                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-12-00062-CR


Gerardo Tomas Rivas                       §   From Criminal District Court No. 4

                                          §   of Tarrant County (1215971D)

v.                                        §   March 14, 2013

                                          §   Per Curiam

The State of Texas                        §   (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.


                                       SECOND DISTRICT COURT OF APPEALS



                                       PER CURIAM
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00062-CR
                              NO. 02-12-00063-CR


GERARDO TOMAS RIVAS                                              APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


                                      ----------

      FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

                                   I. Introduction

      In three points, Appellant Gerardo Tomas Rivas appeals the trial court’s

denial of his motion to suppress and resulting convictions for possession of a

controlled substance with intent to deliver. We affirm.




      1
       See Tex. R. App. P. 47.4.


                                          2
                                II. Background

      Based on his arrest for possession of the controlled substances in these

cases, the State moved to adjudicate Rivas’s guilt in three prior drug possession

cases. See Rivas v. State (Rivas I), Nos. 02-11-00203-CR, 02-11-00204-CR,

02-11-00205-CR, 2012 WL 5512450, at *1–2, 5 (Tex. App.—Fort Worth, Nov. 15,

2012, no pet.) (mem. op., not designated for publication). In Rivas I, the trial

court adjudicated Rivas’s guilt, Rivas appealed, and we affirmed the trial court’s

judgments. See id. The background facts are the same here. See id.

      After conducting a hearing on the State’s motion to adjudicate, which

included hearing Rivas’s motion to suppress, and adjudicating Rivas’s guilt in the

prior cases, the trial court held another suppression hearing on Rivas’s motion to

suppress in the instant cases. The trial court took judicial notice of the prior

suppression hearing during the hearing on the motion to suppress at issue here.

      At this second hearing, Rivas re-urged the arguments he had made in the

first hearing and argued that the open-air sniff of his apartment door by a drug-

detection dog was insufficient to provide police with probable cause because the

affidavit used to obtain the search warrant did not adequately establish the dog’s

credentials. The trial court ultimately denied Rivas’s motion to suppress, Rivas

pleaded guilty, and the trial court accepted his pleas and assessed seventeen

years’ confinement on each count, to be served concurrently. These appeals

followed.




                                        3
                              III. Motion to Suppress

A. Open-Air Dog Sniff

      In his first point, Rivas complains that the trial court erred by denying his

motion to suppress because the search warrant did not state probable cause.

Specifically, he argues that the supporting affidavit did not allege that the

informant was credible, the police did not corroborate the informant’s information,

the facts contained in the affidavit were stale, and the police conducted an illegal

open-air dog sniff of Rivas’s residence in order to establish probable cause. With

the exception of Rivas’s argument regarding the illegality of the open-air dog

sniff, he raised this same point in Rivas I. See id. at *3, 5.

      In Rivas I, we held that the open-air dog sniff was sufficient to establish

probable cause, and we did not reach Rivas’s complaints about the informant’s

credibility or corroboration.    See id. at *5.      Here, Rivas argues that the

warrantless open-air dog sniff of his apartment door was illegal; however, this

court has held otherwise.2      See Romo v. State, 315 S.W.3d 565, 573 (Tex.

App.—Fort Worth 2010, pet. ref’d) (citing Rodriguez v. State, 106 S.W.3d 224,

228–29 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d), cert. denied, 540 U.S.

1189 (2004), for the proposition that a drug detection dog’s sniff of the front door

of a defendant’s home is legal because there is no reasonable expectation of

      2
       The issue of whether the warrantless sniff test of a home by a drug
detection dog is a search under the Fourth Amendment is currently pending in
the United States Supreme Court. See Jardines v. State, 73 So.3d 34 (Fla.
2011), cert. granted, 132 S. Ct. 995 (2012).


                                          4
privacy in the area around an unenclosed front door). Thus, we hold that the

open-air dog sniff of the front door to Rivas’s apartment was legal and, consistent

with our holding in Rivas I, was sufficient to establish probable cause for the

search warrant. See 2012 WL 5512450, at *5. We overrule Rivas’s first point.

B. Search Warrant

      In his second point, also raised in Rivas I, Rivas asserts that the warrant

was a general warrant. See id. at *6. For the same reasons cited in Rivas I, we

overrule Rivas’s second point. See id.

C. Rivas’s Statement to Police

      In his third point, Rivas argues that his recorded statement was not

voluntarily given because it was intentionally induced by the interviewing officer’s

promises.

      1. Preservation

      At the suppression hearing in the instant cases, the State introduced the

testimony from the prior hearing, in which Fort Worth Police Officer Steve Smith

testified to Rivas’s statement.   In Rivas I, we did not reach the question of

whether the trial court erred by overruling Rivas’s objection to the recorded

statement because Rivas did not raise his objection to his recorded statement

until after Officer Smith had already testified that Rivas told him the police would

find marijuana and mushrooms in his bedroom closet, and because the other

evidence gathered under the warrant was sufficient to revoke Rivas’s community

supervision. Id.


                                         5
      The State now argues that Rivas has failed to preserve his complaint for

this appeal because his statement to the police was not the subject of his

argument during the suppression hearing, and Rivas failed to obtain an adverse

ruling on the statement’s admissibility. See Tex. R. App. P. 33.1.

      However, in open court, Rivas made an oral motion to suppress that

contained the same claims he now makes on appeal. The trial court heard the

motion and denied it. Although the trial court did not specifically address Rivas’s

statement to police in its denial of his motion to suppress, the record indicates

that the trial court reviewed the testimony from the prior hearing, which included

testimony regarding Rivas’s statement, and Rivas brought the issue to the trial

court’s attention at the beginning of the hearing. Thus, Rivas has preserved this

complaint for appeal.3 See Black v. State, 358 S.W.3d 823, 829 (Tex. App.—Fort

Worth 2012, pet. ref’d) (holding that a motion to suppress heard by the trial court

preserves the issue for appellate review); see also Sargent v. State, No. 02-09-

00346-CR, 2011 WL 1331856, at *2 (Tex. App.—Fort Worth Apr. 7, 2011, no

pet.) (mem. op., not designated for publication) (noting that error is preserved

      3
        The State further argues that if we find that Rivas preserved his complaint
for review, we must abate the case to the trial court for findings of fact and
conclusions of law. However, the State’s brief was filed before we abated Rivas I
so that the trial court could make findings of fact and conclusions of law.
Because this case involves the same facts and parties as Rivas I, we may take
judicial notice of the findings of fact and conclusions of law from Rivas I. See Ex
parte Sotelo, 878 S.W.2d 179, 181 (Tex. App.—Fort Worth 1993, pet. ref’d)
(holding that an appellate court may take judicial notice of its own records in
related proceedings involving the same parties), disapproved of on other grounds
by Ex parte Anderer, 61 S.W.3d 398, 405 (Tex. Crim. App. 2001).


                                        6
when the trial court denies a timely motion to suppress that invokes the same

provisions upon which the appellant bases his appellate claims for relief).

      2. No Error

      We review the trial court’s ruling on Rivas’s motion to suppress his

statement under a bifurcated standard of review. Amador v. State, 221 S.W.3d

666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex.

Crim. App. 1997). We give almost total deference to a trial court’s rulings on

questions of historical fact and application-of-law-to-fact questions that turn on an

evaluation of credibility and demeanor, but we review de novo application-of-law-

to-fact questions that do not turn on credibility and demeanor.       Amador, 221

S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005);

Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      The statement of an accused may be used in evidence against him

provided it was “freely and voluntarily made without compulsion or persuasion.”

Tex. Code Crim. Proc. Ann. art. 38.21 (West 2005). “[F]or a promise to render a

confession invalid under Article 38.21, the promise must be positive, made or

sanctioned by someone in authority, and of such an influential nature that it

would cause a defendant to speak untruthfully.” Martinez v. State, 127 S.W.3d

792, 794 (Tex. Crim. App. 2004).

      The trial court stated in its findings of fact and conclusions of law that

Rivas “knowingly, intelligently, and voluntarily agreed to speak with Officer

Smith.” The trial court further stated that “Officer Smith never made a positive or


                                         7
specific promise that [Rivas] would receive any particular benefit or consideration

in exchange for speaking to the officer or making an admission,” and noted that

Officer Smith never indicated that he had authority to make an offer. Finally, the

trial court stated that Officer Smith “never indicated that he had control over any

future benefit” and that “Officer Smith made no more than general statements”

regarding the potential benefits Rivas might reap from being truthful and

admitting what he had done.

      The recorded interview begins with Officer Smith advising Rivas of his

Miranda rights and stating that “[t]here’s [sic] ways for us to kind of mitigate your

case.” Officer Smith stated further:

      For us to get up through the chain of people sometimes, you have to
      use other people to get there. . . . I have no goal to put you in
      jail. . . . We have some options to work with. . . . We can talk to
      parole people, I mean as far as letting you go free today,
      potentially. . . . I’ve got to have somebody in your shoes. I’ve got to
      be able to justify doing something for you. . . . I don’t know what we
      are going to find in the apartment. If you want to talk about that, we
      can.

      After discussing Rivas’s concern for finding someone to care for his pet,

Officer Smith asked Rivas, “Do you want to talk about what we might find up

there, because I’m sure we’re going to find something up there.” Rivas indicated

that he wanted to talk, and he told Officer Smith about the narcotics that he had

in his apartment. Officer Smith then stated, “In order for me to offer you any

consideration, okay, I kind of have to know what you can do for us, you know,




                                         8
what you have the ability to do.” Rivas asked, “How do I know that the trouble

will be a smaller amount if I said something?” Officer Smith replied:

         In order for us to gauge what we’re going to offer to you and
         ultimately what’s going to be done, is by what you can provide. I
         can’t tell you . . . we’re going to completely let your case go away
         because I know that you can do this. . . . There’s [sic] two goals in
         allowing somebody to cooperate with us. One is to work up through
         the food chain. . . . The second is to correct behavior. . . . To
         answer your question, there’s nothing I mean it’s a trust aspect,
         there’s nothing I can sit there and tell you because I don’t know
         anything about you, I don’t know what your potential is. . . . The best
         way that I can . . . talk to my sergeant and say, “this is . . . his
         capability,” okay, is the first thing that I need from you is basically
         your admission that these mushrooms in your apartment are yours. .
         . . [W]hat we do with anybody we’re going to work with is, you got to
         first admit to what the truth is.

Officer Smith then asked Rivas where police would find the narcotics in his

apartment, and Rivas gave him the location. Officer Smith speculated that Rivas

must have received the narcotics from someone else, and Rivas confirmed

Officer Smith’s speculation.      Officer Smith then asked Rivas how much he

charged for the narcotics he sold, and Rivas told him.

         Officer Smith asked Rivas whether he wanted to talk about his supplier

and said, “I can’t tell you what we can do. . . . We have options to work with; it’s

all limited to what you tell me.” Officer Smith again asked Rivas whether he

wanted to talk about his supplier, and Rivas said that he obtained an address

from a package that he received from his direct supplier. Rivas then stated that

his direct supplier had moved and that he had no other supplier information to

offer.



                                           9
      Officer Smith then asked Rivas about the prices he charged, the amounts

he typically sold, and the customers to whom he had sold. Officer Smith stated,

“To help your case out, is there anybody that could have mushrooms in their

possession . . . that we could go get . . . . The more drugs we get off the street,

the more it helps you out. I’m not telling you that it would let you free today,

okay, but everything helps you out.” Rivas asked whether he would actually

benefit from answering Officer Smith’s question, and Officer Smith replied, “If you

help us out, we’re going to refer that information to your probation officer . . . and

we’re going to write a letter to the judge and say . . . ‘this is what he told us

whenever we met with him.’” Officer Smith stated further that “admission alone

goes a long way in your favor,” and “outside of getting your source, . . . the rest of

the stuff is basically going to be consideration given by the judge and by the

district attorney’s office toward your case.”

      After Officer Smith told Rivas that the value of his information was

insufficient to justify releasing him, Rivas proceeded to offer the names and

descriptions of his recent customers. Finally, Officer Smith again explained to

Rivas that the identity of his suppliers was more valuable than the identity of his

customers and stated that he had no control of the consideration Rivas might

receive for the information he provided.

      Contrary to Rivas’s claim that Officer Smith’s statements amounted to

promises of leniency, Officer Smith stated only that the department’s options for

mitigating Rivas’s punishment were dependent upon the value of Rivas’s


                                           10
information. In fact, when Rivas asked for a guarantee that his statement would

reduce his punishment, Officer Smith stated that he could make no such

guarantee and disclaimed any authority to give Rivas consideration for his

statements, stating that he was only conducting the interview and that he would

have to refer Rivas’s statements to his sergeant. When Rivas later asked for an

assurance that he would indeed benefit from giving Officer Smith the names of

his customers, Officer Smith stated that any consideration for Rivas’s statements

would come from “the judge and the district attorney’s office.” Indeed, each time

he discussed the consideration that Rivas might receive for his statements,

Officer Smith deferred to other authorities, including the “parole people,” his

sergeant, and “the judge and district attorney’s office.” Thus, Officer Smith’s

statements made no positive promise of leniency. See Johnson, 68 S.W.3d at

654–55 (holding that police made no promise inducing defendant’s confession by

stating that they would make the defendant’s honesty known to the court for its

consideration); Garcia v. State, 919 S.W.2d 370, 388 (Tex. Crim. App. 1994) (op.

on reh’g) (holding that the interviewing officer made no positive promise by telling

the defendant that he would talk to the district attorney and see what he could

work out); Padilla v. State, No. 02-11-00336-CR, 2012 WL 4815506, at *2 (Tex.

App.—Fort Worth Oct. 11, 2012, no pet.) (mem. op., not designated for

publication) (holding that police did not improperly induce the defendant’s

confession by indicating that the district attorney may drop the charges); Wilson

v. State, 348 S.W.3d 32, 39 (Tex. App.—Houston [14th Dist.] 2011) (holding that


                                        11
“the promise to ‘call the district attorney and say . . . what really happened’ does

not create an involuntary confession”), judgment vacated on other grounds, 133

S. Ct. 108 (2012); Herrera v. State, 194 S.W.3d 656, 659–60 (Tex. App.—

Houston [14th Dist.] 2006, pet. ref’d) (holding that police statement to defendant,

“[w]e can talk to the D.A., get you an offer, if you can help us,” was not an

improper inducement); Mason v. State, 116 S.W.3d 248, 260 (Tex. App.—

Houston [14th Dist.] 2003, pet. ref’d) (holding that an officer’s statement that

“things would ‘go better’ for [the defendant] if he cooperated” was not a promise,

but a “prediction about future events”).

       Even assuming that Officer Smith had made a promise of some benefit, he

made no unequivocal promise that “would be likely to influence the defendant to

speak untruthfully.” Martinez, 127 S.W.3d at 794; see Espinosa v. State, 899

S.W.2d 359, 362–64 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d) (holding

that an officer’s statement, “Go ahead and tell us what happened. Everything will

be better for you. You will get less time,” was insufficient to likely induce a false

confession).

       Thus we hold that the trial court did not err by considering Rivas’s

statement because it was “freely and voluntarily made without compulsion or

persuasion.” See Tex. Code Crim. Proc. Ann. art. 38.21. We overrule Rivas’s

third point.




                                           12
                                  IV. Conclusion

      Having overruled Rivas’s three points, we affirm the trial court’s judgments.



                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 14, 2013




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