                                    NO. 07-02-0307-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                         PANEL E

                                      MARCH 4, 2003

                          ______________________________


                          ANGELO R. CARRILLO, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

           NO. 99-431390; HONORABLE BILLY JOHN EDWARDS, JUDGE

                          _______________________________

Before QUINN and REAVIS, JJ., and BOYD, S.J.1


                                          OPINION


       In three points of asserted error, appellant Angelo R. Carrillo challenges his

conviction, after a guilty plea, of the felony offense of possession of a controlled substance



       1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2003).
and the plea bargained punishment of seven years penal confinement, probated, and a

$750 fine. In his points, he contends the trial court erred in denying his pretrial suppression

motion because the affidavit in support of the application for a search warrant was not

sufficient to show probable cause. Disagreeing that reversal is required, we affirm the

judgment of the trial court.


       The standard of review of a trial court’s ruling on a motion to suppress is an abuse

of discretion. Villarreal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996). In

conducting our review, we give almost total deference to the trial court’s determination of

historical facts and review the court’s application of search and seizure law de novo.

Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). Here, the trial court did

not make explicit findings of historical facts, so we review the evidence in a light most

favorable to the trial court’s ruling and assume that it made explicit findings of fact

supported in the record. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex. Crim. App.

2000). Appellate review of an affidavit in support of a search warrant, however, is not de

novo, but rather, great deference is given to the magistrate’s determination of probable

cause. Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Probable cause is determined from the four corners of the affidavit and the reasonable

inferences drawn therefrom. Cassias v. State, 719 S.W.2d 585, 587-88 (Tex. Crim. App.

1986). The magistrate’s task in evaluating an affidavit is to make a practical common

sense decision whether, given the totality of the circumstances set forth in the affidavit,




                                              2
there is a fair probability that contraband or evidence of a crime will be found in a particular

place. Hennessy v. State, 660 S.W.2d 87, 89 (Tex. Crim. App. 1983).


       The affidavit (executed by Officer Robert Hook) submitted to obtain the search

warrant in this case contained five paragraphs beginning with a description of a residence

at 2122 Cornell Street in Lubbock. In the second paragraph of the affidavit, it was stated

that the subject of the search would be cocaine and other controlled substances. In the

third paragraph, appellant and Mary Ann Carrillo were named as being in possession of

the residence, while in the fourth paragraph it was alleged that the Carrillos possessed and

trafficked cocaine within a Drug Free Zone under the Health and Safety Code. A portion

of the fifth paragraph read:


       (B) Within the last 24 hours Affiant was able to make an undercover
       purchase of a substance believed to be Cocaine from a subject. Affiant met
       with this subject and paid in advance for a quantity of Cocaine. The subject
       advised Affiant he/she had to travel to another location to receive the
       cocaine. This subject left Affiant and drove directly to this residence. Upon
       arriving, this subject went inside the residence, and exited a short time later.
       The amount of time the subject spent inside the residence was consistent
       with a narcotics transaction. The subject then left and drove a short distance
       to a pay phone, where a call was placed. After the call, this subject drove
       directly back to this residence and went inside again. When he/she arrived
       the second time, a 1991 Plymouth Van had arrived bearing Texas
       Registration DB28CX. After a short time, this subject left this residence and
       drove directly back to Affiant, where a quantity of cocaine was delivered to
       Affiant. This subject was kept under surveillance during this entire time and
       met with no other subjects. The substance purchased tested positive for
       cocaine using a Scott Reagent Field Test kit. Affiant is able to recognize
       Cocaine and other controlled substances.

       (C) Lubbock Power and Light records indicate a Virginia Carrillo as the
       resident of this address. Lubbock Police Department records indicate an



                                               3
       Angelo Rufus Carrillo and Mary Ann Carrillo as the residents of this address.
       The listed vehicle returns to Angel Rufus Carrillo at this resident [sic].


       Even though the “subject” listed in the affidavit was later identified by name, our

review is limited to the four corners of the affidavit. Robuck v. State, 40 S.W.3d 650, 653

(Tex. App.--San Antonio 2001, pet. ref’d). Our initial decision must be whether the affidavit

should be treated as one based on information from a confidential informant or the officer’s

personal observation. In cases in which probable cause is based on information provided

by anonymous informants and in “controlled buys” where police use a citizen as an active

participant in a criminal investigation, courts necessarily treat the informant’s information

with a degree of suspicion.


       Appellant argues that the “subject”2 in this case was a confidential informant

because she was not named and she provided information to the police used to support

the affidavit for a search warrant. He contends the failure to establish the subject’s

credibility precludes reliance on her to establish probable cause. However, the two-prong

test established in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964),

which required the police to establish the credibility of confidential informants, was

abandoned in favor of a totality of the circumstances test in Illinois v. Gates, 462 U.S. 213,

232-33, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The Gates Court instructed that the

informant’s credibility is only one of the factors to be considered. Id.



       2
       Although referring to the person who dealt with Officer Hook and went to the house
as the “subject” is somewhat awkward, we will use that reference in this opinion to be
consistent with the references in the affidavit.

                                              4
       The State argues the legal requirements imposed upon police use of confidential

informants are not applicable here because the subject was not working with the police

during the events described in the affidavit. From a cursory reading of the affidavit, that

fact is not apparent. However, it is the only conclusion that can be drawn from the

statement that Hook made an “undercover purchase [of cocaine] from a subject.” Indeed,

appellant conceded as much at the hearing on his motion to suppress, in his brief, and in

a motion to reconsider the suppression motion when he stated the subject “was not

working as a police informant [,] [t]hus she was not searched at any time during the

transaction.” That being true, cases involving controlled buys are not applicable here.


       Appellant also challenges the basis for the affidavit statement that the subject was

watched moving between the locations as being necessarily based on hearsay inasmuch

as Officer Hook stayed at the original location. There is nothing in the record, either in the

affidavit or elsewhere, that established the distance from the location of the sale to the

house, or that Hook could not have personally observed the subject’s movements. Even

ignoring the subject’s hearsay statement, there are only two rational inferences that can

be drawn from the subject’s actions, namely 1) she went to the house to pick up the

cocaine, or 2) she went to the house to make Hook believe that was where she obtained

the cocaine.


       If the subject was a confidential informer and knew Hook was a police officer, she

might have been motivated to mislead Hook as to the source of the cocaine to absolve

herself of liability or to get appellant in trouble for some unknown reason. This potential


                                              5
to mislead police is the basis for the prophylactic measures taken in “controlled buy”

situations. Although appellant argues the subject may have gone to the house to mislead

Hook even without knowing he was a police officer, he does not suggest any plausible

motive for doing so. Absent any indication that the subject knew Hook was a police officer,

the magistrate could have reasonably concluded the likelihood that the subject’s actions

were the result of subterfuge were sufficiently low to support the conclusion that there was

a “fair probability” cocaine was located in the house.


       Appellant also contends that the absence of any showing that an occupant of the

residence gave the subject the cocaine weighs against a finding of probable cause. We

disagree. The question for the magistrate’s decision was if there was a fair probability that

cocaine could be found in the house rather than whether someone in the house gave it to

the subject. His reliance on Haas v. State, 790 S.W.2d 609 (Tex. Crim. App. 1990), is

misplaced. In Haas, the court held a showing that police found contraband on passengers

of a car departing a storage facility did not justify a search of the facility. Id. at 612.

However, in this case, the subject went to the house after offering to sell cocaine and

delivered the substance after returning from the house. Thus, the facts before us are

distinguishable from those before the Haas court.


       Appellant identifies this court’s unpublished opinion in State v. DeLeon, No. 07-95-

0339-CR (Tex. App.--Amarillo Feb. 9, 1996, no pet.) (not designated for publication) as

factually indistinguishable. Rule of Appellate Procedure 47 concerning publication and

citation of opinions was revised effective January 1, 2003. Present Rule 47.7 now provides


                                             6
opinions not designated for publication under the former rule “have no precedential value

but may be cited with the notation, ‘(not designated for publication).’”3 Relying on the

former rule which was in effect at the time its brief was filed, the State does not discuss

DeLeon.


       We have not yet addressed the effect of the change in Rule 47 and are not aware

of opinions from other courts directly addressing that issue. Initially, we note that the

former rule not only provided that unpublished opinions have no precedential value, but it

also forbade the citation of such opinions as authority by either counsel or by a court. The

difference then is the citation of unpublished opinions is no longer forbidden. With regard

to the provision as to precedential value, the Seventh Edition of Black’s Law Dictionary

contains a definition of precedent as “[a] decided case that furnishes a basis for

determining later cases involving similar facts or issues.” BLACK’S LAW DICTIONARY 1195

(7th ed. 1999). It goes on to define the terms “binding precedent” as precedent that a court

must follow, and “persuasive precedent” as that which a court “may either follow or reject

but that is entitled to respect and careful consideration.” Id. It also explicates that

precedent forms the core of the doctrine of stare decisis “under which it is necessary for

a court to follow earlier judicial decisions when the same points arise again in litigation.”

Id. at 1414.




       3
        Former Rule 47.7 provided: “Opinions not designated for publication by the court
of appeals have no precedential value and must not be cited as authority by counsel or by
a court.”

                                             7
       By stating that unpublished opinions may be cited but have no precedential value,

we perceive the intent of the rule to be that a court has no obligation to follow such

opinions. The effect of the rule is to afford parties more flexibility in pointing out such

opinions and the reasoning employed in them rather then simply arguing, without

reference, that same reasoning. However, the court to whom an unpublished opinion is

cited has no obligation to follow the opinion or to specifically distinguish such opinion.

They may be cited merely as an aid in developing reasoning that may be employed by the

reviewing court be it similar or different. Even so, we do not view Rule 47.7, or the former

rule, as justifying unreasoned inconsistency on the part of an appellate court.


       Here, appellant presented the DeLeon opinion to the trial court and argued that it

was dispositive of the motion to suppress. The trial court reviewed the opinion and

commented:


       . . . [A]lthough it’s an unpublished opinion, it is interesting to see what the
       appellate court for this area would do. I do find that there are sufficient
       differences in that case than this case so that I’m not overly concerned
       [about] how they ruled in that particular case. . . . I think that . . . if they apply
       that same reasoning . . . to this case that this search will stand up.


       The trial court correctly considered our opinion in DeLeon in the light by which such

an opinion should be considered, namely, as a guide to the application of legal principles

to the facts then before it. The trial court determined that the facts before it were factually

distinguishable from the facts before the DeLeon court. We agree with that decision. To

explicate why we agree, we must refer to those facts. In DeLeon, the affidavit used in



                                                 8
obtaining a search warrant showed that the person who offered cocaine to the officer there

drove to a house on 21st Street in Lubbock, picked up a second person, drove to a

convenience store where one of the people entered the store while the other drove to the

defendant’s house on 38th Street, also in Lubbock, and went into the house. After leaving

the house, the driver picked up the second person at the convenience store and then

returned to the officer to complete the sale. We held the trial court did not abuse its

discretion in finding the affidavit did not establish probable cause to believe cocaine could

be found at the defendant’s house. State v. DeLeon, No. 07-95-0339-CR, slip op. at 4.

There, the trial court was justified in believing that the fact that two suspects went to two

different locations between the offer to sell and the delivery was too attenuated to show

probable cause. That is not the case here, and the trial court acted within its discretion in

overruling the motion to suppress.


       Appellant’s points of error are overruled, and the judgment of the trial court is

affirmed.



                                                  John T. Boyd
                                                  Senior Justice

Publish.




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