                                                                       PD-1419-15
                            PD-1419-15               COURT OF CRIMINAL APPEALS
                                                                      AUSTIN, TEXAS
                                                     Transmitted 11/4/2015 9:53:23 AM
                                                       Accepted 11/5/2015 1:56:48 PM
                                                                       ABEL ACOSTA
                   PD No.                                                      CLERK

             IN THE COURT OF CRIMINAL APPEALS
                      AT AUSTIN, TEXAS


ISRAEL JOE IBARRA,               §
         Appellant               §
                                 §    CAUSE NO. 11-13-00325-CR
V.                               §
                                 §    TRIAL COURT NO. 6680
THE STATE OF TEXAS,              §
        Appellee                 §


            PETITION FOR DISCRETIONARY REVEW
           FROM THE ELEVENTH COURT OF APPEALS
                    AT EASTLAND, TEXAS


            CHIEF JUSTICE JIM WRIGHT, PRESIDING


            PETITION OF PETITIONER (APPELLANT)


                                 COPELAND LAW FIRM
                                 PO Box 399
                                 Cedar Park, Texas 78613
                                 Tel. 512-897-8196
                                 Fax. 512-215-8144

                                 TIM COPELAND
                                 State Bar No. 04801500
                                 Attorney for Appellant
      November 5, 2015
                              TABLE OF CONTENTS


                                                                             Page

Table of Contents

Index of Authorities

I.     Identity of Trial Court and Parties                                   1

II.    Statement Regarding Oral Argument                                     2

III.   Statement of the Case                                                 3

IV.    Statement of the Procedural History of the Case                       4

V.     Ground for Review                                                     4
               The Court of Appeals erred when, after its review of
           the facts concerning Mr. Ibarra’s motion to suppress, it
           determined that there was sufficient evidence supporting
           the trial court’s decision first, that a confidential informant
           was reliable and, second, that under the totality of
           circumstances, based upon corroboration of the
           informant’s tip, an officer had reasonable suspicion to stop
           and detain a vehicle in which Mr. Ibarra was a passenger.
           See Smith v. State, 58 S.W.3d 784 (Tex. App. – Houston
           [14th Dist.] 2001, pet. ref’d, and Brother v. State, 166
           S.W.3d 255, 259, n.5 (Tex. Crim. App. 2005); R.R. 2
           (transcript of Ibarra’s motion to suppress hearing, pp. 10-
           20).

VI.    Summary of the Argument                                               4

VII. Background and Statement of Pertinent Evidence                          5

VIII. Court of Appeals’ Decision                                             8


                                            i
                    TABLE OF CONTENTS, continued

                                                                    Page

IX.   Argument                                                      9

      A.   The Court of Appeals deviated from the norm in such
           a manner that a review of its opinion is required.

                 (1) The information from an informant on
           which Sheriff Stephens partially based his reasonable
           suspicion to stop a vehicle in which Ibarra was a
           passenger was, contrary to the Court of Appeals’
           holding, unreliable.

                       (a) There was no evidence that the
           informant’s prior collaboration with the Sheriff
           involved criminal matters, or whether the information
           he had previously provided had resulted in criminal
           prosecutions, much less felony convictions.

                        (b) The informant did not provide any
           information concerning specifics of illegal drug
           activities or his familiarity with drug usage,
           manufacture or sale which would justify reliance on
           his information concerning same.

                 (2) The Sheriff failed to corroborate the
           information provided by his informant, in any
           meaningful way so the Court of Appeals could hardly
           rely on that corroboration to justify “reasonable
           suspicion” under a totality of the circumstances test.

                          (a) The Sheriff’s “surveillance” of
           suspected     illegal drug activity was woefully
           inadequate.



                                       i
                    TABLE OF CONTENTS, continued

                                                                  Page

                       (b) The surveillance was did not
                 corroborate any of the informant’s information
                 in any meaningful way such that a reviewing
                 court could find under a totality of the
                 circumstances test, that the Sheriff had acted
                 upon reasonable suspicion in stopping the
                 suspect’s car.

X.    Prayer                                                      12

XI.   Certificate of Service and Compliance with Rule 9           13




                                   3
                          INDEX OF AUTHORITIES

                                                                        Page

                      United States Supreme Court cases

Alabama v. White                                                        12
     496 U.S. 325 (1990)

Terry v. Ohio                                                           9
      392 U.S. 1 (1968)

United States v. Cortez                                                 8
      449 U.S. 411 (1981)


                    Texas Courts of Criminal Appeal cases

Arguellez v. State                                                      8
     955 S.W.2d 85 (Tex. Crim. App. 1997)

Brother v. State                                                        4, 12
     166 S.W.3d 255 n.5 (Tex. Crim. App. 2005)


                          Texas Courts of Appeal cases

Smith v. State                                                          4,8
     58 S.W.3d 784 (Tex. App. – Houston [14th Dist.] 2001, pet. ref’d

                                     Statutes

TEX. HEALTH & SAFETY §481.112(a), (d)(West 2010)                        3


                            United States Constitution

Fourth Amendment                                                        8,12

                                      4
                I. IDENTITY OF TRIAL COURT AND PARTIES

TO THE COURT OF CRIMINAL APPEALS:

       NOW COMES Israel Joe Ibarra, appellant, who would show the Court that

the trial court and interested parties herein are as follows:

       HON. SHANE HADAWAY, Judge Presiding, 39th Judicial District Court,

Haskell County, Texas.

       ISRAEL JOE IBARRA, appellant, TDCJ No. 01539473, Beto Unit, 1391

FM 3328, Tennessee Colony, Texas 75880.

       LYNN INGALSBE, trial attorney for appellant, 11065 S. 3rd St., Abilene,

Texas 79602.

       TIM COPELAND, appellate attorney for appellant, P.O. Box 399, Cedar

Park, Texas 78613.

       MICHAEL FOUTS, Haskell County District Attorney, trial and appellate

attorney for appellee, the State of Texas, P.O. Box 193, Haskell, Texas 79521.




Petition for Discretionary Review                                                1
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
              II. STATEMENT REGARDING ORAL ARGUMENT

       Appellant believes the clarity of the issue in this case is such that oral

argument would add nothing.




Petition for Discretionary Review                                                   2
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
                           PD No.

                    IN THE COURT OF CRIMINAL APPEALS
                             AT AUSTIN, TEXAS


ISRAEL JOE IBARRA,                           §
         Appellant                           §
                                             §      CAUSE NO. 11-13-00325-CR
V.                                           §
                                             §      TRIAL COURT NO. 6680
THE STATE OF TEXAS,                          §
        Appellee                             §


                  PETITION FOR DISCRETIONARY REVEW
                 FROM THE ELEVENTH COURT OF APPEALS
                          AT EASTLAND, TEXAS


                  CHIEF JUSTICE JIM WRIGHT, PRESIDING



TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:

                          III. STATEMENT OF THE CASE

       A jury found Israel Joe Ibarra guilty of possession of more than four grams

but less than 200 grams of methamphetamine with intent to deliver. See TEX.

HEALTH & SAFETY §481.112(a), (d)(West 2010). The trial court assessed his

punishment at confinement for life in the Institutional Division of the Texas

Department of Criminal Justice for a term of sixty (60) years.


Petition for Discretionary Review                                                3
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
      IV. STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

       The Eleventh Court of Appeals at Eastland, Texas, by Opinion dated October

29, 2015, affirmed Ibarra’s conviction and sentence. A copy of that opinion is hereto

attached as if fully incorporated herein at length.

                              V. GROUND FOR REVIEW

       The Court of Appeals erred when, after its review of the facts concerning Mr.

Ibarra’s motion to suppress, it determined that there was sufficient evidence

supporting the trial court’s decision first, that a confidential informant was reliable

and, second, that under the totality of circumstances, based upon corroboration of

the informant’s tip, an officer had reasonable suspicion to stop and detain a vehicle

in which Mr. Ibarra was a passenger. See Smith v. State, 58 S.W.3d 784 (Tex. App.

– Houston [14th Dist.] 2001, pet. ref’d, and Brother v. State, 166 S.W.3d 255, 259,

n.5 (Tex. Crim. App. 2005); R.R. 2 (transcript of Ibarra’s motion to suppress hearing,

pp. 10-20).

                       VI. SUMMARY OF THE ARGUMENT

       When Sheriff Stephens stopped a vehicle in which Ibarra was a passenger, he

did so lacking reasonable suspicion. Stephens testified that his stop was based solely

on information provided by a confidential informant. Stephens did not, for example,

observe any traffic violations; neither did he corroborate the informant’s initial tip

in any meaningful way. Because the informant was not shown to be reliable to any
Petition for Discretionary Review                                                    4
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
degree of reasonable certainty, and because Stephens’ corroboration was inadequate,

under the totality of the circumstances, it follows that the stop was not justified. The

trial court erred in holding otherwise after Ibarra’s hearing on a motion to suppress.

The Court of Appeals then compounded that error when it upheld the trial court’s

decision though there was a dearth of any meaningful testimony cited by the

appellate court in its review.

  VII. BACKGROUND AND STATEMENT OF PERTINENT EVIDENCE

       In a suppression hearing held prior to trial, the trial court heard evidence that

about a month prior to Ibarra’s arrest a confidential informant alerted then Sheriff

David Haliburton that Jason Mendez was involved in narcotics trafficking in Haskell

County. Haliburton passed that information to then Deputy Sheriff Winston

Stephens who began sporadic surveillance of a house where Mendez stayed with his

in-laws. (R.R. 2, pp. 11-12). Stephens said that his “surveillance” consisted of

“some drive-ups” to Mendez’s house, and he also testified that he “(sat) off at a

distance somewhere and watch(ed) with binoculars.” (R.R. 2, p. 12). Stephens

testified that he was looking for “activities of what a normal drug house would be.

You know, any vehicles leaving there, try to get a traffic stop in them.” (R.R. 2, p.

12). He said that he “saw activity consistent with what his experience would be of

narcotics” and that there was some “traffic going in and out.” (R.R. 2, p. 13).

Vehicles would “pull up, stay for a little while and leave occasionally,” he said. (The

Petition for Discretionary Review                                                     5
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
activity) wasn’t “24/7.” (R.R. 2, p. 13). Stephens offered that he never got any

concrete information based on his surveillance and, notably, he never mentioned that

Ibarra was ever observed during the surveillance. (R.R. 2, p. 13). Stephens also

testified that during the time that he had Mendez under surveillance he heard from

his own informant that Mendez was dealing drugs. (R.R. 2, p. 13). Stephens testified

that he had known his informant for over ten years and that he had provided reliable

information regarding criminal activity in the past. (R.R. 2, p. 14). Stephens sent

him to make a “buy” from Mendez on December 27, 2012, but the buy fell through

when the informant reported back to Stephens that Mendez was “out of dope.” (R.R.

2, p. 15). The informant told Stephens that Mendez had to go to Abilene to “re-up”

(or get more dope) before he could make a buy. (R.R. 2, p. 15). He also told

Stephens that Mendez was leaving about 8 o’clock that night for Abilene to get more

narcotics to sell but that he would return to Haskell about 9:00 or 9:30. He also told

Stephens that Mendez did not have a driver’s license. From surveillance of his

house, Stephens said that he knew Mendez drove a small, silver Oldsmobile so he

waited in his patrol car south of Haskell on Hwy. 277 that night for Mendez to make

the trip. (R.R. 2, p. 16). Stephens said that he saw Mendez’s pass him heading

toward Stamford and Abilene, but he did not follow. (R.R. 2, p. 16). Instead, he

said, he waited for Mendez to return around 9:00 or 9:30 that night, the time his

informant had told him Mendez would be back. Stephens said that he waited until

Petition for Discretionary Review                                                   6
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
about 9:15, and then he went to grab a sandwich. Ten to fifteen minutes later, when

Stephens drove by Mendez’s house, Mendez’s car was already back at the residence.

(R.R. 2, p. 17). Stephens said that he sent his informant back to Mendez for another

dope buy the following day, December 28, but, again, the informant returned empty–

handed. He told Stephens that Mendez had, again, “run out of dope.” (R.R. 2, p.

18). However, his informant told him, Mendez had just left his home for Abilene

again to get more dope, and, again, according to the informant, he would be back

about 9:00 or 9:30 p. m.. (R.R. 2, p. 18). Stephens again set up station south of

Haskell to intercept Mendez on his return. His informant told him the drugs would

either be on Mendez or in the vehicle, Stephens testified, but he did not know who

was with Mendez when he left for Abilene other than his girlfriend, Santana

Guzman. (R.R. 2, p. 18). Stephens said that around 9:30 he saw the car Mendez

was driving coming north on Hwy. 277 from the direction of Stamford and Abilene,

and he fell in behind the vehicle. He ran the car’s registration which came back to

Adam Mendez, Jason’s brother. (R.R. 2, p. 18). Stephens said that he could not tell

who was driving the car or even who was in it when it passed him, but he engaged

his overhead red and blue lights to pull the vehicle over. After it stopped, Stephens

said that he identified the driver, Jason Mendez, who admitted that he did not have

a license. (R.R. 2, pp. 20-21). Santana Guzman was the vehicle’s front passenger;

Ibarra was in the right back passenger’s seat, and Essie Alvarez was seated behind

Petition for Discretionary Review                                                  7
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
the driver. (R.R. 2, p. 21). After everyone was removed from the car, Stephens

asked Mendez if he had any narcotics which Mendez denied, and then Mendez gave

Stephens permission to search the car. (R.R. 4, p. 43). When the search revealed

illegal narcotics but no one in the car claimed ownership, Stephens said that he

arrested everybody in the vehicle. (R.R. 2, pp. 23-24).

       Stephens testified that he stopped Mendez’s vehicle solely on the information

provided by his confidential informant who had told him, “they would be hauling

drugs back into Haskell.” (R.R. 2, p. 32). Stephens said that he had not known who

would be in the vehicle when he stopped it, and he had not seen any traffic violations

to justify a stop. (R.R. 2, p. 33). He testified that the vehicle had been stopped,

purely and simply, on the basis of what his informant had told him. (R.R. 2, p. 35).

                      VIII. COURT OF APPEALS’ DECISION

       The Court of Appeals employed the correct standards for review of the trial

court’s decision denying Ibarra’s motion to suppress evidence obtained in violation

of the Fourth Amendment. See e.g., Slip op. at 9 citing Arguellez v. State, 955

S.W.2d 85, 89 (Tex. Crim. App. 1997). Similarly, in its analysis of the underlying

circumstances of the search, the Court of Appeals correctly stated the basis for

appellate assessment of an informant’s reliability as well as the requisite

corroboration needed in cases such as these. Slip op. at 11, citing Smith v. State, 58

S.W.3d 784, 787 (Tex. App. – Houston [14th Dist.] 2001, pet. ref’d) citing United
Petition for Discretionary Review                                                   8
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
States v. Cortez, 449 U.S. 411, 417 (1981)) and Brother v. State, 166 S.W. 3d

255,259 n. 5 (Tex. Crim. App. 2005). Finally, the Court of Appeals correctly noted

that under Terry1and its progeny, for such a stop to be justified, the officer must have

reasonable suspicion under the totality of the circumstances to justify the stop. It

correctly noted that reasonable suspicion exists only if the officer has specific,

articulable facts that, when combined with their rational inferences, would lead the

officer to reasonably conclude that a person is, has been, or will soon be engaged in

criminal activity. Slip op. at 10.

                                       IX. ARGUMENT

          Here, Ibarra takes issue, not with the jurisprudence underlying the rational for

the Court of Appeals’ decision, but with that court’s application of the established

case law in reaching its decision. It is in the review of the evidence adduced from

Ibarra’s motion to suppress hearing where the Court of Appeals deviated from the

norm in such a manner that a review of its opinion is required.

          The Court of Appeals noted, in determining that the trial court correctly ruled

that Sheriff Stephens had a reliable informant, that the Sheriff had known the

informant for twelve years. It also noted that the informant had given the Sheriff

“reliable information related to criminal activity in the past.” (Slip op. at 11).



1
    Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

Petition for Discretionary Review                                                      9
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
However, that was the sum total of the evidence adduced as the basis for the Sheriff’s

reliance upon his informant. There was no evidence cited, for example, that the

Sheriff had ever relied on his informant in the past to justify criminal arrest; certainly

no evidence that any information the Sheriff had ever received from the informant

had ever resulted in felony convictions. In fact, Sheriff Stephens did not testify what

kind of “criminal” information the informant had provided in the past, and he did

not testify that any information his informant had provided in the past had anything

to do with illegal narcotics trafficking.

       While Stephens said his informant told him Mendez (the driver of the vehicle

in which Ibarra was a passenger when it was stopped) was dealing drugs, the

informant did not provide any details supporting that accusation. Moreover, while

Stephens testified that he had sent his informant into the home to buy narcotics from

Mendez, the informant did not tell Stephens how, when or where he had witnessed

Mendez dealing drugs nor did he offer any other evidence that supported his

accusations that Mendez was a drug dealer. Neither does the record reflect that the

informant had any knowledge about methamphetamine in general or even such

familiarity with the drug that he would recognize it if he saw it. Stephens did not

testify that his informant observed anyone in the home in possession of any illegal

narcotic. Neither did the informant identify any participants of Mendez’s illegal

drug operation, and he certainly did not say that Ibarra was part of any such

Petition for Discretionary Review                                                      10
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
operation. The record is also silent on whether the informant named anyone else in

the home as a customer for the narcotic, and, finally, the informant did not observe

any illegal drug use in the home. In sum, in the Court of Appeals’ review supporting

the trial court’s findings, the Court fails to cite the kind of facts necessary to affirm

that finding because those facts were absent from the record reviewed. (See Slip op.

at 11).

          Ignoring the Court of Appeals’ conclusion supporting the trial court’s finding

that the informant’s tip was reliable, the Court’s review of the evidence concerning

the Sheriff’s efforts to corroborate the tip was also inadequate. Evidence relied upon

by the trial court and, in turn, by the appellate court in its review fell woefully short

of that needed for corroboration. By his own testimony, the Sheriff’s efforts to

corroborate the tip consisted of sporadic and cursory “surveillance” of the house

where Mendez lived. (Sheriff Stephens said his surveillance basically consisted of

watching the house from a distance a few times with binoculars). (R.R. 2, p. 12).

Stephens said he observed “traffic going in and out” of the house, whatever that

means. But, Stephens nevertheless concluded from his observations that the traffic

was consistent with “what a normal drug house would be” without providing any

details to support that conclusion. (R.R. 2, pp. 12-13). He admitted, for example,

that he never got any concrete information based on his surveillance except for the

type of car Mendez usually drove (which anyone familiar with Mendez in a small

Petition for Discretionary Review                                                     11
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
town such as Haskell, including an informant, could have known from even casual

observation). (R.R. 2, p.13). The Court of Appeals’ opinion also relates, in

supporting the trial court’s determination, that the informant also provided testimony

on Mendez’s southbound travel routes and times when Mendez left his home to

secure illegal drugs to sell. Again, that testimony, in context, does little to

corroborate the informant’s initial tip. Evidence showed that Mendez’s had family

members who lived south of the home Stephens had surveilled so there was another

reasonable explanation for his southbound travel. Despite such inadequacies in the

record the Court of Appeals determined, in its review, that the tip was nevertheless

corroborated.

       As correctly noted by the Court of Appeals at p. 12 of its opinion, “…

corroboration refers to whether the police officer, in light of the circumstances,

confirms enough facts to reasonably conclude that the information given to him is

reliable and temporary detention is thus justified.” Brother v. State, 166 SW.3d 255,

259, n.5 (Tex. Crim. App. – 2005) (citing Alabama v. White, 496 U.S. 325, 330-31

(1990)). Here, the trial court erred in finding that the informant was reliable or that

there were sufficient facts to corroborate the unreliable informant’s tip. The Court

of Appeals in its review of that decision then compounds that error when it finds

support for the trial court despite the dearth of justifiable evidence to do so. In so

doing, the Court of Appeals joins the trial court in its erroneous application of the

Petition for Discretionary Review                                                   12
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
pertinent case law employed to establish reliability of informants and sufficiency of

requisite corroboration of their tips. It is the Court of Appeals deviation from the

norm in its review of the trial court’s decision that justifies this petition as well as

the reversal of the appellate opinion itself.

                                          X. PRAYER

       WHEREFORE, Mr. Ibarra prays that this Court reverse the judgment of the

appellate court and render a judgment of acquittal for violation of Ibarra’s Fourth

Amendment guarantees, or, in the alternative, remand for such other and further

relief to which he is entitled.


                                            COPELAND LAW FIRM
                                            P.O. Box 399
                                            Cedar Park, TX 78613
                                            Mobil/Text: 512.897.8196
                                            Fax: 512.215.8114
                                            Email: tcopeland14@yahoo.com

                                            By:   /s/ Tim Copeland
                                                  Tim Copeland
                                                  State Bar No. 04801500
                                                  Attorney for Appellant


                      XI. CERTIFICATE OF SERVICE AND OF
                           COMPLIANCE WITH RULE 9

      This is to certify that on November 3, 2015, a true and correct copy of the
above and foregoing document was served on the State Prosecuting Attorney, PO
Box 12405, Capitol Station, Austin, TX 78711, and on Michael Fouts, Haskell
County District Attorney P.O. Box 193, Haskell, Texas 79521 in accordance with
the Texas Rules of Appellate Procedure, and that the Petition for Discretionary
Petition for Discretionary Review                                                    13
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
Review is in compliance with Rule 9 of the Texas Rules of Appellate Procedure and
that portion which must be included under Rule 9.4(i)(1) contains 2846 words.


                                           /s/ Tim Copeland
                                               Tim Copeland




Petition for Discretionary Review                                              14
Israel Joe Ibarra v. The State of Texas
No. 11-13-00325-CR
                               11TH COURT OF APPEALS
                                  EASTLAND, TEXAS
                                     JUDGMENT

Israel Joe Iba1Ta,                             * From the 39th District
                                                 Court of Haskell County,
                                                 Trial Court No. 6680.

Vs. No. 11-13-00325-CR                         * October 29, 2015
The State of Texas,                            * Opinion by Bailey, J.
                                                 (Panel consists of: Wright, C.J.,
                                                 Willson, J., and Bailey, J.)

      This court has inspected the record in this cause and concludes that
there is no e1Tor in the judgment below. Therefore, in accordance with this
court's opinion, the judgment of the trial court is in all things affirmed.
Opinion filed October 29, 2015




                                        In The

                Eleventh Court of Appeals, .
                                 No. 11-13-00325-CR


                     ISRAEL JOE IBARRA, Appellant
                                          v.
                     THE STATE OF TEXAS, Appellee .


                     On Appeal from the 39th District Court
                                 Haskell County, Texas
                            Trial Court Cause No. 6680


                                     O P IN I O N
      The jury convicted Israel Joe Ibarra of possession of more than four grams but
less than 200 grams of methamphetamine with intent to deliver. See TEX. HEALTH &
SAFETY CODE ANN. § 481.112(a), (d) (West 2010). The trial court assessed
Appellant's punishment at confinement in the Institutional Division of the Texas
Department of Criminal Justice for a term of sixty years. Appellant challenges his
conviction in three issues. We affirm.
                                           Background Facts
      Haskell County Sheriff Winston Stephens1 testified at both the suppression
hearing and during trial that he received information from his predecessor,
Sheriff David Halliburton, that a confidential informant told Sheriff Halliburton that
Jason Mendez was dealing drugs in Haskell County. In response to Sheriff
Halliburton's repo1i, Sheriff Stephens set up surveillance on Mendez's house for
approximately a month. Sheriff Stephens then received information from his own
confidential informant that Mendez was dealing drugs. Sheriff Stephens testified
that he had known his confidential informant for approximately twelve years. The
confidential informant had given Sheriff Stephens reliable information related to
criminal activity in the past. Sheriff Stephens also testified· that the confidential
info1mant had never given him information that was not reliable.
      At Sheriff Stephens's request, the confidential informant attempted to buy
drugs from Mendez on December 27, 2012, but Mendez was out of drugs that day.
The confidential informant told Sheriff Stephens that Mendez would be going to
Abilene that evening to "re-up his dope." The confidential informant said that
Mendez would be traveling northbound in a silver car with a Dallas Cowboys star
on the back windshield.
      Sheriff Stephens observed Mendez leaving for Abilene at the time that the
confidential informant told him that Mendez would be leaving Haskell. Sheriff
Stephens attempted to intercept Mendez on his return to Haskell on December 27,
but he missed seeing Mendez's vehicle return that evening. Sheriff Stephens
testified that the confidential informant told him that Mendez would be leaving for
Abilene to purchase more drugs the next evening (December 28) and would return
to Haskell between 9:00 p.m. and 9:30 p.m. The


      1Sheriff   Stephens was the chief deputy at the time of the incident.

                                                      2
confidential informant also told Sheriff Stephens that Santana Guzman would be in
the vehicle with Mendez.
         On the evening of December 28, Sheriff Stephens saw a silver Oldsmobile
with a star on the back driving toward Haskell. Sheriff Stephens started driving
behind the car. A check of the vehicle's registration information indicated that the
car belonged to Mendez's brother. Sheriff Stephens activated his emergency lights
and pulled the car over. Mendez was driving, Guzman was in the front passenger
seat, Essie Alvarez was in the backseat behind the driver, and Appellant was in the
backseat behind Guzman. Sheriff Stephens instructed Mendez to exit the vehicle
and asked for his driver's license. Mendez replied that he did not have his license.
Sheriff Stephens asked for permission to search the vehicle and Mendez
consented. All of the occupants then exited the vehicle.

         Sheriff Stephens, along with another officer, searched the vehicle. Sheriff
Stephens testified that the car smelled of burnt marihuana. Inside the vehicle, the
officers found an open box that contained a small amount of marihuana, two
marihuana pipes with marihuana residue, and rolling papers. They also found digital
scales on the front floorboard. The officers found, on the front driver's side above
the door, a small scooper that is used to bag drugs.
         Sheriff Stephens spoke with Guzman separately from the group. Guzman
admitted that she had contraband on her person and retrieved a small bag from
inside
.her pants. Inside the bag were several baggies, a small blue flashlight, and a small
container of marihuana. Inside the baggies was an off-white, crystal-type substance.
This substance was later tested and determined to be a total of 1.01 grams of
methamphetamine.
         All of the occupants were arrested for drug possession. Appellant did not have
any identification on him, and he gave a false name when he was arrested. The car
was impounded and searched again the next day.             In the subsequent search;


                                                                                          .   I
Sheriff Stephens found a small, soft-sided bag wedged between the backseat and the
body of the vehicle on the driver's side. Sheriff Stephens also found another portion
of a marihuana clip. Inside the soft-sided bag were Ziploc baggies that contained
more off-white, crystal-type substance. The contents were tested and determined to
be a total of 3.09 grams of methamphetamine.
                                      Analysis
      We first address Appellant's sufficiency issues. Appellant challenges the
sufficiency of the evidence in his second and third issues. We review sufficiency of
the evidence issues under the standard of review set forth in Jackson v. Virginia, 443
U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010);
Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App. Eastland 2010, pet. ref'd).
Under the Jackson standard, we review all of the evidence in the light most favorable
to the verdict and determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a
sufficiency review, we consider all the evidence admitted at trial, .including pieces
of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). We defer to the factfinder's role as the sole judge of the witnesses'
credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at
899. This standard accounts for the factfinder' s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d. at 778. When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the prosecution and defer to that determination. Jackson, 443
U.S. at 326; Clayton, 235 S.W.3d at 778.
       In his second issue, Appellant asserts that the evidence was insufficient to
supp01i his conviction for possession with intent to deliver any of the
methamphetamine. He contends that the State only showed that he was in close
proximity to the drugs because they were located in a car in which he was a
passenger. He also asserts that only an accomplice witness testified that he knew
about the methamphetamine and its purpose. In this regard, Appellant contends that
the accomplice's testimony was not corroborated by any independent evidence. In
his third issue, Appellant contends that the evidence was insufficient to prove the
amount of methamphetamine for which he was convicted. Appellant challenges the
amount the State linked him to and argues that the evidence proven by the State
amounts to less than four grams. Specifically, he asserts that there is insufficient
evidence linking him to the methamphetamine recovered from Guzman's pants.
      When, as in this case, the jury's verdict could have been based on the
testimony of an accomplice, the sufficiency review must incorporate the accomplice
witness rule stated in Article 38.14 of the Code of Criminal Procedure. TEX. CODE
CRIM. PROC. ANN. art. 38.14 (West 2005). In order to support a conviction based
upon the testimony of an accomplice, there must be corroborating evidence that
tends to connect the accused with the offense. Id.; Malone v. State, 253 S.W.3d 253,
257 (Tex. Crim. App. 2008). In reviewing the sufficiency of the corroborating
evidence, we eliminate the accomplice testimony from consideration and focus on ·
the remaining portions of the record to determine whether there is any evidence that
                       .   -                                    .   )   '

tends to connect the defendant with the commission of the crime. Solomon v. State,
49 S.W.3d 356, 361 (Tex. Crim. App. 2001); Cathey v. State, 992 S.W.2d 460, 462-
63 (Tex. Crim. App. 1999).         The corroborating evidence may be direct or
circumstantial and need not be sufficient by itself to establish the defendant's guilt; ·
it is sufficient if the combined weight of the non-accomplice evidence tends to
connect the defendant to the offense. Solomon, 49 S.W.3d at 361; Gosch v. State,
829 S.W.2d 775, 777 (Tex. Crim. App. 1991). We review the c01Toborating
evidence in the light most favorable to the verdict. Taylor v. State, 328 S.W.3d'574,
578 (Tex. App.-Eastland 2010, pet. ref d). Once corroborated, testimony of an
accomplice may be considered by the jury in the· same manner as any other
competent evidence. See Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App.
2002). ·
      Non-accomplice testimony was introduced showing that Appellant was in the
back passenger seat near the location of the methamphetamine, that the car smelled
of burnt marihuana, that marihuana was in plain view in the vehicle, that digital
scales and rolling papers were also found in plain view, that the vehicle matched the
description given to Sheriff Stephens by the confidential informant, and that the
confidential informant told Sheriff Stephens that the driver of the vehicle was
bringing chugs back from Abilene. In this case, the jury could have rationally found
that the corroborating evidence tended to connect Appellant to the possession of the
methamphetamine. Malone, 253 S.W.3d at 258-59; Woodruff v. State, No. 11-09-
00171-CR, 2011 WL 2671926, at *2 (Tex. App.-Eastland July 7, 2011, no pet.)
(mem. op., not designated for publication). Therefore, we consider the accomplice
witness testimony in conducting our review of the sufficiency of the evidence.
      In cases involving unlawful possession of a controlled substance, the State
must prove that the accused exercised care, custody, control, or management over
the substance and that the accused knew that the matter possessed was contraband.
Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995); Martin v. State, 753
S.W.2d 384 (Tex. Crim. App. 1988). When the accused is not shown to have had
exclusive possession of the place where the contraband· was found, the evidence
must link the accused to the contraband and establish that the accused's connection
with the chug was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161-62
(Tex. Crim. App. 2006); Pollan v. State, 612 S.W.2d 594 (Tex. Crim. App. [Panel

                                         6
Op.] 1981). Alvarez, an accomplice, testified .that Appellant handed her a small bag
that contained a portion of the methamphetamine and told her to "get lid of it."
Alvarez then stuffed the bag behind her in the backseat of the vehicle. From this
evidence, the jury could have determined beyond a reasonable doubt that
Appellant   exercised    care,   custody,       control,   or   management   over   the
methamphetamine found in the bag that Alvarez stuffed behind her in the backseat
of the vehicle and that he knew the substance was contraband. See Woodruff, 2011
WL 2671926, at *2.
      We next address the methamphetamine found on Guzman. We consider
several non-exclusive factors when determining whether there are affirmative links
between the accused and the controlled substance: (1) the accused's presence when
the search was executed; (2) whether the contraband was in plain view; (3) the
accused's proximity to and the accessibility of the contraband; (4) whether the
accused was under the influence of a controlled substance when he was        arrested;
(5) whether the accused possessed other contraband when he was arrested;
(6) whether the accused made incriminating statements; (7) whether the accused
attempted to flee; (8) whether he made furtive gestures; (9) whether there was an
odor of contraband; (10) whether other contraband or drug paraphernalia was
present; (11) whether the accused owned or had the right to possess the place where
                          )                                      .

the drugs were found; (12) whether the place the drugs were found was enclosed;
(13) whether the accused was found with a large amount of cash; and (14) whether
the conduct of the accused indicated a consciousness of guilt. Evans, 202 S.W.3d at
162 n.12.
      Guzman admitted that she had contraband on her person and retrieved a small
bag from inside her pants. Inside the bag were several baggies, a small blue
flashlight, and a small container of marijuana. The back to the flashlight was found
in the back floorboard, near where Appellant had been sitting. Furthermore, the


                                            7
baggies retrieved from Guzman's person were similar in make and size to the
baggies recovered from the bag stuffed in the backseat of the vehicle.
       Intent to deliver may be proven by circumstantial evidence. Coutts have
considered several factors in determining intent, including the quantity of drugs the
defendant possessed, the manner of packaging of the drugs, and the presence or
absence of drug paraphernalia for use or sale. See Brown v. State, 243 S.W.3d 141,
149-50 (Tex. App.-Eastland 2007, pet. ref d); Jordan v. State, 139 S.W.3d 723,
726 (Tex. App.-Fort Worth 2004, no pet.). Here, Appellant was present when the
drugs were found on Guzman, the packaging of the chugs found in the backseat was
similar to the drugs found on Guzman, and there were baggies and scales in the car
(which are indicative of intent to deliver). From this evidence, the jury could have
determined beyond a reasonable doubt that Appellant exercised care, custody,
control, or management over the methamphetamine found on Guzman's person and
that he knew the substance was contraband.
       In conside1ing the factors listed above, we find that the evidence shows that
Appellant was present when the search was executed, that he was in close proximity
to and had access to the methamphetamine, that the place in which the drugs were
found was enclosed, and that Appellant gave a false name when he was arrested.
See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (giving false
identification to a police officer indicates a consciousness of guilt). The jury, as the
trier of fact, was the sole judge of the credibility of the witnesses and of the weight
to be given their testimony. CRIM. PROC. art. 36.13 (West 2007), 38.04 (West 1979).
As such, the jury was entitled to accept or reject any oral) of the testimony of any
witness. Adelman v. State, 828 S.W.2d 418, 421 (Tex. C1inl. App. 1992). In
addition, the jury was entitled to draw reasonable inferences from the evidence.
Jackson, 443 U.S. at 319. We have reviewed the evidence in the light most favorable
to the verdict, and we hold that a rational trier of fact could have found beyond a

                                           8
reasonable . doubt that Appellant intentionally or knowingly possessed
methamphetamine in an amount of more than four grams. We ovenrule Appellant's
second and third issues.
       In his first issue, Appellant argues that the trial court erred when it denied his
motion to suppress. Specifically, Appellant challenges Sheriff Stephens's basis for
initiating the traffic stop. He contends that the warrantless stop and subsequent ·
search of the vehicle was not based on reasonable suspicion because the
"confidential informant's information which led to the stop and search was not
reliable." Appellant also contends that Sheriff Stephens did not testify as to any
details that support the informant's information that Mendez was "dealing drugs."
      A trial court's denial of a motion to suppress is reviewed for an abuse of
discretion. Arguellez v. State, 409 S.W.3d 657, 662 (Tex. Crim. App. 2013). We
review a trial court's ruling under a bifurcated standard of review. Amador v. State,
221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89
(Tex. Crim. App. 1997). Almost complete deference is given to its determination of
historical facts, especially if those facts are based on an assessment of credibility
and demeanor. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim. App. 2010); Amador,
221 S.W.3d at 673 (citing Guzman, 955 S.W.2d at 89). We review de novo a trial
court's application of the law to the facts. Wade v. State, 422 S.W.3d 661, 667 (Tex.
Crim. App. 2013); Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App 2010).
Regardless of whether the trial court granted or denied the motion, appellate courts
view the evidence in the light most favorable to the ruling. Wade, 422 S.W.3d at
666; State v. Woodard, 341 S.W.3d 404, 410 (Tex. Crim. App. 2011). We will
uphold the trial court's ruling if it is reasonably grounded in the record and correct
on any theory of law applicable to the case. Wade, 422 S.W.3d at 667; Valtierra,
310 S.W.3d at 447-48. When the trial court does not issue findings of fact, we imply


                                           9
findings that support the trial court's ruling if the evidence supports those findings.
State   v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006).
        There are three distinct types of police-citizen interactions: (I) consensual
encounters that do not implicate the Fourth Amendment; (2) investigative detentions
that are Fourth Amendment seizures of limited duration and scope, which must be.
supp1ied by reasonable suspicion of criminal activity; and (3) arrests that are
reasonable only if supported by probable cause. Wade, 422             S.W.3d     at   667;
Woodard, 341 S.W.3d at 410-11 (citing Florida v. Bostick, 501 U.S. 429, 434
(1991); Terry v. Ohio, 392 U.S. 1, 30-31 (1968); Gerstein v. Pugh, 420 U.S. 103,
111-12 (1975)). A detention occurs when a reasonable person, taking into account
all circumstances, feels they are not at liberty to ignore the police and go about their
business. Kaupp v. Texas, 538 U.S. 626, 629 (2003) (quoting Bostick, 501 U.S. at
437). There is no dispute that Sheriff Stephens conducted an investigative detention
for purposes of the Fourth Amendment when he stopped Mendez's car.
        A police officer may briefly detain a person to investigate possible criminal
activity, even if there is no probable cause, if the officer has reasonable suspicion to
believe there is possible criminal activity. Terry, 392 U.S. at 22; Ford v. State,
158 S.W.3d 488, 492 (Tex. Crim. App. 2005). The stop must be justified, and the
scope
must be reasonably related to the circumstances justifying the stop. Terry, 392 U.S.
                               •
at 20. A police officer has reasonable suspicion if he has specific, articulable facts
that, when combined with their rational inferences, would ·1ead the officer to
reasonably conclude that a person is, has been, or soon will be engaged in criminal
activity. Ford, 158 S.W.3d at 492. This is an objective standard that ignores the
subjective intent of the officer and looks at whether there is an objective reason for the
detention. Wade, 422 S.W.3d at 668. Courts determine reasonable suspicion under
the totality of the circumstances. Id. Individual circumstances may seem innocent
enough in isolation, but if the circumstances combine to reasonably suggest

                                            IO              ,
                                                          . .
 the imminence of criminal conduct, an investigative detention is justified. Id.; Ford,
 158 S.W:3d at 492.
         Appellant argues that Sheriff Stephens lacked reasonable suspicion when he
 stopped the vehicle. In this regard, Sheriff Stephens testified that he relied solely on
 the information provided by his confidential informant in making the decision to
 stop the vehicle rather than observing any traffic violations. Appellant contends that
 the totality of the circumstances did not rise to a level of reasonable suspicion based
 on the confidential      informant's   report and Sheriff Stephens's independent
 observations. We disagree.
         Sheriff Stephens testified that he acted in response to his confidential
 inf01mant's information about Mendez trafficking drugs. As noted previously, the
 identity   of the confidential      informant   was known        to Sheriff    Stephens.
 Sheriff Stephens testified that he had known the inf01mant for approximately twelve
 years, that he had given Sheriff Stephens reliable information related to criminal ·
 activity in the past, and that he had never given him information that was not reliable.
         In situations involving the police's use of an informant, we consider the
 informant's reliability in analyzing the totality of the circumstances. Smith v. State,
 58 S.W.3d 784, 789 (Tex. App.-Houston [14th Dist.] 2001, pet. ref d) (citing
 United States v. Cortez, 449 U.S. 411, 417 (1981)). "A confidential informant can
 provide the requisite reasonable suspicion to justify an investigative detention so
 long as additional facts are present to demonstrate the informant's reliability." Id .
. at 790. Although an unverified tip might not provide enough support to justify an
 arrest or the issuance of a warrant, 1twill be sufficient to justify an investigative stop
 if it is made by a known informant who has provided information in the past.
 Adams v. Williams, 407 U.S. 143, 146-47 (1972) (explaining that information
 obtained from an informant who has been used before is stronger than an anonymous.
 tip).

                                            11
       The confidential informant contacted Sheriff Stephens and told him that·
Mendez was dealing chugs from his Mendez's mother's residence. Sheriff Stephens
witnessed several vehicles come and go from the residence, and he testified that the
behavior was consistent with "what a normal drug house would be." Additionally,
Sheriff Stephens had worked with the confidential informant in the past several
years, and the confidential informant's information had proven reliable in the past.
This testimony from Sheriff Stephens established the confidential informant's
reliability.
       Furthermore, the confidential informant provided Sheriff Stephens with
information about Mendez leaving for Abilene to purchase more drugs the next
evening and returning around 9:30 p.m. The confidential informant told
Sheriff Stephens that Mendez would be traveling n01ihbound in a silver car.
Sheriff Stephens stopped Mendez in a silver car, traveling northbound from Abilene,
around 9:30 p.m. This testimony served to corroborate the veracity of the
informant's information. Mendez arrived in the vehicle described by the informant,
at the time and place provided by the informant. Corroboration does not mean that
Sheriff Stephens must personally observe the conduct that caused him to
reasonably suspect that a crime is being, has been, or is about to be committed.
Brother v. State, 166 S.W.3d 255, 259 n.5 (Tex. Crim. App. 2005) (citing Adams,
407 U.S. at 147). "Rather, corroboration refers to whether the police officer, in
light of the circumstances, confirms enough facts to reasonably conclude that the
information given to him is reliable and a temporary detention is thus justified." Id.
(citing Alabama v. White, 496 U.S. 325, 330-31 (1990)).
       Based on the totality of the circumstances, we find that Sheriff Stephens had
reasonable suspicion to initiate the traffic stop of the vehicle.    In light of the .
testimony presented during the suppression hearing, which · indicated that the
confidential informant had a track record of providing reliable information in the
                                         12
past, as well as the details of Mendez's conduct that Sheriff Stephens corroborated,
we cannot conclude that the trial court abused its discretion by denying Appellant's
motion to suppress. See Smith, 58 S.W.3d at 790 (explaining that            testimony
regarding confidential informant's        "track   record"   for   "providing credible
information in the past" can provide additional facts needed to establish reasonable
suspicion through confidential informant's tip); see also Adams, 407 U.S. at 144-47
(determining that sufficient indicia of reliability were present when officer knew
informant and when informant had previously given officer reliable information).
We overrule Appellant's first issue:
                                   · This Court's Ruling
       We affirm the judgment of the trial court.




                                                       JOHN M. BAILEY
                                                       JUSTICE


October 29, 2015
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Wilson, J., and Bailey, J.




                                            13
