                              NUMBER 13-12-00745-CR

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

THE STATE OF TEXAS,                                                                           Appellant,

                                                     v.

RANDON ROMERO,                                                                                Appellee.


                        On appeal from the 25th District Court
                            of Gonzales County, Texas.


                              MEMORANDUM OPINION
                Before Justices Benavides, Perkes, and Longoria
                    Memorandum Opinion by Justice Perkes
         The State appeals the trial court’s order granting appellee Randon Romero’s

motion to suppress.1 Appellee was charged by indictment with possession with intent to

   1   See TEX. CODE CRIM. PROC. ANN. art. 44.01(a)(5) (West, Westlaw through 2013 3d C.S.)

   (a) The State is entitled to appeal an order of a court in a criminal case if the order:
deliver cocaine in an amount greater than or equal to four grams, but less than two

hundred grams, a first-degree felony.                See TEX. HEALTH & SAFETY CODE ANN. §

481.112(d) (West, Westlaw through 2013 3d C.S.). By a single issue, the State contends

“the trial court erred when it granted appellee’s motion to suppress by examining the

search warrant in a hypertechnical manner, [by] not affording the proper deference to the

magistrate, and [by] failing to recognize the preferential treatment that search warrants

are afforded.” We reverse and remand.

                                         I. BACKGROUND

       During appellee’s suppression hearing, the trial court reviewed the police officer’s

affidavit on which the magistrate issued a search warrant for appellee’s residence. The

affidavit reads, in full:

       The undersigned AFFIANT, being a PEACE OFFICER under the laws of
       The State of Texas and being duly sworn upon oath, makes the following
       statements and accusations:

       1. There is in Gonzales County, Texas, a suspected place and premises
          described and located as follows: An Apartment Building located at 200
          Carroll Street in Gonzales, Texas. The Building has three apartments
          contained within it. The building is a tan cement block structure with
          brown doors and trim. The Apartment door faces south and is located
          on the east end of the building. The apartment has #3 affixed to the
          front porch support near the front door.

       2. Said suspected place is in the charge of and controlled by each of the
          following named and/or described suspected parties (hereafter called
          “suspected party,” whether one or more), to wit: Randon Romero Date
          of Birth 05/24/1985

       (5) grants a motion to suppress evidence, a confession, or an admission, if jeopardy has not
       attached in the case and if the prosecuting attorney certifies to the trial court that the appeal is not
       taken for the purpose of delay and that the evidence, confession, or admission is of substantial
       importance in the case.



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        3. It is the belief of affiant that said suspected party has possession of and
           is concealing at said suspected place the following property: a firearm
           used to shoot at 519 Hopkins.

        4. Affiant has probable cause for said belief by reason of the following facts
           and circumstances: Officers responded to two shootings that occurred
           on July 5, 2011 at 519 Hopkins Street in Gonzales, Texas. The first
           shooting occurred at 4:55 Am [sic] and the second occurred at 5:47 am
           on both occasions the Actor was identified by witnesses as Jerome
           Espinosa. .40 caliber casings were located in the street in [the] area
           that the witnesses stated they saw the shots coming from. A bullet was
           recovered from the wall of 519 Hopkins. Officer Camarillo located
           Jerome Espinosa's vehicle behind 200 Carroll Street, Apartment #3, the
           suspected party's residence. Officer Camarillo knocked on the door
           and the suspected party answered the door. When Officer Camarillo
           initially asked the suspected party where Jerome Espinosa was he
           indicated that he did not know. After telling the suspected party that he
           (Officer Camarillo) had already seen Espinosa's vehicle behind his
           Apartment, the suspected party acknowledged that Espinosa was there.
           The suspected party called Espinosa to the door where he was arrested
           at 7:52 a.m. Espinosa did not have a firearm on his person when he was
           arrested. Espinosa's vehicle was searched and no weapon was
           located.

        WHEREFORE, AFFIANT REQUEST THE ISSUANCE OF A WARRANT
        AUTHORIZING HIM TO SEARCH SAID SUSPECTED PLACE AND
        PREMISES INCLUDING CURTLIAGE FOR SAID PROPERTY AND SEIZE
        IT.

        No witnesses testified at the hearing, and both sides focused exclusively on the

search warrant.2 The trial court granted the motion to suppress:

        It is therefore ORDERED that the following items of evidence be and are
        HEREBY SUPPRESSED:

        A Pringles Can containing baggies with residue, An envelope containing

        2 While conducting the search, the police officer saw in plain view a small clear bag containing a
white substance which he believed to be cocaine and a clear plastic bag containing a green leafy substance
that he believed to be marijuana. The police officer then submitted a second affidavit and obtained a
second search warrant for the premises. The focus at the hearing, however, was solely on the first affidavit
because of the belief that the second affidavit may have been subject to a fruit of the poisonous tree theory.
See Wong Sun v. United States, 371 U.S. 471, 484, 487–88 (1963) (explaining that exclusionary rule
applies to evidence “obtained either during or as a direct result of” Fourth Amendment violation).
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       white rock like substance, A Great Value Box with two baggies containing
       white powder residue, A beef jerky can with small baggie containing five (5)
       colored unknown pills and two (2) baggies containing white rock like
       substance, United States Currency totaling $3,420.00 and a name ledger.

                                  II. STANDARD OF REVIEW

        When reviewing a trial court’s ruling on a motion to suppress, we apply a

bifurcated standard of review that gives almost total deference to the historical facts found

by the trial court and review de novo the trial court's application of the law to those facts.

Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007). “However, when the trial

court is determining probable cause to support the issuance of a search warrant, there

are no credibility determinations, rather the trial court is constrained to the four corners of

the affidavit.” State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

       Consequently, when we review the magistrate's decision to issue a warrant, “we

apply a highly deferential standard to the magistrate's determination because of the

constitutional preference that searches be conducted pursuant to a warrant.”              See

Moreno v. State, 415 S.W.3d 284, 287 (Tex. Crim. App. 2013) (citing Illinois v Gates, 462

U.S. 213, 238 (1983)); see also McLain 337 S.W.3d at 271. The reviewing court should

avoid reviewing the affidavit in a “hypertechnical” manner and instead interpret it in a

“commonsensical and realistic manner,” recognizing that the magistrate may draw

reasonable inferences and, when in doubt, defer to all reasonable inferences that the

magistrate could have made. McLain 337 S.W.3d at 272.

       As long as the magistrate had a substantial basis for concluding that probable

cause existed, we will uphold the probable-cause determination. Id. at 271. “Probable

cause exists when, under the totality of the circumstances, there is a ‘fair probability’ that

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contraband or evidence of a crime will be found at the specified location.” See Rodriguez

v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (citing Gates, 462 U.S. at 238); see

also Hennessy v. State, 660 S.W.2d 87, 92 (Tex. Crim. App. [Panel Op.] 1983) (holding

magistrate’s findings are reviewed in light of totality of circumstances presented in

affidavit.). “It is a ‘flexible and non-demanding’ standard.” Rodriguez, 232 S.W.3d at

60. Thus, when reviewing a magistrate’s decision to issue a search warrant, the inquiry

for the reviewing court is not whether there are facts that could have or should have been

included in the affidavit but “whether there are sufficient facts, coupled with inferences

from those facts, to establish a ‘fair probability’ that evidence of a particular crime will

likely be found at a given location.” Id. at 62. The focus of a reviewing court is on the

combined logical force of facts that are present in the affidavit, not those that are omitted

from the affidavit. Id.

                                               III. DISCUSSION

        By its sole issue, the State argues the trial court erred when it granted appellee’s

motion to suppress.3 We agree.

        The facts presented in the affidavit, together with reasonable inferences from those

facts, show there was a fair probability the firearm was in appellee’s apartment—where

the officers found Espinosa two hours after the shooting and where appellee tried to help

Espinosa evade the officers by lying to them.                  According to the affidavit, 4 multiple


        3  In its brief, the State identified a number of comments made by the trial court during the hearing.
However, we need not focus on the trial court’s statements because our de novo review is limited to the
four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).
         4 The trial court expressed concern that the affidavit did not indicate whether the warrant sought

“an instrumentality of an offense” or was an evidentiary search warrant. This observation is correct, but our
review focuses more on whether the magistrate had a substantial basis for concluding that probable cause

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witnesses informed the officers that responded to the two reported shootings that Jerome

Espinosa was the shooter. Just two hours after the second shooting, the officers found

Espinosa’s vehicle parked behind appellee’s apartment and correctly surmised that

Espinosa was inside appellee’s apartment. When they talked to appellee, however,

appellee lied and tried to protect Espinosa, pretending that he did not know where

Espinosa was located. Only after the officers informed appellee that they had already

seen Espinosa’s vehicle outside did appellee acknowledge Espinosa’s presence in his

apartment. After the officers arrested Espinosa, they performed a search of Espinosa’s

person and vehicle. They failed to uncover the firearm that he allegedly used a couple

of hours earlier.

        We recognize this affidavit required some inferences by the magistrate, but,

considering the totality of circumstances presented in the affidavit, we hold that any

inferences were reasonable. See McLain, 337 S.W.3d at 272. First, it was reasonable

for the magistrate to infer that the police received a reliable report of two shootings and

the identification of the shooter from several trustworthy observers. See State v. Duarte,

389 S.W.3d 349, 355–56 (Tex. Crim. App. 2012) (stating a citizen-informer is presumed

to speak with truth and is inherently reliable).             Because the affidavit used the word

“witnesses” and did not connote they were “informant[s] ‘from the criminal milieu,’” Duarte,



existed, see McLain, 337 S.W.3d at 271, and what type of search warrant the probable cause mandates is
collateral to the probable-cause inquiry. Moreover, we note the magistrate could have reasonably deduced
that the officers were seeking an evidentiary search warrant, and all that is required for an evidentiary
search warrant is that the affidavit present facts showing that: (1) a specific offense has been committed,
(2) the specifically described property or items that are to be searched for or seized constitutes evidence
of that offense, and (3) the property or item to be seized constituting evidence to be searched for or seized
are located there. TEX. CODE CRIM. PROC. ANN. art. 18.01(c) (West, Westlaw through 2013 3d C.S.).

                                                     6
389 S.W.3d at 356, a magistrate could reasonably infer the witnesses were citizen

informers, and thus the magistrate was entitled to “rely on the credibility of the affiant and

his sources and the reliability of the information supplied in the affidavit.” Johnson v.

State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990) (en banc), overruled on other

grounds, Heitman v. State, 815 S.W.2d 272, 289 (Tex. Crim. App. 1991) (en banc); see

Duarte, 389 S.W.3d at 356–57; State v. Coker, 406 S.W.3d 392, 396 (Tex. App.—Dallas

2013, pet. ref’d). Furthermore, the fact that multiple witnesses identified Espinosa, .40

caliber shell casings were recovered from the location where the shots were reported to

have been fired, and a slug was recovered from a wall, it was reasonable to infer that the

witnesses’ information and identification of the shooting suspect were dependable.

        Second, appellee’s attempt to conceal Espinosa’s whereabouts, who was located

in the apartment just two hours after the second shooting, supports a reasonable

inference that appellee was willing to continue helping Espinosa avoid police detection by

keeping the firearm in the apartment. 5 Moreover, by locating Espinosa at appellee’s

apartment but not finding the firearm on his person or in his vehicle, there was a fair

probability the firearm would be found at Espinosa’s last known location, namely the

apartment.



        5 Although the trial court questioned how the officers were able to locate and identify Espinosa’s
vehicle, wondering whether the officer ran the plates, whether he was familiar with the car, and whether he
examined the car by testing how hot it was as to gauge how long the car had been there, we conclude the
magistrate could reasonably infer the witnesses described Espinosa’s vehicle, the officers already knew
Espinosa, or the officers, through quick investigation, learned about Espinosa and his vehicle. Regardless,
even assuming additional facts would shed light on the officers’ background investigation, we are less
concerned with what facts could have been included than whether the facts that actually were included in
the affidavit created a fair probability that the gun was at the apartment. See Rodriguez v. State, 232
S.W.3d 55, 60 (Tex. Crim. App. 2007).

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       We conclude that, based on the facts set forth in the affidavit and reasonable

inferences from those facts, there was a substantial basis for a magistrate to conclude

there was a fair probability the firearm from the earlier shooting would be located at

appellee’s apartment. See Rodriguez, 232 S.W.3d at 61.

       We sustain the State’s issue.

                                       IV. CONCLUSION

       We reverse the trial court’s order granting appellee’s motion to suppress and

remand the cause to the trial court for further proceedings consistent with this opinion.



                                                   GREGORY T. PERKES
                                                   Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
28th day of August, 2014.




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