                          NUMBER 13-10-00087-CR

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

AMADEO SAENZ,                                                                Appellant,

                                            v.

THE STATE OF TEXAS,                                                           Appellee.


                    On appeal from the 197th District Court
                          of Willacy County, Texas.


                          MEMORANDUM OPINION
                   Before Justices Garza, Vela, and Perkes
                   Memorandum Opinion by Justice Perkes
      Pursuant to a plea-bargain agreement, appellant, Amadeo Saenz, pleaded guilty

to third-degree felony theft and was placed on deferred-adjudication community

supervision for a term of two years and ordered to pay restitution. See TEX. PENAL CODE

ANN. § 31.03 (a), (b)(1), (e)(5) (West 2003); TEX. CODE CRIM. PROC. ANN. art. 42.12, § 5(a)
(West 2003). By a single issue, appellant argues the trial court erroneously denied his

pre-trial motion to suppress a stolen motor boat that was seized from appellant’s

residential property. 1 Appellant argues the evidence should have been suppressed

because the search warrant used to enter his property was not issued upon a showing of

probable cause. We affirm.

                                 I. FACTUAL BACKGROUND

        In August 2007, a 1987 Shallow Sport boat with a Suzuki 140 horsepower motor,

valued between $20,000 and $100,000, was stolen from a storage yard at the Mansfield

Club in Port Mansfield, Texas. On May 28, 2008, Will Bullock, the manager of the

Mansfield Club, provided a voluntary written statement to the Law Enforcement Division

of the Texas Parks and Wildlife Department.                In his statement, Bullock stated that

someone who wished to remain unknown reported to him that the stolen boat was located

at a particular location in Cameron County, Texas. Bullock stated further that he had

driven past the location and observed the front section of a boat, which matched the

stolen boat, adding he could not verify it was the same boat but the color was correct.

The boat had a bright, baby-blue hull.

        After driving by the location and observing from the road a boat that matched

Bullock’s description of the stolen boat, Game Warden David Nieto obtained a search

warrant to enter the property and seize the motor boat and the trailer to which it was

attached. While Nieto obtained the warrant, another game warden watched the property

from the road. When the warrant was executed, the boat and trailer were stationed in


        1
           In his testimony at the pre-trial hearing on appellant’s motion to suppress, Game Warden David
Nieto of the Texas Parks and Wildlife Department described the residential property as belonging to
appellant.
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front of or just under an unenclosed, three-sided shed, located approximately forty yards

from appellant’s residence.

        Appellant filed a written pre-trial motion to suppress the stolen property, arguing

Nieto’s search-warrant affidavit lacked sufficient facts to show probable cause and

therefore the search warrant should not have been issued and the search and seizure

were illegal. See TEX. CODE CRIM. PROC. ANN. arts. 18.01(b); 38.23(a) (West 2003).2 In

his search-warrant affidavit, Nieto included identification numbers for the boat, trailer, and

motor, and referenced a written witness statement as a basis for probable cause. But, in

his affidavit, Nieto did not mention Bullock by name or otherwise set forth the contents of

Bullock’s witness statement. After holding a pre-trial hearing on the motion, the trial

court denied appellant’s motion to suppress and this appeal followed.3

                                     II. STANDARD OF REVIEW

        The Fourth Amendment to the United States Constitution and Article I, Section 9 of

the Texas Constitution guarantee the right of the people to be secure against

unreasonable governmental searches of their persons, houses, papers, and effects.

U.S. CONST. amend. IV; TEX. CONST. art. I, § 9. By Texas law, a peace officer requesting


        2
            Article 18.01(b) provides, in relevant part: ―No search warrant shall issue for any purpose in this
state unless sufficient facts are first presented to satisfy the issuing magistrate that probable cause does in
fact exist for its issuance.‖ TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West 2003).
         Article 38.23(a) provides, in relevant part: ―No evidence obtained . . . in violation of any provisions of
the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America,
shall be admitted in evidence against the accused on the trial of any criminal case.‖ Id. art. 38.23(a).
        3
           The trial court’s adverse ruling on appellant’s motion to suppress preserved appellant’s single
issue for review. See TEX. R. APP. P. 33.1; Garcia v. State, 45 S.W.3d 733, 736 (Tex. App.—Corpus
Christi 2001, no pet.). Though appellant was placed on deferred-adjudication community supervision and
not convicted, appellant has a right to appeal the trial court’s denial of his motion to suppress. See TEX.
CODE CRIM. PROC. ANN. art. 44.02 (West 2003); Hargesheimer v. State, 182 S.W.3d 906, 908 (Tex. Crim.
App. 2006); Dillehey v. State, 815 S.W.2d 623, 626 (Tex. Crim. App. 1991).


                                                        3
a search warrant must file a supporting affidavit averring facts sufficient to establish

probable cause. See TEX. CODE CRIM. PROC. ANN. art. 18.01(b).

       Probable cause exists when the facts submitted to the magistrate are sufficient to

justify a conclusion that the property that is the object of a search probably is on the

premises to be searched. Green v. State, 736 S.W.2d 218, 219 (Tex. App.—Corpus

Christi 1987, no writ) (citing Gish v. State, 606 S.W.2d 883, 886 (Tex. Crim. App. 1980)).

We review whether the ―totality of the circumstances‖ justifies a magistrate’s conclusion

that the statements in a search-warrant affidavit set forth probable cause; no particular

criteria is considered dispositive. Id. (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).

The magistrate’s task in determining probable cause is to make a common-sense

determination, given all the circumstances set forth in the affidavit, whether there is a fair

probability that contraband or evidence of a crime will be found in a particular place. Id.

As a reviewing court, we ensure the magistrate had a substantial basis to conclude that

probable cause existed. Id.

       In keeping with the constitutional preference for warrants, we review a magistrate’s

probable-cause determination under a highly deferential standard. Rodriguez v. State,

232 S.W.3d 55, 61 (Tex. Crim. App. 2007); Swearingen v. State, 143 S.W.3d 808, 811

(Tex. Crim. App. 2004). When reviewing a search-warrant affidavit, we review only

within the four corners of the search-warrant affidavit for probable cause and cannot

consider, for instance, statements made during a hearing on a pre-trial motion to

suppress. Massey v. State, 933 S.W.2d 141, 148 (Tex. Crim. App. 1996); Jones v.

State, 338 S.W.3d 725, 734 (Tex. App.—Houston [1st Dist.] 2011, no pet.). Instead, we

interpret search-warrant affidavits to determine whether the magistrate could have found

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probable cause based on the facts the affiant provided and the inferences supported by

those facts. Rodriguez, 232 S.W.3d at 62. When in doubt, we defer to all reasonable

inferences the magistrate could have made. Id. at 61.

                                III. ANALYSIS AND DISCUSSION

        Appellant argues Nieto’s affidavit was insufficient to support the magistrate’s

probable-cause finding because it did not name the witness (i.e., Bullock) or demonstrate

his reliability and it did not specify what crime Nieto believed occurred or why he believed

a crime occurred.4 Although appellant frames his argument in terms of both the United

States and Texas Constitutions, he does not separately brief his state and federal

constitutional claims. An appellant claiming relief under both the federal and state

constitutions must ―analyze, argue or provide authority to establish that his protection

under the Texas Constitution exceeds or differs from that provided to him by the Federal

Constitution.‖ Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993). Therefore,

we assume appellant claims no greater protection under the state constitution than that

provided by the federal constitution. See Muniz v. State, 851 S.W.2d 238, 251–52 (Tex.

Crim. App. 1993).

        In relevant part, Nieto’s affidavit, filed in support of his search-warrant request,

provided as follows:

        4
             Once, in the ―Summary of the Argument‖ section of his brief, appellant argues, without citation to
legal authority, that Nieto’s affidavit was insufficient to show probable cause that the boat would be on
appellant’s property at the time the search warrant issued. Appellant does not raise this argument in the
―Argument‖ section of his brief. We do not reach the merits of this contention, if any, because appellant
has failed to support this argument with citation to supporting legal authority. See TEX. R. APP. P. 38.1(i);
Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000) (explaining an argument that is not supported by
citation to legal authority presents nothing for appellate review); see also Swearingen v. State, 101 S.W.3d
89, 100 (Tex. Crim. App. 2003) (concluding defendant waived his challenge to search-warrant affidavits by
failure to adequately brief the complaint on appeal); Franks v. State, 90 S.W.3d 771, 778 (Tex. App.—Fort
Worth 2002, no pet.) (finding appellate challenge to search- and arrest-warrant affidavits waived by failure
to adequately brief).
                                                      5
       It is the belief of Affiant, and Affiant hereby charges and accuses that said
       suspected party has possession of and is concealing at said suspected
       place, in violation of the laws of the State of Texas, the following described
       personal property, to wit: 1987 Shallow Sport TX 1210 CZ HIN#
       SZX00359C787 [line break] 140 HP Suzuiki [sic] Motor SU#
       14001F681062 [line break] McCain [sic] Trailer SU# 4LYBA19154H00
       1429.

       Affiant has probable cause for the said belief by reason of the following
       facts, to wit: From witness [sic] written statement, also I was able to observe
       a boat from Williams Rd. that matched the description of the boat being a
       blue hull with a Suzuiki [sic] Motor.

       Appellant treats this case as one involving a tip from an anonymous informant.

Relying on Aguilar v. Texas, appellant argues Nieto’s affidavit was insufficient because it

did not contain specific facts showing the informant had a valid basis for the belief

evidence of a crime would be found on appellant’s property. See Aguilar v. State of

Texas, 378 U.S. 108, 114 (1964). Appellant argues ―there is not a single fact in the

affidavit that establishes the informant’s reliability‖ and that it establishes only that he or

she made a written statement. Relying on Parish v. State and Correll v. State, appellant

adds that Nieto’s corroboration of the color of the boat and the type of motor as described

in the search-warrant affidavit, was insufficient to support a finding of probable cause

because corroboration of innocent facts that are obvious to a casual observer does not

render a tip reliable. See Parish v. State, 939 S.W.2d 201, 204–05 (Tex. App.—Austin

1997, no pet.) (holding anonymous tip that lacked any indicia of reliability such as

corroboration of future actions could not provide probable cause for search and arrest

warrant); Correll v. State, 696 S.W.2d 297, 298 (Tex. App.—Fort Worth 1985, pet. ref’d)

(holding corroboration of non-detailed, innocent activity that did not relate to future events

did not render anonymous tip reliable).


                                              6
       Appellant’s reliance on Aguilar, Parish, Correll is misplaced because Aguilar has

been overruled, and, applying the deferential standard of review, we find that this is not an

anonymous-informant case.        In Illinois v. Gates, the United States Supreme Court

abandoned the rigid Aguilar test for determining the reliability of an informant’s tip to show

probable cause for issuing a search warrant.      Gates, 462 U.S. at 238; Mayfield v. State,

800 S.W.2d 932, 934 (Tex. App.—San Antonio 1990, no pet.). Post-Aguilar, the veracity

and basis of knowledge of persons supplying hearsay information are relevant

considerations in the totality-of-the-circumstances analysis.        Trevino v. State, 875

S.W.2d 373, 376 (Tex. App.—Corpus Christi 1994, no pet.) (citing Gates, 462 U.S. at

233). But an affiant can rely on hearsay as long as a substantial basis for crediting the

hearsay is presented. Id.

       The Texas Court of Criminal Appeals does not view information that is freely given

to police by citizens who provide their names with the same suspicion reserved for

information from anonymous police informants who have an unproven record of reliability.

See West v. State, 720 S.W.2d 511, 513 n.2 (Tex. Crim. App. 1986). A magistrate may

rely on information provided by a private citizen who is a witness to a crime because

unlike many police informants, private citizens are much less likely to produce false or

untrustworthy information. Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App.

1990) (en banc), overruled on other grounds by Heitman v. State, 815 S.W.2d 681, 690

(Tex. Crim. App. 1991); Marquez v. State, 725 S.W.2d 217, 234 (Tex. Crim. App. 1987)

(en banc), overruled on other grounds by Moody v. State, 827 S.W.2d 875, 892 (Tex.

Crim. App 1992); State v. Wester, 109 S.W.3d 824, 826–27 (Tex. App.—Dallas 2003, no

pet.) (distinguishing statement from named informant under arrest on suspicion of drug

                                              7
offense from statement of average citizen reporting a crime to police); see also Morris v.

State, 62 S.W.3d 817, 824 (Tex. App.—Waco 2001, no pet.) (holding police officer’s

affidavit was sufficient to establish probable cause because of inherent reliability and

credibility of named-citizen informant whose only contact with police resulted from having

witnessed another’s criminal act).

       In Marquez, the Court of Criminal Appeals addressed a criminal defendant’s

argument that a search-warrant affidavit was insufficient to show probable cause

because it did not contain facts to show the reliability or credibility of witnesses who

provided the affiant substantive information. Marquez, 725 S.W.2d at 233. In Marquez,

the affidavit mentioned peace officers and Rosa and Daniel Gutierrez, who apparently

were ordinary citizens, as sources of the affiant’s information. Id. The affidavit set forth

that the Gutierrezes saw the defendant at a crime scene and the defendant led Rosa

Gutierrez to a room with two dead bodies in it, telling her in Spanish, ―Now I have avenged

myself.‖ The affidavit did not otherwise describe the Gutierrezes’ connection with the

case, but set forth, ―your Affiant believes the above information to be reliable and credible

because all of it comes either from peace officers or from individuals with no known

criminal record.‖ Id. The affidavit did not state the Gutierrezes were ordinary citizens.

The court rejected the defendant’s credibility argument and, in the context of considering

the totality of the circumstances presented, the court stated that while it is true that facts

showing reliability should be included when the information contained in the affidavit is

given by a confidential informant, as a matter of constitutional law, an ordinary citizen as a

witness in a case is presumed to be reliable and no special showings are required. Id.

         Considering the totality of the circumstances presented in this case and

                                              8
deferring to the magistrate’s reasonable inferences, we conclude Nieto’s search-warrant

affidavit was sufficient to establish a fair probability that a stolen motor boat and trailer

were located on appellant’s property. The facts contained in Nieto’s affidavit provided

the magistrate a substantial basis to conclude an ordinary citizen reported the boat,

motor, and trailer stolen to law enforcement and that witness provided a written

statement, the current location of the boat, and identification numbers for the

property—information likely to be known by the property owner or a person with a right to

possession of the property. See id. Because a written witness statement and detailed

identifying information concerning the property were provided to law enforcement, the

magistrate could reasonably conclude the witness who reported the property stolen also

provided law enforcement his name in an effort to claim the property and regain

possession of it. In addition, Nieto documented in his search-warrant affidavit that he

saw from the road, a boat with the same color hull and a Suzuki motor on appellant’s

property.

       We overrule appellant’s sole issue on appeal.

                                   IV. CONCLUSION

       We affirm the trial court’s denial of appellant’s motion to suppress.


                                                  ______________________
                                                  GREGORY T. PERKES
                                                  Justice

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

Delivered and filed the
18th day of August, 2011.


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