Affirmed as Modified and Opinion Filed October 22, 2014




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-13-00718-CR

                LEONARD GERONIMO RENTERIA SANCHEZ, Appellant
                                    V.
                        THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 1
                                   Dallas County, Texas
                           Trial Court Cause No. F-1241227-H

                                            OPINION
                        Before Justices FitzGerald, Fillmore, and Stoddart
                                 Opinion by Justice FitzGerald
       A jury found appellant guilty of possession of a controlled substance, methamphetamine,

in an amount over 400 grams and assessed punishment at thirty years’ imprisonment and a

$10,000 fine. On appeal, appellant asserts the trial court erred in overruling his motion to

suppress and abused its discretion in admitting testimony concerning an extraneous offense.

Appellant also asserts there is insufficient evidence in the record to support the trial court’s order

to pay $324 in court costs, and requests that the judgment be modified to reflect the correct

offense for which appellant was convicted. We modify the judgment to reflect the correct

offense, and as modified, affirm the trial court’s judgment.

                                         BACKGROUND
       A confidential informant told Investigator Andrew Chance of the Mesquite Police

Department’s narcotics unit that he had been contacted about purchasing a large amount of

methamphetamine at 2914 Villa Sur Trail, a residence in Mesquite, Texas (the “Residence”). On

June 25, 2012, based on the informant’s tip, Chance sent the informant to the Residence to see if

the informant could go inside. The informant did so, and confirmed that methamphetamine was

in the house. Based on this information and his observation of the informant going into the

Residence, Chance prepared an affidavit and obtained a combination search and arrest warrant

for 2914 Villa Sur Trail.

       On June 26, 2012, Chance and other officers conducted surveillance at the residence for

about an hour. During this time, they observed a man later identified as Benjamin Barajas go in

and out of the residence, place items in a vehicle, and then drive to a nearby bank. Chance

detained Barajas at the bank and left him in the custody of other officers. Chance then returned to

the Residence and executed the search and arrest warrant.

       When the officers entered the Residence, they immediately smelled the overwhelming

odor of raw marijuana. The odor permeated the entire Residence. They found two Hispanic men,

three women, and four children in various rooms in the house. Appellant, one of the two men

present, was found in the master bedroom.

        The master bedroom had a door leading directly into the garage. In the garage, officers

found approximately 11 pounds of methamphetamine in a large clear Tupperware container. The

container had no lid and the methamphetamine in the container was drying under a fan. Officers

also discovered fifteen cardboard boxes with 1,843 pounds of marijuana. The marijuana was in

bundles that were wrapped in green plastic wrap. The garage also contained an industrial sized

roll of the green plastic wrap, a two pound scale, and a garbage bag containing empty wrappings

that were identical to the wrappings wrapped around the marijuana bricks inside the boxes.

                                               –2–
During the search of the master bedroom, officers found dope ledgers, appellant’s birth

certificate, and other identifying information with appellant’s name and the Residence address.

The closet contained approximately $3,000 dollars in cash and a handgun with ammunition.

           In searching the remainder of the rooms in the three-bedroom house, officers discovered

metal sifters, vehicle titles, baggies of marijuana and cocaine, hotel door key cards, Mexican

identification cards, and $38,000 in United States currency. Officers determined who was staying

in which bedroom by the paperwork found in each room. Officers arrested appellant, Barajas,

(whom they had brought back to the scene), a man later identified as Eduardo Montes, and the

three women.

           Prior to trial, appellant filed a motion to suppress the evidence seized in the search, all

statements made by appellant and the testimony of law enforcement officers. The motion

asserted, inter alia, that the magistrate was misled by false information in the affidavit, the

information in the search warrant was stale, and the affidavit to support the search warrant did

not reflect sufficient probable cause because “it lacked sufficient underlying circumstances to

permit the conclusion that contraband was at the location where it claimed to be and failed to

establish the credibility of the confidential informant.”1 At the pre-trial hearing on the motion,

Chance testified and was cross-examined. No evidence was adduced concerning the allegation

that the magistrate had been misled by false information. When the hearing concluded, the trial

court denied the motion. Appellant re-urged the motion at trial, and again, the motion was

denied.

           During the trial, Investigator Prudencio Solis testified without objection that appellant

and the other men arrested were part of a Mexican drug cartel called the “Knights Templar” or


     1
        Appellant’s complaint on appeal is limited to the argument that the affidavit lacked sufficient information to conclude that contraband was
at the Residence.



                                                                      –3–
“Cabelleros Templarios.” The next day, before the jury returned, defense counsel objected to

further testimony concerning appellant’s involvement with the cartel. Defense counsel asserted

that the cartel evidence constituted evidence of an extraneous offense that had not been disclosed

prior to trial. The objection was overruled, and further testimony concerning the cartel was

allowed.

                                                              ANALYSIS

Motion to Suppress.

            In his first issue, appellant asserts the trial court erred in overruling his motion to

suppress because the affidavit supporting the search warrant was insufficient to show probable

cause for the search. Specifically, appellant contends the affidavit did not give sufficient facts to

indicate where the methamphetamine was located or how appellant was connected to the

premises searched or the methamphetamine.

            Both the federal and Texas constitutions and Texas statutory law provide that a

magistrate shall not issue a search warrant without first finding probable cause that a particular

item will be found in a particular location.2 Thus, a search warrant properly issues only when

predicated upon probable cause.3

            When the trial court determines probable cause to support the issuance of a search

warrant, there are no credibility determinations; instead, the trial court is constrained to the four

corners of the affidavit.4 Accordingly, when reviewing a magistrate’s probable cause

determination, we apply the deferential standard of review reaffirmed by the United States




     2
      Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); U.S. CONST amend. IV; TEX. CONST. art. I, § 9; TEX. CODE CRIM. PROC.
ANN. art. 1.06 (West 2005).
     3
         See State v. Ross, 32 S.W.3d 853, 857 (Tex. Crim. App. 2000); TEX. CODE CRIM. PROC. ANN. art. 18.01 (West Supp. 2013).

     4
         State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).



                                                                    –4–
Supreme Court in Illinois v. Gates.5 Under that standard, reviewing courts are to uphold the

probable cause determination “so long as the magistrate had a substantial basis for . . .

conclud[ing] that a search would uncover evidence of wrongdoing.”6 Probable cause exists

when, under the totality of the circumstances, there is a fair probability that contraband or

evidence of a crime will be found at the specified location, and the facts stated in a search

warrant affidavit are “so closely related to the time of the issuance of the warrant that a finding

of probable cause is justified.”7 “The focus is not on what other facts could or should have been

included in the affidavit; the focus is on the combined logical force of facts that are in the

affidavit.”8

            In conducting our review, we may not analyze the affidavit in a hyper-technical manner;

rather, we must interpret the affidavit “in a commonsensical and realistic manner, recognizing

that the magistrate may draw reasonable inferences.”9 We extend deference to the magistrate’s

determination to encourage the use of warrants, which “greatly reduces the perception of

unlawful or intrusive police conduct.”10 This does not mean, however, that the reviewing court

should be a “rubber stamp.”11 But it but does mean that “the magistrate’s decision should carry

the day in doubtful or marginal cases, even if the reviewing court might reach a different

result.”12


    5
        Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004) (citing Illinois v. Gates, 462 U.S. 213, 234–37 (1983).
    6
         Gates, 462 U.S. at 236; see also McLain, 337 S.W.3d at 271; Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)
    7
        McLain, 337 S.W.3d at 272.
    8
        State v. Duarte, 389 S.W.3d 349, 354–55 (Tex. Crim. App. 2012).

    9
        McClain, 337 S.W.3d at 271.
    10
         Gates, 462 U.S. at 236.
    11
         Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010).
            12
                 See id.




                                                                        –5–
       The affidavit at issue here describes the Residence located at 2914 Villa Sur Trail and

avers that there is a controlled substance, methamphetamine, concealed at the Residence. The

affidavit states that the premises are controlled by an unidentified Hispanic male and female, and

that these persons are believed to currently possess marijuana and crack cocaine at the

Residence. Exhibit A to the affidavit states:

               Your Affiant is a Police Officer with the City of Mesquite and has been so
               employed for approximately seven years. Your Affiant is currently
               assigned to the Narcotics section of the Criminal Investigation Bureau of
               the aforementioned agency.

               The place and premises described in item 1 of the above is owned by the
               person listed and described in item 3 of the above.

               Over the past 72 hours, your Affiant was contacted by a Confidential
               Informant 11-013 in reference to a Hispanic male that is in possession of a
               usable amount of methamphetamine. Confidential Informant 11-013 has
               been used in the past and their [sic] information has proven to be reliable
               and credible on several occasions. Confidential Informant 11-013 advised
               your Affiant that that [sic] a Hispanic showed him/her the
               methamphetamine and it was packaged in separate plastic baggies for sale.

               A computer check of the residence on the Dallas Central Appraisal
               District shows that a female known as Donna Hutcheson is the owner of
               the residence located at 2914 Villa Sur in Dallas, Texas. Donna Hutcheson
               shows to have a different home address than that of 2914 Villa Sur in
               Dallas, Texas. Due to your Affiant’s training and experience, this
               information tends to indicate that the residence located at 2914 Villa Sur is
               a rental property.

               Your Affiant has conducted computer checks of multiple data bases and
               has been unable to identify any person or persons associated with the
               address.

               Due to the above information, your affiant believes that there is more
               methamphetamine kept/concealed in the place and premises as described
               in item 1 of the above.

       Applying the highly deferential standard of review to the magistrate’s decision, we

conclude the magistrate could have reasonably inferred that the “Hispanic male” showed the

methamphetamine to the informant inside the Residence. Although the affidavit does not

expressly state that the methamphetamine is inside the Residence, the issue is not whether there
                                                –6–
are other facts that could have, or even should have, been included.13 Instead, the focus is on the

combined logical force of the facts in the affidavit.14 The affidavit states that a Hispanic male is

in possession of methamphetamine and showed the informant methamphetamine “which was

packaged in separate plastic baggies for sale.” The affidavit next relates the specifics of a

computer check of the Residence searched to determine ownership, thus focusing on the

residence in the two succeeding paragraphs. The affidavit concludes with the statement that the

“affiant believes there is more methamphetamine kept/concealed in the place and premises”

(emphasis added). These facts support an inference that a probability existed that the Hispanic

male showed the informant the methamphetamine at the Residence and that the

methamphetamine was being stored at the Residence.15

                 Appellant also argues that the description of an “Hispanic male,” without any further

identifying information such as height, weight, or age is insufficient to support the magistrate’s

probable cause determination. In support of this argument, appellant relies on Visor v. State.16

The facts in Visor, however, are significantly different from the instant case. In Visor, the police

arrested Visor four blocks away from the premises described in a combination search and arrest

warrant. Visor did not challenge the search aspect of the warrant; she challenged her arrest. The

court concluded that the arrest was invalid because the warrant described only an “unknown

black female.”17 In so concluding, the court reasoned that to “construe the combination warrant

to authorize the arrest of an ‘unknown black female’ without further description or restriction

     13
           See Rodriguez, 232 S.W.3d at 62.
     14
           Id.
     15
       See, e.g., Bodin v. State, 782 S.W.2d 258, 259–60 (Tex. App.—Houston [14th Dist.] 1989), rev’d on other gr., 807 S.W.2d 313 (Tex.
Crim. App. 1991) (affidavit stating that methamphetamine was purchased in appellant’s apartment supported reasonable inference that
methamphetamine was in apartment).

     16
           Visor v. State, 660 S.W.2d 816, 818-20 (Tex. Crim. App. 1983).


     17
          Id. at 818-20.



                                                                      –7–
as to location would be to approve a general warrant, which is prohibited by the federal

constitution.”18

            Here, appellant is not challenging the legality of his arrest. He challenges only the

legality of the search pursuant to the warrant. Therefore, Visor has no application to the facts in

this case.

            Based solely on the affidavit’s four corners, we conclude the magistrate had a substantial

basis for concluding, either directly or through reasonable inference, that probable cause existed

to search the Residence. As a result, the trial court did not err in denying appellant’s motion to

suppress. Appellant’s first issue is overruled.

Extraneous Offense.

            In his second issue, appellant argues the trial court erred in admitting extraneous offense

evidence of his involvement with the Mexican drug cartel because the State failed to give notice

of its intent to introduce such evidence.

            During the trial, Solis testified that the department has several cases with the cartels that

tie into this case. He explained that the Knights Templar is known for dealing in narcotics,

specifically “meth” and marijuana. Solis explained in detail how the narcotics are brought into

this country and distributed. According to Solis, appellant and the other men in the house came

from Mexico to run the drug houses for the cartel. He described appellant as the “main subject in

this residence,” and stated that appellant had been left in charge. Solis explained that appellant

holds the direct contact numbers for the people in Mexico and is in charge of the money.

            Solis also described his interviews with the men who were arrested with appellant.

Although appellant ran the house, there had been a disagreement over money with some of the


    18
         Id. at 818 (emphasis added).




                                                    –8–
cartel leaders in Mexico. As a result, the leaders had sent Barajas to the house to assume

appellant’s responsibilities. Throughout Solis’s testimony, counsel for appellant objected only

occasionally. These objections included “nonresponsive,” “no personal knowledge,” “calls for

speculation,” and “relevance.”

              The next morning, defense counsel objected to testimony about the Mexican cartel as

extraneous offense testimony. Counsel stated:

                      I believe they keep on bringing up the drug cartel and implying my client
                      is part of that. She’s trying to say that that drug cartels are a criminal
                      organization. She should not be allowed to do that. It was not brought up
                      as an extraneous offense. We’re asking the State be discontinued to be
                      allowed to be bringing it up and not allowed in closing arguments.

The judge overruled the objection, stating “I believe there is already quite a bit of testimony

about it on the record so anyway.”

              We review a ruling on the admissibility of extraneous offense testimony for an abuse of

discretion.19 But we do not review the ruling if the issue has not been preserved for appellate

review.20

              To preserve a complaint for appellate review, the record must show appellant made a

timely request, objection, or motion that stated the grounds for the ruling with sufficient

specificity to make the trial court aware of the complaint, unless the grounds were apparent from

the context, and obtained a ruling.21 An objection must be asserted timely.22 In order to be

considered timely, the objection must be made at the first opportunity or as soon as the basis of

the objection becomes apparent.23 Unless the defendant can show a legitimate reason for not


   19
        Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005).
   20
        See TEX. R. APP. P. 33.1(a).

   21
        See TEX. R. APP. P. 33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
   22
        Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App. 1997).
   23
        Id.



                                                                       –9–
timely objecting, error is waived if an objection is made after the State has elicited the improper

testimony.24 Appellant did not object on extraneous offense grounds until after an entire day of

testimony. Indeed, counsel’s objection includes the tacit admission that considerable testimony

on the subject had already been elicited. The basis for the objection became apparent after the

State asked the first question about the cartel; thus, by waiting, appellant failed to timely object.

Appellant has not demonstrated any reason for his failure to timely object. Therefore, the issue

has not been preserved for our review. Appellant’s second issue is overruled.

Costs.

            In his third issue, appellant complains that there is insufficient evidence to support the

trial court’s order for appellant to pay $324 in court costs because the record does not contain a

bill of costs. The record before us does contain a bill of costs supporting the assessment of costs

in the trial court’s judgment. Appellant’s complaints have been addressed and rejected.25

Appellant’s third issue is overruled.

Modification of the Judgment.

             The judgment reflects that appellant was found guilty of “possession of a controlled

substance with intent to deliver 400G to wit methamphetamine.” The record reflects, however,

that the jury found appellant guilty of the lesser-included offense of possession of a controlled

substance. In his fourth issue, appellant requests that we correct the judgment. The State agrees

that the judgment should be corrected.




     24
          Jones v. State, 111 S.W.3d 600, 604 (Tex. App.—Dallas 2003, pet. ref’d).
     25
        See Johnson v. State, 423 S.W.3d 385, 390 (Tex. Crim. App. 2014) (holding that “a bill of costs is a relevant item that if omitted from the
record, can be prepared and added to the record via a supplemental clerk’s record”); Coronel v. State, 416 S.W.3d 550, 555–56 (Tex. App.—
Dallas 2013, pet. ref’d).



                                                                     –10–
          We have the authority to correct the judgment of the court below to make the record

speak the truth when we have the necessary data and information to do so.26 Because the record

contains the information necessary for correction, we sustain appellant’s fourth issue and modify

the judgment to reflect the correct offense for which appellant was convicted.

                                                           CONCLUSION

          We modify the judgment to reflect that appellant was convicted of possession of a

controlled substance, methamphetamine, in an amount of 400 grams or more. As modified, the

judgment is affirmed.




Do Not Publish
TEX. R. APP. P. 47                                                         /Kerry P. FitzGerald/
130718F.U05                                                                KERRY P. FITZGERALD
                                                                           JUSTICE




   26
        See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).



                                                                    –11–
                                      S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

LEONARD GERONIMO RENTERIA                         On Appeal from the Criminal District Court
SANCHEZ, Appellant                                No. 1, Dallas County, Texas
                                                  Trial Court Cause No. F-1241227-H.
No. 05-13-00718-CR        V.                      Opinion delivered by Justice FitzGerald.
                                                  Justices Fillmore and Stoddart participating.
THE STATE OF TEXAS, Appellee

     Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
     to reflect that appellant was convicted of possession of a controlled substance of
     400g or more: methamphetamine.
As REFORMED, the judgment is AFFIRMED.


Judgment entered October 22, 2014




                                           –12–
