      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00472-CR



                                Oscar Capetillo Lopez, Appellant

                                                 v.

                                  The State of Texas, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
          NO. CR-08-334, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                            MEMORANDUM OPINION


               A jury convicted Oscar Capetillo Lopez of possession of a controlled substance

with intent to deliver. See Tex. Health & Safety Code Ann. § 481.112 (West Supp. 2009). The jury

also found two enhancement paragraphs to be true and assessed punishment at eighty years in prison.

Lopez argues that the searches pursuant to which the narcotics were seized were either illegal or

based on invalid search warrants and, therefore, the district court should have granted his motion to

suppress. He also argues that the trial court erred by submitting an incomplete jury instruction. We

affirm the judgment of conviction.

               On December 13, 2007, San Marcos police received a tip from an anonymous 911

caller that Lopez was selling drugs to minors at either 519 or 915 Gravel Street in San Marcos.

However, officers were acquainted with Lopez from a previous narcotics investigation and knew

that he, in fact, resided at 917 Gravel Street. When officers arrived at Lopez’s residence, Lopez
and several other people were standing outside in the driveway. As soon as Lopez saw the police

arrive, he ran toward the back of his house and behind a shed. In their pursuit, police observed

Lopez discard a clear plastic bag. After discarding the bag, Lopez stopped running and voluntarily

approached police, who handcuffed and detained him. Police walked to the spot where they had

seen Lopez throw the bag and seized it. They discovered that it contained two smaller baggies,

each of which contained a white powdery substance, later identified as cocaine weighing a total

of 1.14 grams.

                 When police were escorting Lopez to the patrol car, Lopez began shouting to

other men in Spanish. One of the other men entered Lopez’s residence. Police entered the house

and detained that man. They then made a sweep of Lopez’s residence and secured the premises

while they awaited a search warrant. A warrant was issued, and police searched the residence,

assisted by a drug dog. They found a large plastic bag containing a white substance in one of the

bedrooms, later identified as cocaine with an aggregate weight of 53.77 grams. Police also seized

several smaller plastic bags and an electronic scale.

                 Lopez was indicted on one count of possession of a controlled substance with

intent to deliver and on two counts of endangering a child. Only the possession count was submitted

to the jury. The jury convicted Lopez as charged, and—finding two enhancement paragraphs to

be true—assessed punishment at eighty years in prison. Lopez argues that the searches pursuant to

which the cocaine was seized were either illegal or based on invalid search warrants and, therefore,

the district court erred in refusing to grant his motion to suppress. He also argues that the trial court

erred by submitting an incomplete instruction to the jury.



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               In his first two issues, Lopez argues that the first search, the search by which police

recovered the smaller bag of cocaine outside Lopez’s residence, violated his rights under both the

United States Constitution and the Texas Constitution because police had no probable cause to enter

the curtilage of Lopez’s residence. We review a trial court’s ruling on a motion to suppress under

a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000);

see also Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). The trial court’s denial of a

motion to suppress is reviewed for an abuse of discretion, Oles v. State, 993 S.W.2d 103, 106

(Tex. Crim. App. 1999), but when the trial court’s rulings do not turn on the credibility and

demeanor of the witnesses, we apply a de novo standard of review, Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005).

               A police officer may stop and briefly detain a person for investigative purposes if the

officer has reasonable suspicion supported by articulable facts that criminal activity may be afoot.

Woods v. State, 956 S.W.2d 33, 38 (Tex. Crim. App. 1997); Hernandez v. State, 983 S.W.2d

867, 869 (Tex. App.—Austin 1998, pet. ref’d). The reasonableness of a temporary detention must

be examined in terms of the totality of the circumstances. Woods, 956 S.W.2d at 38. A detaining

officer must have specific, articulable facts that, taken together with rational inferences from

those facts, lead him to conclude that the person detained is, has been, or soon will be engaged in

criminal activity. Id.

               An officer may rely upon information received through an informant, rather than

on his direct observation, so long as the officer confirms enough facts so that he may reasonably

conclude that the information provided is reliable and a detention is justified. See Alabama v. White,



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496 U.S. 325, 330-31 (1990). This does not mean that the officer must personally observe the

conduct that causes 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 (Tex. Crim. App. 2005). Rather, it means that

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.

               When the police receive information from an informant, the totality of the

circumstances includes the veracity and reliability of the informant and the informant’s information,

as well as the basis for the informant’s knowledge. See Illinois v. Gates, 462 U.S. 213, 230-31

(1983). An anonymous tip alone will rarely establish the level of reasonable suspicion required to

justify a detention. Florida v. J.L., 529 U.S. 266, 270 (2000); White, 496 U.S. at 329. There must

be some further indicia of reliability, some additional facts from which a police officer may

reasonably conclude that the tip is reliable and a detention is justified. Pipkin v. State, 114 S.W.3d

649, 654 (Tex. App.—Fort Worth 2003, no pet.). An officer’s prior knowledge, his experience, and

his corroboration of the details of the tip may be considered in establishing reasonable suspicion.

White, 496 U.S. at 329-30.

               The responding officer here, Officer Elrod, had been previously acquainted with

Lopez due to Lopez’s involvement in at least one other drug-related investigation. The initial tip

came in the form of an anonymous 911 call. Although anonymous, the caller was apparently a

witness to the events, as the caller identified Lopez by name and described what he was wearing

and where he was selling drugs. Elrod found Lopez in the place described and wearing the clothing

described. Elrod also observed Lopez standing in his driveway with several other people. These



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observations were consistent with the information reported by the anonymous caller. As soon as

Lopez saw Elrod, Lopez looked concerned, pushed past the other people in the driveway, and began

running toward a shed in the backyard.

               Viewing this evidence in its totality—including Elrod’s prior knowledge of Lopez,

the details learned from the 911 call, which were corroborated by Elrod’s first-hand observations,

and Lopez’s reaction to Elrod’s arrival—the district court could have concluded that police had

formed a reasonable suspicion that Lopez had been, or soon would be, engaged in criminal activity.

See Woods, 956 S.W.2d at 38. Based on this reasonable suspicion, Officer Elrod was justified in

detaining Lopez for investigative purposes.

               At the point that police formed a reasonable suspicion that Lopez had been or would

be engaged in criminal activity, Lopez was still in his driveway, along with several other people.

Lopez’s driveway is both visible and accessible to the public. Therefore, at that point—the point

when reasonable suspicion arose—Lopez had no reasonable expectation of privacy. See Bower

v. State, 769 S.W.2d 887, 897 (Tex. Crim. App. 1989), overruled on other grounds by Heitman

v. State, 815 S.W.2d 681, 685 (Tex. Crim. App. 1991). Having formed a reasonable suspicion,

police began to approach Lopez to question him. Lopez ran, ignoring orders from police to stop.

When Lopez ran, he was, as the district court found, evading arrest or detention, see Tex. Penal Code

Ann. § 38.04 (West Supp. 2009), and police began lawfully pursuing him. In the course of this

lawful pursuit, Lopez ran to the back part of his yard, where he discarded the bag containing cocaine.

The police arrested Lopez and seized the bag of cocaine that Lopez had discarded in their plain view.




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               The plain view doctrine allows officers, without a warrant, to seize items that they

believe to be evidence or contraband if certain criteria are met. The theory supporting the doctrine

is that there are no privacy interests for items kept in plain sight, and therefore, the prohibitions

against unreasonable searches and seizures are not implicated. See Walter v. State, 28 S.W.3d 538,

541 (Tex. Crim. App. 2000). The plain view doctrine requires that (1) law enforcement officials

have a right to be where they are, and (2) it is immediately apparent that the item observed or seized

may constitute evidence, that is, there is probable cause to associate the item with criminal activity.

Walter, 28 S.W.3d at 541; Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996); Arrick

v. State, 107 S.W.3d 710, 719 (Tex. App.—Austin 2003, pet. ref’d). Probable cause requires that

the facts available to the officer would warrant a man of reasonable caution in the belief that certain

items may be contraband or stolen property or useful as evidence of a crime. Texas v. Brown,

460 U.S. 730, 742 (1983).

               Here, the record supports a finding that the State established both elements of

the plain view doctrine. We have found that the district court could have concluded that police had

formed a reasonable suspicion that Lopez had been, or soon would be, engaged in criminal activity,

and, therefore, an investigative detention was appropriate. Thus, the first element—that police were

in a legally permissible location to make a plain view seizure—is satisfied. See Walter, 28 S.W.3d

at 541. The record also supports a finding that the State satisfied the second element, which requires

that it be immediately apparent that there is probable cause to associate the object observed or seized

with criminal activity. See id. Police observed Lopez discarding a clear plastic bag. Based on the

anonymous tip police had received—that Lopez was selling drugs—and on the fact that, after



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discarding the bag, Lopez willingly approached police, the district court could have found that

the second element of the plain view doctrine had been satisfied—that it was immediately apparent

to police that there was probable cause to associate the bag with criminal activity. Indeed, when

officers approached the place where Lopez had thrown the bag, they discovered that it contained

two smaller baggies, each containing a white powdery substance.

               In sum, the record supports the district court’s conclusion that the seizure of the 1.14-

gram bag of cocaine was proper. Police had reasonable suspicion to make an investigative detention

of Lopez. When Lopez ran, police lawfully pursued and detained him. In the course of the pursuit

and detention, police observed Lopez discard a clear plastic bag in their plain view. Having lawfully

detained Lopez, police were justified in seizing the bag under the plain view doctrine. Accordingly,

we overrule Lopez’s first two issues.

               In his third and fourth issues, Lopez argues that the second search, the search of his

residence, violated his rights under both the United States Constitution and the Texas Constitution

because the magistrate judge did not have probable cause to issue the search warrant. Probable cause

to support the issuance of a search warrant exists when the facts submitted to the magistrate

are sufficient to justify a conclusion that the object of the search is probably on the premises to be

searched at the time the warrant is issued. Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App.

1986); State v. Bradley, 966 S.W.2d 871, 873 (Tex. App.—Austin 1998, no pet.). The sufficiency

of the affidavit is determined by considering the totality of the circumstances set forth within the

four corners of the document. Gates, 462 U.S. at 238; Bradley, 966 S.W.2d at 873. The affidavit

must be interpreted in a common sense and realistic manner, recognizing that reasonable inferences



                                                  7
may be drawn from the affidavit. Hedspeth v. State, 249 S.W.3d 732, 737 (Tex. App.—Austin 2008,

pet. ref’d). The issuing magistrate’s determination of probable cause must be given great deference

and will be sustained if the magistrate had a substantial basis for concluding that probable cause

was shown. Gates, 462 U.S. at 236-37; Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim.

App. 2004).

               According to Lopez, all of the information presented to the magistrate in the

probable cause affidavit indicates that controlled substances would probably be found in Lopez’s

yard, not in his house. On this point, Lopez notes that the confidential informant told dispatch that

the narcotics were stored in a pipe outside Lopez’s house. However, beyond this information, the

affidavit contained additional facts—based, in part, on the first search, which, as we have concluded,

complied with constitutional requirements—to justify a conclusion that narcotics would probably

be found in Lopez’s residence.

               The affidavit included information derived from the anonymous tip and from the

first search. Tommy Villanueva, the affiant peace officer, stated that a witness had observed Lopez

selling narcotics to children and that police had confirmed that Lopez was in the location described,

wearing the clothes described, and surrounded by a group of people. Lopez immediately fled from

police, and upon further investigation, police learned that Lopez had been in possession of a bag

containing a substance that a field analysis showed contained cocaine. In addition to information

derived from the tip and from the search warrant, Villanueva’s affidavit contained information

from police records, showing that officers had previously investigated Lopez at least once for

narcotics dealings and that Lopez had been previously arrested eight times for drug-related offenses.



                                                  8
In the affidavit, Villanueva also describes his own background in narcotics, stating that, based on

his experience narcotics dealers usually conduct their narcotics operations—and store information

about their operations—in their residences.

                Based on the totality of the circumstances set forth in Villanueva’s affidavit,

and drawing relevant inferences, the magistrate was justified in concluding that narcotics would

probably be found in Lopez’s residence. See Gates, 462 U.S. at 236-38; Cassias, 719 S.W.2d at 587;

Hedspeth, 249 S.W.3d at 737. Accordingly, we overrule Lopez’s third and fourth issues.

                In his fifth issue, Lopez argues that the district court submitted an incomplete

jury instruction on the use of juror notes and that this incomplete instruction caused Lopez egregious

harm. Specifically, Lopez argues that egregious harm resulted from the omission of the caution that

notes should not be used to resolve testimony disputes and that such disputes must be resolved by

resorting to the official transcript.

                The decision to allow juror note-taking lies within the trial court’s sound discretion.

Price v. State, 887 S.W.2d 949, 954 (Tex. Crim. App. 1994). The Texas Court of Criminal Appeals

has set out the following instruction to be given, which in this case was given:


        You have been permitted to take notes during the testimony in this case. In the
        event any of you took notes, you may rely on your notes during your deliberations.
        However, you may not share your notes with the other jurors and you should not
        permit the other jurors to share their notes with you. You may, however, discuss the
        contents of your notes with the other jurors. You shall not use your notes as authority
        to persuade your fellow jurors. In your deliberations, give no more and no less
        weight to the views of a fellow juror just because that juror did or did not take notes.




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See id. at 955. Also included in the instruction set out in Price, but not included in the instruction

given here, is the following:


          Your notes are not official transcripts. They are personal memory aids, just like the
          notes of the judge and the notes of the lawyers. Notes are valuable as a stimulant to
          your memory. On the other hand, you might make an error in observing or you might
          make a mistake in recording what you have seen or heard. Therefore, you are not
          to use your notes as authority to persuade fellow jurors of what the evidence was
          during the trial.

          Occasionally, during jury deliberations, a dispute arises as to the testimony presented.
          If this should occur in this case, you shall inform the Court and request that the Court
          read the portion of disputed testimony to you from the official transcript. You shall
          not rely on your notes to resolve the dispute because those notes, if any, are not
          official transcripts. The dispute must be settled by the official transcript, for it is the
          official transcript, rather than any juror’s notes, upon which you must base your
          determination of the facts and, ultimately, your verdict in this case.


See id.

                  Even accepting Lopez’s argument that the district court erred by not submitting

the instruction exactly as set out by the court of criminal appeals in Price, reversal is not warranted.

Where, as here, no objection is made to the charge at trial, we reverse for charge error only if

the record shows that the error caused egregious harm. See Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985). Harm must be actual harm and must be evidenced in the record. Id.

                  There is no indication in the record to suggest that anything in the jury’s decision was

a result of a juror’s having relied on his own notes or the notes of another juror rather than on the

official transcript in reaching his decision. Nothing in the record indicates that there was any dispute

about the evidence at all. Indeed, nothing in the record show that the jurors took notes to which




                                                      10
they later referred during deliberations. Thus, Lopez cannot show actual harm, as required under

Almanza. See id. Accordingly, we overrule Lopez’s fifth issue.

              Having overruled each of Lopez’s issues, we affirm the judgment of conviction.




                                            __________________________________________

                                            G. Alan Waldrop, Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 6, 2010

Do Not Publish




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