Affirmed and Opinion filed July 26, 2012.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-11-00522-CR
                                 ___________________

                             TIMOTEO RIOS, Appellant

                                            V.

                          THE STATE OF TEXAS, Appellee


                       On Appeal from the 232nd District Court
                                Harris County, Texas
                           Trial Court Cause No. 1163180



                                      OPINION

       Timoteo Rios appeals his conviction for capital murder, arguing that the trial court
erred in denying his motion to suppress a confession he gave the police after his arrest
because (1) the affidavit supporting the arrest warrant contained a false statement made
knowingly or in reckless disregard of the truth, and (2) the remainder of the affidavit was
insufficient to establish probable cause for his arrest. We conclude that even if the
affidavit contained such false statements, the remainder of the affidavit was sufficient to
support the issuance of the arrest warrant, and therefore the trial court did not abuse its
discretion in refusing to suppress the confession. We affirm.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       In the early evening of April 16, 2008, Tina Davila parked her car outside a Houston
shopping center. As Davila got out of her car, a gold-colored Ford Taurus pulled up
alongside her. A man got out of the front passenger seat and tried to grab Davila’s money
and car keys. Davila, whose infant daughter was in the back seat, struggled with the man
over the keys, crying “my baby, my baby.” The man pulled out a knife and stabbed Davila
in the chest. Davila continued to struggle with the man as he got back into the Taurus and,
the man, yelling “get the f___ back,” threw Davila’s keys to the ground. The Taurus sped
away as Davila, bleeding, hobbled into a nearby store and collapsed. Davila was dead by
the time emergency services arrived.

       Traci Burger, who was in the same parking lot that evening, observed the struggle
and got “a good look” at the attacker’s face. The attack was also recorded by the
surveillance camera of a nearby store. Without a named suspect, however, the attacker
could initially be identified only as a young Hispanic male. The night of the killing,
Sergeant Mark Reynolds of the Harris County Sherriff’s Office received a tip identifying
appellant as the man who stabbed Davila and appellant’s former brother-in-law, Kennedy
Escoto, as the driver of the gold Taurus. Sergeant Allan Beall, also of the Harris County
Sherriff’s Office, called Burger to view a photo spread featuring appellant and five other
Hispanic maleswith similar physical features.     After viewing the photo spread, Burger
told Beall she was “pretty sure” appellant was the man who stabbed Davila.

       The next day, the police arrested Escoto on outstanding warrants. In a police
interview, Escoto confessed to his role as the driver of the gold Taurus and identified
appellant as the man who stabbed Davila. Armed with Escoto’s statement and what he
described in a probable-cause affidavit as Burger’s “positive” identification, Reynolds

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secured a warrant for appellant’s arrest. Appellant had fled the country in the wake of the
murder investigation but was eventually tracked to a small town outside Michoacan,
Mexico and, with the help of federal authorities, extradited back to Harris County in
August 2008 to face capital-murder charges.

       While in police custody, appellant confessed to the stabbing in a videotaped
interview. Before trial, appellant requested “an evidentiary hearing as to the truthfulness
or reckless use of certain statements” contained in Reynolds’s probable-cause affidavit and
requested that appellant’s videotaped confession be suppressed if the trial court concluded
that the arrest warrant had been illegally obtained. Although appellant did not specify in
his motion what statements he believed were untruthful, he argued at the hearing that
Reynolds had falsely stated in the probable cause affidavit that Burger had “positively
identified” appellant as the man who had struggled with Davila when she had merely told
Beall that she was “pretty sure” that appellant was the man she had seen.1

       At the hearing, Burger testified that when she told Officer Beall she was “pretty
sure,” she actually meant “a hundred percent sure.” Beall similarly testified that Burger
had identified appellant without hesitation and seemed certain about her identification, and
Beall stated that he had understood Burger’s identification as “positive” rather than
tentative. Nonetheless, Beall testified that he had relayed Burger’s exact words—“pretty
sure”—to Reynolds. Reynolds testified that, as he understood Burger’s identification
from Beall,

       [Burger] felt confident that that was the person that had robbed her [Davila]
       and so I—you know I don’t think anybody was ready to you know convict
       somebody based solely on that one identification but she was confident in it.
       That’s the way I understood it and that’s the way I relayed it to the district
       attorney.



       1
         At the hearing, appellant further argued that Reynolds had omitted to mention Escoto’s prior
felony convictions in the affidavit; however, appellant does not raise this issue on appeal.
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Asked if he considered Burger’s a positive identification, Reynolds responded, “I think it
had to be more positive than no ID, yes.” The trial court denied appellant’s motion to
suppress the videotaped confession.       The confession was later played at trial over
appellant’s objection. On the stand, appellant confessed to killing Davila but maintained
that he had intended only to scare Davila by swinging the knife at her and did not realize he
had stabbed her until he got back into his car.
       The jury convicted appellant of capital murder and he was sentenced to life in prison
by operation of law. In his sole issue on appeal, appellant argues that the trial court erred
in denying his motion to suppress his videotaped confession to the police because (1)
Reynolds knowingly, intentionally, or with reckless disregard for the truth misrepresented
Burger’s identification as “positive” in the probable cause affidavit; and (2) the remainder
of the affidavit was insufficient to support the issuance of the arrest warrant.

                                       II. ANALYSIS

       A trial court’s ruling on a motion to suppress is reviewed for an abuse of discretion.
State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App. 2006). Under this standard of
review, we will uphold the trial court’s ruling if it is reasonably supported by the record
and is correct under any applicable legal theory. Id. The trial court is the sole trier of fact
and judge of the credibility of the witnesses and the weight to be given their testimony.
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We give the trial court
almost complete deference in determining historical facts, while reviewing de novo its
application of the law to those facts. Johnson v. State, 68 S.W.3d 644, 652–53 (Tex.
Crim. App. 2002). Where, as here, the trial court does not file findings of fact, we review
the evidence in the light most favorable to the trial court’s ruling. Torres v. State, 182
S.W.3d 899, 902 (Tex. Crim. App. 2005).

       Under the United States Supreme Court’s decision in Franks v. Delaware, an arrest
warrant must be voided—and any evidence obtained pursuant to the arrest warrant
suppressed—if (1) the defendant can establish by a preponderance of the evidence that the
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affidavit supporting the warrant contains a material misstatement that the affiant made
knowingly, intentionally, or with reckless disregard for the truth; and (2) setting the false
statement aside, the affidavit’s remaining content is insufficient to establish probable
cause. Franks, 438 U.S. 154. 155–56, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978);
Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996). Assuming, without
deciding, that Reynolds’s representation of Burger’s identification as “positive” was both
false and made intentionally, knowingly or in reckless disregard of the truth, we conclude
that the remainder of Reynolds’s probable-cause affidavit contained sufficient facts to
support probable cause to arrest appellant. Consequently, we hold that the trial court did
not abuse its discretion in denying appellant’s motion to suppress.

       In his affidavit, Reynolds stated as follows:

       On April 16, 2008, Affiant was assigned to investigate the murder of Tina
       Davila, hereafter called the Complainant, who at approximately 5:00 p.m. on
       this date was stabbed to death outside her vehicle in the parking lot of 5600
       Uvalde Road . . . . Affiant went to this location on this date and spoke with
       Eric Shin, manager of the Cricket Cellular Store located at 5619 Uvalde
       Road. Shin provided Affiant with access to the store’s surveillance video,
       which consisted of digital video recordings of the interior of the store and the
       immediate area in front of the store. Upon viewing this recording Affiant
       observed the images of a woman, later identified as the Complainant, exiting
       her vehicle directly in front of the Cricket Store at 5:02 p.m. At this time a
       Ford Taurus is seen pulling up beside the driver’s side of the Complainant’s
       vehicle. A young Hispanic male is seen exiting the passenger side of the
       Taurus and blocking the Complainant’s path to the store. A struggle is
       observed between the Complainant and the male. The male is then seen
       getting back into the Taurus. The complainant follows the male and then
       another struggle appears to take place. The Complainant is then seen
       stumbling into the store and collapsing at the sales counter. Shin told
       Affiant that the Complainant was clutching her chest and bleeding when she
       entered the store and collapsed.
       Affiant spoke with Harris County Sherriff’s sergeant, Ben Beall, a certified
       police officer, who stated that he interviewed Traci Burger, a witness found
       to be gainfully employed and a credible person. Per Sergeant Beall, Burger
       stated the following: She was in the parking lot at 5600 Uvalde Road, as

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       described above, and observed the Complainant, the young Hispanic male,
       and the struggle as described above. She also stated that as the Complainant
       followed the male after the first struggle, she could be heard screaming “my
       baby, my baby.”
       Affiant received a tip from a confidential informant who identified the
       Defendant as the young Hispanic male that murdered the Complainant. A
       known Harris County Sherriff’s Office booking photograph of the Defendant
       was obtained and placed in a photospread along with five other photographs
       of males with similar physical characteristics. Sgt. Beall stated to Affiant
       that he showed this photospread to witness Burger and she positively
       identified the photograph of the Defendant as the person she observed
       struggling with the Complainant as described above.
       Affiant conducted an interview with Kennedy Escoto, who after being given
       his legal statutory warnings gave a written and signed statement against [h]is
       interest that stated the following: Escoto was the driver of the Ford Taurus,
       seen in the video and described above. Escoto stated that the Defendant,
       who he knows by name and by sight as the Defendant, Timoteo Rios, was the
       passenger in the vehicle. Escoto stated that he and the Defendant observed
       the Complainant getting out of her vehicle and that she had some $20 bills in
       her hand. Escoto stated that the Defendant opened up his knife, jumped out
       of the car and tried to take the money from the complainant. Escoto stated
       that it was during the struggle that the Complainant was stabbed. Escoto
       stated that the Defendant got back in the Taurus with the Complainant’s keys
       but then threw them out of the vehicle.
In assessing whether sufficient facts were included in the affidavit to support probable
cause to arrest the accused, we are limited to the four corners of the affidavit. Hankins v.
State, 132 S.W.3d 380, 388 (Tex. Crim. App. 2004). We must interpret the complaint in a
commonsensical and realistic manner, recognizing that the magistrate is permitted to draw
reasonable inferences from the facts. Id.; Rodriguez v. State, 232 S.W.3d 55, 61 (Tex.
Crim. App. 2007). “When in doubt, we defer to all reasonable inferences that the
magistrate could have made.” Rodriguez, 232 S.W.3d at 61.

       Even after the statement concerning Burger’s “positive” identification is excised,
Escoto’s statement alone is sufficient to establish probable cause to arrest appellant.
Escoto, an eyewitness, directly named appellant as the man who wielded a knife while

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trying to take cash from Davila and who stabbed Davila as the two struggled in the parking
lot. Escoto described in detail the circumstances surrounding the stabbing. Appellant
argues that “there is no statement as to why Reynolds believed Escoto’s statement to be
credible and reliable regarding his identification of [a]ppellant as being involved in the
offense.” But, when an affidavit contains information given by a named informant, the
affidavit is sufficient to justify the issuance of an arrest warrant if the information given is
sufficiently detailed to suggest direct knowledge on the informant’s part—even if no direct
statement is made about the informant’s reliability or credibility. Wilkerson v. State, 726
S.W.3d 542, 545 (Tex. Crim. App. 1986). Escoto’s statements, as relayed in the affidavit,
demonstrate his direct knowledge of the circumstances surrounding Davila’s death,
including that (1) Escoto was the driver of the Ford Taurus; (2) appellant, whom Escoto
knows by name and by sight, was the passenger in the Taurus; (3) Escoto and appellant
watched as Davila exited her car, holding cash in her hand; (4) appellant opened up his
knife, jumped out of the car, and tried to take the money from Davila; (5) Davila was
stabbed during this struggle; and (6) appellant returned to the Taurus and threw Davila’s
keys out of their car. Further, according to the affidavit, Escoto’s account matched up
with what Reynolds saw on the Cricket Store’s surveillance video.

       Appellant contends that Escoto’s credibility is in greater doubt than that of most
named informants because “he was being questioned about his involvement for an offense
that he committed” and “[h]is statement naming [a]ppellant as the other person could just
as easily be Escoto attempting to name another person involved to askew [sic] his own
involvement . . . .” To support the proposition that a named informant lacks credibility if
he is being questioned about an offense that he committed, appellant cites State v. Wester,
109 S.W.3d 824 (Tex. App.—Dallas 2003, no pet.). The Wester case is not binding
precedent on this court; but, in any event, we find it factually distinguishable from the case
under review.



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       In Wester, the Dallas Court of Appeals held that an affidavit was insufficient to
support a search warrant where the informant was “a suspect under arrest for the very drugs
he claimed to have purchased from [the appellant] and was being interrogated at the police
station when he gave his statement.” Id. at 827. There, however, the court questioned
the extent to which the informant’s admission carried the weight of a statement against
penal interest because the police had already found the drugs when the informant made his
statement. Id.; see Mejia v. State, 761 S.W.2d 35, 38 (Tex. App.—Houston [14th Dist.]
1988, pet. ref’d) (“An admission against penal interest, even by a first-time informant, is a
factor indicating reliability.”). Here, at the time Escoto made his statement, there was
nothing connecting him with the crime under investigation other than the tip of a
confidential informant. Beall testified that Burger was unable to identify Escoto as the
driver of the Taurus.     Unlike in Wester, where the informant was under arrest for
possession of the very drugs he claimed to have purchased from the accused, Escoto was
not under arrest for his involvement in Davila’s killing. He was arrested on outstanding
warrants, not on a warrant procured because of his suspected involvement in Davila’s
murder.    Further, the Wester court also emphasized another problem not present
here—that the information contained in the affidavit there was not detailed. See Wester,
109 S.W. 3d at 827. As the court there noted,

       the only fact that specifically related to Wester was [the informant]’s
       statement that he purchased the drugs from Wester at Wester’s residence just
       prior to being stopped. No other independently verifiable facts related to
       Wester, such as previous drug transactions, the location of the marijuana in
       the house, or the layout of the house, were alleged.
Id. Here, as described above, Escoto’s statements indicate detailed knowledge of the
circumstances surrounding Davila’s death.         His account of Davila’s stabbing also
matched up—according to the account set forth in the affidavit , which appellant does not
contest on appeal—with the surveillance video described in the affidavit, providing
independent verification for his account. Under these circumstances, Escoto’s statement
to the police was sufficient to establish probable cause for appellant’s arrest.
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       In conclusion, after excising from the probable-cause affidavit Reynolds’s
challenged statement about Burger’s “positive” identification of appellant as the man who
attacked Davila, the remainder of Reynolds’s affidavit was sufficient to justify the issuance
of an arrest warrant even if Reynolds’s statement regarding Burger’s identification was
false and made intentionally, knowingly, or with reckless disregard for the truth.
Therefore, the trial court did not abuse its discretion in denying appellant’s motion to
suppress appellant’s videotaped confession. We overrule appellant’s sole issue on appeal.

                                     III. CONCLUSION

       Having concluded that the trial court did not abuse its discretion in denying
appellant’s motion to suppress, we affirm the trial court’s judgment.




                                          /s/       Tracy Christopher
                                                    Justice



Panel consists of Justices Frost, Brown, and Christopher.
Publish — TEX. R. APP. P. 47.2(b).




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