Affirmed and Opinion and Dissenting Opinion filed May 9, 2013.




                                           In the

                       Fourteenth Court of Appeals

                                  NO. 14-12-00285-CR

                    WESLEY JERMONE WRIGHT, Appellant

                                              V.
                          THE STATE OF TEXAS, Appellee

                      On Appeal from the 338th District Court
                              Harris County, Texas
                          Trial Court Cause No. 1288721

                      DISSENTING OPINION


       I agree with the majority’s analysis of the sufficiency of the evidence but
respectfully disagree with its conclusion1 as to probable cause to support the search

       1
          The majority opinion states: “Even if the use of the narcotics-detection dog were an
unreasonable search that violated the United States Constitution, we would conclude that under
the totality of the circumstances the remaining information in the affidavit would clearly
establish probable cause that contraband or evidence of a crime would be found at the described
location.” (Majority at 17).
warrant. I would hold that, after removal of the dog sniff alert from the affidavit,
the remaining facts in the affidavit are insufficient to clearly establish probable
cause.

         The majority has assumed that the dog sniff alert was an unconstitutional
search. See Jardines v. State, 73 So. 3d 34 (Fla. 2011), aff’d sub nom., Florida v.
Jardines, —U.S.—, 133 S. Ct. 1409, —L. Ed. 2d— (Mar. 26, 2013). This does
not, by itself, invalidate the search warrant if, after removing the facts gained from
the illegal search, the remainder of the affidavit clearly establishes probable cause.
See United States v. Karo, 468 U.S. 705, 720–21 (1984); Castillo v. State, 818
S.W.2d 803, 805 (Tex. Crim. App. 1991), overruled on other grounds by Torres v.
State, 182 S.W.3d 899, 901–02 (Tex. Crim. App. 2005); State v. Bridges, 977
S.W.2d 628, 632 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

         The remaining facts in the affidavit do not clearly establish probable cause.
While not binding on this court, the affidavit in Jardines also contained similar
information—an uncorroborated crime stoppers tip that marijuana was being
grown at the house, tightly closed blinds, and an air conditioner that kept cycling
without stopping, indicating high electrical usage. These facts were not sufficient
under Florida law to establish probable cause. See 73 So. 3d at 54–55. The
sufficiency of the remaining facts in the affidavit was not discussed by the United
States Supreme Court in Florida v. Jardines.

         After removing the dog sniff alert, the affidavit in this case contains very
few facts.2 These facts fall into the following categories:

         1. Electrical usage

         The affiant was told the following by another officer, Sergeant Clark:

         2
             Much of what the majority characterizes as facts is really the opinion of the officer.

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       Clark had received information from a credible and reliable source of
       information (SOI) indicating that the electrical power meter at 519
       Irene Dr., Highlands[,] Texas had been by passed, altered in order to
       display a lower usage reading. . . . The information received further
       indicated that the power meter had been replaced by the Centerpoint
       Energy Company in February 2010. Once the meter was replaced the
       power usage sharply increased to rates roughly five times that of
       adjacent houses of similar size.

       An anonymous tip, alone, is insufficient to establish probable cause,
although it can be considered. Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim.
App. 2010). And hearsay-upon-hearsay may be utilized to establish probable
cause as long as the “underlying circumstances indicate that there is a substantial
basis for crediting the hearsay at each level.” Hennessy v. State, 660 S.W.2d 87,
91 (Tex. Crim. App. 1983). The affiant established Clark’s credentials. But Clark
never established the informant’s credentials in any meaningful way.

       Nothing in the affidavit indicates that this information was ever
corroborated,3 nor does the affidavit establish how the informant knew that the
power usage rate was “roughly five times that of adjacent houses of similar size”: a
conclusion that requires knowing the size of the suspect house, the size of adjacent
houses, and normal electrical usage for those adjacent houses.                     See id. at 89
(affidavit must include the underlying circumstances that lead to an informant’s
conclusion).

       In addition, this information appears stale as the date of the affidavit was
December 2010, and the meter was replaced in February of 2010, with a “sharp
increase” indicating a quick increase. Nothing in the affidavit establishes that the

       3
          Clark did testify at trial that he obtained Centerpoint records, but as this was not in the
affidavit, this corroboration cannot be considered. Clay v. State, 391 S.W. 3d 94, 100 n.21 (Tex.
Crim. App. 2013). And Clark testified that the usage was substantially higher or extremely
high—not five times normal usage.

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increase was still present in December. State v. Griggs, 352 S.W 3d 297, 303
(Tex. App.—Houston [14th Dist.] 2011, pet. ref’d) (facts stated in an affidavit
must be so closely related to the time of the issuance of the warrant such that a
finding of probable cause is justified at that time).

      The majority cites a number of cases from other jurisdictions concerning
electrical usage. I do not disagree that increased electrical usage, combined with
other facts, could provide probable cause for a search. However, in this affidavit,
the evidence of increased electrical usage was conclusory, stale, and from an
anonymous source and, as such, I believe it is insufficient.

      2. Closed blinds and sporadic sightings

      The affidavit contains the following facts: (1) every window in the residence
was observed to have the mini-blinds tightly drawn and (2) the affiant spoke with
area residents who reported that individuals are only seen at the residence on a
sporadic basis.

      These are merely “innocent facts.” Cassias v. State, 719 S.W.2d 585, 589
(Tex. Crim. App. 1986). While the affiant gave his opinion that these facts are
consistent with the operation of a “grow house,” the pertinent question is the
degree of suspicion associated with these noncriminal acts. See Eisenhauer v.
State, 678 S.W.2d 947, 954 (Tex. Crim. App. 1984) (citing Illinois v. Gates, 462
U.S. 213, 243 n.13 (1983)), overruled on other grounds, Heitman v. State, 815
S.W.2d 681, 690 (Tex. Crim. App. 1991). While consistent with a “grow house,”
these facts are not unduly suspicious, as many people keep their blinds closed and
keep to themselves.

      3. A felon’s registered vehicle at the house

      The affidavit also contained the following fact: a vehicle registered to

                                           4
appellant, who had a federal conviction for distribution of methamphetamine, was
in the driveway of the house.

      Nothing connects appellant’s vehicle with any crime and, in fact, nothing
connects appellant with any crime. The confidential informant did not contend that
appellant was involved with a “grow house” or that a vehicle matching that
description was seen transporting any marijuana. The presence of a felon’s vehicle
in the driveway does not support probable cause, but rather merely supports the
identification of appellant and his control of the house. Cf. Massey v State, 933
S.W.2d 141, 148–49 (Tex. Crim. App. 1996); Janecka v State, 739 S.W.2d 813,
825 (Tex. Crim. App. 1987).

      4. The totality of the facts does not clearly establish probable cause.

      In sum, we have uncorroborated, possibly stale, excessive electrical usage,
closed blinds, and sporadic sightings of the residents of the house. This cannot be
enough to clearly establish probable cause that a crime is being committed.
Because the majority concludes that it is, I dissent.



                                        /s/       Tracy Christopher
                                                  Justice


Panel consists of Justices Frost, Christopher, and Jamison. (Frost, J., majority).
Publish — TEX. R. APP. P. 47.2(b).




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