


 
IN THE
TENTH COURT OF APPEALS










 

Nos. 10-05-00272-CR,
10-05-00273-CR,
& 10-05-00281-CR
 
Jacqueline Erin Tucker,
                                                                      Appellant
 v.
 
The State of Texas,
                                                                      Appellee
 
 
 

From the Criminal District Court
No. 2
Tarrant County, Texas
Trial Court Nos. 0901803A, 0901805A
& 0901817A
 

MEMORANDUM  Opinion

 




          Jacqueline Erin Tucker appeals the
denial of her suppression motion in her prosecution for possession of three
different controlled substances.  Tucker contends in her sole issue that the
affidavit presented to the magistrate for a search warrant in her case did not
provide sufficient chronological information to supply probable cause that
controlled substances would be found at her residence.  We will affirm.
Under Illinois v. Gates, “the traditional
standard for review of an issuing magistrate’s probable cause determination has
been that so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’
that a search would uncover evidence of wrongdoing, the Fourth Amendment
requires no more.”  462 U.S. 213, 236, 103 S. Ct. 2317, 2331, 76 L. Ed. 2d 527
(1983) (quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 736, 4 L. Ed. 2d 697 (1960)); accord Swearingen v. State, 143 S.W.3d 808,
810 (Tex. Crim. App. 2004).
Tucker cites the familiar Guzman v. State
for the proposition that we conduct a de novo review on the question of
probable cause, presumably because there are no credibility issues arising from
the face of the affidavit.  955 S.W.2d 85, 89 (Tex. Crim. App. 1997).  However,
the Court of Criminal Appeals recently clarified that Guzman articulates
only a general principle for determining when such issues should be reviewed de
novo and when deference should be given to the lower court’s ruling.  See
Swearingen, 143 S.W.3d at 811.  The Court explained that, under Gates
and as an exception to the general principle articulated in Guzman, an
appellate court is required to give deference to a magistrate’s determination
that probable cause exists for a search warrant and not conduct a de novo
review of that determination.  Id.; accord Ornelas v. United States, 517 U.S. 690, 698-99, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996).
An appellate court examines only the four
corners of an affidavit to determine whether probable cause exists for a search
warrant.  Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); State
v. Stone, 137 S.W.3d 167, 175 (Tex. App.—Houston [1st Dist.] 2004, pet.
ref’d); Morris v. State, 62 S.W.3d 817, 821 (Tex. App.—Waco 2001, no
pet.). Though we are limited to the facts contained in the affidavit,
the affidavit must be interpreted in a common sense and realistic manner.  Lagrone
v. State, 742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Stone, 137
S.W.3d at 175; Morris, 62 S.W.3d at 823.  Thus, reasonable inferences
may be drawn from the facts set forth in the affidavit, and the determination
of whether the affidavit provides probable cause is made by examining the
totality of the circumstances.  Ramos v. State, 934 S.W.2d 358, 362-63 (Tex.
Crim. App. 1996); Stone, 137 S.W.3d at 175; Morris, 62 S.W.3d at
823.
To provide probable cause for a search warrant,
the facts submitted must be sufficient to justify a conclusion that the object
of the search is probably on the premises to be searched at the time the
warrant issues.  Ramos, 934 S.W.2d at 363; Stone, 137 S.W.3d at
175; Morris, 62 S.W.3d at 821-22.  On the specific issue of the amount
of chronological information necessary to provide probable cause for a search
warrant, we “examine, in light of the type of criminal activity involved, the
time elapsing between the occurrence of the events set out in the affidavit and
the time the search warrant was issued.  When the affidavit recites facts
indicating activity of a protracted and continuous nature, the passage of time
becomes less significant.”  Stone, 137 S.W.3d at 178 (citation omitted);
accord Morris, 62 S.W.3d at 823.
Here, the affidavit recites in pertinent part:
In the last forty-eight hours, your Affiant was
contacted by a credible and reliable confidential informant (CI) who has
provided investigators of MNICU-NE with information leading to the seizure of
narcotics in the past.  The CI advised that he/she knew of a subject by the
name of Jacqueline Tucker, who lives in a house at [Tucker’s address] who is
selling methamphetamine.  The CI advised that he/she could go to the residence
at this time and purchase an amount of methamphetamine from Jacqueline Tucker.
 
Investigator Huski and your affiant met with the
CI at a predetermined location.  The CI was searched as was his/her vehicle and
no methamphetamine or related contraband was located.  Your affiant gave the CI
a quantity of government funds to buy an amount of methamphetamine for
evidentiary purposes.  Investigator Huski and your affiant then followed the CI
to [Tucker’s address].  We observed the CI enter the residence by walking up
the stairs to the front porch.  The CI stayed inside for about twenty minutes
at which time we observed him/her exit the residence.
 
We met with the CI at a predetermined location. 
The CI handed me a container containing a crystallized powder substance.  The
substance had the appearance of crystallized methamphetamine.  The substance
when tested using a presumptive test for methamphetamine, tested positive for
methamphetamine.  The substance was taken out of the container and weighed. 
The substance was found to weigh .40 grams.  The CI was searched as was his/her
vehicle and no narcotics or related contraband was located.
 
The CI advised your affiant that he/she knocked
on the door, which was answered by Tucker.  The CI asked her if she had any
speed, and she said she did and handed him/her a container, which held a
crystallized rock substance.  The CI then left and met with investigators.
 
The CI advised that Tucker has installed two or
three cameras that monitor the front door area of the house, as well as the
front yard and down to the street.  .  .  .  The CI advised that Tucker spends
a lot of time in the office and closely monitors the cameras, so that she can
observe anyone coming to her residence.  Furthermore, Tucker typically keeps a
shotgun in the living room, leaning against the wall.  .  .  .  The CI also
advised that Tucker keeps a handgun in the office, which is commonly kept
unconcealed and accessible to anyone in the office.
 
The magistrate issued the search warrant within
minutes after the affidavit was signed.
          The CI told the primary investigator
(the affiant) that Tucker was selling methamphetamine from her home.  During
the 48-hour period immediately preceding issuance of the warrant, the CI
carried out a controlled buy and purchased .40 grams of methamphetamine from
Tucker.  The CI’s statement that Tucker “is selling methamphetamine”
together with Tucker’s installation of video cameras and deployment of weapons
indicates “activity of a protracted and continuous nature.”  See Stone,
137 S.W.3d at 178; Morris, 62 S.W.3d at 823.
          Therefore, under the totality of the
circumstances, the facts stated in the affidavit gave the magistrate a “substantial
basis for . . . [concluding]” that methamphetamine would be found at Tucker’s
residence.  See Gates, 462 U.S. at 236, 103 S. Ct. at 2331; Swearingen,
143 S.W.3d at 810.  Thus, the affidavit contained sufficient facts to provide
probable cause for issuance of the search warrant.  See Patterson v. State,
138 S.W.3d 643, 648 (Tex. App.—Dallas 2004, no pet.); Blake v. State,
125 S.W.3d 717, 725 (Tex. App.—Houston [1st Dist.] 2003, no pet.); White v.
State, 932 S.W.2d 593, 595-96 (Tex. App.—Tyler 1995, pet. ref’d).
Accordingly, we overrule Tucker’s sole issue and
affirm the judgment in each case.
 
FELIPE REYNA
Justice
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Affirmed
Opinion delivered and
filed October 4, 2006
Do not publish
[CR25]


ion>America.  Two months later, Martinez non-suited YST
and WLE.  Prior to the two
requests for non-suit, YST and WLE filed several motions for sanctions against Martinez and his
attorneys.  These motions requested
sanctions under Rule 13 and Rule 215 of the Texas Rules of Civil Procedure and
Chapters 9 and 10 of the Texas Civil Practice and Remedies Code.  After an evidentiary hearing, the trial judge
denied all motions for sanctions.
          We agree with YST and WLE that the
standard by which we review a sanctions order is for abuse of discretion.  Chrysler
Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992).  A trial court abuses its discretion if it
acts in an arbitrary or unreasonable manner without reference to any guiding
rules or principles.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985).  When reviewing matters committed to the trial
court's discretion, a court of appeals may not substitute its own judgment for
the trial court's judgment.  See Flores v. Fourth Court of Appeals, 777 S.W.2d 38,
41-42 (Tex. 1989).
          YST and WLE point to Rules of Civil
Procedure 13, 191.3, and 215 and to sections 9.011 through 9.014 and 10.001 through
10.006 of the Civil Practice and Remedies Code as the legal bases for
sanctions.  Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011-.014, 10.001-.006
(Vernon 2002); Tex. R. Civ. P. 13,
191.3, 215.  They also point to seven
factual bases, which they contend required the trial court to impose sanctions:
(1) filing of the original class action petition, which contained material
allegations that were untrue; (2) filing a false affidavit; (3) filing an
amended class action petition, which added a groundless claim and a claim on
which limitations had expired; (4) filing false assertions in response to a
request for disclosure; (5) failing to produce documents at a deposition after
the court directed him to do so; (6) discovery requests made to YST and WLE
after Martinez and his attorneys knew their claims had no merit; and (7) false
corrections to a deposition concerning ownership of the personal watercraft.  Martinez points to: (1) publication of a
“Safety Study” by the National Safety Transportation Board (NTSB) concerning
the characteristics of personal watercraft based on their involvement in
boating accidents; the study resulted in nine conclusions and recommended that
PWC manufacturers evaluate the design of and make changes in personal
watercraft; (2) title documents related to two Yamaha PWCs, a 1996 and a 1997,
showing the details of transfers of title and registration of the two PWCs; (3)
evidence that Martinez’ attorneys had authority to investigate and did investigate
the ownership of the personal watercraft registered to Martinez and his wife;
(4) evidence that Martinez and his wife were married throughout the course of
the legal proceedings, Martinez’ wife did not own a personal watercraft as her
separate property, and Martinez’ wife transferred title to a personal
watercraft to her father without Martinez’ knowledge; (5) evidence that Martinez
did not understand, know of, or appreciate the risks and dangers alleged to be
inherent in the design and operation of personal watercraft; (6) evidence that Martinez
believed that the information about ownership contained in an affidavit was
true when he signed it; (7) evidence that  Martinez’ attorneys took reasonable steps to
have Martinez produce the documents the court ordered; and (8) evidence showing
that YST and WLE’s attorneys knew before Martinez and his attorneys that the
personal watercraft had been transferred by Martinez’ wife to her father.
          To apply an abuse-of-discretion
standard, we defer to the trial court's factual determinations but review
questions of law de novo.  Castellano v. Garza, 110 S.W.3d 70, 73 (Tex. App.—San
Antonio 2003, no pet.).  Our review of
the record convinces us that no abuse of discretion occurred in the denial of
the motions for sanctions.  Blackmon, 841 S.W.2d at 852; see also Elkins v. Stotts-Brown, 103
S.W.3d 664, 668-70 (Tex. App.—Dallas
2003, no pet.).  To hold otherwise would
be to substitute our view of disputed evidence for that of the trial
judge.  Flores, 777 S.W.2d at
41-42.
            The order denying sanctions is
affirmed.
 
BILL VANCE
Justice
 
Before Chief
Justice Gray,
Justice Vance,
and
Justice Reyna[1]
          (Chief Justice Gray dissenting)
Order affirmed
Opinion
delivered and filed July 14, 2004
 
[CV06]
 



[1]  This case was
submitted with former Chief Justice Davis on the panel, but he resigned
effective August 4, 2003.  Justice
Reyna, who took office on January 5, 2004, participated in the decision.


