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                                 MEMORANDUM OPINION

                                         No. 04-08-00320-CR

                                            Rudy VARELA,
                                               Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                    From the County Court at Law No. 2, Guadalupe County, Texas
                                   Trial Court No. CCL-07-1245
                              Honorable Frank Follis, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: November 5, 2008

AFFIRMED

           Rudy Varela appeals his misdemeanor conviction for possession of marijuana, contending

the trial court erred in denying his motion to suppress evidence. We affirm the trial court’s judgment.

                             FACTUAL AND PROCEDURAL BACKGROUND

           In February 2007, a search warrant was issued in Guadalupe County authorizing the search

of premises described as the following:

           Just outside the City of New Braunfels, 1052 Krause Lane #29. Said suspected place
           is a single wide mobile home with light blue colored vinyl siding. The skirting
           around the mobile home is what appears to be a type of fiberglass material that is
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        whitish in color. There is a door on the southeast side of the mobile home, which is
        apparently the front door. On the northeast side of the mobile home is a bay window
        that protrudes from the mobile home.

The warrant, which authorized the search for evidence of methamphetamine manufacturing and

trafficking, was issued based on the affidavit of Detective Stephen Hanna of the New Braunfels

Police Department. Detective Hanna’s affidavit not only described the premises in detail as set forth

in the warrant, but it also identified Rudy Varela as the “suspected party” in charge of the premises.

In addition to describing the premises and identifying Varela, the affidavit also referred to

attachments consisting of “a map/aerial photograph illustrating the relative location of the place to

be searched” and “a photograph of the actual residence to be searched.” Detective Hanna identified

the address as 1052 Krause Lane #29 in the search warrant affidavit because Varela’s driver’s

license, which Detective Hanna obtained through the Department of Public Safety, identified

Varela’s residence as 1052 Krause Lane #29. In his affidavit, Detective Hanna describes the facts

and circumstances giving rise to probable cause for the search. Those facts and circumstances

consisted of several illegal drug sales by Varela to a confidential informant at the premises described

in the affidavit.

        At the suppression hearing, Detective Hanna confirmed that he obtained and executed the

search warrant in question. When he went to the premises to execute the warrant, there were no

numbers on the trailer. He knocked on the door, and when no one answered, he entered the

residence. Varela drove up as Detective Hanna and other officers were executing the search warrant.

Detective Hanna told Varela they were trying to execute a search warrant and asked Varela to tell

him the address of the premises they were currently searching. Varela responded it was 1052 Krause

Lane #29. Detective Hanna asked Varela if he was sure about that, to which Varela responded



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“[e]ither 29 or 22.” Varela produced a driver’s license that listed his address as 1052 Krause Lane

#29. Before Varela arrived, Detective Hanna had located a utility bill in the residence that was

addressed to 1052 Krause Lane #22. When asked why he continued to search even though he had

found the utility bill in the residence that may have indicated he was in the wrong place, Detective

Hanna responded, “I wasn’t in the wrong place.” Upon searching the residence, Detective Hanna

found about three ounces of marijuana. When Varela indicated the marijuana belonged to him, he

was arrested.

       Detective Hanna testified that the only trailer he saw with a number on it was located to the

left of Varela’s trailer, and it had the number 23 on it. He described the trailers on the lot as “kind

of scattered,” noting that not every lot had a trailer on it. When Detective Hanna presented his

affidavit to the magistrate, attached to his affidavit were the originals of both the aerial photograph

of the trailer park and the photograph of the trailer itself. Both photographs depict the trailer house

that Detective Hanna searched.

       After hearing Detective Hanna’s testimony and counsels’ arguments, the trial court denied

the motion to suppress. Varela then pled guilty; however, he reserved his right to appeal the trial

court’s ruling on his motion to suppress.

       On appeal, Varela argues the trial court should have granted his motion to suppress because

the officers exceeded the scope of the search warrant in that they executed the warrant at a residence

not named in the warrant. According to Varela, once the officers found evidence of an address

contradicting the address contained in the search warrant, any continued search of the residence

exceeded the scope of the warrant.




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                   DID THE SEARCH EXCEED THE SCOPE OF THE WARRANT?

       Generally, we review a trial court’s denial of a motion to suppress for an abuse of discretion.

Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999). The trial court is the sole trier of fact

and judge of the credibility of the witnesses and the weight to be given their testimony. State v.

Ballard, 987 S.W.2d 889, 891 (Tex. Crim. App. 1999). Thus, we afford almost total deference to a

trial court’s determination of historical facts that the record supports, especially when the findings

are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). However, we review de novo a trial court’s determination of mixed questions of

law and fact that do not turn on an evaluation of credibility. Id. And, when reviewing application of

law to facts, we review the evidence in the light most favorable to the trial court’s ruling. Id.

       The constitutional objectives of requiring a “particular” description of the place to be

searched include the following: (1) ensuring that the officer searches the right place; (2) confirming

that probable cause is, in fact, established for the place described in the warrant; (3) limiting the

officer’s discretion and narrowing the scope of his search; (4) informing the owner of the officer’s

authority to search that specific location; and (5) minimizing the danger of mistakenly searching the

person or property of an innocent bystander or property owner. Long v. State, 132 S.W.3d 443, 447

(Tex. Crim. App. 2004). The goal of preventing this last objective, the mistaken execution of the

warrant against an innocent third party, is met when the warrant identifies the place to be searched

sufficiently so that the officers who execute the warrant, acting reasonably, can locate that place and

identify it from other places in the community. Bridges v. State, 574 S.W.2d 560, 562 (Tex. Crim.

App. [Panel Op.] 1978). “We are convinced that the rights of society and of the innocent third party

can best be protected by evaluating each search warrant individually.” Id. Thus, a search is not



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rendered illegal for exceeding the scope of a search warrant so long as the officers executing the

warrant reasonably believed at the time that the place searched was covered by the warrant.

Maryland v. Garrison, 480 U.S. 79, 86-88 (1987); Amir v. State, 45 S.W.3d 88, 94 (Tex. Crim. App.

2001) (Keller, J., concurring).

          Varela notes that many cases considering the issue of whether law enforcement exceeded the

scope of a search warrant involve situations where officers extended their search to an area adjacent

to or adjoining the area named in the search warrant. See, e.g., Amir, 45 S.W.3d at 90-91 (holding

police did not exceed scope of warrant where warrant listed 5627 Star Lane, Suite A, but officers

searched appellant’s residence he had “carved out” within the 5627 address but placed the numbers

5625 on the door); Cannady v. State, 582 S.W.2d 467, 469 (Tex. Crim. App. [Panel Op.] 1979)

(holding search did not exceed scope of warrant where warrant listed 6927 Long Point Road but

contraband was seized at 6929 Long Point Road because the two addresses were adjacent offices

within a single building and the partitions between the two had been removed for remodeling).

          Varela urges, however, that this case is distinguishable from those cases because this case

does not involve a search of adjoining or adjacent areas to the area listed in the warrant. Instead,

Varela argues that “[t]here was only [one] residence searched, and the police could not have

reasonably believed that it was the residence located at the address listed in the warrant.” According

to Varela, once the officers found the utility bill addressed to Lot #22, their search should have

ceased.

          The State, on the other hand, contends the trial court did not abuse its discretion in denying

the motion to suppress because the officers reasonably and in good faith believed they were




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searching the right residence as identified in the affidavit and search warrant. We agree with the

State.

         There is no dispute that Detective Hanna’s affidavit identified the trailer that was, in fact, the

subject of the search. Further, it is not disputed that Varela claimed that trailer as his residence and

that officers had witnessed Varela conducting drug sales from that trailer. Moreover, Detective

Hanna went so far as to identify the trailer to be searched by attaching both aerial and close-up

photographs of the trailer that was searched. It is further undisputed that Varela listed his residence

address on his driver’s license as 1052 Krause Lane #29. And, as a result, Detective Hanna used that

address in his affidavit to obtain the search warrant. When Varela drove up to the residence during

the search, Varela initially confirmed that the address was 1052 Krause Lane #29. Upon further

questioning he indicated it was either #29 or #22. The only other indication that the address might

be #22 was the utility bill located inside the trailer. When asked during the suppression hearing about

continuing to search even though he had an indication he was in the wrong place, Detective Hanna

answered, “I wasn’t in the wrong place.”

         Although there may have been some confusion about whether the trailer was located on Lot

#29 or #22, there is nothing in the record to indicate the officers were unreasonable in believing they

were searching the residence listed in the search warrant. Using the applicable standard of review,

we hold that the trial court, as sole trier of fact and judge of the credibility of Detective Hanna, did

not abuse its discretion in finding the officers could have reasonably believed they were searching

the premises covered by the warrant.




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     We, therefore, affirm the trial court’s judgment.



                                                    Karen Angelini, Justice

DO NOT PUBLISH




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