it run in the name of “The State of Texas”;

       2.     that it identify, as near as may be, that which is to be seized and
              name or describe, as near as may be, the person, place, or thing to
              be searched;

       3.     that it command any peace officer of the proper county to search
              forthwith the person, place, or thing named;

       4.     that it be dated and signed by the magistrate; and

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       5.     that the magistrate’s name appear in clearly legible handwriting or in
              typewritten form with the magistrate’s signature

TEX. CODE CRIM. PROC. ANN. art. 18.04 (West, Westlaw through 2017 1st C.S.).

       Rodriguez argues that the search warrant did not establish probable cause

because the reliability of Riggs was not contained within in the supporting affidavit.

Rodriguez relies upon several cases establishing the need for an affidavit to show an

informant is credible and reliable. See e.g., Jones v. State, 364 S.W.3d 854, (Tex. Crim.

App. 2012); Angulo v. State, 727 S.W.2d 276, 279–280 (Tex. Crim. App. 1987); Elardo v.

State, 163 S.W.3d 760, 766 (Tex. App.—Texarkana 2005, pet. ref’d); Mejia v. State, 761

S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.] 1998, pet. ref’d).

       However, the State argues that Riggs is not a confidential informant, but rather she

is a named informant and the State contends that Riggs’s status as a named informant

deems her worthy of belief; we agree. See Wilkerson v. State, 726 S.W. 542, 545 (Tex.

Crim. App. 1996) (stating “[w]hen the affidavit contains information given by a named

informant, this Court has held that the affidavit is sufficient if the information given is

sufficiently detailed so as to suggest direct knowledge on his or her part”). Here, Riggs

was an alleged victim in the case and gave the officer’s a detailed description of the

incident which was contained within the probable cause affidavit. Riggs’s first-hand,

direct knowledge is sufficient to justify the issuance of the search warrant. Id.

       Rodriguez also argues that the warrant should be found to be facially invalid

because Investigator Martinez did not include in the affidavit information that drugs and

drug paraphernalia were found at Riggs’s apartment where the incident occurred or that

Riggs was a reliable witness. Under Franks v. Delaware, a defendant bears the burden



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of showing by a preponderance of the evidence at a suppression hearing that a probable

cause affidavit submitted in support of a warrant contains a false statement made either

knowingly and intentionally or with reckless disregard for the truth. 438 U.S. 154, 156

(1978).

       We have already concluded that Riggs’s direct knowledge as a named informant,

even without a statement regarding her credibility in the affidavit, is sufficient. However,

Rodriguez contends that Investigator Martinez neglected to include the information

relating to the drugs and drug paraphernalia, which he argues goes directly to Riggs’s

credibility. He argues that Investigator Martinez did not include this information and thus,

the magistrate was unable to consider the unreliability of Riggs when signing off on the

search warrant. Rodriguez, however, provides no support for his contention that the drugs

and drug paraphernalia found in Riggs’s apartment somehow diminish her credibility to

relay the details of the incident that occurred. See id. at 171 (stating “the challenger’s

attack must be more than conclusory and must be supported by more than a mere desire

to cross-examine”); see also TEX. R. APP. P. R. 38.1(i).

       Accordingly, Rodriguez’s first issue is overruled.

                                 III.   OUTCRY HEARING

       By his second issue, Rodriguez argues that the trial court erred in overruling his

objection to the outcry testimony of Officer Medrano.

A.     Standard of Review

       The trial court has broad discretion to determine which of several witnesses is an

outcry witness, and we will not disturb its decision absent a clear abuse of discretion. See

Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); Hayden v. State, 928 S.W.2d



                                             9
229, 231 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Moreover, the trial court is

afforded broad discretion to determine whether the complainant’s statement falls within

the article 38.072 hearsay exception. Garcia, 792 S.W.2d at 92. An abuse of discretion

will not be found unless the trial court’s decision is outside the zone of reasonable

disagreement. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000);

Tear v. State, 74 S.W.3d 555, 558 (Tex. App.—Dallas 2002, pet. ref’d).

B.     Applicable Law and Discussion

       Article 38.072 provides that outcry testimony from the first adult to whom the child

made statements describing, in some discernable manner, the alleged offense will not be

inadmissible because of the hearsay rule if certain requisites are met. See TEX. CODE

CRIM. PROC. ANN. art 38.072. Rodriguez argues that Officer Medrano should not have

been deemed the proper outcry witness because the child’s mother also testified that she

was the first adult to whom her son spoke to about the alleged incident.

       In the present case, the record fails to show the extent of the child’s conversation

with his mother. Although the mother says she was the first person the child told about

the incident, there is no evidence that the child described to her the details of the alleged

assault. See Garcia, 792 S.W.2d at 91 (stating that where the record is void of specific

details of statements made by the complainant to an individual, such individual cannot be

an outcry witness under article 38.072); Dorado v. State, 824 S.W.2d 794, 795 (Tex.

App.—El Paso 1992), vacated on other grounds, 843 S.W.2d 37 (Tex. Crim. App. 1992)

(holding that the trial court did not abuse its discretion in designating the outcry witness

where the record failed to show that the complainant detailed the alleged offense to

another person who appellant claimed was the “outcry” witness); Garibay v. State, 787



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S.W.2d 128, 130 (Tex. App.—Corpus Christi 1990, pet. ref’d) (finding that the trial court

did not abuse its discretion in designating the outcry witness). Accordingly, we find the

trial court did not abuse its discretion by allowing Officer Medrano to testify as an outcry

witness under article 38.072. See Hayden v. State, 928 S.W.2d 229, 231 (Tex. App.—

Houston [14th Dist.] 1996, pet. ref’d).

       Rodriguez’s second issue is overruled.

                                    IV.    CONCLUSION

       The judgment of the trial court is affirmed.

                                                               NORA L. LONGORIA
                                                               Justice


Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
7th day of March, 2019.




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