Affirmed and Opinion filed July 14, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00435-CR

                    MICHAEL SHAWN RYALS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 248th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1402503

                                OPINION


      Appellant Michael Shawn Ryals appeals his conviction for the felony
offense of fraudulent use of identifying information. Following a bench trial, the
trial court found appellant guilty and sentenced him to 40 years in prison. In a
single issue, appellant contends that the trial court committed reversible error by
denying his motion to suppress evidence obtained pursuant to a search warrant,
asserting that the warrant affidavit was insufficient to provide probable cause for
issuance. We affirm.

                                     Background

      On September 23, 2013, Agent Leah Dalton of the Texas Department of
Public Safety (DPS) obtained a warrant to search appellant’s residence. The
warrant authorized a search of the residence for evidence of the crimes of forgery,
fraudulent use or possession of identifying information, tampering with a
governmental record, and delivery or manufacture of a counterfeit instrument. The
search warrant was supported by Dalton’s sworn affidavit, which contained the
details of her investigation of appellant.

      According to her affidavit, on August 6, 2013, Dalton debriefed a
confidential informant who stated appellant was producing counterfeit checks,
credit cards, and driver’s licenses. The informant further indicated appellant was
using these counterfeit instruments to work with other individuals in purchasing
items at retail stores and then returning the items for cash. Dalton verified the
informant’s information regarding appellant’s address and the vehicle appellant
drove. Dalton researched appellant’s criminal history and discovered that he had
prior convictions for organized retail theft, forgery, tampering with a governmental
record, and other felonies.

      On September 10, 2013, an undercover DPS officer and the informant went
to appellant’s residence. During a conversation in the garage, the undercover
officer told appellant he was interested in working with appellant to make money.
Appellant stated that he had been working with two women who cashed fraudulent
checks for him over the last nine months, and also showed the undercover officer
two examples of the fraudulent identifications he was manufacturing. The
undercover officer managed to take a photograph of the two identification cards
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when appellant momentarily went into the house. Appellant then offered to
manufacture a fraudulent Texas driver’s license and some fraudulent checks for the
undercover officer. Appellant said he would “fix the background” of the
photographs on his computer to match driver’s licenses issued by the State.
Additionally, appellant offered to pay the undercover officer one hundred dollars
for each person the officer recruited to participate in appellant’s scheme. A few
days later, appellant retracted his offer and said he no longer wanted to do it. The
undercover officer never received an ID or checks from appellant.

      On September 21, 2013, Dalton recovered trash that had been set outside of
appellant’s home near the street. The trash contained fifteen fraudulent driver’s
licenses and copies of five forged checks.

      A magistrate signed the search warrant on September 23, 2013. The next
day, officers executed the warrant and seized additional evidence from appellant’s
residence.

      Prior to trial, appellant filed a motion to suppress the evidence seized as a
result of the execution of the search warrant, alleging a lack of probable cause. The
trial judge denied the motion to suppress, specifically stating that she did not
consider the information in the affidavit attributed to the informant, but only
considered the information from the undercover officer and the trash collection.

                                  Applicable Law

      Appellate courts utilize a deferential standard of review in reviewing a
magistrate’s decision to issue a warrant, because of the constitutional preference
for searches to be conducted pursuant to a warrant. Swearingen v. State, 143
S.W.3d 808, 810-11 (Tex. Crim. App. 2004) (citing Illinois v. Gates, 462 U.S. 213,
234-37 (1983)). As long as the magistrate had a substantial basis for concluding


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that probable cause existed, we must uphold the magistrate’s determination. State
v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011) (citing Gates, 462 U.S. at
236-37).

      An officer must present a sworn affidavit to a magistrate in order to be
issued a search warrant for items constituting evidence of an offense, or tending to
show a particular person committed an offense. Tex. Code Crim. Proc. art.
18.01(b). The affidavit should set forth sufficient facts to establish probable cause
that (1) a specific offense has been committed, (2) the specifically-described
property or items to be searched for or seized constitute evidence of that offense or
evidence that a particular person committed that offense, and (3) the property or
items constituting such evidence are located at the place to be searched. Id. arts.
18.01(c), 18.02(a)(10). Probable cause to support the issuance of a search warrant
exists when the facts submitted to the magistrate are sufficient to provide a
substantial basis for concluding that a search of the premises would uncover
evidence of wrongdoing. McKissick v. State, 209 S.W.3d 205, 211 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) (citing Gates, 462 U.S. at 236).

      Our review is limited to the affidavit’s four corners in determining whether
probable cause existed to support issuance of a search warrant. See Bonds v. State,
403 S.W.3d 867, 873 (Tex. Crim. App. 2013) (citing State v. Jordan, 342 S.W.3d
565, 569 (Tex. Crim. App. 2011)). The adequacy of the facts in the affidavit for
establishing probable cause depends on the totality of the circumstances. Gates,
462 U.S. at 238-39.

                                      Analysis

      Appellant alleges that Dalton’s affidavit did not provide sufficient evidence
to support the magistrate’s finding of probable cause. Appellant’s argument is
three-fold: there was insufficient indication of the informant’s credibility, the
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information provided by the informant was stale by the time of issuance, and the
single trash collection was insufficient. We hold that Dalton’s affidavit was
sufficient to establish probable cause based on the information provided by the
undercover officer, regardless of the informant’s statements1 or the information
gleaned from the trash collection.2

       The undercover officer’s information, as detailed in the affidavit, provided a
substantial basis that a specific offense had been committed, mentioned specific
items to be searched for or seized that constituted evidence of that offense, and
established that such items were located at the place to be searched. First, the
specific offense of delivery or manufacture of a counterfeit instrument was
implicated when appellant offered to make a fraudulent driver’s license for the
undercover officer to use and told the officer about a scheme involving two women
using fake identifications the appellant produced. See Acosta v. State, 411 S.W.3d
76, 84 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (discussing elements of Tex.

       1
          Appellant asserts that the information provided by the informant was not corroborated
or otherwise shown to be reliable. See Blake v. State, 125 S.W.3d 717, 727 (Tex. App.—Houston
[1st Dist.] 2003, no pet.) (stating that information obtained from an informant must contain some
indicia of reliability or be reasonably corroborated by police before it can be used to justify a
search). Dalton verified appellant’s address and the make and model of the vehicle appellant
drove, and the undercover officer’s conversation with appellant and photographic evidence
corroborated the information regarding appellant’s manufacturing of fraudulent identifications
and checks. See Gates, 462 U.S. at 244-46 (holding that an anonymous letter could be relied on
due to corroboration of parts of the letter through other sources of information that provided a
substantial basis for credibility).
       2
          Appellant relies heavily on Serrano v. State in arguing that Dalton’s one-time trash
collection was insufficient to prove probable cause. 123 S.W.3d 53, 62 (Tex. App.—Austin
2003, pet. ref’d) (holding evidence from a one-time trash run yielding a single piece of evidence
was insufficient to prove probable cause due to the public accessibility of the trash and a lack of
corroboration of other information). This case, however, is readily distinguishable from the
circumstances presented in Serrano. In the case at hand, the information from the informant was
corroborated, as previously discussed, and there was the additional evidence of the undercover
officer’s conversation with appellant.


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Transp. Code § 521.456(b), which sets forth the offense of delivery or manufacture
of counterfeit instrument). Second, there were specific items to search for
constituting evidence of the offense because appellant showed the undercover
officer two fake identifications he made. Finally, these items were located at the
place to be searched because the undercover officer met with the appellant at
appellant’s residence and appellant brought out the two fake identifications from
within his home. Based on the undercover officer’s information in the affidavit,
sufficient evidence supports the magistrate’s determination to issue the search
warrant. See Tex. Code Crim. Proc. arts. 18.01(c), 18.02(a)(10); see also Barrett v.
State, 367 S.W.3d 919, 923 (Tex. App.—Amarillo 2012, no pet.) (holding that
sufficient probable cause existed for issuing a warrant based on information and
photographic evidence obtained during an online conversation between appellant
and an officer posing as a minor).

      Appellant argues that the 48–day period between the initial contact with the
informant and the date the affidavit was presented to the magistrate rendered the
informant’s information too stale to support a finding of probable cause. See
McKissick, 209 S.W.3d at 214. Probable cause ceases to exist if, at the time the
search warrant is issued, it would be unreasonable to presume the items remain at
the suspected place. Id. To justify a magistrate's finding that an affidavit is
sufficient to establish probable cause to issue a search warrant, the facts set out in
the affidavit must not have become stale when the magistrate issues the search
warrant. Id. The proper method to determine whether the facts supporting a search
warrant have become stale is to examine, in light of the type of criminal activity
involved, the time elapsing between the occurrence of the events set out in the
affidavit and the time the search warrant was issued. Id. When the affidavit recites
facts indicating activity of a protracted and continuous nature—i.e., a course of


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conduct—the passage of time becomes less significant. Id. Further, a determination
should also consider the type of property to be seized and the probability that the
property has been consumed or relocated. Barrett, 367 S.W.3d 647 at 926
(concluding magistrate had a substantial basis to find that a fair probability existed
that images depicting child pornography would continue to be on or recoverable
from a computer device at the residential address stated in the search warrant).

      As discussed above, we hold that Dalton’s affidavit was sufficient to
establish probable cause based on the information provided by the undercover
officer, regardless of any information obtained from the informant. The undercover
officer’s conversation with appellant occurred only two weeks prior to the issuance
of the warrant. Moreover, the information in the affidavit revealed an ongoing
scheme—a course of conduct—that had been operating for at least nine months.
See State v. Cotter, 360 S.W.3d 647, 653-54 (Tex. App.—Amarillo 2012, no pet.)
(holding four-month-old information was not stale due to the continuing nature of
the activity). Additionally, information in the affidavit revealed that appellant had
used computers in producing the fraudulent identification items. At least some of
the property subject of this search is a type that may be stored on a computer, is
retrievable, and probably had not been consumed or relocated. See Barrett, 367
S.W.3d at 926 (holding 48-day information not stale). We conclude that the
information in Dalton’s affidavit was not too stale to establish probable cause.

                                    Conclusion

      When considering the totality of the circumstances, Dalton’s affidavit
provided a substantial basis for concluding that probable cause existed. See
McLain, 337 S.W.3d at 271. Accordingly, we overrule appellant’s sole issue.




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      We affirm the trial court’s judgment.




                                      /s/       Martha Hill Jamison
                                                Justice



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




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