                                 NO. 07-11-0248-CR

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                                NOVEMBER 14, 2012


                                  DIMAS MORENO,

                                                               Appellant
                                          v.

                               THE STATE OF TEXAS,

                                                               Appellee
                         _____________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

    NO. 2010-426,193; HONORABLE JOHN J. "TREY" McCLENDON, PRESIDING


                               Memorandum Opinion


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Appellant Dimas Moreno was convicted after a guilty plea of possession with

intent to deliver cocaine in an amount between two hundred and four hundred grams.

The sole issue on appeal is whether probable cause to search appellant’s residence

was established by an affidavit executed in support of a search warrant. We affirm the

judgment.

      We review the trial court’s ruling on a motion to suppress under the standard

discussed in State v. Stevens, 235 S.W.3d 736, 739-40 (Tex. Crim. App. 2007) and
Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim. App. 2005).             Our review of the

magistrate’s determination of probable cause is constrained to the four corners of the

affidavit. Hankins v. State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). Moreover, we

will uphold the magistrate’s determination so long as the affidavit provides sufficient

information to have allowed the magistrate to make a practical, common sense decision

that, under the totality of the circumstances, there was a fair probability that evidence of

a crime would be found in a particular place, Carillo v. State, 98 S.W.3d 789, 791 (Tex.

App.–Amarillo 2003, pet. ref’d), and considerable deference must be given to the trial

court’s decision. Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004).

       In the affidavit, Officer Misti Snodgrass averred that 1) within the past seventy-

two hours, a confidential informant made a controlled purchase of crack cocaine from

the residence sought to be searched, 2) the confidential informant is able to recognize

crack cocaine, has provided information to police in the past, and has been proven to be

credible and reliable, 3) the confidential informant was searched prior to and after the

controlled buy, 4) constant surveillance was maintained on the confidential informant, 5)

the confidential informant made contact with another unnamed participant to purchase

the cocaine and the other participant went to the residence in question to pick up the

cocaine, 6) the participant was observed by police going to the residence, entering it for

a few minutes, returning to the confidential informant, and handing a substance to the

informant, 7) the participant did not stop at any other location and was under constant

visual surveillance, 8) police took custody of the substance from the confidential

informant, and 9) the substance field tested positive for cocaine. Appellant challenges

the fact that an unidentified participant was used and no attempt was made to establish

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the reliability of that person. Moreover, no attempt was made to establish appellant’s

connection to the house other than through this unnamed participant.

      Under almost identical facts involving the use of an unidentified participant, this

court has previously found probable cause to believe that evidence of a crime would be

found at the house where the drugs were purchased. Bibbs v. State, No. 07-11-00064-

CR, 2011 Tex. App. LEXIS 7552, at *7-9 (Tex. App.–Amarillo September 15, 2011, no

pet.) (not designated for publication). That decision was based on a logical inference

that the unidentified participant went to the house to pick up cocaine.         Id. at *9.

Moreover, the probable cause here is not based so much on statements of the

unidentified participant but upon police observations of the confidential informant and

the unidentified participant both before and after the alleged purchase. Because that is

so, we find no abuse of discretion on the part of the trial court in denying the motion to

suppress.

      Accordingly, the judgment is affirmed.



                                         Per Curiam

Do not publish.




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