      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00076-CR



                             Kenneth Dawndray Herrod, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
         NO. 321050022, HONORABLE JACK H. ROBISON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Kennith Dawndray Herrod of the offenses of possession

of a controlled substance and possession of marihuana. See Tex. Health & Safety Code Ann.

§§ 481.115, .121 (West 2010). The district court assessed a two-year suspended prison sentence and

placed Herrod on community supervision for five years. In a single issue, Herrod argues that the

district court erred by overruling his pretrial motion to suppress evidence obtained pursuant to a

search of his residence. He argues that the affidavit underlying the search and arrest warrant did not

create a substantial basis for concluding that marihuana would be found at the premises. We will

affirm the judgment of conviction.


Standard of Review

               We review a trial court’s ruling on a motion to suppress evidence under a bifurcated

standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000); Guzman
v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court’s denial of a motion to suppress

is reviewed for abuse of discretion, Oles v. State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999), but

when the trial court’s rulings do not turn on the credibility and demeanor of the witnesses, we apply

a de novo standard of review. Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005).


Sufficiency of the Search Warrant

               Herrod argues that the affidavit underlying the search and arrest warrant does not

create a substantial basis for concluding that marihuana would be found at the premises. In one

issue, Herrod advances two complaints: (1) the facts recited in the affidavit are too imprecise and

disjointed to demonstrate probable cause for issuing the search warrant, and (2) the affidavit does

not show that the confidential informant is reliable.

               Probable cause to support the issuance of a search warrant exists when the facts

submitted to the magistrate are sufficient to justify a conclusion that the object of the search is

probably on the premises to be searched at the time the warrant is issued. Rodriguez v. State,

232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App.

1986). Neither federal nor Texas law defines precisely what degree of probability suffices to

establish probable cause, but that probability cannot be based on mere conclusory statements of an

affiant’s belief. Rodriguez, 232 S.W.3d at 61. The sufficiency of the affidavit is determined by

considering the totality of the circumstances set forth within the four corners of the document.

Illinois v. Gates, 462 U.S. 213, 238 (1983); Bradley v. State, 966 S.W.2d 871, 873

(Tex. App.—Austin 1998, no pet.). The affidavit must be interpreted in a common sense and

realistic manner, recognizing that reasonable inferences may be drawn from the affidavit. Rodriguez,

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232 S.W.3d at 61; Hedspeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008, pet. ref’d).

The test is whether there are sufficient facts, coupled with inferences from those facts, to establish

a “fair probability” that the object of the search would be found on the premises to be searched at

the time the warrant is issued. Gates, 462 U.S. at 238; Cassias, 719 S.W.2d at 587. The issuing

magistrate’s determination of probable cause must be given great deference and will be sustained

if the magistrate had a substantial basis for concluding that probable cause was shown. Gates,

462 U.S. at 236-37; Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). When in

doubt, we defer to all reasonable inferences that the magistrate could have made. Rodriguez,

232 S.W.3d at 61.

               In this case the affiant, a member of the Hays County Narcotics Task Force, believing

that Herrod was supplying marihuana to dealers, sought a warrant to search Herrod’s apartment. The

affidavit for the search and arrest warrant stated that a confidential informant advised affiant that

someone he purchased marihuana from (referred to in the affidavit as the “original suspect”) often

had to go get marihuana from a supplier. Seeking to discover the identity of the supplier, the affiant,

an experienced narcotics officer, orchestrated a controlled buy of marihuana during which the

confidential informant sought to purchase marihuana from the “original suspect.” To initiate the

controlled buy, the confidential informant contacted the original suspect and asked to

purchase marihuana.

               According to the confidential informant, the original suspect stated that he had no

marihuana to sell, but would go get some. The affiant and other members of the Hays County

Narcotics Task Force had been conducting surveillance of the original suspect’s residence in



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anticipation that the original suspect would lead them to his supplier. One of the detectives

conducting the surveillance, known to be a peace officer who had provided true and reliable

information in the past, advised the affiant that he observed the original suspect leave his residence

and travel to 707 Brace Wood Circle in San Marcos. The detective told the affiant that the original

suspect did not stop anywhere on his way to that location, that he entered apartment H of the building

located at that address, stayed inside a few minutes, and returned directly to his residence. The

confidential informant then purchased marihuana from the original suspect.

               Before the confidential informant went to complete the purchase of marihuana from

the original suspect, the affiant searched him for contraband and found none. The affiant and other

detectives observed the confidential informant go directly to the original suspect’s residence, where

he remained for approximately two minutes before meeting the affiant at a predetermined location.

According to the affiant, the confidential informant made no stops on his way to the meeting spot.

There, the confidential informant provided the affiant with marihuana he purchased from the original

suspect. The confidential informant stated that he did not see any other marihuana in the original

suspect’s possession and that the original suspect advised him he had gone to pick up marihuana

from his supplier.

               The next week, affiant conducted surveillance of 707 Brace Wood Circle apartment

H for two hours. During that time he observed activity at the apartment he averred was consistent

with drug dealing. Specifically, affiant observed what he characterized as “common drug traffic

where persons arrive, meet with a suspect and leave a short time later.” The affidavit details the




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affiant’s observations. Affiant was advised by a Harris County Narcotics Task Force analyst that

appellant Herrod was the utility subscriber for that address.

               In the 72 hours preceding affiant’s seeking a search warrant, affiant orchestrated a

second controlled buy carried out in the same manner as the previous one. Prior to initiating the buy,

affiant observed a man matching Herrod’s description at 707 Brace Wood Circle apartment H. The

same sequence of events set forth above occurred the second time, but this time, the detectives

conducting surveillance observed the original suspect meeting with Herrod. After the meeting, the

original suspect had marihuana to sell to the confidential informant. Again, the confidential

informant stated that he did not see any additional marihuana at the original suspect’s residence.

               Based on the events and observations set forth in the affidavit, affiant stated his belief

that probable cause existed that the original suspect received marihuana from Herrod at 707

apartment H, Brace Wood Circle in San Marcos. Affiant further stated his belief that probable cause

existed that marihuana was being sold by Herrod from that location, and that additional amounts of

marihuana were being held at that location.

               Arguing that the affidavit was insufficient to support a finding of probable cause,

Herrod filed a motion to suppress. At the hearing, the district court determined that there was

probable cause to support the issuance of the warrant and, accordingly, denied Herrod’s motion.

               We consider whether a reasonable reading of the facts stated in the affidavit, along

with any reasonable inferences drawn from those facts, would lead the magistrate to conclude that,

considering the totality of the circumstances, there was a “fair probability” that the object of the

search, in this case marihuana, would be found at Herrod’s apartment. See Gates, 462 U.S. at 238;



                                                   5
Hedspeth, 249 S.W.3d at 737. Herrod complains that the affidavit does not provide a time frame for

the events described, rendering the affidavit “too disjointed and imprecise to warrant a man of

reasonable caution” to believe that marihuana would be found at Herrod’s residence on the date of

the search. We disagree. While the affidavit does not indicate the precise time that each of the

events constituting the controlled buys occurred, it is reasonable to infer that they occurred at least

on the same day. Herrod complains that the absence of evidence that the events occurred in a tight

time frame fails to exclude the possibility that someone else visited the original suspect’s home and

provided him with the marihuana he sold to the confidential informant, or that he had quantities of

marihuana at his house the whole time, but concealed that fact from the confidential informant to

avoid “all manner of trouble.” However, the facts stated in the affidavit are not required to exclude

every possibility except that the object to be searched for is at the specified location. Rather, the test

is whether the facts, coupled with inferences from those facts, establish a “fair probability” that

evidence of a particular crime will be found there. Rodriguez, 232 S.W.3d at 62. In the present case,

the affidavit stated that the original suspect did not have marihuana to sell to the confidential

informant before he went to Herrod’s apartment, but that after he was observed going directly to

Herrod’s apartment, staying for a few minutes, and returning directly to his residence, he had

marihuana to sell. It is not unreasonable to infer from these facts that the original suspect obtained

marihuana from Herrod. This inference is bolstered by the fact that the same sequence of events

occurred during the second controlled buy, as well as by the affiant’s observations of activity

consistent with “common drug traffic” at the apartment.




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                Herrod also complains that the affidavit does not demonstrate probable cause because

it fails to establish the confidential informant’s reliability. The affidavit states that “in the past, this

[confidential informant] has provided information that has led to the seizure of narcotics.” Herrod

argues that the affidavit does not state that the confidential informant is “reliable,” but at best

shows that, on one occasion, the confidential informant’s information has led to the seizure of

narcotics. However, the absence of an averment of previous reliability is not fatal to the affidavit.

See Adair v. State, 482 S.W.2d 247, 250 (Tex. Crim. App. 1972) (citing United States v. Harris,

403 U.S. 573 (1971)). Instead, the inquiry in determining probable cause is whether the informer’s

present information is truthful and reliable. Id. While a confidential informant’s veracity, reliability,

and basis of knowledge are highly relevant, they are not separate and independent requirements in

every case. See Illinois v. Gates, 462 U.S. 213, 231 (1983). Relying on information supplied by an

informant is acceptable “so long as the informant’s statement is reasonably corroborated by other

matters within the officer’s knowledge.” Id. at 243. A search warrant may issue if a tip is

sufficiently corroborated by independent police investigation, and if, viewing the totality of the

circumstances, there exists enough information to raise more than a reasonable suspicion of criminal

activity. Knight v. State, 814 S.W.2d 545, 547 (Tex. App.—Houston [1st Dist.] 1991, no pet.)

(citing United States v. Smith, 598 F.2d 936, 940 (5th Cir. 1979)).

                In this case, the search warrant was not issued based solely upon the information

supplied by the confidential informant. Rather, the search warrant was issued based on both the

confidential informant’s statements and the personal knowledge of the affiant who conducted

surveillance both of the controlled buys and of Herrod’s apartment. The information provided by



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the confidential informant in this case was that “it was common for [the original suspect] to have to

go get marihuana from a supplier in order to sell” and that the original suspect told him that he “did

not have marihuana to sell, but would go pick up more.” The confidential informant did not identify

Herrod as the supplier. Rather, the confidential informant’s tip caused the affiant to set up the two

controlled buys during which he observed activities that caused him to believe that Herrod was the

original suspect’s supplier and to believe that Herrod kept marihuana at his apartment. The affiant

also observed activity at the apartment consistent with “common drug traffic.”

               Based on the totality of the circumstances set forth in the four corners of the

affidavit—including the information provided by the confidential informant, the observations made

by the police during the two controlled buys, and the activity observed during the police

surveillance—and affording “great deference” to the issuing magistrate’s determination of probable

cause, we find that the magistrate had a substantial basis for concluding that marihuana would

probably be found during a search of Herrod’s apartment. The district court acted within its

discretion in denying Herrod’s motion to supress. See Gates, 462 U.S. at 236-37; Carmouche,

10 S.W.3d at 327. Herrod’s issue is overruled, and the judgment of conviction is affirmed.



                                               _____________________________________________

                                               David Puryear, Justice

Before Justices Patterson, Puryear and Henson

Affirmed

Filed: August 31, 2010

Do Not Publish

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