Gonzales, Rodolfo v. State

/6£HM /*5SVY
NO.

ORIGINAL IN THE

COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS

COURT OF CRIMINAL APPEALS
RODOLFO GONZALES,
PETITIONER, MAR 06 2015

v* Abel Acosta, Clerk
THE STATE OF TEXAS,
RESPONDENT.

PETITION IN CAUSE NO. 2012-435,536 & 2012-435,537, FROM THE
364TH JUDICIAL DISTRICT COURT OF LUBBOCK COUNTY, TEXAS,
AND CAUSE NO. 07-13-00268-CR AND 07-13-00269-CR
IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

RODOLFO GONZALES'S

PETITION FOR DISCRETIONARY REVIEW

: : FILED IN
COURT OF CRIMINAL APPEALS
Rodolfo Gonzales # 1877624
Petitioner, Pro Se NAR 09 2015
French M. Robertson Unit
12071 F.H. 3522 Abel Acosta, Clerk
Abilene, Texas 79601
(325) 548-9035

I COVER SHEET j
 TABLE OF CONTENTS;

TABLE OF CONTENTS -i-
INDEX OF AUTHORITIES :... -ii-
LIBERAL SCRUTINY STATEMENT -iii-
STATEMENT REGARDING ORAL ARGUMENT -iv-
STATEMENT OF THE CASE -iv-
PROCEDURAL HISTORY -iv-
STATEMENT OF FACTS -1-
QUESTION PRESENTED FOR REVIEW:
Did the Court of Appeals err in affilming Petitioner's convic
tion, by finding that a reasonable magistrate could conclude
that there was a substantial basis for believing that probable
cause existed that narcotics would be found at the residence
in question, at the time the warrant was issued; thus, the
trial court did not err in denying Petitioner's pre-trial
Motion To Suppress ? -2-

STANDARD OF REVIEW -2-
ARGUMENT AND AUTHORITIES -2-
CONCLUSION -10-
PRAYER -11-
INMATE DECLARATION .. -11-
CERTIFICATE OF SERVICE -12-
APPENDIX: MEMORANDUM OPINION END

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 INDEX OF AUTHORITIES;

CASES;

Adkins v. State, 675 S.W.2d 604 (Tex.App. - El Paso 1984) 10

Aguilar v. Texas, 378 U.S. 108 (1964) 2

Alvarez v. State, 750 S.W.2d 889 (Tex.App. - Corpus Christi 1988) 10

Burke v. State, 27 S.W.3d 651 (Tex.App. - Waco 2000) 3

Cardona v. State, 134 S.W.3d 854 (Tex.App. - Amarillo 2003) 8

Cassias v. State, 719 S.W.2d 585 (Tex.Crim.App. 1986) 3

Dees v. State, 722 S.W.2d 209 (Tex.App. - Corpus Christi 1985) 10

Elardo v. State, 163 S.W.3d 760 (Tex.App. - Texarkana 2005) 9

Hermessy v. State, 660 S.W.2d 87 (Tex.Crim.App. 1983) 9

Illinois v. Gates, 462 U.S. 213 (1983) 2,3,5,6

Lowery v. State, 843 S.W.2d 136 ^Tex.App. - Dallas 1992) 7

Martin v. State, 67 S.W.3d 340 (Tex.App. - Texarkana 2001) 9

Meeks v. State, 851 S.W.2d 373 (Tex.App. - Houston [14th Dist.] 1993) 6
Ozud v. State, 88 S.W.3d 307 (Tex.App. - San Antonio 2002) 3,4
Ramos v. State, 934 S.W.2d 358 (Tex.Crim.App. 1996) 3

Robuckv. State, 40 S.W.3d 650 (Tex.App. - San Antonio 2001) 4

State v. Duarte, 2012 Tex.Crim.App. Lexis 1180 (Tex.Crim.App. Sept.12,2012)6,7,9
State v. Jordan, 342 S.W.3d 565 (Tex.Crim.App. 2011) 2

State v. McLain, 337 S.W.3d 268 (Tex.Crim.App. 2011) 2

Swearingen v. State, 143 S.W.3d 808 (Tex.Crim.App. 2004) 2

Torres v. State, 552 S.W.2d 821 (Tex.Crim.App. 1977) 9

Walker v. State, (Tex.App. - Houston [14th Dist.] 2004) 4

CONSTITUTIONSi

2. U.S. CONST., AMEND. IV 3,9
» TEX. CONST., ART. I, § 9 3,9
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STATUTES;

• TEX. CODE CRIM. PROC, ANN. ART. 18.01(b) (Vernon Supp. 2004).... 3

LIBERAL SCRUTINY STATEMENT;

Petitioner being a layman of the law is unskilled and without experience in
the drafting of legal papers; therefore, he is entitled to a review that comes
under a less stringent standard than those formal proceedings submitted by artful
and skilled practioners of the law; and thus, his litigations should be construed
liberally under Haines v. Kerner, 404 U.S. 519-20 (1972); Brown v. Allen, 344 U.S.
445, 502 (1953); Bush v. U.S., 823 F.2d 909, 910 (5th Cir. 1987).

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[ THIS SPACE INTENTIONALLY LEFT BLANK ]

-in-
 STATEMENT REGARDING ORAL ARGUMENT;

The Petitioner is an inmate in the Texas Department of Criminal Justice and
thus is not eligible to present any oral argument before the Court; if the Court
grants Discretionary Review and recognizes any issue as needing oral argument, the
Petitioner requests the Court to appoint counsel to represent him in such proceed
ings.

STATEMENT OF THE CASE:

Petitioner was charged with the offense of Possession of a Controlled Subs
tance, with Intent to Deliver, 4-200 grams; and the offense of Possession of Mari
juana, 4-50 pounds. Petitioner filed a motion to suppress the evidence, asserting
that the information in the affidavit requesting the search warrant did not give
the magistrate probable cause to issue the warrant. The trial court denied the
motion to suppress, and Petitioner subsequently entered a plea of guilty before
the Court, without a plea agreement. The trial court accepted Petitioner's plea of
guilt and assessed punishment at fifty (50) years in the Texas Department of Crim
inal Justice on the Possession of a Controlled Substance charge, and ten (10) year
in the Texas Department of Criminal Justice on the Possession of Marijuana charge.

PROCEDURAL HISTORY;

Petitioner was convicted in the 364th Judicial District Court of Lubbock
County, Texas of Possession of a Controlled Substance under TEX. HEALTH & SAFETY
CODE ANN. § 481.112(a); and Possession of Marijuana under TEX. HEALTH & SAFETY
CODE ANN. § 481.121(a). Petitioner filed a timely Notice of Appeal, the appeal was
perfected and on December 4, 2014, the Seventh District of Texas Court of Appeals
affirmed the convictions in an unpublished opinion (Gonzales v. State, No. 07-13-
00268-CR and 07-13-00269-CR, December 4, 2014)(not designated for publication). No
Motion For Rehearing was filed, due to Appellate Counsel never notifying Petition
er of the affirmation of his conviction. To this date, Appellate Counsel still has
not notified Petitioner of his affirmation, nor his right to file the Petition For
Discretionary Review. Petitioner found out about such affirmation and right from
another attorney, whom he happens to be in touch with. Upon learning of the case
being affirmed, through said third party, Petitioner filed for an extension of
time to file this Petition For Discretionary review, which the Court granted and
the extended deadline is met with the filing of this Petition being timely filed.
i
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 STATEMENT OF FACTS:

On July 2, 2012, Officer Brady Lewis of the Lubbock Police Department rece
ived an anonymous tip allegeing that illegal narcotics were being trafficked from
1922 26th Street. The anonymous tipster is alleged to have observed "approximately
seventeen vehicles arrive at the location for a short period of time and then lea
ve." (CR 127). Based on this anonymous information, Officers Lewis and Williams
established surveillance at 1922 26th Street, and observed three separate vehicles
arrive at the residence. (CR 127). Officer Lewis observed individuals enter into
the residence for a short period of time and then leave the residence. Based on
this brief observation, Officer Lewis followed one of the individuals leaving the
residence, made contact with him, searched his vehicle, discovered a white powdery
substance, field tested the substance, and determined the substance to be cocaine.
The individual, later identified as Ray Garcia, alleged he had purchased the coca
ine from a Hispanic male named "Rudy," at the 1922 26th Street residence.
On July 2, 2012, Officer Lewis executed an affidavit for a search warrant.
The affidavit for the search warrant recited the above-mentioned arrest of Ray
Garcia. There was no mention made of the reliability or veracity of the informants
in the affidavit. Based on Officer Lewis' affidavit, a search and arrest warrant
was signed by Judge Drue Farmer on July 2, 2012 and executed on July 2, 2012. The
search yielded the evidence which Petitioner sought to have suppressed as the fru
it of an illegal search. The trial court erroneously denied Petitioner's Motion To
Suppress. 2
The case was called to trial on July 29, 2013. (RR 5:13). At trial, Petiti
oner entered a plea of guilty before the court, which he would not have done had
the illegally obtained evidence been suppressed. (RR 5:18). The court had a punis
hment hearing on August 8, 2013. (RR 6:6). After hearing the evidence and argument
of counsel, the trial court assessed a punishment of fifty (50) years in the Texas
Department of Criminal Justice on the Possession of a Controlled Substance charge,
and ten (10) years in the Texas Department of Criminal Justice on the Possession
of Marijuana charge. Petitioner filed a Notice of Appeal on August 8, 2013. (CR
149).

1 'KK' denotes the Clerk's Record, which is followed by the page iuiber referenced to.
2'W denotes the Reporter's Record, which is folkwad by the Vbkme nuifcer : Page nmber.

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 QUESTION PRESENTED FOR REVIEW;

Did the Court of Appeals err in affirming Petitioner's conviction,
by finding that a reasonable magistrate could conclude that there
was a substantial basis for believing that probable cause existed
that narcotics would be found at the residence in question, at the
time the warrant was issued) thus, the trial court did not err in
denying Petitioner's pre-trial Motion To Suppress ?

STANDARD OF REVIEW;

A trial court's determination whether probable cause exists to support a
search warrant's issuance is constrained solely to the affidavit's four corners.
State v. McLain, 337 S.W.3d 268, 271 (Tex.Crim.App. 2011); see Aguilar v. Texas,
378 U.S. 108, 109 n.l (1964) ("It is elementary that in passing on the validity of
a warrant, the reviewing court may consider only information brought to the magis
trate's attention."). When reviewing a magistrate's decision to issue a warrant,
the appellate court should apply a highly deferential standard of review because
of the constitutional preference for searches conducted pursuant to a warrant over
warrantless searches. Swearingen v. State, 143 S.W.3d 808, 810-11 (Tex.Crim.App.
2004). Provided the magistrate had a substantial basis for concluding that probab
le cause existed, we will uphold the magistrate's probable-cause determination.
McLain, 337 S.W.3d at 271 (citing Gates, 462 U.S. at 234-37). The magistrate may
interpret the affidavit in a nontechnical, common-sense manner and may draw reas
onable inferences solely from the facts and circumstances contained within the
affidavit's four corners. State v. Jordan, 342 S.W.3d 565, 569 (Tex.Crim.App.
2011). Appellate courts should not invalidate a warrant by interpreting the affid
avit in a hypertechnical, rather than a common-sense, manner. McLain, 337 S.W.3d
at 272. When in doubt, the appellate court should defer to all reasonable inferen
ces that the magistrate could have made. Id.

ARGUMENT AND AUTHORITIES;

I. Officer Lewis' affidavit did not provide sufficient probable cause for the
issuance of a search warrant because mere drug possession by a third party
does not rise to the level of probable cause to search a person's home.
The Fourth Amendment of the United States Constitution states: " The right

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of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized." U.S.
CONST., amend. IV. Similarly, the Texas Constitution states: '*The people shall be
secure in their persons, houses, papers and possessions, from all unreasonable se
izures or searches, and no warrant to search any place, or to seize any person or
thing, shall issue without describing them as near as may be, nor without probable
cause, supported by oath or affirmation." TEX.CONST., art. I, § 9.
The search of Defendant's home pursuant to a search warrant not supported
by probable cause violated Defendant's rights under the U.S. Constitution and the
Texas Constitution. A search warrant may not be issued unless sufficient facts are
presented to the magistrate, which permit him to conclude that probable cause exi
sts supporting the warrant's issuance. Tex. Code Crim. Proc., Ann. Art. 18.01(b)
(Vernon Supp. 2004). whether the facts mentioned in an affidavit are adequate to
establish probable cause depends on the totality of the circumstances. Illinois v.
Gates, 462 U.S. 213 (1983), and Raiaos v. State, 934 S.W.2d 358 (Tex.Crim.App.
1996). The facts found in the search warrant affidavit must show that "there's a
fair probability that contraband or evidence of a crime will be found in that par
ticular place." Illinois v. Gates, 462 U.S. 213, 238 (1983). Wholly conclusory
statements do not provide the magistrate with a substantial basis for determining
the existence of probable cause. Id. The proabable cause to support the issuance
of a search warrant is determined from the "four corners" of the affidavit alone.
Burke v. State, 27 S.W.3d 651 (Tex.App. - Waco 2000, pet.ref'd). The probable cau
se determination to issue a warrant to search Defendant's home was based on the
facts that ray garcia was arrested while possessing illegal drugs after leaving
Defendant's premises, information from an anonymous tipster alleging that traffic
king of illegal drugs was occurring at 1922 26th Street, and limited police surve
illance. Mere possession of drugs is not enough to warrant the search of residence.
Ozutt v. State, 88 S.W.3d 307 (Tex.App. - San Antonio 2002 pet. ref *d), citing
Cassias v. State, 719 S.W.2d 585 (Tex.Crim.App. 1986). In Cassias, the affidavit
relied in part on the fact that two people were spotted at a residence had previo
usly been arrested for possessing drugs. Id at 587. The court concluded that there
was no probable cause for a valid search warrant. Id. In the instant case, the
affidavit contained no information that Defendant possessed cocaine on his person,
or anything else to suggest that there would be contrand in Defendant's home. Pro-
bable cause to search the home does not exist if there is not a connection between
the illegal drugs and the residence in the affidavit. Ozum v. State, 88 S.W.3d 307
(Tex.App. - San Antonio 2002, pet.ref'd).
In Ozum, the defendant was suspected of exchanging drugs for stolen proper
ty. The affidavit contained evidence that the defendant carried drugs on his pers
on, but no evidence that the defendant kept drugs at his residence. Id. The court
found that there must be a link between the illegal drugs and the residence for
there to be a valid search warrant supported by proabable cause. Id. In the insta
nt case, the affiant suspected that Defendant possessed cocaine, but he had no
evidence to show that there would be cocaine at Defendant's home. The affiant did
not enter the home, nor did the affiant see any contraband while conducting surve
illance.
The facts enumerated in the search warrant and affidavit in this case only
show that Ray Garcia possessed cocaine and was alleged to have purchased it from a
Hispanic male at 1922 26th Street, not that there would be any cocaine in Defenda
nt's home. Ray Garcia could have possessed the cocaine prior to arriving at Defen
dant's home, or he could have had the cocaine in his vehicle. Ultimately, aside
from a single statement made by a criminal informant, with self-serving interest,
the affidavit failed to connect the cocaine in Ray Garcia's possession with Defen
dant's home.
Robuck v. State also deals with an affidavit for a search warrant that fai
led to connect the defendant's home with contraband. Robuck v. State, 40 S.W.3d
650 (Tex.App. - San Antonio 2001, pet.ref'd). In Robuck, the defendant had been
mailed a package which contained money that smelled strongly of marijuana. Id. at
655. The package was intercepted by law enforcement officers, an affidavit was
prepared, and a warrant to search the defendant's home was procured. Id. The affi
davit stated that the defendant was a "known drug trafficker" and that as a drug
trafficker, he would have quantities of currency and other evidence at his reside
nce. Id. The court held that the affidavit was too general to support the issuance
of a search warrant for the defendant's home, and furthermore, that there were no
facts in the affidavit that would support a conclusion that contraband or evidence
of a crime would be found at the defendant's home. Id.
The affidavit in the instant case contains even less information than the
affidavit which the court deemed to be unsatisfactory in Robuck. Cf Walker v.
State, (Tex.App. - Houston [14th Dist.] 2004) (affidavit was sufficient when aff
iant relied on information received from an informant whose information had been

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true and correct in the past, and received assistance from other law enforcement
agencies). There is a description of the arrest of Ray Garcia, and the subsequent
discovery of cocaine, but aside from a single uncorroborated statement made by a
criminal informant with a self-serving interest, there are no facts in the affida
vit that connect the contraband to Defendant's home. The contraband was not found
on Defendant's person, but on the person of Ray Garcia. Affiant did not observe
Ray Garcia accept contraband from Defendant, nor did he observe any contraband
leave Defendant's home. Ray Garcia could have possessed the cocaine prior to arri
ving at Defendant's home, or he could have had the cocaine in his vehicle.

II. Officer Lewis' affidavit did not provide sufficient probable cause for the
issuance of a search warrant for the search of Defendant's home, because prob
able cause was based wholly on anonymous tips from a criminal informant with a
self-serving interest.
In Illinois v. Gates, the Supreme Court set forth the totality of the circ
umstances test to be applied when issues concerning anonymous tips and probable
cause to issue search warrants intersect. Illinois v. Gates, 462 U.S. 213, 295
(1983). Gates involved an elaborate scheme for the trafficking of narcotics, where
the wife would drive a car from Illinois to Florida, purchase drugs, load the car
and fly back to Illinois. Id. at 225. The husband would then fly from Illinois to
Florida and drive the narcotics-laden car back to Illinois. Id. An anonymous lett
er, which described the smuggling trafficking operation in detail, was mailed to
the local police department in Illinois by a concerned citizen. Id. Upon receipt
of the tip, law enforcement went to work investigating the validity of the lette
r's assertions. Id. Officers observed that the wife had booked a flight from Flor
ida and that the husband had booked a flight to Florida shortly after the wife's
return. Id. Based on the tip and the corroborating investigations by law enforcem
ent, a search warrant was issued for the search of the defendants' home and car.
Id. The Supreme Court upheld the validity of the warrant, stating that the tip,
combined with the corroborating investigation, provided sufficient probable cause
for a search warrant. Id.
The instant case is distinguishable from Gates. First, the tip in the inst
ant case was nothing more than a bare, conclusory assertion. There were no facts
in the affidavit concerning who gave the tips, what the tipsters* basis of knowle
dge for the tips was, where Defendant resided, where Defendant based his narcotics
operations, or how Defendant carried out his narcotics operations. The Court in
Gates noted, a magistrate's action in issuing a search warrant based on an affida-
—
vit "cannot be a mere ratification of the bare conclusions of others." Gates, 462
U.S. at 239. The Court in Gates referenced "bare-bones affidavits," where nothing
more than a conclusory statement is presented to the magistrate. Gates, 462 U.S.
at 239. The instant case presents a bare-bones affidavit that has no supporting
facts and no evidence of any substantive corroborative investigation on the part
of the law enforcement.
Furthermore, the Court stated, "... the totality of the circumstances anal
ysis ... have consistently recognized the value of corroboration of details of an
informer's tip by independent police work." Gates, 462 U.S. at 241. In the instant
case, not only were there no substantial corroboration of the details in the tips,
there were no details in the tips themselves. Under the totality of the circumsta
nces, the affidavit in the instant case indicates only that a third party snitch
had possessed cocaine on his person after leaving Defendant's home. The only evid
ence of corroborative investigation, within the four corners of the affidavit is
that Officers Lewis and Williams established surveillance at 1922 26th Streeet,
and observed three separate vehicles arrive at the residence. (CR 127). Officer
Lewis observed individuals enter into the residence for a short period of time and
then leave the residence. (CR 127). The affidavit does not state the date that
surveillance was conducted, the duration of surveillance, or any other details
showing substantial corroborative investigation by police that could lead a magis
trate to determine that Defendant would have contraband in his home. Since there
was not sufficient evidence of corroborative investigation within the four corners
of the search warrant, and information provided by an informant has no indicia of
reliability, there can be no finding of probable cause.
To illustrate how Texas Courts have interpreted Gates, see Meeks v. State,
851 S.W.2d 373 (Tex.App. - Houston [14th Dist.] 1993)(holding that probable cause
for the search warrant was lacking because nothing in the affidavit corroborated
the informant's allegation).

III. Officer Lewis' affidavit did not provide sufficient probable cause for the
issuance of a search warrant for the search of Defendant's home because the
anonymous sources mentioned in the affidavit were not reliable or credible,
the affidavit did not contain any facts to show the basis of the tipsters'
knowledge, and the anonymous tips were not credited at each level.
In State v. Duarte, this Honorable Court affirmed the trial court's ruling
granting defendant's motion to suppress, reversing the court of appeals which had
itself reversed the trial court. State v. Duarte, 2012 Tex.Crim.App. Lexis 1180,
(Tex.Crim.App. Sept. IS, 2012). Similar to the case at bar, in Duarte, the defend
ant was charged with possession of cocaine, and filed a motion to suppress allegi
ng that the search warrant affidavit authorizing the search of his home was not
supported by probable cause. State v. Duarte, 2012 Tex.Crim.App. Lexis 1180 at *2
(Tex.Crim.App. Sept. 12, 2012). Defendant argued that the affidavit failed to meet
Fourth Amendment requirements because it was based solely upon a tip from a first-
time informant looking to make a deal. Id. at 6. The supporting affidavit alleged
that affiant "received information from a credible individual who is currently
facing pending criminal charges." Id. at 4. The affidavit further stated, "the
credible individual stated that he/she had observed Duarte in possession of cocai
ne within the past twenty-four hours at 10919 Indigo Creek." The trial court corr
ectly held that the affidavit did not contain sufficient information to support a
finding of probable cause: "The magistrate in this case was only presented with
informatioon the detective obtained from the informer, and was not presented with
with other verifying information other than determining that the defendant gave
the address as his residence on a traffic ticket he received in 2008." Id. at 4.
This Honorable Court concluded that, based on the four corners of the affidavit,
the magistrate did not have a substantial basis for crediting the informant's hea
rsay. Instead, the magistrate relied on boilerplate language included in the affi
davit to conclude the informant's credibility. Id. at 23.
In Lowery v. State, law enforcement officers received a tip concerning a
drug lab at the defendant's home. Lowery v. State, 843 S.W.2d 136 (Tex.App. - Dal
las 1992, pet.ref'd). The defendant's motion to suppress was denied. Id. at 138.
On appeal, the defendant attacked the search warrant affidavit, claiming that the
affidavit contained tips from sources that were not reliable or credible. Id. The
"critical tip" came from an untested informant, and there was nothing within the
four corners of the search warrant affidavit to show that the informant was relia
ble or credible. Id. The court held that there was insufficient probable cause for
the issuance of a search warrant, stating, "Probable cause does not arise by virt
ue of the fact that several people, whose identity, reliability, credibility, or
basis of knowledge is unestablished, gave officers information concerning criminal
activity." Lowery, 843 S.Wi2d at 141. In Lowery, several other people had called
law enforcement concerning the chemical smell emanating from the defendant's home
(including a police officer who lived in the area), and the affiant did perform an
investigation to corroborate the tip. Id at 140. Still, the Court found that the
affidavit, based in large part on the anonymous tip, did not provide sufficient
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probable cause for the issue of a search warrant. Id.
The instant case is analogous to Lowery. Lowery involved an anonymous tip
with insufficient corroborative investigation, just as the instant case involves a
anonymous tip coupled with insufficient corroborative investigation. In the insta
nt case, the single anonymous tip was not shown to be reliable or credible within
the four corners of the affidavit. All that lies within the four corners of the
affidavit in reference to the anonymous tip is that:
Lubbock Police Department narcotics unit, received a tip in reference
to illegal narcotics trafficking from 1922 26th Street. The caller
observed approximately seventeen vehicles arrive at the location for
a short period of time and then leave.
First, the lone tipster is not identified. Second, there is nothing to show
that the tipster is reliable and has given correct information in the past. Third,
there is nothing to show that the tipster had any reason to be truthful or credib
le, (e.g., a statement against interest). There is no reason within the four corn
ers of the affidavit to show that the magistrate should believe what the tipster
said.
Cardona v. State, involved a tipster giving law enforcement officers infor
mation about a drug lab. Cardona v. State, 134 S.W.3d 854 (Tex.App. - Amarillo
2003, pet.ref'd). The tipster described various chemicals and appratuses used in
the manufacture of methamphetamine. While the court held the affidavit insufficie
nt on other grounds, it noted, "... the search warrant affidavit did not state how
the tipster came to have this knowledge, the extent of his knowledge, or his prior
interactions with drugs." Id. at 856. Like the affidavit in Cardona, the affidavit
in this case does not reveal the basis of the anonymous tipster's knowledge, the
extent of his knowledge, or his prior interaction with drugs. The affidavit does
not state whether the anonymous tipster was related to Defendant, whether the tip
ster was a customer of Defendant, or whether the tipster knew any customers of
Defendant. There is no mention in the affidavit as to whether the tipster even
personally knew Defendant, let alone whether Defendant's alleged narcotics operat
ion had any connection to Defendant's home.
The affidavit also fails to substantiate Ray Garcia's credibility, and
there was no evidence of police investigation to corroborate the statements made
by Ray Garcia. First, for purposes of establishing probable cause necessary to
support issuance of a search warrant based on the tip of an informant, Texas cour
ts have held that the citizen-informer is presumed to speak with the voice of

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honesty and accuracy, whereas the criminal informant who is making a quid pro quo
trade for leniency does not enjoy any such presumptions, in that his motive is
entirely self-serving. State v. Duarte, 2012 WL 3965824 (Tex.Crim.App.). Second,
corroboration of the details of an informant's tip by independent police work is a
relevant consideration in the totality of the circumstances analysis when determi
ning whether an officer's affidavit contains sufficient facts to establish probab
le cause for the issuance of a search warrant. Martin v. State, 67 S.W.3d 340 (Tex.
App. - Texarkana 2001). In the context of determining probable cause for issuance
of a search warrant, corroboration of an informant's tip by a police officer means
that, in light of the circumstances, the officer confirms enough facts to reasona
bly conclude that the information provided is reliable. Elardo v. State, 163
S.W.3d 760 (Tex.App. - Texarkana 2005), U.S.C.A. CONST. AMEND. TV; Vernon's Arm.
Tex. Const, art. I, § 9. Finally, this Honorable Court has held that, "an affidav
it in support of a search warrant need not provide more reliability than to state
that informant provided information in the past regarding narcotics trafficking,
which information had been proved correct." See generally, Torres v. State, 552
S.W.2d 821, 824 (Tex.Crim.App. 1977).
In the instant case, the affidavit failed to meet the minimum standard of
reliability under Torres, did not set forth the basis of the two tipsters' knowle
dge, and had no substantial corroborative investigation. The only evidence of cor
roborative investigation, within the four corners of the affidavit, is that Offic
ers Lewis and Williams established surveillance at 1922 26th Street, and observed
three separate vehicles arrive at the residence. (CR 127). Officer Lewis observed
individuals enter into the residence for a short period of time and then leave the
residence. (CR 127). The affidavit does not state the date that surveillance was
conducted, the duration of surveillance, or any other details showing substantial
corroborative investigation by police that could lead a magistrate to determine
that Defendant would have contraband in his home.
Hennessy v. State, involved a search warrant affidavit that relied on
hearsay-upon-hearsay for probable cause to search the defendant's home. Hennessy
v. State, 660 S.W.2d 87 (Tex.Crim.App. 1983). The hearsay in the affidavit was
shown to be reliable, and the Court held that the search warrant was supported by
probable cause. Id. at 92. The'Court stated, "Hearsay-upon-hearsay may be utilized
to show probable cause as long as the underlying circumstances indicate that there
is a substantial basis for crediting the hearsay at each level." Id. at 91.
In the instant case, there is no indication within the four corners of the
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search warrant affidavit that the hearsay was credited at each level. Likewise,
there is no idication whether the unknown source obtained the information himself,
or from yet another party or parties. Without any indication that the hearsay is
credited, or whether it even can be credited, there can be no probable cause based
solely on the hearsay. Since the subsequent investigation failed to corroborate
the hearsay, there is not enough information within the four corners of the affid
avit to provide probable cause to issue a search warrant. See also Dees v. State,
722 S.W.2d 209, 214-15 (Tex.App. - Corpus Christi 1985, pet.ref'd)(affidavit insu
fficient because it contained no information regarding the reliability of the
informant and indicated no personal observations of the affiant regarding the
transaction between the defendant and the affiant's agent) and Adkins v. State,
675 S.W.2d 604, 607 (Tex.App. - El Paso 1984), rev'd on other grounds, 717 S.W.2d
363 (Tex.Crim.App. 1986)(affidavit insufficient because it did not indicate wheth
er the source of the tip was direct observation or reliable hearsay, it did not
indicate a basis for the informant's reliability such as past performance, and it
did not explain the nexus between the original tip and the officer's corroborative
details).
Moreover, the affidavit did not say the caller received the information and
when it was received, hence no point of reference for the informer's claim that
narcotics were being "sold" at the house of Defendant, and no point of reference
thus to support an inference that the information was fresh. See Alvarez v. State,
750 S.W.2d 889 (Tex.App. - Corpus Christi 1988, pet.ref'd)(Affidavit which failed
to state time when informant made his observation is insufficient to support warr
ant).

CONCLUSION;

Since the search warrant affidavit did not contain any facts which connect
ed the contraband on Ray Garcia*s person to Defendant's home, and the anonymous
informant was not shown to be reliable and credible, it was not possible for a
magistrate to find probable cause within the four corners of the search warrant
affidavit. Furthermore, the affidavit relied upon information from a criminal inf
ormant with a self-serving interest, failed to provide the basis of the informan
t's knowledge, and failed to corroborate the informant's information through subs
tantial corroborative investigation. The defects within the search
warrant affidavit were fatal, and any evidence obtained pursuant to the search
warrant should have been suppressed. And, had proper suppression have taken place,
—
Defendant would not have plead guilty.

PRAYER:

WHEREFORE, PREMISES CONSIDERED, Petitioner prays this Honorable Court grant his
Discretionary Review, reverse his judgment of conviction and find that the search
warrant affidavit was insufficient, therefore the trial court erred in not suppre
ssing the evidence obtained in that illegal search of Petitioner's home. Petition
er prays for any other relief he may be entitled.
RESPECTFULLY SUBMITTED,

Petitioner, Pro Se
Rodolfo Gonzales # 1877624
French M. Robertson Unit
12071 F.M. 3522
Abilene, Texas 79601
(325) 548-9035

INMATE DECLARATION;

I, Rodolfo Gonzales, TDCJ # 1877624, being presently incarcerated in the
French M. Robertson Unit of the Texas Department of Criminal Justice in Jones Cou
nty, Texas; do hereby verify and declare under the penalty of perjury that the fo
regoing statements are both true and correct, as well as offered in good faith.
[Tex.Civ.Prac.& Rem.Code §132.001-003 et seq./Title 28 U.S.C. § 1746]
(Asignad/dated copy of this PEEETKN shall have the saie validity as its origianl)
SIGNED AND EXECUTED on this the 1st day of March, 2015.

/s/ »•) Yorwznn/zA
Petitioner, Pro Se
Rodolfo Gonzales # 1877624
French M. Robertson Unit
12071 F.M. 3522
Abilene, Texas 79601
(325) 548-9035

RG/awr-File

-11-
 CERTIFICATE OF SERVICE;

The above signer hereby certifies that a true and correct copy of this
PETITION FOR DISCRETIONARY REVIEW has been forwarded to ALL parties, via 1st Class
U.S. Mail, Postage Pre-Paid, placed in the outgoing prison mailbox on this the
1st day of March, 2015; addressed to:
• Abel Acosta, Clerk,..
Texas Court of Criminal Appeals
P.O. Box 12308
Capitol Station
Austin, Texas 78711

• Jeffrey S. Ford
Assistant District Attorney
Lubbock County, Texas
Appellate Division
P.O. Box 10536
Lubbock, Texas 79408

• State Prosecuting Attorney
P.O. Box 12405
Austin, Texas 78711

RG/awr-File

-12-
 APPENDIX;

Memorandum Opinion
Seventh District of Texas
Court of Appeals
Gonzales v. State, No. 07-13-00268-CR and 07-13-00269-CR
December 4, 2014
(5 Pages)
 Court of &ppeal£
^ebentft JBtetrtd of Cexa* at gtotarillo

No. 07-13-00268-CR
No. 07-13-00269-CR

RODOLFO GONZALES, APPELLANT

V.

STATE OF TEXAS, APPELLEE

On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2012-435,536 & 2012-435,537
Honorable Cecil Puryear, Presiding by Assignment

December 4, 2014

MEMORANDUM OPINION

Before QUTNN, C J., and CAMPBELL and PIRTLE, JJ.

Following an open plea of guilty, Rudolfo Gonzales was convicted of the offense

of possession of a controlled substance (cocaine) with intent to deliver, over 4 grams

but less than 200 grams, enhanced by a prior felony conviction, and sentenced to fifty
years confinement in Cause No. 07-13-00268-CR (trial court cause no. 2012-435,536).1

At the same time, Appellant was convicted of the offense of possession of marihuana,

over 4 pounds butjless than 50 pounds, and sentenced to ten years confinement in

Cause No. 07-13-00269-CR (trial court cause no. 2012-435,537).2 The trial court
ordered the two sentences to be served concurrently. By a single issue, Appellant

contends the trial court erred in denying his pretrial motion to suppress because the

officer's affidavit did not provide sufficient probable cause for the issuance of the search

warrant that lead to the discovery of the controlled substances the subject of the

respective prosecutions. We affirm.

Background

On July 2, 2012, Officer Brady Lewis of the Lubbock Police Department received

an anonymous tip alleging that controlled substances were being trafficked from a

specific residence in the city. Based on this tip, Officer Lewis and another officer set up

surveillance of the residence. During the surveillance he observed three vehicles arrive

at the residence. Officer Lewis observed various individuals enter the residence for a

short period of time and then leave. Based on this observation and the prior tip, Officer

Lewis followed an individual leaving the residence and made contact. During a search

of that individual's vehicle, a white powdery substance was discovered that field tested

1Tex. Healths Safety CodeAnn. §481.112(a) (West 2010). The offense is a felony ofthe first
degree. Id. at § 481.112(d). As enhanced, the offense was punishable by imprisonment for life, or for
any term of not more than 99 years or less than 15 years, and by a fine not to exceed $10,000. Tex.
Penal Code Ann. §12.42(c)(1) (West Supp. 2014).

2Tex. Health &Safety CodeAnn. § 481.121(a) (West 2010). The offense is a felony ofthe third
degree. Id. at § 481.121(b)(4). The punishment range in this case was not enhanced. Accordingly, the
offense was punishable by imprisonment for any term of not more than 10 years or less than 2 years, and
by a fine not to exceed $10,000. Tex. Penal Code Ann. § 12.34 (West 2011).
to be cocaine. The individual detained stated that he purchased the cocaine from a

Hispanic male named "Rudy" at the residence under surveillance.

That same day, Officer Lewis presented an affidavit for a search warrant to

Judge Drue Farmer of the Lubbock County Court at Law # 2.3 A search warrant was

signed and issued and, later that same day, the search warrant was executed at the

residence listed. A search of the residence yielded evidence which Appellant sought to

suppress via a pretrial motion to suppress. In support of that motion, Appellant argued

that the search was unreasonable and illegal under both the Fourth Amendment of the

U.S. Constitution and Article I, Section 9 of the Texas Constitution because it was

based on an affidavit that failed to give the magistrate sufficient facts to reasonable

conclude the object of the search was probably located on the premises described. The

The probable cause affidavit provided in pertinent part as follows:

On today's date the Lubbock Police Department narcotics unit received a tip in reference
to illegal narcotics trafficking from [residence address]. The caller observed
approximately seventeen vehicles arrive at the location for a short period of time then
leave. Through my training and experience I know this activity is common with street
level narcotics trafficking. Investigator Williams and myself set up surveillance on the
residence and observed three separate vehicles arrive at the residence. The individuals
would enter into the residence for a short period of time and then leave the residence. I
observed a Hispanic male later identified as [R.G.] arrive and park in front of the
residence driving a tan Ford expedition bearing Texas registration DF6S158. [R.G.]
entered into the residence and left approximately three or four minutes later. Through my
training, experience, and our investigation I believed [R.G.] was purchasing illegal
narcotics. We were driving an unmarked vehicle and wearing plain clothes. We were
wearing our Lubbock Police Department issued tact vest which display's "Police" on the
front and back of the vest. [R.G.] continued looking in his rear view mirror and appeared
to have observed us following him. [R.G.] then leaned over in the vehicle and appeared
to be hiding something around the center console area. [R.G.] pulled into a parking lot
and we made contact with him. I observed a white powdery substance in the passenger
floorboard and center console area where [R.G.] had been reaching. We field tested the
white powdery substance and it tested positive for cocaine using a field test kit. [R.G.]
advised he had purchased the cocaine from a Hispanic male named "Rudy" at [the
residence.] Through my training, experience, information received, and surveillance I
believe that there are illegal narcotics and proceeds from narcotics sales inside [the
residence.] The utilities at [the residence] return to Rudolfo Gonzales. Rudolfo Gonzales
has been arrested in the past for possession of marijuana three times, manufacture /
delivery of a controlled substance, assault, burglary, and two thefts.
trial court denied that motion and the Appellant entered a plea of guilty without a plea

recommendation. Following conviction and sentencing he brings this appeal to contest

the denial of that motion.

STANDARD OF REVIEW

Due to the constitutional preference for searches to be conducted pursuant to a

warrant as opposed to a warrantless search, a trial court's determination whether

probable cause exists to support the issuance of a search warrant is subject to a highly

deferential standard of review, constrained solely to the "four corners" of the probable

cause affidavit. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011);

Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. App. 2004). An appellate court

should uphold the magistrates' probable cause determination if it finds the affidavit in

support of the warrant provides the magistrate a 'substantial basis' for concluding that

probable cause existed. McLain, 337 S.W.3d at 271.

Analysis

From the four corners of the probable cause affidavit we know that (1) an

anonymous informant suspected narcotics activity at the residence based on his

observation of seventeen vehicles coming and then leaving the residence after a short

interval of time, (2) traffic patterns similar to this are common with street level narcotics

trafficking, (3) officers confirmed by observation similar traffic patterns at the residence,

(4) cocaine was found in a vehicle observed at the residence, conforming to that traffic

pattern, that was stopped immediately after leaving the residence, (5) the driver of that

vehicle stated that he purchased the cocaine at that residence from someone named
"Rudy," (6) the utilities at the residence were in the name of Rudolfo Gonzales, and (7)

Rudolfo Gonzales had a prior criminal history including manufacture / delivery of a

controlled substance. When these facts are considered together, we believe a

reasonable magistrate could conclude that there was a 'substantial basis' for believing

that probable cause existed that narcotics would be found at the residence in question,

at the time the warrant was issued. Accordingly, Appellant's sole issue is overruled.

Conclusion

The trial court's judgment is affirmed.

Patrick A. Pirtle
Justice

Do not publish.