Arnaldo Aleman Gomez v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00730-CR

Arnaldo Aleman Gomez, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. CR2002-297, HONORABLE GARY L. STEEL, JUDGE PRESIDING

MEMORANDUM OPINION

The jury convicted Arnaldo Aleman Gomez of three counts of engaging in organized

criminal activity and one count of marihuana possession in an amount of more than four ounces but

less than five pounds. See Tex. Penal Code Ann. § 71.02(a)(5) (West Supp. 2006); Tex. Health

& Safety Code Ann. § 481.121 (West 2003). The district court assessed punishment at 45 years’

imprisonment for the offense of engaging in criminal activity and 20 years’ imprisonment for the

offense of marihuana possession. In five points of error, Gomez challenges the legal sufficiency of

the evidence and asserts that the district court abused its discretion in denying his motion to suppress,

limiting his cross-examination during the suppression hearing and during trial, admitting certain

photographic evidence, and admitting hearsay testimony in violation of his right to confront the

witnesses against him. We affirm the judgment.
 BACKGROUND

Beginning in September 2001, the Comal County Sheriff’s Office, working with the

Comal County Metro Narcotics Task Force, investigated possible criminal activity—specifically,

the possession and distribution of illegal drugs—at a residence located at 2035 West Bridge Street

in New Braunfels. The suspected participants in the criminal activity were Arnaldo Gomez, his

brother Rodolfo, and their sister Sandra.1

The jury heard testimony from a confidential informant who assisted the police in

their investigation. On September 11, December 7, December 11, and December 12, 2001, the

informant participated in four “controlled buys” in which he arranged to purchase drugs from the

suspects under the direction and surveillance of police officers. The informant testified that the buys

took place at the residence in question and that he “scored” heroin during each buy. The informant

explained that during the first buy, he was unsure who the seller was, although he thought it was

Arnaldo. During the second buy, however, the informant was able to identify the seller as “Nando

Gomez.” In court, the informant was shown a picture of Arnaldo, and he identified him as the

person from whom he had purchased narcotics. The informant testified that he did not remember

much about the last two buys, except that during the last buy he purchased drugs from Rodolfo.

The police officers involved in the buys were Detective Juan Guerrero, Officer

Enrique Sanchez, and Officer Adam Pastrano. Each testified during trial about their observations

during the buys. Detective Guerrero and Officer Sanchez conducted surveillance and served as

1
Because the suspects share the same last name, we will refer to them using their first
names.

2
backup to Officer Pastrano, who transported the informant to and from the residence where the

buys took place. During the first buy, Pastrano and the informant traveled to the location in

the informant’s vehicle, a “white, work-type van,” and during subsequent buys they traveled to

the location in an unspecified and unmarked “undercover vehicle that belongs to the task force.”

Pastrano testified that they parked “[i]n front of the residence” during the buys. The

informant always exited the vehicle while Pastrano remained inside. In a separate unmarked

vehicle, Guerrero and Sanchez followed Pastrano and the informant to the residence but parked “in

a different location” and “from a distance to watch for safety reasons.”2 Guerrero and Sanchez

testified that during the buys, their focus was primarily on Pastrano’s safety and that their

observations of the buys were limited. Therefore, the State relied primarily on Pastrano’s testimony

about his observations during the buys. During the first buy, Pastrano testified that he was unable

to identify the person with whom the informant came into contact, although Pastrano did “believe

it was a male subject.” During the second buy, Pastrano was able to observe the person’s face and

features, but he was unsure about the person’s identity. He believed it may have been Rodolfo.

Pastrano testified that during the third buy, he again could not identify the subject, although he

“could see that it was a male that [the informant] made contact with” and could see “enough” of the

individual that he believed it was Arnaldo, although he was not “100 percent sure.” During the

fourth buy, Pastrano testified that he had a better view of the transaction and, this time, he was

“100 percent sure” that the subject was Arnaldo.

2
Guerrero was not able to recall exactly where he and Sanchez were parked during the buys,
and whether they were parked “on Bridge Street or one of the side streets.” Sanchez testified that
they were “pretty far” removed from the residence, although they “stayed in the same block.”

3
 On December 12, 2001, following the last buy, Detective Guerrero obtained a

search warrant for the residence. The next morning, police officers executed the search warrant on

the house. The jury heard evidence that several individuals were found inside and taken

into custody, including Arnaldo, Rodolfo, and Sandra. The jury also heard evidence that the police

found quantities of illegal drugs inside the house—19.34 grams of heroin, 26.50 grams of cocaine,

2.35 grams of methamphetamine, and 4.04 pounds of marihuana. The police also seized

several firearms, surveillance cameras, a digital scale, a box of unused syringes, and individual

syringes that were found “throughout the house.” The State referred to the residence as a “shooting

gallery” where users could both purchase and use illegal drugs. The jury also heard evidence that

money found in a safe located in a bedroom closet and seized during the search of the residence

contained serial numbers that matched the serial numbers on money that the informant had been

given by the police to make the buys.3

Deed records and a utility bill in Sandra’s name admitted into evidence suggested that

Sandra owned the house. Other evidence established that Arnaldo and Rodolfo lived at the

residence. During the search, police found their driver’s licenses and certain bills addressed to them.

The address listed on the documents matched the address of the house. Additionally, Michael

Wencka, a paramedic with the City of New Braunfels, testified that he provided medical treatment

to Arnaldo on July 20, 2001, and that Arnaldo had reported to Wencka during the treatment that his

3
Detective Guerrero testified that this money is commonly referred to as “imprest money.”

4
address was “2035 West Bridge, New Braunfels, Texas.”4 Wencka also testified that Arnaldo told

him that he had used “approximately $40 worth of heroin” earlier in the day.

Pictures of the three suspects were admitted into evidence. Some of the pictures

showed that Arnaldo and Sandra had markings on their arms. Officer Sanchez identified these

markings as “track marks” from “shooting heroin.” Arnaldo objected to the admission of the

pictures of the track marks, arguing that the pictures were irrelevant and more prejudicial than

probative. The district court overruled the objections. Additionally, over a hearsay objection by

defense counsel, Officer Sanchez testified that Petra Gaytan, one of the other individuals who was

arrested during the search of the residence, told Sanchez that “she shot heroin” and that “track

marks” on her arms were the result of heroin injections.

The jury convicted Arnaldo of engaging in organized criminal activity and possession

of marihuana. Arnaldo elected to have the district court assess punishment. After finding the

enhancement paragraphs alleged in the indictment to be true,5 the district court sentenced Arnaldo

to 45 years’ imprisonment for the offense of engaging in criminal activity and 20 years’

imprisonment for the offense of marihuana possession. This appeal followed.6

4
The medical treatment was in response to an incident during which, according to Wencka,
Arnaldo may have been the victim of an assault.
5
The indictment alleged that in 1975 and 1990, Arnaldo was convicted of aggravated
robbery with a deadly weapon.
6
Arnaldo first filed his notice of appeal on July 30, 2003. This Court dismissed the appeal
for want of jurisdiction after finding that Arnaldo filed his notice of appeal late. See Gomez v. State,
No. 03-03-00454-CR, 2003 Tex. App. LEXIS 6920 (Tex. App.—Austin Aug. 14, 2003, no pet.).
Arnaldo then filed a petition for writ of habeas corpus, alleging that his counsel was ineffective in
failing to timely file his notice of appeal. The court of criminal appeals granted Arnaldo an out-of-
time appeal, and he filed a new notice of appeal with this Court on November 9, 2005.

5
 DISCUSSION

Evidentiary sufficiency

We first address Arnaldo’s contention in his fifth point of error that the evidence was

legally insufficient to support his conviction for engaging in organized criminal activity.7

When there is a challenge to the legal sufficiency of the evidence to sustain a

criminal conviction, we consider whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509

(Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and

assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d

718, 724 (Tex. Crim. App. 2007); Shams v. State, 195 S.W.3d 346, 347 (Tex. App.—Austin 2006,

pet. ref’d) (citing Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981)). It is not necessary

that every fact point directly and independently to the defendant’s guilt; it is enough if the conclusion

is warranted by the combined and cumulative force of all the incriminating circumstances.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Johnson v. State, 871 S.W.2d

183, 186 (Tex. Crim. App. 1993)). We must consider all the evidence, rightly or wrongly admitted,

that the trier of fact was permitted to consider. See Conner v. State, 67 S.W.3d 192, 197

(Tex. Crim. App. 2001).

7
Although Arnaldo also asserts in the heading of this point that there is insufficient
evidence that he possessed marihuana, the arguments and authorities in his brief are limited to the
offense of engaging in organized criminal activity. Therefore, we find Arnaldo’s assertion of
insufficient evidence of marihuana possession to be inadequately briefed. See Tex. R. App. P.
38.1(h).

6
 A person commits the offense of engaging in organized criminal activity if, with

the intent to establish, maintain, or participate in a combination or the profits of a combination,

he commits or conspires to commit unlawful manufacture, delivery, dispensation, or distribution

of a controlled substance or dangerous drug. Tex. Penal Code. Ann. § 71.02(a)(5). “Combination”

means three or more persons who collaborate in carrying on criminal activities. Id. § 71.01(a)

(West 2003). In other words, to convict Arnaldo of engaging in organized criminal activity, the

State needed to prove beyond a reasonable doubt that Arnaldo intended to commit, with at

least two other persons, the unlawful manufacture, delivery, dispensation, or distribution of a

controlled substance or dangerous drug.

Arnaldo argues that “the State failed to prove that he and the members of some group

intended to work together in a continuing course of criminal activities.” Specifically, Arnaldo

contends that there is insufficient evidence that he participated in more than one criminal transaction

and that Sandra participated in any of the transactions.8 We disagree.

The jury heard evidence that there were four “controlled buys” between the informant

and a male subject that occurred at the suspected residence. The informant testified that during the

first buy, he “thought” the seller was Arnaldo. The informant also testified that during the second

buy, the seller was a man by the name of “Nando Gomez.” In court, the informant identified this

man as Arnaldo. Furthermore, Officer Pastrano testified that during the third buy, he could see

“enough” of the subject that he believed it was Arnaldo, although he was not “100 percent” certain.

Pastrano also testified that, during the fourth buy, he was able to get a closer view of the subject and

8
Arnaldo does not contest the evidence of Rodolfo’s involvement in the criminal activity.

7
he was “100 percent sure” that the subject was Arnaldo. Although the informant and Pastrano

provided conflicting identifications concerning the second and fourth buys (Pastrano testified that

he believed the subject during the second buy was Rodolfo and the informant testified that Rodolfo

sold drugs to him during the fourth buy), reconciliation of any conflicts in the evidence is within the

exclusive province of the jury. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996).

The jury was free to believe that Pastrano was mistaken about the seller’s identity during the second

buy and/or that the informant was mistaken about the seller’s identity during the fourth buy.

Furthermore, there was no conflicting testimony about the seller’s identity during the first and third

buys. Viewing the evidence in the light most favorable to the verdict, the jury could have rationally

found that Arnaldo was the seller during at least two of the four buys. The jury could have also

rationally inferred Arnaldo’s involvement in the criminal activity from the photographic evidence

of track marks on Arnaldo’s arms.

As for Sandra’s alleged participation, although there was no evidence presented that

she directly participated in any of the controlled buys, the jury could have rationally inferred her

involvement in the criminal activity from the photographic evidence of track marks on her arms,

from deed records and a utility bill in her name admitted into evidence, which suggested that she

owned the residence where the buys took place, and from the fact that she was found inside the

residence when the raid occurred. There was also evidence that Arnaldo and Rodolfo, besides being

merely present at the residence when the raid occurred, permanently lived there. Specifically, there

was evidence that Arnaldo provided a paramedic with the address of the residence when the

8
paramedic asked Arnaldo where he lived, and bills and driver’s licenses found at the residence

during the raid that belonged to Arnaldo and Rodolfo contained the address of the residence.

Inside the residence where Arnaldo, Rodolfo, and Sandra were found, the police

seized what a rational jury could infer was considerable evidence of organized criminal activity,

including 19.34 grams of heroin, 26.50 grams of cocaine, 2.35 grams of methamphetamine,

4.04 pounds of marihuana, several firearms, surveillance cameras, drug paraphernalia, including an

unused box of syringes and individual syringes, and the imprest money that was used during the

controlled buys. The jury could rationally infer from this evidence that all three siblings were both

aware of and actively involved with the unlawful manufacture, delivery, dispensation, or distribution

of a controlled substance or dangerous drug. We thus conclude that the evidence is legally sufficient

to establish beyond a reasonable doubt that Arnaldo engaged in organized criminal activity.

We overrule Arnaldo’s fifth point.

Motion to suppress

In his first point of error, Arnaldo argues that the district court abused its discretion

in denying his motion to suppress the search warrant. Arnaldo contends that the affidavit supporting

the warrant contained insufficient and/or false information that failed to establish probable

cause to search the residence.

An application for a search warrant must be supported by an affidavit setting forth

substantial facts establishing probable cause. Tex. Code Crim. Proc. Ann. arts. 1.06 (West 2005),

18.01(b) (West Supp. 2006). The facts submitted to the magistrate must be sufficient to justify a

conclusion that the object of the search is probably on the premises at the time the warrant is issued.

9
Cassias v. State, 719 S.W.2d 585, 587 (Tex. Crim. App. 1986); State v. Delagarza,

158 S.W.3d 25, 26 (Tex. App.—Austin 2005, 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. Illinois v. Gates, 462 U.S. 213, 234 (1983); Delagarza, 158 S.W.3d at 26. 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 a search would uncover evidence of

wrongdoing specified in the warrant. Gates, 462 U.S. at 236; Swearingen v. State, 143 S.W.3d

808, 811 (Tex. Crim. App. 2004); Delagarza, 158 S.W.3d at 26. “It is not our task, nor was it the

task of the district court, to determine de novo whether the search warrant affidavit stated probable

cause to search [the location in question], but only to ensure that the issuing magistrate had a

substantial basis for concluding that probable cause was shown.” Delagarza, 158 S.W.3d at 29

(citing Gates, 462 U.S. at 239; Swearingen, 143 S.W.3d at 810; State v. Bradley, 966 S.W.2d

871, 876 (Tex. App.—Austin 1998, no pet.)). “The resolution of doubtful or marginal cases should

largely be determined by the preference to be accorded to warrants.” Id.

The affidavit need not reflect the direct personal observations of the affiant so long

as the magistrate is informed of some of the underlying circumstances supporting the affiant’s

belief that any informant involved, whose identity need not be disclosed, was credible or his

information reliable. United States v. Ventresca, 380 U.S. 102, 108 (1965); State v. Ozuna,

88 S.W.3d 307, 310 (Tex. App.—San Antonio 2002, pet. ref’d). Although an informant’s veracity,

reliability, and basis of knowledge are highly relevant in reviewing the sufficiency of an affidavit,

these elements are not each independent requirements, but closely intertwined issues that simply

10
illuminate the overall question of whether there is probable cause to believe that contraband or

evidence is located in a particular place. Ozuna, 88 S.W.3d at 310. An affidavit may also rely on

information received through an informant if the statement is reasonably corroborated by other

matters within the officer’s knowledge. Id. Further, the magistrate may draw reasonable inferences

so long as the affidavit is interpreted in a common sense and realistic manner. Lagrone v. State,

742 S.W.2d 659, 661 (Tex. Crim. App. 1987); Ozuna, 88 S.W.3d at 310.

In this case, the affidavit was sworn by Detective Guerrero (the “affiant”). In relevant

part, the affidavit described the suspected residence at 2035 West Bridge Street in New Braunfels

and then provided the following information to the magistrate:

The Suspected Party(s) [Arnaldo and Rodolfo] are known by your AFFIANT to be
affiliated with the Texas prison / street gang the Mexican Mafia. . . .

IT IS THE BELIEF OF YOUR AFFIANT THAT SAID SUSPECTED PARTY(S)
HAS POSSESSION OF AND IS CONCEALING AT SAID SUSPECTED PLACE
IN VIOLATION OF THE LAWS OF TEXAS THE FOLLOWING DESCRIBED
PERSONAL PROPERTY, TO WIT:

Contraband in the form of but not limited to . . . [c]ontrolled substances possessed
in violation of the Texas Health & Safety Code, namely HEROIN.

....

The grounds for issuance of this warrant are derived from physical evidence,
investigations and discussions between investigators, as well as intelligence derived
through the utilization of a Confidential Informant.

Your AFFIANT states that the facts, which establish probable cause necessary for the
issuance of a search warrant for the above-described location, are as follows:

Your AFFIANT has utilized the assistance of a Confidential Informant to develop
intelligence regarding the activities of narcotic traffickers in the New
Braunfels/Comal County area. The Confidential Informant has provided information

11
 with the understanding that he/she would be considered for a financial reward if the
information proved to be valid. I believe that it adds to the Confidential Informant’s
credibility in this instance because he/she will not benefit if his/her information does
not prove to be valid. I explained to the Confidential Informant that it jeopardizes
his/her opportunity for reward if law enforcement believes or discovers that he/she
has provided incorrect information in a bad faith attempt to obtain a reward. The
Confidential Informant’s statement to your AFFIANT that the information is true
enhances the probability that the information is correct.

This Confidential Informant has provided information that has been factual, and
personally corroborated by your AFFIANT [sic]. Your AFFIANT has corroborated
the Confidential Informant’s information through the use of surveillance, government
records, checks, debriefings, and actual purchases of narcotics. On Wednesday, the
12th day of December 2001, your AFFIANT conferred with a representative of the
NEW Braunfels UTILITIES of New Braunfels, Texas, and was told that the
Suspected Place is presently listed in the name of SANDRA GOMEZ, and has been
since 07/30/01. Your AFFIANT has knowledge that SANDRA GOMEZ, white
female, 03/14/61, is the sister of the Suspected Party(s).

This Confidential Informant has a thorough knowledge in the identification of
HEROIN and various methods, in which it is packaged, handled and secreted. The
Confidential Informant wishes to remain anonymous for his/her own personal safety.
Your AFFIANT affirms upon oath that he knows that this Confidential Informant is
both credible and reliable.

On three (3) separate occasions,[9] the Confidential Informant made supervised
purchases of HEROIN at the Suspected Place. Each supervised purchase consisted
of the following: your AFFIANT and the Confidential Informant met at a pre-
arranged location. Prior to each supervised purchase, the Confidential Informant was
thoroughly searched by your AFFIANT and was found not to be in possession of any
contraband. The Confidential Informant was provided with photocopied Sheriff’s
Office Imprest monies, for the purpose of purchasing a quantity of HEROIN. Your
AFFIANT as well as undercover officers followed the Confidential Informant to the
Suspected Place. After a short period of time, your AFFIANT observed the
confidential Informant depart the Suspected Place. Your AFFIANT and other
undercover officers would then meet with the Confidential Informant at a pre-
arranged location. Your AFFIANT would confirm that a purchase of a quantity of

9
Detective Guerrero testified that he did not mention the fourth buy in the affidavit because
he believed that he had sufficient information to support a finding of probable cause after the third
buy.

12
 HEROIN was successful by the Confidential Informant from said suspected place.
The Confidential Informant informed your AFFIANT that the Suspected Party(s)
possessed additional quantities of HEROIN at the Suspected Place. On all three (3)
occasions, your AFFIANT field-tested the suspected HEROIN using Ferguson Test
Kits. Each test displayed a brownish reddish color, indicating positive for HEROIN.

Your AFFIANT has knowledge that the New Braunfels Crime Stoppers Hotline has
received information about ongoing narcotics dealing at the suspected Place within
the past three (3) months. Your AFFIANT has corroborated this information through
an ongoing investigation.

Within the past seventy-two (72) hours, the Confidential Informant arrived at the
Suspected Place and observed the suspected parties in possession of a quantity of
HEROIN. . . .

We find that the above affidavit contains sufficient information within its four corners

to provide the issuing magistrate with a substantial basis for concluding that controlled substances

could be found at the suspected residence. The affidavit informed the magistrate that a confidential

informant made three supervised purchases of heroin at the suspected place. Prior to each purchase,

Guerrero “thoroughly searched” the informant, and the informant was not found to be in possession

of any contraband. Guerrero and other officers followed the informant to the suspected place and

observed the informant depart the suspected place. Guerrero then met with the informant and

confirmed that the purchase took place. The substance obtained during the purchases tested positive

for heroin. The informant also informed Guerrero that the suspects possessed additional quantities

of heroin at the suspected place and that, within the past 72 hours, he had arrived at the suspected

place and observed the suspects in possession of heroin.

“While information from an unnamed informant alone does not establish probable

cause, the informant’s tip combined with independent police investigation may provide a substantial

13
basis for the probable-cause finding.” Davis v. State, 144 S.W.3d 192, 200 (Tex. App.—Fort Worth

2004, pet. ref’d). The affidavit in this case provided that there was an independent police

investigation, and the information gleaned from the confidential informant was just one part of that

investigation. Specifically, the affidavit provided that “[t]he grounds for issuance of this warrant are

derived from physical evidence, investigations and discussions between investigators, as well as

intelligence derived through the utilization of a Confidential Informant.” (Emphasis added).

According to the affidavit, this investigation included procedures to ensure the reliability of the

controlled buys (searching the informant prior to the buy, observing the informant during the buy,

and meeting with the informant after the buy) and obtaining information that the suspected place

belonged to Sandra Gomez, that Sandra was the sister of suspects Arnaldo and Rodolfo, that the New

Braunfels Crime Stoppers Hotline had received information about ongoing narcotics dealing at the

suspected Place within the past three months, and that Arnaldo and Rodolfo were affiliated with the

“Mexican Mafia,” a “Texas prison / street gang.”

Again, 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 234.

Considering in their totality the information provided by the confidential informant, the procedures

used by the police before, during, and after the controlled buys, the evidence obtained about the

utilities of the residence being under the name of Sandra Gomez and Sandra’s relationship to

the suspected parties, the information obtained from the Crime Stopper’s Hotline, and

the information about the suspects being affiliated with the Mexican Mafia, we conclude that

14
the affidavit provided the magistrate with a substantial basis for concluding that there was probable

cause to issue the search warrant.

However, in his motion to suppress, Arnaldo asserted that the affidavit contained

“deliberate falsehoods” and demonstrated a “reckless disregard for the truth.” He asked for a hearing

pursuant to Franks v. Delaware, 438 U.S. 154 (1978). In the hearing on the motion to suppress, the

district court allowed Arnaldo to present evidence that went beyond the four corners of the affidavit.

In Franks, the Supreme Court held:

[W]here the defendant makes a substantial preliminary showing that a false statement
knowingly and intentionally, or with reckless disregard for the truth, was included by
the affiant in the warrant affidavit, and if the allegedly false statement is necessary
to the finding of probable cause, the Fourth Amendment requires that a hearing be
held at the defendant’s request. In the event that at that hearing the allegation of
perjury or reckless disregard is established by the defendant by a preponderance of
the evidence, and, with the affidavit’s false material set to one side, the affidavit’s
remaining content is insufficient to establish probable cause, the search warrant must
be voided and the fruits of the search excluded to the same extent as if probable cause
was lacking on the face of the affidavit.

Id. at 156. In other words, for information within the affidavit to be set aside, it is not enough

for the defendant to prove that the information is false; the defendant must prove by a preponderance

of the evidence that the affiant provided the magistrate false information “knowingly

and intentionally” or with “reckless disregard for the truth.” See Massey v. State, 933 S.W.2d

141, 146 (Tex. Crim. App. 1996).

Because the trial court is the sole finder of fact at a Franks hearing and may believe

or disbelieve any or all of the testimony presented, we are to view the evidence in the light most

favorable to the trial court’s ruling and determine if the trial court abused its discretion.

15
See Washington v. State, 902 S.W.2d 649, 655 (Tex. App.—Houston [14th Dist.] 1995, pet. ref’d)

(citing Taylor v. State, 604 S.W.2d 175, 177 (Tex. Crim. App. 1980)); see also Johnson v. State,

68 S.W.3d 644, 652-53 (Tex. Crim. App. 2002) (holding that in search and seizure issues reviewing

courts are to give “almost total deference” to a trial court’s rulings on questions that turn on an

evaluation of witness credibility and demeanor).

Arnaldo asserts that the following statements in the warrant were false: (1) that

Guerrero knew that Arnaldo and Rodolfo were affiliated with the Mexican Mafia; (2) that Guerrero

personally corroborated the information provided by the confidential informant; (3) that Guerrero

knew the confidential informant was credible and reliable; and (4) that Guerrero personally searched

the confidential informant prior to each controlled purchase. We will address each statement in turn.

Affiliation with the Mexican Mafia

Guerrero stated in the affidavit that the suspects were “known” to be affiliated with

the Mexican Mafia. During the hearing on the motion to suppress, Detective Guerrero was asked

about his knowledge of this affiliation:

Q: What did you mean to Judge Chapman when you used the word “affiliated”
with the Texas prison street gang, the Mexican Mafia?

A: When I say “affiliated,” I mean after conferring with other investigators that
have more experience than I, they had received numerous information from
numerous people that these individuals were affiliated or associated with the
Mexican Mafia.

Q: What personal knowledge do you have to having made that statement to
Judge Chapman, that they are affiliated with the Mexican Mafia?

A: Again, I’m relying on information given to me by more experienced officers.

16
 Q: You don’t have any personal knowledge that my client is a member of the
Mexican Mafia, do you?

A: Not personal knowledge. I’m relying on information given to me.

The statement that Arnaldo and Rodolfo were “known” by Guerrero to be affiliated

with the Mexican Mafia should be set aside only if Arnaldo proved by a preponderance of the

evidence that Guerrero knew the statement was false or made it with “reckless disregard for the

truth.” On this record, the district court could have found that Arnaldo did not meet this burden.

Guerrero testified that he was provided information from “more experienced officers” that Arnaldo

and Rodolfo were affiliated with the Mexican Mafia. Guerrero did not state in the affidavit that he

had “personal” knowledge of the affiliation, only that he had knowledge. The district court could

have determined from Guerrero’s testimony that Guerrero had a good-faith belief that the knowledge

that he had obtained from more experienced officers was sufficient for purposes of the affidavit, and

such a finding would not be an abuse of discretion.

Personal corroboration

Guerrero also stated in the affidavit that “[t]his Confidential Informant has provided

information that has been factual, and personally corroborated by your AFFIANT [sic].” Arnaldo

asserts that this was a false statement in that “[t]here was no personal corroboration by any of the

officers.” However, Guerrero testified that he did corroborate the information about the suspects’

involvement in the alleged criminal activity using the methods listed in the affidavit: “use of

surveillance, government records checks, debriefings, and actual purchases of narcotics.” In his

testimony, Officer Sanchez confirmed that Guerrero personally supervised the investigation. Based

17
on this evidence, the district court could have found that the statement that Guerrero personally

corroborated the information was true.

Knowledge of informant’s credibility and reliability

Guerrero further affirmed in the affidavit “that he knows that this Confidential

Informant is both credible and reliable.” Arnaldo asserts in his brief that “Guerrero testified that he

had no actual way of attesting to this [informant’s] credibility and reliability having never utilized

him in the past and having not actually personally corroborated the transactions.” This is not an

accurate summary of Guerrero’s testimony. Guerrero testified that this investigation was the first

time he had used the informant and that he had only known the informant two weeks prior to the

investigation. However, Guerrero did not testify that “he had no actual way of attesting to this

[informant’s] credibility and reliability.” In fact, there is no testimony in the record establishing that

Guerrero’s statement about credibility and reliability was either true or false. The burden was on

Arnaldo to prove by a preponderance of the evidence that this statement was false and that it was

made with knowledge of its falsity or with reckless disregard for the truth, and on this record the

district court would not have abused its discretion in finding that Arnaldo did not meet this burden.

Personal search of the informant

Finally, Guerrero stated in the affidavit that “[p]rior to each supervised purchase, the

Confidential Informant was thoroughly searched by your AFFIANT and was found not to be in

possession of any contraband.” Guerrero admitted during the hearing that he did not personally

search the informant prior to each search and that the statement in the affidavit that he did search the

18
informant was “incorrect.” Based on this testimony, the district court could have found that this

statement was false. However, the district court also could have found that Arnaldo failed to prove

that Guerrero made this statement with knowledge of its falsity or with reckless disregard for the

truth. Guerrero explained that he was in charge of the investigation, and although he did not

personally search the informant prior to each buy, either he or another officer did. The district court

could have found from this testimony that Guerrero believed that the informant had been thoroughly

searched by either himself or another peace officer prior to each buy. Furthermore, when asked

during the hearing why he had represented to the magistrate that he had searched the informant,

Guerrero testified that he was not “trying to shortcut the procedure.” He testified that he simply

made a “mistake.” The district court could have chosen to believe Guerrero’s testimony.

In summary, viewing the evidence at the hearing in the light most favorable to the

district court’s ruling, we conclude that the district court did not abuse its discretion in denying

Arnaldo’s motion to suppress.

Furthermore, even if the district court had found that the above statements were false

and struck the statements from the affidavit, there would still be sufficient information within the

four corners of the affidavit to support the finding of probable cause, including the information about

the procedures used before, during, and after the controlled buys, the information obtained from

Crime Stoppers, the information about the residence belonging to the sister of the suspects, and the

information about the substance obtained during the purchases testing positive for heroin. We

overrule Arnaldo’s first point.

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Cross-examination of witnesses

In his second point, Arnaldo asserts that the district court abused its discretion during

the suppression hearing in limiting his cross-examination of the magistrate who issued the search

warrant and, during trial, in limiting his cross-examination of Officer Sanchez.

We review a trial court’s decision to limit cross-examination for abuse of discretion.

Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App. 1996). The trial court retains wide latitude

to impose reasonable limits on cross-examination to prevent harassment, prejudice, confusion of

the issues, harm to the witness, and repetitive or marginally relevant interrogation. Id. at 498

(citing Delaware v. Van Arsdall, 475 U.S. 673, 682 (1986)).

During the hearing on the motion to suppress, Arnaldo attempted to ask the

magistrate—a county-court-at-law judge—questions about her state of mind when issuing the

warrant and “what she would have done” if she had known that this was the first time the officers

had used this particular confidential informant. The State objected to these questions as irrelevant

and speculative. The district court sustained the objections, and we conclude that the district court

did not abuse its discretion in doing so. The issue before the district court at the hearing on the

motion to suppress was whether the search warrant affidavit contained insufficient or false

information supporting a finding of probable cause. Questions about the magistrate’s thoughts at

the time she issued the warrant or whether she would have issued the warrant had the affidavit

contained different information were not relevant to that issue.

Arnaldo contends that in order to determine if the affidavit contained false

information, it was necessary to go beyond the four corners of the affidavit. However, it is the

20
state of mind of the affiant, not the magistrate, that is relevant to determining whether material in

the affidavit should be set aside. See Franks, 438 U.S. at 156 (holding that statements in

affidavit should be set aside if affiant provides false statements knowingly, intentionally, or

with reckless disregard for the truth). Arnaldo’s questions to the magistrate were not relevant to the

issue of the affiant’s state of mind.

With respect to the cross-examination of Officer Sanchez during trial, Arnaldo

asserts that the district court allowed Sanchez to testify to hearsay statements made by Petra

Gaytan, one of the other individuals who was arrested during the raid of the residence, and that his

cross-examination of Sanchez concerning these statements “was difficult because there was no

confrontation of Petra Gaytan, as of yet.” It is difficult to discern the exact nature of Arnaldo’s

complaint from his brief. To the extent he is asserting a Confrontation Clause violation, we address

that contention below under his fourth point of error. To the extent he is asserting a violation of

his right to cross-examine Sanchez on the hearsay statements to which Sanchez testified, we find

that no such violation occurred. The district court did not limit Arnaldo’s cross-examination of

Sanchez on issues relating to Gaytan’s statements. In fact, the testimony at issue related to “track

marks” found on the arms of heroin users, and Arnaldo asked several questions of Sanchez during

cross-examination about these track marks. There is no indication in the record that the district court

“effectively denied [Arnaldo] the opportunity to challenge the veracity” of Sanchez’s testimony. To

the extent Arnaldo’s cross-examination of Sanchez may have been “difficult” due to Gaytan’s

absence from trial, that is a separate issue relating to the Confrontation Clause that we address

below. We overrule Arnaldo’s second point.

21
Admission of photographic evidence

In his third point, Arnaldo contends that the district court abused its discretion

in admitting photographic evidence of “track marks” on Arnaldo’s arms. During trial, Arnaldo

argued that the photographs were irrelevant and more prejudicial than probative. See Tex. R. Evid.

401, 403.10 The district court overruled the objections.

We review a trial court’s decision to admit or exclude evidence for abuse of

discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006) (citing Martinez

v. State, 867 S.W.2d 30, 39 (Tex. Crim. App. 1993)). Unless the trial court’s decision was outside

the “zone of reasonable disagreement,” an appellate court should uphold the ruling. Id.

(citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)).

Rule 401 provides that evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Tex. R. Evid. 401. The State argues that evidence

of track marks on Arnaldo’s arms is relevant to the issue of whether Arnaldo was involved with the

criminal activity that was allegedly occurring at the suspected residence. We agree. Officer Sanchez

testified that track marks on a person’s arms were the result of heroin use. During the raid on the

residence, police officers discovered 19.34 grams of heroin on the premises, along with numerous

10
On appeal, Arnaldo also contends that the admission of the photographs violates
rule 404(b), relating to extraneous offense evidence. See Tex. R. Evid. 404(b). However, because
Arnaldo did not object to the evidence on this basis during trial, he has failed to preserve error on
this issue. See Carmona v. State, 941 S.W.2d 949, 957 (Tex. Crim. App. 1997) (holding that point
of error on appeal must correspond to objection made at trial); Lockhart v. State, 847 S.W.2d
568, 573 (Tex. Crim. App. 1992) (explaining error preservation under rule 404(b)); see also
Tex. R. App. P. 33.1(a).

22
syringes that Sanchez testified were commonly used to “shoot heroin.” Evidence of track marks on

Arnaldo’s arms makes his alleged involvement with the criminal activity at the residence more

probable than it would be without the evidence. Therefore, we conclude that the district court did

not abuse its discretion in finding that the evidence was relevant.

Arnaldo also argued at trial that the evidence, even if relevant, was more prejudicial

than probative. Rule 403 provides, “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless presentation of

cumulative evidence.” Tex. R. Evid. 403. “In evaluating the trial court’s determination under rule

403, a reviewing court is to reverse the trial court’s judgment ‘rarely and only after a clear abuse of

discretion,’ recognizing that the court below is in a superior position to gauge the impact of

the relevant evidence.” Russo v. State, 228 S.W.3d 779, 799 (Tex. App.—Austin 2007, no pet. h.)

(citing Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999)). A proper rule

403 analysis includes, but is not limited to, the following factors: (1) the probative value of the

evidence; (2) the potential to impress the jury in some irrational, yet indelible, way; (3) the

time needed to develop the evidence; and (4) the proponent’s need for the evidence. Erazo v. State,

144 S.W.3d 487, 489 (Tex. Crim. App. 2004). Although the proponent of evidence usually has the

initial burden of showing that the evidence is relevant and admissible, because rule 403

“strongly favors” the admissibility of evidence, the opponent of the evidence bears the burden

of showing that the probative value is “substantially outweighed” by countervailing factors.

23
See Russo, 228 S.W.3d at 799-800 (citing 1 Steven Goode et al., Texas Practice: Guide to the Rules

of Evidence, § 403.1 (3d ed. 2002)).

In this case, the probative value of the evidence was significant, because the alleged

criminal activity was the possession and distribution of illegal drugs, and the evidence seized at the

residence included 19.34 grams of heroin and syringes commonly used to inject heroin into the

user’s arms. Therefore, photographic evidence suggesting that Arnaldo “shot heroin” had a tendency

to connect him to the criminal activity. Having reviewed the photographs, we also find that their

potential to impress the jury in an irrational way was minimal, as was the time needed to develop the

evidence. The only factor that we find weighs against admissibility is the State’s need for the

evidence, as there was already sufficient evidence in the record connecting Arnaldo to the criminal

activity. However, we find that the balance of factors weighs in favor of admissibility and conclude

that Arnaldo did not satisfy his burden of demonstrating that the probative value of the evidence was

“substantially outweighed” by the danger of unfair prejudice. Therefore, we hold that the district

court did not abuse its discretion in admitting the photographs.

Furthermore, even assuming that the photographs were erroneously admitted, any

error would be harmless. The erroneous admission of evidence is nonconstitutional error.

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Nonconstitutional error that does

not affect substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). Substantial rights are

not affected by the erroneous admission of evidence if the appellate court, after examining the record

as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). As explained above, there was

24
sufficient evidence in the record supporting Arnaldo’s guilt apart from the photographs of the track

marks on his arms. Officer Pastrano testified that he observed Arnaldo with the informant during

at least two of the controlled purchases of heroin, and the informant testified that during at least two

of the purchases, Arnaldo was the person from whom he had purchased heroin. Arnaldo was also

found inside the residence where considerable evidence of heroin use was discovered during the raid,

and other evidence established that Arnaldo lived at the residence. Additionally, EMS paramedic

Michael Wencka testified that on the day he provided medical treatment to Arnaldo, when

Wencka asked Arnaldo if he had recently consumed any alcohol or narcotics, Arnaldo told

Wencka that earlier in the day he “did approximately $40 worth of heroin.” Thus, prior to the

admission of the photographs, the jury had already heard evidence of Arnaldo’s alleged heroin use.

See Brooks v. State, 990 S.W.2d 278, 287 (Tex. Crim. App. 1999) (holding that any error in

admitting evidence is harmless in light of other properly admitted evidence proving the same fact).

We overrule Arnaldo’s third point.

Alleged Confrontation Clause violation

In his fourth point, Arnaldo argues that the district court abused its

discretion in admitting Officer Sanchez’s testimony about statements made to him by Petra

Gaytan, a person arrested at the residence who refused to testify during trial. Arnaldo contends that

this testimony violated his constitutional right to confront the witnesses against him.

See U.S. Const. amend. VI; Tex. Const. art. 1, § 10. We review alleged violations of the

Confrontation Clause de novo. See Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006);

Muttoni v. State, 25 S.W.3d 300, 304 (Tex. App.—Austin 2000, no pet.); see also Lilly v. Virginia,

25
527 U.S. 116, 137 (1999) (stating that courts should “independently review” whether out-of-court

statements violate Confrontation Clause).

During Officer Sanchez’s testimony, the following exchange relating to Petra

Gaytan occurred:

[Prosecutor]: Did you have a conversation with Petra Gaytan at the jail on
that day after she was arrested?

[Sanchez]: Yes, I did.

[Prosecutor]: And during the course of that conversation, did you and she
discuss the marks on her arms?

....

[Sanchez]: Yes.

[Prosecutor]: Did you ask her what caused the marks or what are the
marks?

[Sanchez]: Yes.

[Prosecutor]: What did she say?

[Sanchez]: She said that she shot heroin.

[Prosecutor]: And as a result of shooting heroin—what do you mean by
shooting heroin. . . .

[Sanchez]: Okay. . . . [W]hat she means by shooting heroin is she injects
heroin with syringes into her arms.

[Prosecutor]: The fact that she injects heroin into her arms, does that do
anything to the arm?

[Sanchez]: Yes.

[Prosecutor]: What?

26
 [Sanchez]: It will leave scars.

[Prosecutor]: Is there a common term that is used by people that use
narcotics . . . for those scars?

[Sanchez]: Yes. Needle tracks.

[Prosecutor]: Needle tracks? Track marks?

[Sanchez]: Track marks.

The State contends that Gaytan’s statements to Officer Sanchez fall under

the “statement against interest” exception to the hearsay rule and are, therefore, admissible.

See Tex. R. Evid. 803(24). However, whether a statement is admissible under the rules of evidence

and whether the same statement is admissible under the Confrontation Clause are separate questions.

See Crawford v. Washington, 541 U.S. 36, 50-51 (2004); Wall, 184 S.W.3d at 734-35. The central

question under the Confrontation Clause is whether an out-of-court statement is testimonial or

nontestimonial; testimonial statements implicate the Confrontation Clause, while nontestimonial

statements do not. See Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006).11

However, we need not decide whether Gaytan’s statements to Officer Sanchez were

testimonial because, even if they were, we conclude that any error in admitting the statements

was harmless. “[B]efore a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California,

386 U.S. 18, 24 (1967); Davis v. State, 203 S.W.3d 845, 849 (Tex. Crim. App. 2006), cert. denied,

11
We note that Arnaldo was tried in 2003, prior to the Supreme Court’s decisions in
Crawford and Davis.

27
127 S. Ct. 2037 (2007); see also Tex. R. App. P. 44.2(a). The court of criminal appeals has recently

explained that “courts reviewing whether the error in admitting out-of-court statements in violation

of Crawford is harmless . . . must be convinced, beyond a reasonable doubt, that the admission of

Crawford-barred testimony would probably not have had a significant impact on the mind of an

average juror. Put another way, is there a reasonable possibility that the Crawford error, within the

context of the entire trial, ‘moved the jury from a state of non-persuasion to one of persuasion’ on

a particular issue?” Davis, 203 S.W.3d at 852-53 (citing Wesbrook v. State, 29 S.W.3d 103, 119

(Tex. Crim. App. 2000)). Factors to consider in the analysis include: (1) the importance of the

hearsay statements to the State’s case; (2) whether the hearsay evidence was cumulative of other

evidence; (3) the presence or absence of evidence corroborating or contradicting the hearsay

testimony on material points; and (4) the overall strength of the prosecution’s case. Id. at 852.

The hearsay testimony of which Arnaldo complains are Gaytan’s statements to

Sanchez that “she shot heroin” and that the track marks on her arms were the result of heroin use.

This testimony was only incidentally related to Arnaldo’s alleged heroin use. Although the State

used this testimony to introduce the photographic evidence of track marks on Arnaldo’s arms, the

State could have introduced this evidence without the hearsay. Immediately after the hearsay

testimony, Sanchez testified that he had “worked narcotics for four years” and that he had seen track

marks before in prior investigations. Therefore, it is likely that Sanchez could have identified the

track marks on Arnaldo’s arms even without testimony about Gaytan’s statements. Additionally,

there was other evidence of Arnaldo’s heroin use apart from the photographs of the track marks on

his arms. As we explained under Arnaldo’s third point, EMS paramedic Michael Wencka testified

28
that when he asked Arnaldo if he had recently consumed any alcohol or narcotics, Arnaldo told

Wencka that earlier in the day he “did approximately $40 worth of heroin.” Finally, as we have

already discussed, the State’s case included other evidence connecting Arnaldo to the criminal

activity independent of his alleged heroin use, including the informant’s testimony that he purchased

heroin from Arnaldo, Officer Pastrano’s testimony that he observed Arnaldo with the informant

during the controlled buys, and the evidence that Arnaldo resided at the location where considerable

evidence of drug possession and distribution was discovered. In the context of the entire trial, we

conclude that there is not a reasonable possibility that the alleged Crawford error “moved the jury

from a state of non-persuasion to one of persuasion” on the issue of Arnaldo’s guilt. See id. at 853.

We overrule Arnaldo’s fourth point.

CONCLUSION

We affirm the judgment of the district court.

____________________________________________

Bob Pemberton, Justice

Before Chief Justice Law, Justices Patterson and Pemberton

Affirmed

Filed: November 9, 2007

Do Not Publish

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