Affirmed and Majority and Dissenting Opinions filed May 9, 2013.




                                      In The


                    Fourteenth Court of Appeals

                              NO. 14-12-00285-CR



                   WESLEY JEROME WRIGHT, Appellant

                                        V.

                       THE STATE OF TEXAS, Appellee


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



                         MAJORITY OPINION

      Appellant Wesley Jerome Wright appeals his conviction for possession of
marijuana, asserting that the evidence is insufficient to support his conviction and
that probable cause did not support the issuance of the search warrant that led to
the discovery of the hydroponic marijuana plants that are the basis of the charged
offense. We affirm.

                    FACTUAL AND PROCEDURAL BACKGROUND

      Appellant was charged by indictment with the offense of possession of
marijuana, in a quantity weighing more than five pounds and less than fifty
pounds, following law enforcement officers’ execution of a search warrant at a
specific address in Harris County, Texas. In their search of the premises, officers
recovered 155 live marijuana plants growing hydroponically inside the home along
with marijuana that had been processed and dried; the total weight of the recovered
contraband was just over fourteen pounds. Appellant pleaded “not guilty” to the
charged offense.

      Appellant filed a motion to suppress evidence, asserting that the search
warrant was issued without probable cause and that any evidence recovered by the
officers pursuant to the search warrant was unlawfully seized and should be
suppressed for trial.   Attached to the motion was the affidavit in support of
probable cause for issuance of the search warrant, which appellant challenged as
failing to articulate probable cause.

      The evidence at trial included the testimony of Sergeant Robert Clark, a
certified peace office for thirty-four years who, at the time of trial, was working on
a federal narcotics task force conducting hundreds of narcotics investigations. This
background equipped him with training and experience in investigations of
hydroponic marijuana, which is a type of contraband typically grown inside a
highly controlled environment and requires a high level of care.

      Sergeant Clark initiated an investigation of an alleged “grow house” at a
specific address in December 2010, after receiving an anonymous tip on the first of
                                          2
that month, that hydroponic marijuana was being grown at that location. He drove
by the location to determine whether typical indicators of a grow house were
present. He observed a vehicle registered to appellant arrive at the home, but he
did not see anyone exit the vehicle. At the address, he observed the windows were
tightly covered; the yard was a little unkempt; and even though two vehicles were
in the driveway, the home appeared vacant, all of which are typical indicators of a
grow house. He traveled to the home several more times that week in a “drive-by
surveillance,” and on each of these occasions, he observed other indicators typical
of a grow house, such as exterior lights on during the daytime hours and no
vehicles on the premises. On one of these occasions, he saw another vehicle,
registered to appellant, leaving the home.

        Sergeant Clark learned that the home belonged to appellant’s ex-wife. He
executed a subpoena on Centerpoint Energy and learned that the electrical usage at
the home was unusually high, substantially higher than other area homes of the
same size, which indicated the possibility that the home served as a grow house.
According to the record, electrical usage in the home increased significantly from
March 2010 to December 2010. The record also reflects that prior to March 2010,
the home’s electrical usage was particularly low, which suggested that the home
was vacant or that the home’s electrical meter had been bypassed as is common
with grow houses. The record reflects that the meter to the home had been
bypassed at one time and repaired, resulting in the large usage increase in March
2010.     The Centerpoint Energy account associated with the home was in
appellant’s name.

        On December 6, 2010, Sergeant Clark initiated a “knock and talk”
investigation at the home. When he arrived, he observed a vehicle registered to
appellant in the driveway, the blinds to the home tightly closed, and the home’s
                                         3
exterior lights on during day-time hours. Sergeant Clark called other uniformed
law enforcement officers for assistance, as well as a narcotics-detection dog. Once
other officers, including Deputy James Savell, arrived on the scene, they
approached the home in raid gear and prepared to raid the home. The officers
knocked several times without any response. They heard music inside the home.
At the front door, they detected the odor of “skunk weed,” a strong-smelling type
of marijuana. Once the officers detected that odor, and after knocking again at the
door with no response, the narcotics-detection dog was asked to conduct an “open
air sniff” of the exterior of the front door; the dog alerted to the presence of
marijuana. Deputy Savell then left the premises, sought and obtained a search
warrant of the home, and returned to the scene.

      Armed with a search warrant, the officers again approached the home in raid
gear, knocked on the door and received no response. They entered and once
inside, officers detected the strong odor of marijuana and saw that a bedroom and
garage had been converted to hydroponic grow rooms containing in total 155 live
marijuana plants, with an estimated value of $138,000. Another room contained
marijuana that already had been dried and harvested. Officers observed equipment
and supplies associated with hydroponic marijuana cultivation and packaging. The
rooms of the home were insulated and carefully controlled with lighting,
ventilation, and temperature apparatuses. Two of appellant’s separate fingerprints
were identified and lifted from a metal halide light shroud in one of the growing
rooms. The kitchen had no food and very few typical kitchen items. The home
contained little furniture and no clothing, and appeared as if no one had lived in the
home recently. There was one bed, but it did not appear as if anyone had slept
there because it was covered with other items. Inside the home, officers found
documents, some of which were dated over one year old, belonging to several
                                          4
other individuals. According to officers who executed the search warrant, although
a single person could tend to a hydroponic operation of this complex scale, that
person would need to be at the home at least every one to two days.

      Sergeant Clark spoke with a neighbor who lived next door, and the neighbor
reported that appellant had been at the home the day before. According to the
neighbor’s testimony at trial, in the weeks leading up to the search of the home, the
neighbor claimed to have seen appellant at the home two or three times a week on
a consistent basis. The neighbor testified to seeing appellant’s vehicle at the home
in the week before December 6, 2010, but could not recall whether he had seen
appellant. According to the neighbor, appellant, at one time, had lived in the home
with his then-wife, but, after the couple divorced, the house was vacant. In 2009,
the neighbor began to see appellant at the home regularly. In the interval between
February 2010 and December 2010, the neighbor also saw appellant at the home.
The neighbor recalled occasionally seeing at least two other people with appellant
at the home—a woman and a man; the neighbor identified the man from a photo
Sergeant Clark showed him. One summer, possibly in 2009, the neighbor had seen
that same man with appellant rewiring the home, pulling wires from the home,
connecting the wiring to a “main power center,” and replacing the home’s exterior
electrical box. The neighbor and appellant had an agreement that the neighbor’s
yard crew would tend to the yard and that appellant would reimburse the neighbor
for the yard crew’s services. Although the neighbor knocked on the door to the
home on occasion in the summer of 2010, when he believed appellant was there,
no one ever answered the door. In the weeks leading up to the search on December
6, 2010, the neighbor characterized appellant and others as being “in and out” of
the home “all the time,” spending the night on many occasions. Although the


                                         5
neighbor did not see appellant at the home every day, he saw appellant often
enough to believe that appellant lived there.

      An arrest warrant was issued for appellant’s arrest one week after the
officers searched the home. Appellant turned himself into authorities. The charges
in the underlying case were eventually filed against him.

      Pursuant to appellant’s motion to suppress, the trial court initially allowed
appellant a running objection to the evidence the officers recovered in a search of
the home. Outside of the jury’s presence, the trial court later heard the parties’
arguments on appellant’s motion to suppress. Appellant argued that absent the
dog’s alert to the contraband inside the home, the affidavit in support of the search
warrant was insufficient for probable cause because the activities described were
lawful activities. Appellant also asserted that, contrary to Texas law as it existed
then, having the dog conduct an open-air sniff was a warrantless search without
probable cause and thus was prohibited by the Fourth Amendment such that the
dog’s alert should not be factored into the probable-cause ruling. The trial court
denied the motion to suppress, ruling that under the totality of the circumstances,
including the evidence as it relates to the officers’ observations, training, and
experience, the search warrant was supported by probable cause.

      Appellant presented evidence that beginning in February 2010, the home
served as rental property and that he managed the property for his ex-wife.
According to appellant’s current wife, who had witnessed a lease executed on the
property for that tenancy, the handwritten lease between appellant and the tenant
reflects that the utilities would remain in appellant’s name because the tenant had
poor credit. The trial court admitted into evidence the undated lease and a copy of
the tenant’s Louisiana driver’s license.        Appellant’s wife stated that she and

                                          6
appellant went to the home occasionally from February 2010 through December
2010, to collect rent or to tend to the yard, but she denied that they ever went inside
the home. Appellant’s wife also denied that appellant ever spent the night at the
home. The wife stated that she went to the residence in December 2010, to bring
appellant food and that her vehicle, registered to appellant, was left overnight at the
home because it would not start. On rebuttal, the State presented evidence from a
detective that despite his attempts to locate the tenant by searching several
databases using the tenant’s name, variations of the tenant’s birthdate, and a
previous address from the driver’s license, the detective could not verify that any
person by that name existed.

      The jury found appellant guilty of the charged offense. Appellant was
sentenced to eight years’ confinement and now appeals his conviction.

   SUFFICIENCY OF THE EVIDENCE SHOWING THAT APPELLANT POSSESSED A
                        CONTROLLED SUBSTANCE
      In his second issue, appellant challenges the sufficiency of the evidence to
support a finding that he possessed the marijuana. In evaluating a sufficiency
challenge, we view the evidence in the light most favorable to the verdict.
Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The issue on
appeal is not whether we, as a court, believe the State’s evidence or believe that
appellant’s evidence outweighs the State’s evidence. Wicker v. State, 667 S.W.2d
137, 143 (Tex. Crim. App. 1984). The verdict may not be overturned unless it is
irrational or unsupported by proof beyond a reasonable doubt. Matson v. State,
819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The trier of fact “is the sole judge
of the credibility of the witnesses and of the strength of the evidence.” Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The trier of fact may choose
to believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State,
                                          7
707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting
evidence, we presume the trier of fact resolved conflicts in favor of the prevailing
party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614
(Tex. Crim. App. 1997).

      The Court of Criminal Appeals has determined that the Jackson v. Virginia
legal-sufficiency standard is the only standard that a reviewing court should apply
in determining whether the evidence is sufficient to support a criminal conviction
beyond a reasonable doubt. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.
App. 2013). Therefore, we will review the evidence under the Jackson v. Virginia
standard as articulated in the preceding paragraph.

      A person commits the felony offense of possession of marijuana if that
person knowingly or intentionally possesses a usable quantity of the controlled
substance weighing more than five pounds and less than fifty pounds. See Tex.
Health & Safety Code Ann. § 481.121(a), (b)(4) (West 2010). “Possession” is
defined as “actual care, custody, control, or management.” Tex. Penal Code Ann.
§ 1.07(a)(39) (West 2011); Tex. Health & Safety Code Ann. § 481.002(38) (West
2010). To prove unlawful possession of a controlled substance, the State must
establish that (1) the accused exercised care, control, or management over the
contraband, and (2) knew the substance was contraband. Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005). The elements of possession may be
proven through direct or circumstantial evidence, although the evidence must
establish that the accused’s connection with the substance was more than
fortuitous. Id. at 405–06. When the accused is not in exclusive possession of the
place where the contraband is found, the State must show additional affirmative
                                         8
links between the accused and the contraband. See Olivarez v. State, 171 S.W.3d
283, 291 (Tex. App.—Houston [14th Dist.] 2005, no pet.). An affirmative link
generates a reasonable inference that the accused knew of the contraband’s
existence and exercised control over it.      See id.   Courts have identified the
following factors that may help to show an accused’s affirmative links to a
controlled substance: (1) the accused’s presence when a search is conducted; (2)
whether the contraband was in plain view; (3) the accused’s proximity to and the
accessibility of the narcotic; (4) whether the accused was under the influence of
narcotics when arrested; (5) whether the accused possessed other contraband or
narcotics when arrested; (6) whether the accused made incriminating statements
when arrested; (7) whether the accused attempted to flee; (8) whether the accused
made furtive gestures; (9) whether there was an odor of contraband; (10) whether
other contraband or drug paraphernalia were present; (11) whether the accused
owned or had the right to possess the place where the drugs were found; (12)
whether the place where the drugs were found was enclosed; (13) whether the
accused was found with a large amount of cash; and (14) whether the conduct of
the accused indicated a consciousness of guilt. Evans v. State, 202 S.W.3d 158,
162 n. 12 (Tex. Crim. App. 2006). Additionally, a large quantity of contraband
may be a factor affirmatively linking appellant to the contraband. See Olivarez,
171 S.W.3d at 292. No set formula necessitates a finding of an affirmative link
sufficient to support an inference of knowing possession; affirmative links are
established by the totality of the circumstances. See Hyett, 58 S.W.3d at 830. The
number of factors present is not as important as the logical force the factors create
to prove the accused knowingly possessed the controlled substance. Robertson v.
State, 80 S.W.3d 730, 735 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
Although appellant asserts that only one of these factors exists, we conclude the
                                         9
record contains sufficient evidence to affirmatively link appellant to the narcotics
in the home.

      The record reflects that the type of complex and large-scale hydroponic
operation found inside the home required a high degree of maintenance that
included tending to the operation every day or every other day. Although the
record reflects that appellant’s ex-wife owned the home, a neighbor saw appellant
at the home on a consistent basis several times a week. The neighbor estimated
that appellant was there two or three times a week in the weeks before officers
searched the home. According to the neighbor, appellant always entered the home
upon his arrival and often spent the night there. Even though the neighbor did not
see appellant at the home every day, the neighbor believed appellant lived there.
The neighbor testified that in the week before the search warrant was executed on
the home, he saw appellant’s vehicle at the home and told investigating officers
that he had last seen appellant at the home on the day before the officers searched
the home. The neighbor estimated that between February 2010 and December
2010, he had seen appellant at the residence seventy-five to one hundred times.
The neighbor also recalled seeing appellant and another man rewire the home and
change the exterior electrical box. The record reflects that the electrical account
for the home’s address remained in appellant’s name; it is undisputed that
appellant paid this utility bill. See Poindexter v. State, 153 S.W.3d 402, 411 (Tex.
Crim. App. 2005) (providing that with a utility bill for a house addressed to the
defendant at the home, among other things, a fact finder could conclude that the
defendant lived at a house). These factors support an inference that appellant had a
right of possession to or control over the place where contraband was found. See
Hargrove v. State, 211 S.W.3d 379, 386 (Tex. App.—San Antonio 2006, pet.
ref’d) (concluding that defendant had right of possession to girlfriend’s home,
                                        10
where contraband was found, when affirmative links showed that defendant had a
key, often stayed the night at the home, paid bills associated with the home, and
utility bill in defendant’s name was found at the house). Although appellant’s
current wife offered testimony contrary to the neighbor’s, the jury was free to
disregard the wife’s testimony as not credible. See Fuentes, 991 S.W.2d at 271
(providing that a trier of fact is the sole judge of the credibility of the witnesses and
of the strength of the evidence); Sharp, 707 S.W.2d at 614 (providing that a
factfinder may choose to believe or disbelieve any portion of the witnesses’
testimony). To the extent appellant suggests that the contraband belonged to a
tenant who lived in the apartment, control over contraband need not be exclusive,
but can be jointly exercised by more than one person. See Poindexter, 153 S.W.3d
at 412.

      Two rooms of the home were dedicated to cultivating hydroponic marijuana
and another room was devoted to harvesting and drying the contraband. The
evidence showed a large quantity of live plants were recovered, which, along with
the harvested contraband in another room, amounted to over fourteen pounds of a
usable quantity of marijuana. This contraband was in plain view in the home and
readily accessible to appellant; officers testified to the strong odor of the marijuana
both inside and from outside the home. These facts amply support a conclusion
that when appellant was inside the home, he possessed the narcotics and knew it to
be contraband. See Herrera v. State, 561 S.W.2d 175, 179 (Tex. Crim. App. 1978)
(considering as affirmative links two marijuana plants growing in an apartment
along with marijuana seeds, “roaches,” and loose marijuana in plain view in the
kitchen and bedroom as being sufficient to show that the defendant who possessed
the marijuana knew it was contraband); Gregory v. State, 159 S.W.3d 254, 260
(Tex. App.—Beaumont 2005, pet. ref’d) (considering as affirmative links large
                                           11
quantity of contraband in plain view in a home, conveniently accessible to a
defendant, the odor of contraband and paraphernalia were present, and place where
contraband was found was enclosed). Other items recovered by the officers during
a search of the home include potting soil and lighting, ventilation, and temperature
equipment. See Gregory, 159 S.W.3d at 260 (considering as an affirmative link
paraphernalia found). Officers also discovered two of appellant’s fingerprints
inside the home on lighting equipment found in one of the rooms devoted to
hydroponic cultivation. The presence of appellant’s fingerprints on the marijuana-
growing equipment is a factor for consideration in showing control of the
contraband and within the jury’s province to resolve. See id. at 260–61.

      Appellant asserts that no evidence linked him to the inside of the residence
within ninety days prior to the officers’ search. Appellant points to testimony that
hydroponic cultivation of marijuana has a ninety-day growing cycle and that some
of the plants were newly grown and other plants were just recently harvested. The
neighbor testified that he observed appellant at the home in the week before the
search warrant was executed and regularly saw appellant several times a week in
the weeks leading up to the search.       Likewise, the neighbor testified that he
consistently witnessed appellant physically enter the home after arriving at the
property. The fact that appellant’s fingerprints were found on one of the lights
associated with the hydroponic growing operation confirms the neighbor’s
testimony that appellant was inside the home during the relevant time period.

      Viewing the evidence in the light most favorable to the verdict, a trier of fact
reasonably could have determined beyond a reasonable doubt that the home and
contraband recovered from it were within appellant’s actual custody, control, care,
or management and that appellant knew the substance was contraband.               See
Hargrove, 211 S.W.3d at 386 (concluding that a defendant had possession of
                                         12
girlfriend’s home when evidence showed he paid bills there, had utility bills
associated with the home in his name, often spent the night, and had a key to the
home); Gregory, 159 S.W.3d at 260 (concluding that odor and large quantity of
contraband in plain view in an enclosed place, along with an accused’s fingerprints
associated with the contraband were sufficient affirmative links to establish
possession). We overrule appellant’s second issue.

    SUFFICIENCY OF PROBABLE CAUSE TO SUPPORT THE SEARCH WARRANT

      In his first issue, appellant asserts that the law enforcement officers lacked
probable cause to secure the search warrant that led to the discovery of the
hydroponic marijuana plants. Under this issue, appellant argues (1) Sergeant Clark
lacked probable cause to conduct a “knock and talk” investigation; and (2) though
the alert of a trained and certified narcotics-detection dog provides probable cause
for the issuance of a search warrant, this court cannot consider the statements in the
affidavit regarding the narcotics-detection dog because the officers lacked
reasonable suspicion that drugs or contraband were at the location before using the
narcotics-detection dog, and without the alert by the narcotics-detection dog, the
affidavit does not show probable cause for issuing a search warrant.
      In his opening brief, appellant did not assert that the sniff by the narcotics-
detection dog constituted a search or that the officers were required to have
probable cause or obtain a warrant before using the dog at the home. Appellant did
not cite the Florida Supreme Court’s opinion in Jardines v. State, 73 So.3d 34 (Fla.
2011), aff’d sub nom., Florida v. Jardines, — U.S. —, — S. Ct. —, — L. Ed. 2d
—, No. 11-564, 2013 WL 1196577, at *4 (Mar. 26, 2013), which was pending in
the United States Supreme Court when briefs were submitted in the case under
review. The State, in its brief, pointed out that, in the trial court (1) appellant had
relied upon Jardines v. State; (2) appellant had argued that the use of the narcotics-
                                          13
detection dog itself was an impermissible search; and (3) appellant had asserted
that probable cause was required before the officers could use a narcotics-detection
dog. The State asserted that, though appellant had made these arguments in the
trial court, appellant was not making these arguments on appeal. In his reply brief,
appellant stated that “[a]s correctly pointed out by the State, appellant’s trial
counsel raised the Jardines issue at the trial level but it was not raised in
appellant’s original brief.”   Appellant explained that he “did not present the
Jardines issue in his original brief because, at best, a ruling by the Florida Supreme
Court is only persuasive authority in the State of Texas.” Nonetheless, appellant
stated that this court “could independently turn to the Jardines decision for
guidance in this or any other ‘dog sniff’ case.” Appellant stated that “since the
State has elected to put the Jardines issue before this Court—whether a ‘dog sniff’
itself is a search requiring a warrant supported by probable cause—appellant
suggests that the Court address this specific constitutional issue, or, at a minimum,
hold the issue in abeyance . . . until the U.S. Supreme Court resolves the issue.”
Even after the State pointed out appellant’s failure to assert his trial-court
arguments on appeal, appellant did not assert or argue in his reply brief that the use
of the narcotics-detection dog itself was an impermissible search or that probable
cause was required before the officers could use a narcotics-detection dog.
      To preserve error for appellate review, the complaining party generally must
have raised his complaint in the form of an objection, request, or motion in the trial
court and obtained a ruling. See Tex. R. App. P. 33.1(a); Davis v. State, 22 S.W.3d
8, 11 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Additionally, the legal
theory that appellant asserts on appeal must correspond to a theory that appellant
asserted in the trial court. See Johnson v. State, 803 S.W.2d 272, 292 (Tex. Crim.
App. 1990), overruled on other grounds by, Heitman v. State, 815 S.W.2d 681, 685
                                         14
n.6 (Tex. Crim. App. 1991); Davis, 22 S.W.3d at 11. Appellant cannot show error
in the trial court’s denial of his motion to suppress based on a legal theory that
appellant did not assert in the trial court. See Johnson, 803 S.W.2d at 292; Davis,
22 S.W.3d at 11.

       On appeal, appellant argues that (1) Sergeant Clark lacked probable cause to
conduct a “knock and talk” investigation; and (2) this court cannot consider the
statements in the affidavit regarding the narcotics-detection dog because the
officers lacked reasonable suspicion that drugs or contraband were at the location
before using the narcotics-detection dog, and without the alert by the narcotics-
detection dog, the affidavit does not show probable cause for issuing a search
warrant. But, appellant did not assert these arguments in the trial court and thus
failed to preserve error as to these complaints.1 See Johnson, 803 S.W.2d at 292;
Davis, 22 S.W.3d at 10–11; Fontenot v. State, 903 S.W.2d 413, 416 (Tex. App.—
Houston [1st Dist.] 1995, pet. ref’d).

       On appeal, appellant has not asserted his trial-court arguments that the use of
the narcotics-detection dog itself was an impermissible search or that probable
cause was required before the officers could use the dog. Thus, these arguments
are not before this court. See Davis, 22 S.W.3d at 10–11; Fontenot, 903 S.W.2d at
416.

       In any event, even if appellant had made these arguments on appeal, we
would conclude that they do not show that the trial court erred in denying
appellant’s motion to suppress. The information in the affidavit other than the

1
  Even if appellant had preserved error in the trial court, these two complaints lack merit. See
State v. Perez, 85 S.W.3d 817, 819 (Tex. Crim. App. 2002).


                                              15
statements regarding the narcotics-detection dog was acquired independently from
the use of the dog and in a lawful manner. Thus, even if the use of the narcotics-
detection dog were an unreasonable search that violated the United States
Constitution, the search warrant would not be rendered invalid if, putting aside the
statements in the affidavit regarding the dog, the remaining information in the
affidavit clearly established probable cause. See United States v. Karo, 468 U.S.
705, 720–21, 104 S. Ct. 3296, 3306, 82 L. Ed. 2d 530 (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); Romo v. State, 315
S.W.3d 565, 571 (Tex. App.—Fort Worth 2010, pet ref’d) (providing that
unconstitutional portions of a search warrant do not invalidate entire warrant and
that only the evidence gathered pursuant to the offending portions of a search
warrant is tainted); State v. Bridges, 977 S.W.2d 628, 632 (Tex. App.—Houston
[14th Dist.] 1998, no pet.).

      The remaining information in the affidavit reflects that (1) information from
a credible and reliable source indicated the electrical power meter at the home had
been bypassed and altered to display a lower usage reading; (2) Sergeant Clark
knows, via training and experience in investigating indoor hydroponic marijuana-
growing operations that electrical meters are often bypassed to avoid detection; (3)
information from a credible and reliable source further indicated that Centerpoint
Energy Company fixed the meter in February 2010; (4) once the meter was
repaired the power usage sharply increased to rates roughly five times that of
adjacent houses of similar size; (5) every window in the residence had mini-blinds
that were tightly shut, which was known to Deputy Savell to be a common
characteristic of marijuana grow houses; (6) area residents reported that individuals
were only at the house on a sporadic basis, which was known by Deputy Savell to
                                         16
be a common characteristic of marijuana grow houses; (7) a vehicle registered to
appellant was observed at the residence; and (8) appellant has a prior arrest and
conviction for narcotics distribution. 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 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.2 See Bonds v. State, No. PD-0039-
12, —S.W.3d—,—, 2013 WL 1136522, at *4–5 (Tex. Crim. App. Mar. 20, 2013);


2
   Courts in jurisdictions throughout the United States have found that high electrical
consumption combined with other facts is sufficient to show probable cause supporting the
issuance of a warrant to search a house for marijuana. See United States v. Gumula, No.
1:11CR105, 2012 WL 4753290, at *3–4 (W.D. N.C. Oct. 4, 2012) (concluding that affidavit
showed probable cause that marijuana would be found in the house based upon electrical usage
five times higher than other houses, which the officer stated was consistent with indoor
marijuana cultivation, closed window blinds, an unkempt yard, and the presence of a car
belonging to a woman with a previous history of marijuana cultivation); People v. Kazmierski,
25 P.3d 1207, 1212 (Colo. 2001) (noting that excessive energy use in the case of marijuana
cultivation is sufficient to tie the allegations of criminal activity to a particular location); People
v. Quintana, 785 P.2d 934, 939–40 (Colo. 1990) (concluding that affidavit was sufficient based
on the following facts: an informant’s disclosures verified by investigative police work; the
defendant occupied the premises; the defendant owned a vehicle parked in front of the residence;
and electrical usage that exceeded the use by two to three times the use of the preceding nine
months, and the presence of vehicle owned by defendant in front of the residence); People v.
Dunkin, 888 P.2d 305, 309 (Colo. App. 1994) (holding that daily one-hour visits to house with
no apparent residents, covered windows, high electrical consumption and officer’s opinion
supported probable cause); People v. Wilson, 819 P.2d 510, 515 (Colo. App. 1991) (holding that
high electrical consumption, frequent visits to and from office, condensation on covered
windows and officer’s opinion constituted probable cause); State v. Miller, 815 S.W.2d 28, 31
(Mo. Ct. App. 1991) (concluding affidavit was sufficient based, in part, on high electrical usage);
State v. Gray, 38 P.3d 775, 779 (Mont. 2001) (concluding that affidavit was supported by
probable cause when it included the accused’s criminal history involving narcotics, the fact that
the home had new air vents which was consistent with ventilation requirements for a grow
operation, and utility records reflected an unusual surge in power usage compared to the previous
four months); State v. Olson, 869 P.2d 110, 114–15 (Wash. Ct. App. 1994) (concluding that
independent police investigation, discovering increased power usage, corroborated informant’s
tip to the extent that probable cause existed in affidavit to support the search warrant).


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Flores v. State, 319 S.W.3d 697, 703 (Tex. Crim. App. 2010); Davis v. State, 202
S.W.3d 149, 157 (Tex. Crim. App. 2006); Massey v. State, 933 S.W.3d 141, 148–
49 (Tex. Crim. App. 1996); Janecka v. State, 739 S.W.2d 813, 825 (Tex. Crim.
App. 1987). Thus, the search warrant still would be valid and the trial court would
not have erred in denying the motion to suppress. See Karo, 468 U.S. at 720–21,
104 S. Ct. at 3306; Castillo, 818 S.W.2d at 805; Bridges, 977 S.W.2d at 632.

      For the foregoing reasons, we conclude that the trial court did not err in
denying appellant’s motion to suppress, and we overrule appellant’s first issue.

      The trial court’s judgment is affirmed.




                                       /s/      Kem Thompson Frost
                                                Justice


Panel consists of Justices Frost, Christopher, and Jamison. (Christopher, J.,
dissenting).

Publish — TEX. R. APP. P. 47.2(b).




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