











In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00173-CR
______________________________


LARRY RAY TOWNSEND, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee


                                              

On Appeal from the 124th Judicial District Court
                                                     Gregg County, Texas
Trial Court No. 32553-B


                                                 



Before Morriss, C.J., Ross and Carter, JJ.
Opinion by Justice Ross


O P I N I O N

          Larry Ray Townsend pled guilty before the trial court, without a plea agreement, to
driving while intoxicated, after having twice before been convicted of that offense.  At the
same plea hearing, Townsend also pled guilty in two other cases, without plea agreements,
to delivery of a controlled substance.  The court first adjudged Townsend guilty in the DWI
case and then adjudged him guilty in the drug cases.  All three cases were reset for
sentencing at a later date.  At sentencing, the trial court first assessed punishment in the
drug cases—twenty years' imprisonment in one case and thirty years' imprisonment in the
other—and then assessed punishment in the DWI case at ten years' imprisonment.  The
court then sentenced Townsend accordingly, but "because [the DWI offense] occurred
months after the two [drug offenses]," the court ordered the punishment for the DWI
conviction be served consecutive to the thirty years assessed in one of the drug cases.
 
Townsend appeals,
 contending the trial court abused its discretion by cumulating a prior
conviction onto a subsequent conviction in violation of the plain language of Tex. Code
Crim. Proc. Ann. art. 42.08(a), providing that a sentence can only be cumulated onto a
"second and subsequent" conviction.  We affirm.
          A trial court's decision to cumulate sentences is reviewed for an abuse of discretion. 
Hurley v. State, 130 S.W.3d 501, 503 (Tex. App.—Dallas 2004, no pet.).  An improper
cumulation order is a void sentence and error may be raised at any time.  Id. 
          Article 42.08(a) provides, in relevant part, as follows:
When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction . . . . [I]n the discretion of the
court, the judgment in the second and subsequent convictions may either be
that the sentence imposed  or suspended shall begin when the judgment and
the sentence imposed or suspended in the preceding conviction has ceased
to operate, or that the sentence imposed or suspended shall run concurrently
with the other case or cases. . . .

Tex. Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2005).
  
          Relying on tools of statutory construction, Townsend contends that, because he was
convicted in the DWI case first, the drug cases are "second and subsequent" offenses
pursuant to Article 42.08(a) and the sentence in the DWI case cannot be cumulated with
the sentences in the drug cases.  However, applying those same tools, we hold that, in the
context of multiple convictions in a single proceeding, as in the instant case, such a literal
reading of the statute would lead to an absurd result.  
          In construing Article 42.08(a), the Texas Court of Criminal Appeals has held that the
trial court should be given flexibility when it comes to cumulating sentences.  See Barela
v.  State,  No.  PD-1946-04,  2005  Tex.  Crim.  App.  LEXIS  2043,  at  *5  (Tex.  Crim.
App. Dec. 7, 2005); Pettigrew v. State, 48 S.W.3d 769, 773 (Tex. Crim. App. 2001).  These
two cases appear inconsistent.  Pettigrew suggests it is the order of sentencing that should
be considered in cumulating sentences.  48 S.W.3d at 771.  Barela, on the other hand,
expressly holds that "[i]t is the order of conviction, rather than the order of sentencing, that
is important when contemplating the propriety of a cumulation order."  2005 Tex. Crim.
App. LEXIS 2043, at *10.  Neither case, however, dealt with multiple convictions in a single
proceeding.  Pettigrew dealt with a conviction in which community supervision was granted
but later revoked when the appellant was convicted for another offense.  Barela dealt with
convictions in another state, for which no sentences had been pronounced, and later
convictions in Texas.  Here, we rely on these cases for the proposition stated above that
is common to both:  that, in cumulating sentences pursuant to Article 42.08(a), the trial
court has flexibility.
          Cases with facts more nearly those of the instant case are Nicholas v. State, 56
S.W.3d 760 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd), and Hughes v. State, 673
S.W.2d 654 (Tex. App.— Austin 1984, pet. ref'd).  
          In Hughes, the appellant was convicted by a jury for five offenses tried together.  At
sentencing, the trial court cumulated all the sentences.  Hughes argued on appeal that the
trial court had no basis on which it could determine the exact order in which the jury
decided the verdicts.  The court, therefore, had no basis on which to determine the second
and subsequent offenses in order to cumulate the sentences properly under Article
42.08(a).  Hughes, 673 S.W.2d at 658.  Hughes appears to have also argued that the trial
court failed to follow Article 42.08(a) by cumulating the sentences in an order different from
the order in which the jury physically handed its verdicts to the bailiff.  Id.  The Austin Court
of Appeals rejected these arguments and held the cumulation order was within the
discretion of the trial court.
          In Nicholas, the appellant pled guilty to six indictments in one proceeding.  The trial
court sentenced him to life in prison on each and ordered five to run consecutively. 
Nicholas argued on appeal that there was no subsequent conviction within the meaning
of Article 42.08(a) because he was "convicted and sentenced on his guilty pleas in a single
consolidated proceeding before the same judge at the same time . . . ."  Rejecting his
argument, the Houston court cited Hughes and wrote:
Hughes stands for the proposition that, where a defendant is found guilty in
a consolidated proceeding, there need not be an exact order of the
presentment of the verdicts in order to fulfill the requirements of [article]
42.08(a).  We see no reason to distinguish the holding by the Austin Court
of Appeals merely because Hughes was found guilty by a jury, whereas here
appellant pled guilty to a judge.

Nicholas, 56 S.W.3d at 766 (citing Hughes, 673 S.W.2d at 658).

          Likewise, we see no reason to distinguish these cases from the instant case where,
with multiple convictions in a single proceeding, the trial court happened to recite that it
found Townsend guilty of the DWI charge first.  At sentencing, the court had a logical
reason for cumulating the DWI sentence onto one of the drug sentences:  "because [the
DWI offense] occurred months after the two [drug offenses]."  Under Pettigrew and Barela,
the court had that flexibility.  Any other construction of Article 42.08(a), in this context,
would produce an absurd result.
  We hold the trial court did not abuse its discretion in its
cumulation order.  Townsend's sole point of error is overruled.
          We affirm the judgment.



                                                                Donald R. Ross
                                                                Justice

Date Submitted:      January 19, 2006
Date Decided:         January 20, 2006

Publish

advised that "he knew this because he worked for the person he knows as Johnny
Walker . . . [and] that he sold methamphetamine for this person and in turn got paid cash and
methamphetamine," there is no physical description of the person known as "Johnny Walker" and no
mentioned investigation of this possible alias or any check of property records for the listed property
to determine whether someone by that name resided on the property.  The affidavit does not include
information which would confirm that the residence disclosed by the informant who "worked for the
person he knows as Johnny Walker" was indeed the same residence referenced by the other unnamed
sources.
	Moreover, the affidavit does not identify the suspect believed to be living in the residence
identified in the affidavit.  The court in Davis v. State, 144 S.W.3d 192 (Tex. App.--Fort Worth
2004, pet. ref'd), dealt with a similar issue.  Davis involved an affidavit containing information from
an unknown, and untried, confidential informant which claimed that two identified people at a certain
residence were in possession of and growing marihuana.  The affidavit failed to state whether either
of the individuals owned or controlled the house.  Id. at 199-200.  Corroboration by the police officer
of the suspects' identities included identifying "Barbara Lynn Davis" through a driver's license check
with the Texas Department of Public Safety and a "NRH computer check" to tie "Barbara Lynn
Davis" to the residence in question.  The affidavit failed to state that "Barbara Lynn Davis" was the
same person as "Barbara Davis" named by the confidential informant or the same as appellant,
"Barbara Jean Davis." Similar information was obtained by the officer on the second suspect.  Id. at
199.  This effort on the part of the investigating officer did not amount to verification of the identity
of the individuals who resided in the house.  Id. at 200.  The failure to undertake verification
diminishes the reliability of the information provided under the "totality of the circumstances" when
an informant is used for the first time and his or her identity is confidential.  Id.; see Lowery, 843
S.W.2d at 141-42. 
	In this case, the affidavit does not set forth the identity of any individual believed to be living
in the residence.  It merely states that the informant sold methamphetamine for a person he knows as
Johnny Walker.  No effort was made to determine whether a person named Johnny Walker resided
in the trailer described in the affidavit.  Further, the affidavit fails to make a connection between the
residence and the appellee in this case, John Edward Hill.
	The affidavit here does not contain the level of detail necessary to require the trial court to
have credited the information provided by the unnamed informants.  But the affidavit also recounts
the police surveillance.
	While information from an unnamed informant alone may not establish probable cause, the
informant's tip, combined with independent police investigation, may provide a substantial basis for
the probable-cause finding.  Elardo, 163 S.W.3d at 767-68.  Corroboration by independent police
investigation means that "in light of the circumstances, the officer confirms enough facts to
reasonably conclude that the information provided is reliable and a detention is justified."  Jones v.
State, 949 S.W.2d 509, 515 (Tex. App.--Fort Worth 1997, no pet.).  Corroboration of only innocent
details is usually insufficient.  Davis, 144 S.W.3d at 200.
	In this case, the State contends that the surveillance performed by Tucker (in conjunction with
the other information contained in the affidavit) for a period of three hours, in which he observed
approximately twenty cars come and go from the residence in question, is sufficient to provide a
substantial basis for a finding of probable cause.  The reliability and credibility of the information
provided by the unnamed informants is virtually nonexistent.  The question here is whether Tucker's
surveillance confirms sufficient facts to reasonably conclude the information already provided in the
affidavit is reliable.  See Jones, 949 S.W.2d at 515.  The facts confirmed are merely that on Friday,
August 8, at some unknown time of day, approximately twenty vehicles came and left the residence
within a span of approximately three hours.  Nothing else was observed by Tucker suggesting
narcotics activity, and no effort was made by law enforcement to confirm that any of the occupants
of the twenty or so vehicles leaving the property had just purchased methamphetamine.  
	In Cassias, the court held that it was unreasonable to base a finding of probable cause to
search a residence on an affidavit that did little more than note "apparently innocent activity" during
surveillance of the subject property.  719 S.W.2d at 587.  The alleged corroborative statement in the
Cassias affidavit most closely resembling the information provided by Tucker was:  "[T]his
information has been checked out by affaint [sic] and surveillance began since March 31, 1980, by
affaint [sic]. Affaint [sic] has also observed several narcotic users in and out of 724 Del Mar, staying
for brief periods of time."  Id.  While the court questioned the basis for the affiant's knowledge that
those observed were narcotics users, this information did not provide anything more than a reasonable
suspicion--not probable cause--that contraband could be found there.  Id. at 589-90.
	In this case, the alleged corroborative statements of Tucker do not identify any of those
coming and going from the trailer as "narcotics users," nor do they attempt to identify any of these
individuals.  While Tucker opines in a conclusory manner that "these actions are typically observed
in narcotics activity," his statements do nothing more to suggest that any illegal substances were
purchased by the occupants of the subject vehicles.  The affidavit's recitations of police surveillance
do not provide information requiring the trial court to find probable cause.  Probable cause does not
arise by virtue of the fact that several people, whose identity, reliability, credibility, or basis of
knowledge is unestablished, gave officers information concerning criminal activity.  Lowery, 843
S.W.2d at 141.  The affidavit in question does not contain information mandating a finding of
probable cause.  Under the totality of the circumstances, and according great deference to the trial
court's determination of a lack of probable cause, we hold that the trial court did not abuse its
discretion in granting Hill's motion to suppress.  
	We affirm the ruling of the trial court.

							Josh R. Morriss, III
							Chief Justice

Date Submitted:	August 31, 2009
Date Decided:		October 16, 2009

Publish		
1. Hill's residence is on U.S. Highway 69, in Alba, Texas. 
2. As a result of the search, Hill was arrested and later indicted with the first-degree felony
offense of possession of a controlled substance (methamphetamine) with intent to deliver in the
amount of four grams or more, but less than 200 grams, in violation of Section 481.112 of the Texas
Health and Safety Code.
3. The affidavit, dated August 9, 2008, and signed by Miles Tucker, an officer with the Wood
County Sheriff's Office, sought a search warrant for a residence located in Alba in Wood County,
based on the belief that methamphetamine would be found at the residence. 
4. See, e.g., Torres v. State, 552 S.W.2d 821, 824 (Tex. Crim. App. 1977).
5. Hill's motion to suppress alleged that the search of his Alba residence was unreasonable and
illegal  in  that  it  violated  the  Fourth  Amendment  to  the  United  States  Constitution;  Article
1, Section 9 of the Texas Constitution; and Article 18.01 of the Texas Code of Criminal Procedure. 
Hill claimed that the affidavit on which the warrant was granted lacked probable cause and that the
information contained in the affidavit was stale. 
6. On appeal, the State contends that the trial court improperly granted the motion to suppress
evidence and that the affidavit in question is sufficient to establish probable cause.  The State asks
that the suppression order be reversed and that the fruits of the search be reinstated.
7. After an evidentiary hearing on Hill's motion to suppress evidence, the trial court granted
the motion and suppressed all evidence seized in the search. The court issued findings of fact in
support of its order.  
8. Tex. Code Crim. Proc. Ann. art. 18.01 (Vernon Supp. 2008).
9. The trial court's findings of fact are as follows:
	(1) The officer's testimony regarding what he knew about his informant's reliability
is irrelevant if it was not contained in the affidavit;
	(2) The affidavit wholly failed to establish the reliability of any informant;
	(3) The only remaining ground for supporting probable cause was the affiant's
personal observation of vehicles coming and going over a three hour period;
	(4) The officer's observation of vehicles at Defendant's house failed to establish
probable cause for the search.

10. The affidavit does not state the number of informants from whom the incriminating
information was obtained.  Referenced in the affidavit are "several sources," "three separate parties,"
two informants of "Investigator Lain," and "an informant."  
11. The State acknowledges that the "three separate parties" could be the same informants
referenced in the preceding paragraph of the affidavit as "several sources" or they could be three
different informants.
12. This portion of the affidavit also states that this informant "sold  methamphetamine for this
[Johnny Walker] person and in turn got paid cash and methamphetamine."  The same informant also
was quoted as reporting that the person at the residence "re-ups" on Fridays.  These latter portions
of this report, though interesting, do not make out probable cause due to their lack of specificity as
to time and place.
13. See, e.g., Hennessy v. State, 660 S.W.2d 87, 91 (Tex. Crim. App. [Panel Op.] 1983) (named
informant carrying tape recorder concealed on his person with transmitting device, transmitting all
conversation regarding imminent armed robbery to police officer; informant and others arrested
before the robbery provided extensive detail regarding the presence of drugs inside the residence to
be robbed); Mejia, 761 S.W.2d 35 (named informant caught red-handed and admitted to participation
in a criminal activity may be considered reliable); Abercrombie, 528 S.W.2d 578 (unnamed
informant admitted to possession and delivery of marihuana the previous day with specific detail;
affidavit provided such detail and minute particularity that it could reasonably be inferred that
informant gained his information in a reliable way and was sufficiently incriminating); Lowery, 843
S.W.2d 136 (acknowledging that admission against penal interest is factor indicating reliability, but
finding affidavit lacked probable cause).
14. For example, there is no mention of details surrounding the basis for the statement
regarding "narcotics traffic" activity; there is no mention of how the unnamed sources became aware
of the drug trafficking activity or when in relationship to the July 2008 disclosure this activity was
alleged to have occurred.  Again, the statement by "three separate parties" that they had been to the
residence to buy methamphetamine does not include information disclosing how these sources
learned of this information or when this information was reported to law enforcement.  The affidavit
is silent with respect to when these transactions occurred and is silent regarding the identity of the
person from whom methamphetamine was purchased.  This person is only identified as "Johnny"
or "Johnny Walker," and no physical description is provided. 

