                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00409-CR


CARMELO RAMIREZ PONCE                                                APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 52,098-C

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                        MEMORANDUM OPINION 1

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      A jury convicted Appellant Carmelo Ramirez Ponce of credit card abuse

against the elderly, a third-degree felony, 2 and assessed his punishment at thirty

years’ confinement as a habitual offender.        The trial court sentenced him


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 32.31(a)–(b), (d) (West 2011).
accordingly. Appellant brings a single issue, contending that the trial court erred

by failing to suppress the evidence seized pursuant to the police’s “obtaining a

search warrant that failed to establish probable cause for the premises

searched.” Appellant does not challenge the sufficiency of the evidence of guilt

but asks this court to “set aside the jury’s verdict on punishment and order a new

trial.” Because we hold that the trial court did not err by denying Appellant’s

motion to suppress, we affirm the trial court’s judgment.

Brief Facts

      On October 2, 2010, Complainant, an 88-year-old man, reported that his

cell phone, wallet, and credit cards were missing from his house. He checked his

bill for fraudulent credit card charges and reported that two unfamiliar charges on

his Chase MasterCard had been made. The suspicious charges were made on

September 29 and September 30, 2010. Both charges were for fuel at Taylor’s

Convenience Store in Electra. Video surveillance footage from security cameras

at the convenience store shows Appellant and his father buying gas on both

dates, although it cannot be determined from the video who actually swiped the

card. The Electra Police Department secured two search and arrest warrants on

October 8, 2010, one for Appellant and Appellant’s house and one for his father

and his father’s house. Appellant was found at his father’s house. Nothing was

found in Appellant’s house, but Complainant’s wallet and Fina credit card were

found at Appellant’s father’s house. There was no evidence that the Chase card

was ever found.


                                         2
Probable Cause for Warrants

         Appellant argues that the trial court erred by denying his motion to

suppress the evidence seized pursuant to the two search warrants because the

supporting affidavits did not provide probable cause to justify the warrants. He

contends that there was no probable cause because the information in the

affidavits was stale and insufficient to explain why the officers believed the

missing items would be found on the premises searched.                 He raises no

constitutional argument but contends that the affidavits supporting the warrants

were inadequate under article 18.01 of the code of criminal procedure. 3

         We note that although it was reasonable to infer from the affidavits that the

stolen items would probably be found in one or both of the houses, the arrest

portion of the warrants was not dependent on the location of the stolen cell

phone, wallet, and credit cards. The officers were authorized to enter the men’s

homes to execute the arrest warrants regardless of the location of the evidence. 4

Indeed, the officers found the stolen wallet and Fina credit card in the house in

which they arrested Appellant, the West Franklin address.

         The Texas Court of Criminal Appeals has often addressed the issues of

staleness and probable cause and instructs us,


         3
         See Tex. Code Crim. Proc. Ann. art. 18.01 (West 2015).
         4
         See Green v. State, 78 S.W.3d 604, 611 (Tex. App.—Fort Worth 2002, no
pet.).



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[I]n a seminal 1932 case, we first held that an affidavit is inadequate
if it fails to disclose facts which would enable the magistrate to
ascertain from the affidavit that event upon which the probable
cause was founded was not so remote as to render it ineffective.

       Affidavits are to be read realistically and with common sense,
and reasonable inferences may be drawn from the facts and
circumstances set out within the four corners of the affidavit. But
there must be sufficient facts within the affidavit to support a
probable-cause finding that the evidence is still available and in the
same location. We agree that 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. No hard-and-fast rule
sets the outer limit of time between stopping an apparently
intoxicated driver and the existence of probable cause that evidence
of intoxication will still be found within that person’s blood. The
ultimate criteria in determining the evaporation of probable cause
are not found in case law, but in reason and common sense. The
hare and the tortoise do not disappear over the hill at the same
speed. The likelihood that the evidence sought is still available and
in the same place is a function, not just of the watch or the calendar,
but of the particular variables in the case:

      (1) the type of crime—short-term intoxication versus long-term
criminal enterprise or conspiracy;

       (2) the suspect—nomadic traveler, entrenched resident, or
established ongoing businessman;

        (3) the item to be seized—perishable and easily transferred
(evanescent alcohol, a single marijuana cigarette) or of enduring
utility to its holder (a bank vault filled with deeds, a meth lab, or a
graveyard corpse); and

     (4) the place to be searched—a mere criminal forum of
convenience or secure operational base.

      (T)he fundamental point is that when the facts put forward to
establish probable cause show only a single, nonrecurring crime
occurring on a specific occasion, the question to be considered is




                                   4
      how long after that time or date evidence of that single crime can be
      expected to remain at the scene. 5

      In addressing the issue of staleness, the Texas Court of Criminal Appeals

has also stated,

      [W]here the affidavit properly recites facts indicating activity of a
      protracted and continuous nature, a course of conduct, the passage
      of time becomes less significant. Other federal circuits have held
      that the nature of the activity must be considered, and that, in
      appropriate circumstances, years could pass without information
      becoming stale. In United States v. Greene, the Sixth Circuit
      explained that “(e)vidence of ongoing criminal activity will generally
      defeat a claim of staleness.” And, according to that court, “where
      the criminal activity occurred in a ‘secure operational base,’ the
      passage of time becomes less significant.” 6

      The affidavits in the case now before this court reflect that the investigating

police officer was familiar with both Appellant and his father.       They lived in

houses, not a motel or even an apartment. Nothing in the affidavits indicates that

they were in any way transient.       The credit cards were reusable and not

perishable. Nor would they dissipate, although they would not be usable once

the issuing banks were notified that they had been stolen. The men had already

used one of the cards on two separate days—September 29 and 30.                 The

warrants were secured October 8.         The magistrate could have reasonably

inferred that the affidavits described men whose houses were their “secure


      5
       Crider v. State, 352 S.W.3d 704, 707–08 (Tex. Crim. App. 2011) (citations
and internal quotation marks omitted).
      6
       Jones v. State, 364 S.W.3d 854, 861 (Tex. Crim. App.) (citations and
selected internal quotation marks omitted), cert. denied, 133 S. Ct. 370 (2012).


                                         5
operational bases” and that Appellant and his father were “entrenched residents”

of Electra.   It was not unreasonable for the magistrate to conclude from the

affidavits that there was probable cause to believe that the property would still be

in possession of Appellant and his father.

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review. 7 We give almost total deference to a trial court’s

rulings on questions of historical fact and application-of-law-to-fact questions that

turn on an evaluation of credibility and demeanor, but we review de novo

application-of-law-to-fact questions that do not turn on credibility and demeanor. 8

Applying this standard of review, we hold that the trial court did not err in

overruling Appellant’s motion to suppress on the ground of staleness or of lack of

probable cause.

Alternatively, No Harm

      Even if the trial court had erred by denying Appellant’s pretrial motion to

suppress, Appellant raises no constitutional challenge on appeal. Rule 44.2(b) of

the appellate rules of procedure would therefore be applicable. 9 “Any . . . error,


      7
        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).
      8
       Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.
Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.
2002).
      9
       Tex. R. App. P. 44.2(b).



                                         6
defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” 10 A substantial right is affected when the error had a substantial

and injurious effect or influence in determining the jury’s verdict. 11 Conversely,

an error does not affect a substantial right if we have “fair assurance that the

error did not influence the jury, or had but a slight effect.” 12

      In making this determination, we review the record as a whole, including

any testimony or physical evidence admitted for the jury’s consideration, the

nature of the evidence supporting the verdict, and the character of the alleged

error and how it might be considered in connection with other evidence in the

case. 13 We may also consider the jury instructions, the State’s theory and any

defensive theories, whether the State emphasized the error, closing arguments,

and even voir dire, if applicable. 14

      Absent the challenged evidence, the jury still saw Appellant and his father,

as recorded by the convenience store’s security cameras, purchasing gasoline

with Complainant’s stolen credit card.          Further, Appellant stipulated to the


      10
        Id.
      11
       King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing
Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)).
      12
        Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).
      13
        Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).
      14
        Id. at 355–56.



                                            7
enhancement allegations. The range of punishment for a third-degree felony

enhanced by two prior felony convictions is from a low of twenty-five years’

confinement to confinement for 99 years or life. 15 The jury assessed Appellant’s

sentence at only five years above the minimum lawful period of confinement as a

habitual offender, and the trial court sentenced him accordingly. We conclude

that, in the context of the entire case against Appellant, even if the trial court had

erred in denying Appellant’s motion to suppress and admitting the challenged

evidence, such error did not have a substantial or injurious effect on the jury’s

punishment verdict and did not affect Appellant’s substantial rights. 16 Thus, we

would disregard the error, if any. 17

Conclusion

      We overrule Appellant’s sole issue and affirm the trial court’s judgment.




      15
        Tex. Penal Code Ann. § 12.42(d) (West Supp. 2014).
      16
        See King, 953 S.W.2d at 271.
      17
        See Tex. R. App. P. 44.2(b).



                                          8
                                        /s/ Lee Ann Dauphinot
                                        LEE ANN DAUPHINOT
                                        JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 23, 2015




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