                                 MEMORANDUM OPINION
                                         No. 04-11-00040-CR

                                        The STATE of Texas,
                                             Appellant

                                                  v.

                                          Gilbert DUARTE,
                                              Appellee

                     From the 144th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008CR9897
                         Honorable Catherine Torres-Stahl, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 31, 2011

REVERSED AND REMANDED

           The State of Texas appeals from the trial court’s order granting Gilbert Duarte’s motion

to suppress. We reverse the trial court’s order and remand the matter for further proceedings.

                                              BACKGROUND

           Duarte was charged in a two-count indictment with possession of more than four grams

but less than two hundred grams of cocaine. Both counts alleged the same date of offense,

September 28, 2008, but the second count contains a deadly weapon allegation. Duarte filed a
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motion to suppress, alleging that the search warrant authorizing the search of his premises was

defective because the affidavit was not supported by probable cause. At the hearing on the

motion, Duarte argued that the affidavit was deficient because the affiant police officer relied

upon information provided by a first-time informant who was providing information in exchange

for a promise of leniency, and the affiant did not conduct any investigation to confirm or

corroborate the information provided by the informant.        After hearing testimony from one

witness and arguments from counsel, the trial court granted the motion to suppress.

       The trial court entered findings of fact and conclusions of law. In the findings, the trial

court refers to this court’s opinion in Pardo v. State, Nos. 04-08-00628-CR, 04-08-00629-CR,

2009 WL 1706760 (Tex. App.—San Antonio June 17, 2009, pet. ref’d) (mem. op., not

designated for publication), and notes that the language in the search warrant affidavit before the

court did not contain corroboration of the informant’s information as occurred in Pardo. The

trial court concluded that “[b]ecause there was not given in [affiant’s] affidavit the additional

verifying information that was given in the Pardo case, this court finds the affidavit in support of

the search warrant did not contain sufficient information to support the magistrate’s finding of

probable cause.” The State gave timely notice of appeal.

                                        APPLICABLE LAW

       When reviewing a trial court’s decision on a motion to suppress, we normally use a

bifurcated standard of review. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We

defer to the trial court’s determination of historical fact or questions of mixed fact and law when

they involve credibility determinations. Id. But, we review de novo the application of law to the

facts, or mixed questions that do not turn on the determination of credibility. Id. However, as to

search warrants, “[b]oth appellate courts and trial courts alike must give great deference to a



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magistrate’s implicit finding of probable cause.” State v. McLain, 337 S.W.3d 268, 271-72 (Tex.

Crim. App. 2011). When reviewing a magistrate’s determination, we “should interpret the

affidavit in a commonsensical and realistic manner, recognizing that the magistrate may draw

reasonable inferences. When in doubt, we defer to all reasonable inferences that the magistrate

could have made.” Id. at 271 (quoting Rodriguez v. State, 232 S.W.3d 55, 61 (Tex. Crim. App.

2007)). A search warrant is supported by probable cause when the facts set out within the “four

corners” of the affidavit are “sufficient to justify a conclusion that the object of the search is

probably on the premises to be searched at the time the warrant is issued.” Davis v. State, 202

S.W.3d 149, 154 (Tex. Crim. App. 2006).

                                            DISCUSSION

The affidavit in controversy states in pertinent part:

       That he has a good reason to believe and does believe that a certain place in Bexar
       County, Texas described as a two story wood frame house, located at and known
       as and numbered as 10910 Indigo Creek, and any and all garages,
       outhouses, edifices, structures, openings, and enclosures thereto attached;

       In the City of San Antonio, Bexar County, Texas and being the premises under
       the control and in charge of Gilbert Duarte 08-17-87 is a place where a controlled
       substance, to wit: Cocaine is unlawfully possessed in violation of the Texas
       Health and Safety Code, and that such belief of the affiant is founded upon the
       following information: Affiant has been a San Antonio Police officer for
       over fourteen years. During my tenure I have conducted narcotic investigations
       for 4 years and 9 months. Affiant did on the 28 t h day of September,
       2008, receive information from a credible individual who is currently facing
       pending criminal charges and provided the information with the expectation that
       his/her cooperation with law enforcement would, if proven valid, be called to the
       attention of authorities, for the possible dismissal of charges, or a favorable plea
       bargain sentence.

       Law enforcement officers other than what has been stated have not
       promised the cooperating individual anything in exchange for his/her information.
       I believe that in this instance it adds to the credibility of the individual, because
       he/she will not benefit if his/her information does not prove valid.

       I explained to the cooperating individual that it jeopardizes his/her
       opportunity for leniency if law enforcement believes or discovers that
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       he/she has provided incorrect information in a bad faith attempt to obtain
       leniency. The credible individual’s statement to me that the information is true
       enhances the probability that the information is correct.

       I also explained to the credible individual Texas Penal Code Statue 37.08, False
       reports to peace officer. Describing the possible criminal penalties for giving false
       information to law enforcement.[sic] The credible individual said he/she
       understood, and continued to maintain that the information is correct.

       I know that this credible individual is familiar with various controlled substances,
       to include cocaine, and he/she knows how cocaine looks and smells, and how it is
       packaged, sold and used. The credible individual has demonstrated his/her
       knowledge to me in conversation and this knowledge is consistent with my own
       experience and knowledge regarding this type of controlled substance.
       The credible individual stated that he/she had observed Gilbert Duarte 08-17-87
       in possession of cocaine within the past twenty four hours at 10919 Indigo Creek.
       I conducted computer research on the premises where I was able to confirm that
       Gilbert Duarte 08-17-87 does indeed reside at 10919 Indigo Creek. Gilbert
       Duarte 08-17-87 has given that address as his residence on a traffic ticket
       that he received on 05-03-08.

       Based on the information, affiant asks that a warrant be issued to search the
       above-described premises for to wit: cocaine, which is unlawfully
       possessed by the aforesaid Gilbert Duarte 08-17-87 at the above-described
       premises. And to arrest the of the [sic] above described person and any other
       parties found on said premises or making their escape therefrom, where said
       parties are found to be in possession of the above described controlled substance
       or any other controlled substance in violation of the Texas Health and Safety
       Code.

As noted by the trial court, the language in the affidavit nearly mirrors the affidavit reviewed by

this court in Pardo. See 2009 WL 1706760, at *2. However, Duarte contends there is a crucial

difference because in Pardo the affiant conducted an independent investigation to verify

information received from the first-time informant. There, the informant identified a photograph

of Pardo and described to the affiant the vehicle allegedly used by Pardo to sell drugs. The

affiant asserted the SAPD database indicated Pardo was on probation for possession of drugs,

and “surveillance” established that “numerous vehicles were seen arriving at the location and

then leaving a short time later, this being consistent with drug transactions.” Id. Duarte argues


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that such corroboration of the informant’s information is lacking here, as the affiant merely

confirmed that Duarte lived at the address indicated by the informant. The trial court apparently

agreed with Duarte, because it found significant the affiant’s failure to corroborate the

informant’s information in any other manner. However, the proper standard of review is not to

determine whether all the information that could have been put into an affidavit was actually in

the affidavit. Rather, the reviewing court defers to the magistrate’s determination, allows all

reasonable and commonsense inferences, and decides whether the magistrate’s conclusion is

supported by the assertions in the affidavit. Rodriguez, 232 S.W.3d at 64.

       Duarte’s main attack on the affidavit is that it fails to demonstrate the informant’s past

reliability. However, the issue is not whether the informant has been reliable in the past, but

viewing the affidavit as a whole, is there a “substantial basis” for the magistrate’s conclusion

there was a “fair probability” cocaine would be found at the premises to be searched See id.

       Although this case presents a close issue, “[w]hen in doubt, we defer to all reasonable

inferences that the magistrate could have made.” McLain, 337 S.W.3d at 271-72. Even though

the affiant relied upon information provided by a first-time informant, it was reasonable for the

magistrate to conclude the informant’s credibility was demonstrated by the statements in the

affidavit that the informant would benefit only if the information was correct. Furthermore, the

affiant expressly stated he told the informant that false information would jeopardize the

informant’s ability to have a favorable plea bargain or the pending charges dismissed. It was

reasonable for the magistrate to infer the informant realized it was in the informant’s best interest

to present only truthful information. The “reliability” of the information (how did the informant

know the substance was cocaine) is shown by the affiant’s assertions that the informant

demonstrated his knowledge to the officer/affiant, the affiant stated he had over four years



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experience in the investigation of narcotics, and the fact the informant saw the cocaine at the

premises within the past twenty-four hours. Although it may have been preferable for the affiant

to have conducted surveillance or other investigative techniques to provide additional

information to support the informant’s reliability and credibility, we cannot say that such support

is lacking in the affidavit to the extent that there is not a substantial basis to support the

magistrate’s decision. The Texas Court of Criminal Appeals has stated:

       Since the Fourth Amendment strongly prefers searches to be conducted pursuant
       to search warrants, the United States Supreme Court has provided incentives for
       law-enforcement officials to obtain warrants instead of conducting warrantless
       searches. One incentive is a less-strict standard for reviewing the propriety of a
       search conducted pursuant to a warrant. In this situation, courts must give great
       deference to the magistrate’s probable-cause determination. Both appellate courts
       and trial courts alike must give great deference to a magistrate’s implicit finding
       of probable cause.

McLain, 337 S.W.3d at 271-72 (footnotes and citations omitted). Giving “great deference” to the

magistrate’s determination of probable cause, we reverse the trial court’s order, and remand this

cause to the trial court for further proceedings.


                                                     Steven C. Hilbig, Justice


DO NOT PUBLISH




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