Opinion issued December 3, 2009
In The
Court of Appeals
For The
First District of Texas
____________
NO. 01-08-00860-CR
____________
KENDRON LATEEF MILES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Cause No. 56,367
MEMORANDUM OPINION
A jury convicted appellant, Kendron Lateef Miles, of possession of a controlled substance and assessed punishment at 20 years' confinement and a $10,000 fine. We consider whether (1) there was sufficient probable cause to justify the issuance of a search warrant, and (2) inadmissible hearsay was admitted at trial. We affirm.
BACKGROUND
Appellant was the lessee of a storage unit at Space Place in Angleton, Texas, which was managed by Louise Neill. Entry and exit of the fenced-in storage area was recorded. Neill noted that many different vehicles would come to the gate and park. Appellant would exit, enter the fenced-in area, and after a short time return to the vehicle. On January 17, 2008, Neill and a friend, J.C. Macik, saw an unfamiliar pick-up and a person milling around at the front gate. They then witnessed appellant return from the storage grounds to a car and exit. Neill and Macik followed appellant to an Angleton trailer park, where they saw him making a hand-to-hand transfer with the man whom they had seen in the pick-up truck at the storage unit. At this point Macik and Neill called 9-1-1 and gave a statement to Angleton Police Officer I. Patin.
The next day Patin conducted surveillance on unit 129 at Space Place and saw appellant access unit 129 for about 5 minutes. Afterward, appellant walked back to the exit gate, got into a gold Cadillac, and drove away. Patin followed appellant to a gas station, where appellant spoke to a man who got into the back of the car. Appellant then drove out of the station and was stopped by a man crossing the street. Patin saw a hand-to-hand transfer between appellant and the man in the street. Patin then had Sergeant McCullough, who was in a marked unit, stop the Cadillac that appellant was driving. Patin returned to the storage unit to await a search warrant.
Prior to obtaining the warrant, the officers called to get a canine sniff of the storage unit. Canine office Eric Huffman brought his dog to do an air search along the front of some units at Space Place. The dog alerted in front of the door of unit 129.
At about 5:30 p.m. officers, having obtained a search warrant, cut the lock off the door of unit 129. Inside they found a shoe box containing a birth certificate, Texas certificate of title, social security card, and dry cleaning receipt, all bearing appellant's name. Directly below that shoe box was another box containing $13,215.34 in cash, a glass beaker, a digital scale, a measuring cup, and a Ziplock bag containing multiple round, cookie-type substances suspected to be cocaine.
The suspected cocaine field-tested positive and weighed 280.6 grams. The cocaine was transported to the Brazoria County Crime Laboratory. None of the items seized produced usable fingerprints. At trial, the cocaine was marked as State's Exhibit 15 (hereinafter SX-15). The Brazoria County Crime Laboratory chemists determined that the substance in SX-15 was cocaine and weighed 275.7 grams.PROBABLE CAUSE
In is first point of error, appellant alleges that the trial court erred in failing to grant his motion to suppress because the affidavit supporting the search warrant was insufficient to establish probable cause. Appellant objected at trial that "the affidavit attached to the search warrant fails to establish probable cause, in that it fails to establish the veracity or reliability of the dog used . . . to obtain the search warrant." Appellant argues that there was no evidence that the dog and handler were certified for drug sniffing and further contends that no other evidence in the affidavit would establish probable cause for the issuance of a warrant.
Standard of Review
The standard of review of an issuing magistrate's probable cause determination is deferential, and as long as the magistrate had a substantial basis for concluding that the search would uncover evidence of wrongdoing, the Fourth Amendment requires nothing more. See Illinois v. Gates, 426 U.S. 213, 236, 103 S. Ct. 2317, 2331 (1983); Swearingen v. State, 143 S.W.3d 808, 810 (Tex. Crim. App. 2004). It is the duty of the reviewing court to ensure that the magistrate had a substantial basis for concluding that contraband or evidence of a crime would be found in a particular place. See Gates, 103 S. Ct. at 2332; Lowery v. State, 98 S.W.3d 398, 400 (Tex. App.--Amarillo 2003, no pet.).
Analysis
Appellant argues that apart from the dog sniff, there was no probable cause in the affidavit for search and seizure sufficient to prompt the magistrate to issue a warrant. In Cassias v. State, there was "no objective data to show it was reasonable to believe that ['brick type packages'] contained marijuana." 719 S.W.2d 585, 590 (Tex. Cr. App. 1986). In that case, the affidavit alleged that the defendants had been previously arrested for drug possession and possession of stolen property, that surveillance had indicated cars being backed all the way up the driveway and 'brick type packages' and a plastic tub being carried into the yard, and that several narcotics viewers had been observed visiting the premises. However, in that case the warrant did not contain sufficient facts to justify the conclusion that drugs were probably on the premises to be searched at the time that the warrant was issued. Id.
In contrast, the affidavit for search and seizure here alleged that the affiant officer knew that appellant had trafficked narcotics on previous occasions, that several people in vehicles came to the storage unit to meet with appellant for short periods of time; and that, while under surveillance, appellant had passed packages to two other men. Most critically, the affidavit related that Officer Huffman conducted a drug sniff with his narcotics-sniffing canine, and the dog alerted directly in front of Unit 129, which was leased to appellant.
This case is distinguishable from Cassias because in that case, the probable cause affidavit did not include a positive alert on the premises by a narcotics dog. Instead, the present case bears considerable similarity to Davis v. State, 202 S.W.3d 149 (Tex. Crim. App. 2006), in which a peace officer asserted in his affidavit in support of a search warrant that he smelled a chemical odor associated with the manufacture of methamphetamine. Id. at 151. This affidavit contained no facts specifying the officer's training, experience, or previous encounters with the odor associated with the manufacture of methamphetamine. Id.
In Davis, the court asked, "Is it reasonable for a magistrate to infer previous experience with the odor of methamphetamine manufacture when an officer states only 'that he could smell a strong chemical odor he has associated with the manufacture of methamphetamine,' without also delineating his previous experience or credentials?" Id. at 155-56. Because the affidavit recited that the "officer. . . [was] on patrol in Nacona,"the court reasoned that "it does not distort common sense or read additional facts into the affidavit to infer that the officer was a local police officer." Id. at 156. This statement lent credibility to the officer's statement because it is much more probable that a peace officer would have experience with the odor of the manufacture of methamphetamine than would an ordinary citizen. Id. In the present case, the officer's affidavit established that the affiant officer "made contact with Angleton Independent School District Police Officer Eric Huffman and requested a canine sniff." It was not unreasonable for the magistrate to conclude that a "narcotic detecting canine" was trained to detect and had experience with the smell of narcotics. "The law requires that we defer to a magistrate's reasonable, common sense conclusions in assessing whether to issue a search warrant." Id. at 158.
However, we note that, as in Davis, the affidavit for search and seizure did not follow best practice, which requires that "the affiant expressly to include an officer's experience, background information, and previous associations with contraband so that little is left to inference, and the magistrate has specifically articulated facts to evaluate." Id. at 157. According the affidavit our deferential standard of review, we recognize that the magistrate had a substantial basis for concluding that the search would uncover evidence of wrongdoing. The Fourth Amendment requires no more.
Appellant urges that we follow Winston v State, 78 S.W.3d 522 (Tex. App.--Houston [14th Dist.] 2002, pet. ref'd). However, we do not find the case applicable because it involves the issue of whether a dog sniff as it related to a "scent lineup" was sufficiently reliable to be admitted as expert testimony under Rule 702 of the Texas Rules of Evidence. Id., at 525. The present case involves whether a dog sniff gives rise to probable cause for a search warrant, not whether it can be admitted as expert testimony.
Because the trial court did not err in denying appellant's motion to suppress, we overrule appellant's first point of error.
HEARSAY
In his second point of error, appellant alleges that the trial court abused its discretion by admitting the laboratory report from the Brazoria County Sheriff's Office Crime Laboratory over his hearsay objection. When the State first attempted to introduce the bag of suspected cocaine as SX-15, appellant's chain-of-custody objections were sustained. The alleged chain-of-custody deficiency regarding SX-15 was later remedied, after which SX-15 was admitted into evidence in its entirety. A laboratory chemist, Paul Van Dorn, testified that SX-15 was, in his opinion, cocaine and described the tests that had been carried out to ascertain this fact. The State then introduced the Brazoria County Crime Laboratory report as State's Exhibit 16 (hereinafter SX-16), a report about the testing of the cocaine by laboratory director Michael Manes. This report was authored by Van Dorn and Manes. Appellant's hearsay objection to this exhibit was overruled.
Appellant alleges that the admission of SX-16, the crime lab report about the cocaine, was error that affected a substantial right. The State argues that if there was error, the issue was not preserved by the objection, which it characterizes as insufficiently specific, and furthermore than no harm accrued because equivalent evidence was properly introduced in the form of SX-15 and Van Dorn's oral testimony.
Standard of Review
A trial court's ruling on the admissibility of evidence is reviewed under an abuse-of-discretion standard. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000). Harm for an erroneous evidentiary ruling in this situation is analyzed as nonconstitutional error under Rule 44.2(b) of the Texas Rules of Appellate Procedure. Cruz v. State, 122 S.W.3d 309, 314 (Tex. App.--Houston [1st Dist.] 2003, no pet.).
Analysis
Appellant contends that the trial court abused its discretion in admitting SX-16, the lab report from Brazoria County Crime Laboratory. Appellant bases his complaint on Rule of Evidence 803, which provides, in relevant part:
Rule 803. Hearsay Exceptions: Availability of Declarant Immaterial
The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. "Business" as used in this paragraph includes any and every kind of regular organized activity whether conducted for profit or not.
. . . .
(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:
. . . .
(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel[.]
Rule 803(8), the public records exception to the hearsay rule, excludes from the scope of the hearsay exception matters observed by police officers and other law enforcement personnel. Chemists of the Texas Department of Public Safety have been held to be "law enforcement personnel" within the meaning of Rule 803(8)(B). See Cole v. State, 839 S.W.2d 798, 803 (Tex. Crim. App. 1990); Henderson v. State, 822 S.W.2d 171, 173 (Tex. App.--Houston [1st Dist.] 1991, no pet.). Nor can a report excluded under rule 803(8) be admitted under the business records exception of Rule 803(6). Cole at 806, 811; Henderson at 173.
Nonetheless, any error in the admission of SX-16 was harmless. When there is an error in admitting inadmissible hearsay, we must determine whether it "'moved the jury from a state of non-persuasion to one of persuasion on a particular issue.'" Davis v. State, 203 S.W.3d at 853 (quoting Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000)). In this case, the evidentiary value within SX-16 was cumulative because of the testimony regarding SX-15. This includes Van Dorn's testimony about his qualifications as an expert witness and his opinion that SX-15 was cocaine, as well as SX-15 itself, which was admitted at trial. Van Dorn's testimony that in his opinion, SX-15 was cocaine was entered without objection and was not raised as a point of error in this appeal.
Because the same evidence found in SX-16--that the substance recovered was cocaine--was also admitted through Van Dorn's testimony without objection, error, if any, in admitting SX-16 was not harmful. See Leday v. State, 983 S.W.2d 715, 718 (Tex. Crim. App. 1998).
Accordingly, we overrule appellant second point of error.
CONCLUSION
We affirm the judgment of the trial court.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Massengale.
Do not publish. Tex. R. App. P. 47.2(b).