In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00543-CR
____________________
JAMES ERIC LOFTEN, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 75th District Court
Liberty County, Texas
Trial Cause No. CR29858
________________________________________________________ _____________
MEMORANDUM OPINION
A jury found James Eric Loften guilty of possession of a controlled
substance, cocaine, with intent to deliver, in an amount of four grams or more but
less than 200 grams. See Tex. Health & Safety Code Ann. § 481.112(d) (West
2010). Before the start of the punishment phase of his trial, Loften pled “true” to
the State’s allegation that he had previously been found guilty of delivering a
controlled substance. When the punishment phase of his trial ended, the jury found
1
that Loften should serve a 99-year sentence, and found that he should pay a
$10,000 fine.
In his appeal, Loften presents five issues, claiming that he received
ineffective assistance, that the State improperly exercised its peremptory strikes,
that the trial court erred in denying his motion to suppress, that the trial court
should have conducted a hearing to determine the truth of various statements in the
probable cause affidavit used by the State to obtain the warrant for his arrest, and
that the evidence is insufficient to show that he was in possession of the drugs that
police found in the SUV that he was driving when he was arrested. We conclude
that Loften’s issues are without merit, and we affirm the trial court’s judgment.
Ineffective Assistance of Counsel
In his first issue, Loften argues that he received ineffective assistance of
counsel. We apply a two-pronged test to resolve ineffective assistance claims.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Thompson v. State, 9 S.W.3d
808, 812 (Tex. Crim. App. 1999). Under the first prong of Strickland, Loften must
demonstrate that he received ineffective assistance under a preponderance of the
evidence standard. See Strickland, 466 U.S. at 687; Thompson, 9 S.W.3d at 813.
To establish that he received ineffective assistance, Loften must show that his trial
attorneys performed below the standard expected of counsel under an objective
2
standard of reasonableness, and he must demonstrate that had his attorneys’
assistance not been deficient, a reasonable probability exists that the outcome of
his trial would have been different. See id. at 687–88, 694; Thompson, 9 S.W.3d at
812. “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Thompson, 9 S.W.3d at 812.
Our review of ineffective assistance claims is highly deferential to trial
counsel; generally, we begin with the presumption “that counsel’s actions fell
within the wide range of reasonable and professional assistance.” Garza v. State,
213 S.W.3d 338, 348 (Tex. Crim. App. 2007). When the defendant files a motion
for new trial that alleges ineffective assistance of counsel, the trial court’s denial of
the motion for new trial is reviewed for abuse of discretion; therefore, an appeals
court will reverse the trial court’s ruling only when the ruling is clearly erroneous
and arbitrary. Riley v. State, 378 S.W.3d 453, 457 (Tex. Crim. App. 2012). “A trial
court abuses its discretion if no reasonable view of the record could support the
trial court’s ruling.” Id. In reviewing the record of the defendant’s trial, the
evidence introduced during the trial is reviewed in the light most favorable to the
verdict of the jury. Id. We apply the same deferential standard of review to a trial
court’s determination regarding historical facts, as the trial court determined the
3
historical facts from the live testimony and affidavits when ruling on the
defendant’s motion. See id.
In this case, Loften filed a brief that points out five things he claims his trial
attorneys should have done differently, and he concludes that his representation
fell below the objective standard of what is considered to be reasonable. First,
Loften contends that his attorneys failed to file a pretrial motion to require the
State to disclose the identity of the confidential informant mentioned in the
probable cause affidavit. Second, Loften contends that his trial attorneys were
provided information which they could have used to dispute that the large amount
of money that he was found with when arrested was money that came from an
illegal activity. Third, Loften argues that his trial attorneys failed to properly
investigate and put before the jury evidence showing that he did not own or lease
the house where police found scales and baggies, items commonly used in the
packaging of contraband for sale. Fourth, Loften contends that his trial attorneys
failed to present evidence to the jury showing that the SUV he was driving at the
time he was stopped and arrested did not belong to him. Fifth, Loften claims that
trial counsel failed to file a motion to require the State to disclose the extraneous
offenses that it would introduce into evidence during his trial.
4
With respect to Loften’s first complaint, which concerns his claim that his
attorneys failed to discover the identity of the State’s confidential informant prior
to his trial, we note that the record does not include an explanation from Loften’s
attorneys about why they did not file a motion pursuing discovery of the
informant’s identity. The confidential informant mentioned in the probable cause
affidavit is the person who passed the marked bills in the drug buy the day before
Loften was arrested. The bills were found in Loften’s possession when he was
arrested. However, the attorney who represented Loften at the hearing on his
motion for new trial did not develop a full record to explain why the attorneys who
represented Loften at trial did not obtain the confidential informant’s identity prior
to the trial. The decision not to develop the record on this matter appears to have
been a tactical one, as the record shows that the attorneys who represented Loften
during the trial were available and could have been questioned about the decisions
they made in defending Loften against the State’s claim that he was guilty of
possession with the intent to deliver. However, the attorneys who represented
Loften at the hearing on the motion for new trial chose not to call Loften’s trial
attorneys during the hearing.
Additionally, the record shows that during the trial, Loften’s attorneys did
ask for the identity of the confidential informant that is mentioned in the probable
5
cause affidavit; however, the request they made for the information during
Loften’s trial was denied. That ruling is unchallenged in this appeal. Thus, Loften’s
ineffective assistance claim addresses only whether counsel rendered ineffective
assistance by failing to file a pretrial motion to disclose the confidential
informant’s identity.
Generally, the State has a privilege to refuse to disclose an informer’s
identity. Tex. R. Evid. 508 (Informer’s Identity Privilege). However, the privilege
does not apply if the trial court finds there is a reasonable probability that the
informer could give testimony that is necessary to a fair determination of the
defendant’s guilt or innocence. Id. 508(c)(2)(A). Nonetheless, it is defendant’s
burden to demonstrate that the confidential informant’s identity should be
disclosed. Bodin v. State, 807 S.W.2d 313, 318 (Tex. Crim. App. 1991).
“In deciding an ineffective-assistance claim, a reviewing court must analyze
the reasonableness of counsel’s conduct on the facts of the particular case, viewed
at the time of the conduct.” Okonkwo v. State, 398 S.W.3d 689, 693 (Tex. Crim.
App. 2013). When trial counsel has not provided an explanation for the strategies
that trial counsel employed at trial, the decisions counsel made are reviewed with
great deference. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). Generally, when faced with a record that is silent about why counsel chose
6
to undertake a given strategy, appellate courts are not at liberty to find trial
counsel’s conduct ineffective, unless the challenged conduct was “‘so outrageous
that no competent attorney would have engaged in it.’” Id. (quoting Garcia v.
State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). Additionally, any Strickland
claim must be “‘firmly founded in the record’ and ‘the record must affirmatively
demonstrate’ the meritorious nature of the claim.” Id. (quoting Thompson, 9
S.W.3d at 813).
Although the request for the identity of the confidential informant was not
made before Loften’s trial, the trial record demonstrates that trial counsel acted
promptly to request the information when it appeared the State would use the
information that it developed as a result of searching the house as part of its
evidence to prove that Loften had possessed the cocaine found in the SUV he was
driving with the intent to deliver it. It appears that Loften employed a trial strategy
designed to exclude testimony about the drug buy that had occurred the day prior
to Loften’s arrest. During trial, when the officer testified that he conducted a
controlled buy with a confidential informant, counsel moved to exclude any
evidence concerning the events that occurred that day, which was the day before
Loften was arrested. The officer who observed the informant purchase drugs
testified that he looked through the open door of the house, and he observed Loften
7
inside when the confidential informant entered the residence. After the trial court
overruled multiple defense objections and ruled that the officer’s testimony
concerning the controlled buy was relevant to Loften’s intent to deliver, counsel
moved to disclose the informer’s identity, arguing the State had opened the door to
discovering the informant’s identity by eliciting trial testimony regarding the
controlled buy.
Without a record that shows why trial counsel chose to await trial to seek the
identity of the confidential informant who purchased drugs at a house in which
police claimed Loften was present on the day prior to his arrest,1 and on a record
that is silent regarding Loften’s trial attorneys’ explanation about the matter,
Loften has not rebutted the strong presumption that no reasonable attorney would
have employed the strategy that is at issue in his appeal. Under the circumstances,
1
It is apparent from the record that the confidential informant was not an
eyewitness to the offense for which Loften was convicted in this case, and that the
confidential informant was not present when the officers executed either the arrest
or the search warrants. See Ford v. State, 179 S.W.3d 203, 210 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d); Abdel-Sater v. State, 852 S.W.2d 671, 674
(Tex. App.—Houston [14th Dist.] 1993, pet. ref’d). Because the confidential
informant was not present during the arrest or the search of the house where the
drug buy occurred the day before Loften’s arrest, and given the weight of the
cocaine and the packaging material found in the SUV being driven by Loften when
he was arrested, Loften’s trial attorneys could have reasonably believed that the
State would not rely on the items discovered during the search of the house in
attempting to prove Loften’s guilt. Consequently, Loften’s trial attorneys might
have believed that a pretrial motion to disclose the confidential informant’s
identity, if filed, would be denied.
8
and in the absence of a record showing why Loften’s trial attorneys chose not to
file a pretrial motion requesting the confidential informant’s identity, we cannot
conclude that challenged conduct was so outrageous that no competent attorney
would have engaged in it. See Goodspeed, 187 S.W.3d at 392.
In the second of Loften’s ineffective assistance arguments, Loften suggests
that trial counsel failed to request or present any evidence of Loften’s financial
condition to rebut the State’s theory that the money found on Loften when he was
arrested was money that he obtained by selling drugs. A witness who stated that
she knew Loften testified during the trial that Loften is “a lucky guy” who wins at
the casino. According to this witness, the $6,000 that Loften had in his pocket
when he was arrested could have been money that he won gambling at a casino.
Nonetheless, this same witness agreed that the two marked bills from the
controlled drug transaction that were in his pocket when he was arrested probably
had not come from a casino. In the hearing on the motion for new trial, Loften
produced receipts from a casino, and he stated that he had asked trial counsel to
introduce them as evidence to show that the money found on him when he was
arrested was obtained legally. However, the trial court noted during the hearing
that the dates on the receipts were not close in time to the date of Loften’s arrest.
While the attorneys who represented Loften at trial were not called to testify during
9
the hearing on Loften’s motion for new trial, they did file affidavits to explain why
Loften’s explanation about the money’s source would not be productive. The
affidavits state that “[t]here appeared to be a significant nexus between the money
that was recovered from the defendant, including marked buy money, and the sale
and distribution of drugs.” Based on all of the evidence before the trial court during
the hearing, the trial court could reasonably conclude that trial counsel made a
reasoned tactical decision to forego introducing the receipts from the casino. See
Goodspeed, 187 S.W.3d at 392.
In his third ineffective assistance argument, Loften suggests that trial
counsel failed to investigate and present evidence designed to dispute his
connection with the house where the confidential informant purchased drugs on the
day before Loften was arrested. During the search of the house, police found scales
and baggies, as well as drugs other than cocaine—items that the trial court viewed
as relevant to the jury’s determining whether Loften intended to sell the cocaine
that the police found earlier in the SUV that Loften was driving when he was
arrested.
The record contains substantial evidence linking Loften to the house where
the drug buy occurred. According to Loften’s testimony at the hearing on his
motion for new trial, his brother lived at the house, he visited there sometimes, and
10
some items of mail that belonged to him were found during the search. During the
trial, the State also established that police found the keys to the house in the SUV
when Loften was arrested, that Loften had been seen at the house on multiple
occasions before he was arrested, that Loften was living there at the time of his
arrest, and that Loften had been seen leaving the house in the SUV shortly before
he was arrested.
During the hearing on his motion for new trial, Loften tried to minimize his
connection to the house. According to Loften, he did not have a lease to the
property, his brother lived there, and he merely visited and kept a suitcase
containing his mail on the premises. Loften testified that he shared this information
with his lawyer, who told him this type of evidence would be “[c]umulative or
something like that.” However, Loften did not ask the attorneys who represented
him during his trial to explain why they chose not to introduce testimony consistent
with the information he gave them about the fact that his brother owned the house
where the drug buy occurred.
From the testimony as a whole, the trial court could have reasonably
concluded that Loften’s attorneys investigated Loften’s connection with the house
where the drug buy occurred, and that Loften’s attorneys decided, as a matter of
trial strategy, not to further develop the evidence regarding the links between
11
Loften. We conclude that Loften has not rebutted the strong presumption that he
received reasonable professional assistance with respect to investigating and
deciding whether to introduce evidence to show that his brother was the person
who owned or leased the house. See Goodspeed, 187 S.W.3d at 392.
Fourth, Loften argues that his trial attorneys were ineffective for failing to
present any evidence that the vehicle he was driving did not belong to him.
According to the testimony that Loften provided during the hearing on his motion
for new trial, Loften rented the SUV but did not own it. However, during the
hearing on his motion for new trial, Loften did not ask his trial attorneys why they
failed to present this evidence during the trial. We cannot speculate that Loften’s
trial attorneys were ineffective where the record was not developed regarding their
strategy. Moreover, Loften’s testimony that he rented the SUV does not show that
he had no links to the SUV, given the evidence showing he was seen on multiple
occasions driving it for several days prior to and on the date of his arrest.
Finally, Loften contends that trial counsel did not file a motion requesting
that the State disclose the extraneous offenses that the State would use during trial.
However, the affidavits filed by the attorneys who represented Loften at trial state
that the prosecutor had an open file policy, and that they were provided with notice
of all of the extraneous offenses that the State offered during Loften’s trial. During
12
the motion for new trial hearing, Loften did not question his trial attorneys
regarding the explanation found in their affidavits. We hold that Loften failed to
overcome the strong presumption that he received reasonable professional
assistance. See Thompson, 9 S.W.3d at 814. We overrule issue one.
Batson v. Kentucky
In issue two, Loften contends that, during jury selection, the trial court erred
in denying his challenge to the way the State exercised its peremptory strikes. The
Equal Protection Clause forbids a prosecutor from exercising peremptory strikes
based solely on the race of the potential juror. Batson v. Kentucky, 476 U.S. 79, 89
(1986). Courts evaluate Batson claims in three steps. Purkett v. Elem, 514 U.S.
765, 767 (1995). First, the defendant must make a prima facie showing of racial
discrimination. Batson, 476 U.S. at 96-97. If the prosecutor articulates his reasons
for the challenged peremptory strike and the trial court rules on the ultimate
question of intentional discrimination, an appeals court does not need to consider
whether the defendant met this first step. Young v. State, 283 S.W.3d 854, 866
(Tex. Crim. App. 2009).
In the second step, which is in response to the Batson challenge, the
prosecutor is required to articulate a race-neutral explanation for the challenged
peremptory strike. Batson, 476 U.S. at 97-98. Nevertheless, the explanation offered
13
is not required to be “persuasive, or even plausible.” Elem, 514 U.S. at 767-68. All
the prosecutor must do to satisfy this step of the inquiry is articulate a reason that
does not deny equal protection. Id. at 768.
In the third step, the trial court must determine if the defendant has proven
purposeful discrimination. Batson, 476 U.S. at 98. With respect to the trial court’s
evaluation of the defendant’s proof at this stage of the inquiry, the trial court’s
ruling will be reversed only if its decision was clearly erroneous. Snyder v.
Louisiana, 552 U.S. 472, 477 (2008). The highly deferential standard
acknowledges that the trial court is in the best position to determine if the
prosecutor’s explanation is genuinely race neutral. Gibson v. State, 144 S.W.3d
530, 534 (Tex. Crim. App. 2004); see also Snyder, 552 U.S. at 477. The
genuineness of the prosecutor’s asserted non-racial motive for striking the potential
jurors is what matters. See Elem, 514 U.S. at 769. “However, the reason for the
strike by the prosecutor must be credible given the whole of voir dire testimony
and other circumstances.” Nieto v. State, 365 S.W.3d 673, 679 (Tex. Crim. App.
2012) (citing Miller-El v. Dretke, 545 U.S. 231, 252 (2005)).
Generally, in the absence of exceptional circumstances, the trial court’s
decision to accept a prosecutor’s explanation about why a juror was stricken is a
decision that courts are unlikely to overturn on appeal. See Snyder, 552 U.S. at
14
477. During jury selection, Loften identified three African-American members of
the panel that the State removed by using its peremptory strikes. The trial court
asked the State to explain its reasons for striking the three members of the panel,
numbers 18, 32, and 34. The prosecutor stated that he struck every person involved
in law enforcement or who worked in a prison or a jail, including potential jurors
13, 32, 34, and 43. Additionally, the prosecutor stated that he struck potential juror
18 because the potential juror stated that he had been put to trial for a crime and
had been acquitted.
Discriminatory intent is not inherently present in the reasons given by the
prosecutor to explain the State’s strikes. Therefore, the reasons the State offered
are deemed to have been race neutral. Simpson v. State, 119 S.W.3d 262, 268 (Tex.
Crim. App. 2003).
Loften argues that the reasons offered by the prosecutor for removing the
only African-American members of the venire from the jury, while racially neutral,
are “obviously pretextual.” He contends that the answers the three potential jurors
provided during voir dire were “innocuous and clearly unbiased.” Potential juror
18, the person who indicated he had been tried and acquitted, explained the
circumstances of the case that resulted in his acquittal. According to potential juror
18, after forgetting to pay for his gasoline, someone met him at his car when he
15
came out of the store. At that point, he paid for the gas with money that he had in
his pocket. With respect to potential jurors 32 and 34, who worked in law
enforcement, both agreed with defense counsel when asked: “Do you think people
sometimes get sent to prison that shouldn’t get sent to prison? They didn’t get
justice?”
The State did not explain why it believed that an employee of a prison or
jail, or a person who had previously been acquitted of a crime, were unacceptable
as jurors. But, Loften did not question the prosecutor about his racially neutral
explanations, nor did Loften attempt to demonstrate that the State treated similarly
situated white and black members of the venire differently. See Miller-El, 545 U.S.
at 241. A challenge to a proffered race-neutral reason for a peremptory strike
presents a fact question for the trial court to decide; therefore, the decision the trial
court made on the matter is entitled to deference unless its ruling was clearly
erroneous. See Watkins v. State, 245 S.W.3d 444, 447-48 (Tex. Crim. App. 2008).
In Loften’s case, the record of jury selection reveals no disparate treatment of
persons of different races or ethnic groups, nor did the prosecutor direct questions
to the venire that were designed to single out any groups based on their race. See
id. at 450. In this case, the trial court found that the State’s explanations were race
neutral, and found that the State had not used the answers of the potential jurors as
16
a pretext to exercise any race-based strikes. The trial court’s findings are supported
by the record and are not clearly erroneous. We overrule issue two.
Motion to Suppress
In issue three of his brief, Loften challenges the trial court’s denial of his
motion to suppress, which addressed evidence obtained during the search of
Loften’s SUV and the search of the house where the drug buy occurred. In
reviewing a trial court’s ruling on a motion to suppress, we afford almost total
deference to the trial court’s determination of facts, if those facts are supported by
the record. State v. Duran, 396 S.W.3d 563, 570 (Tex. Crim. App. 2013). Since the
State prevailed on the motion at issue in this appeal, we “view the trial judge’s
factual findings in the light most favorable” to the trial court’s ruling. See id. at
571.
The trial court’s application of search and seizure law to the facts of the case
are reviewed on appeal using a de novo standard of review. See id. An appellate
court should affirm the trial court’s ruling if the record before the trial court
reasonably supports the trial court’s ruling and if the ruling is correct on any theory
of law that applies to the case. See id. Before issuing a search warrant, the
magistrate must first find probable cause that a particular item will be found in a
particular location. Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007).
17
This process requires the magistrate to make a practical, common-sense decision
about whether, given all the circumstances set forth in the affidavit, and
considering the veracity and basis of knowledge of a person who is supplying
hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place. Illinois v. Gates, 462 U.S. 213, 238
(1983). Accordingly, probable cause to support the issuance of a search warrant
exists when the facts submitted to the magistrate are sufficient to justify a
conclusion that the object of the search is probably at the place the police are
asking for the authority they need to conduct the search. Cassias v. State, 719
S.W.2d 585, 587 (Tex. Crim. App. 1986).
“As a reviewing court, we apply a highly deferential standard to the
magistrate’s determination because of the constitutional preference that searches be
conducted pursuant to a warrant.” Moreno v. State, 415 S.W.3d 284, 287 (Tex.
Crim. App. 2013). We must ensure that the magistrate had a substantial basis for
concluding that probable cause existed based on the four corners of the affidavit
and reasonable inferences therefrom. Gates, 462 U.S. at 238-39. Whether the facts
mentioned in the affidavit are adequate to establish probable cause depends on the
totality of the circumstances. Ramos v. State, 934 S.W.2d 358, 362-63 (Tex. Crim.
App. 1996).
18
In connection with the hearing on Loften’s motion to suppress, the trial court
made the following findings:
1. the attorney for the defendant, James Eric Loften, filed a Motion to
Suppress in the subject cause;
2. the subject of the Motion to Suppress were items recovered pursuant
to a search warrant and incident to an arrest that was made pursuant to
an arrest warrant;
3. the affidavit for the warrant and warrant were admitted into evidence
during the hearing on the Motion to Suppress;
4. the Court conducted a “four corners” analysis of the affidavit in
support of the search warrant pursuant to State v. [McLain], 337 S.W.
3d 268, Tex. Crim. App. 2011;
5. the Court finds the affidavit was presented to a disinterested
magistrate, being 253rd Judicial District Judge Chap B. Cain III;
6. the Court finds that the reliability of the confidential informant was
established within the four corners of the affidavit;
7. the Court finds that reliable facts were presented in the affidavit by
City of Liberty Police Officer [who signed the affidavit];
8. the Court finds that sufficient probable cause was contained within the
four corners of the affidavit to issue the search warrant and arrest
warrant; Code of Criminal Procedure 18.01(g) and 18.03;2
9. the Court finds the evidence seized pursuant to the search warrant was
not seized in violation of the defendant’s rights;
2
See generally Tex. Code Crim. Proc. Ann. arts. 18.01(g), 18.03 (West
2015).
19
10. the Court finds that the defendant’s arrest pursuant to the arrest
warrant was not in violation of the defendant’s rights;
11. the Court finds that evidence seized incident to the search after the
defendant’s arrest was not in violation of the defendant’s rights;
12. the Court expressly denies the defendant’s Motion to Suppress.
Loften challenges the trial court’s finding that the confidential informant
was reliable based on the information in the four corners of the probable cause
affidavit. In this case, the officer who signed the probable cause affidavit stated
that he received information from a confidential informant. The affidavit discloses
that the confidential informant is a citizen of Texas, “has a limited criminal history,
with no violent, no drug related charges, consisting of only misdemeanor
charges[,]” has no pending criminal charges, and “has knowledge of crack cocaine
and other controlled substances from personal experience with the substances.”
The officer who signed the affidavit indicated that the confidential informant, on at
least two prior occasions, had given the police reliable information.
According to Loften, the reliability of the confidential informant was not
sufficiently established because the officer who signed the affidavit failed to
provide the dates that explained when the confidential informant had on other
occasions provided the police with the information they found reliable. However,
the credibility of an unnamed informant may be established by allegations that the
20
informant had proven reliable on previous occasions. Blake v. State, 125 S.W.3d
717, 726 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “This reliability may be
established by the general assertions of the affiant, as stated in the affidavit,
concerning the informant’s prior reliability.” Id. In our opinion, the affiant’s
statement that the informant was known to the affiant and had given the affiant
reliable information on two past occasions was sufficient to allow the magistrate to
conclude that the informant was a reliable source of information. Capistran v.
State, 759 S.W.2d 121, 128 (Tex. Crim. App. 1988) (op. on reh’g).
Loften argues that the officer who signed the affidavit offered no facts to
support a reasonable inference that the confidential informant was providing
information that illegal activity had occurred at the house that police were asking
to search. According to the affiant, “This [confidential informant] provided
detailed information about this suspected place and the suspected parties to your
affiant which your affiant was able to confirm through visual surveillance of the
suspected place.” While the officer who signed the affidavit did not describe the
“detailed information” that he had corroborated through surveillance, he did
describe a controlled buy that he conducted with the confidential informant within
72 hours of the time that he signed the affidavit. The sequential facts of the
controlled buy are set forth in the officer’s affidavit. These facts show that the
21
officer who signed the affidavit (1) searched the confidential informant; (2) gave
the informant money to buy cocaine; (3) followed the confidential informant to the
residence; (4) watched the confidential informant enter the residence, where he
spoke with Loften and negotiated the purchase of cocaine; (5) observed the
confidential informant leave the residence; (6) followed the confidential informant
to a predetermined location; (7) obtained an “off white powder like substance”
from the confidential informant; (8) tested the substance in the field, and that test
indicated the substance was cocaine; and (9) noted that the confidential informant
stated he saw more cocaine and “other types of narcotics” in the residence where
the purchase occurred. These facts regarding the controlled buy are detailed, and
they show that the controlled buy occurred at the house that the police wanted to
search. They also show that there was a reasonable prospect that more contraband
would be found in the house that the warrant authorized the police to search.
“The circumstances of a controlled buy, standing alone, may corroborate an
informant’s tip and provide probable cause to issue a warrant.” State v. Griggs, 352
S.W.3d 297, 305 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). Loften argues
the officer’s probable cause affidavit failed to identify the name of the officer that
observed the confidential informant, failed to specify the location of the observer,
failed to specify how long the informant was inside the residence, and failed to
22
state how much cocaine was reportedly seen by the informant inside the residence.
However, “[t]he proper analysis of the sufficiency of a search-warrant affidavit is
not whether as much information that could have been put into an affidavit was
actually in the affidavit.” Rodriguez, 232 S.W.3d at 64. The combined logical force
of the facts that are contained in the affidavit demonstrate that the police were
controlling the informant regarding the purchase that occurred inside the house that
police were asking to search. When combined with the confidential informant’s tip
that the confidential informant reported seeing more cocaine inside the residence,
together with the information showing the confidential informant provided reliable
information previously, the affidavit contained sufficient details that provided the
magistrate with a sufficient basis to conclude the warrant should issue. See Sadler
v. State, 905 S.W.2d 21, 22 (Tex. App.—Houston [1st Dist.] 1995, no pet.).
As a reviewing court, we are obliged to defer to the magistrate and uphold
the magistrate’s determination based upon all reasonable and commonsense
inferences and conclusions that the facts in the affidavit support. Rodriguez, 232
S.W.3d at 64. Issue three is overruled.
Reliability of Probable Cause Affidavit
In his fourth issue, Loften contends the trial court erred by not conducting a
Franks v. Delaware hearing to address the reliability of the officer’s affidavit.
23
Under Franks v. Delaware, if a defendant establishes that a probable cause
affidavit contains false statements that were made knowingly or intentionally, or
with reckless disregard for the truth, and if the false statements were material to the
determination of probable cause, the false material must be excised from the
affidavit to determine if the affidavit, without the false statement, is sufficient to
support the warrant. 438 U.S. 154, 155-56 (1978); Harris v. State, 227 S.W.3d 83,
85 (Tex. Crim. App. 2007). However, “[a] misstatement in an affidavit that is
merely the result of simple negligence or inadvertence, as opposed to reckless
disregard for the truth, will not render invalid the warrant based on it.” Dancy v.
State, 728 S.W.2d 772, 783 (Tex. Crim. App. 1987) (clarifying that a misstatement
in an affidavit resulting from mere negligence in checking or recording facts
relevant to probable cause determination “is beyond the pale of Franks”); see also
Franks, 438 U.S. at 165.
“An affidavit supporting a search warrant begins with a presumption of
validity; thus, the defendant has the burden of making a preliminary showing of
deliberate falsehoods in that affidavit before he is entitled to a Franks hearing.”
Cates v. State, 120 S.W.3d 352, 355 (Tex. Crim. App. 2003). While courts
presume that the evidence supporting a probable cause finding is truthful, the
24
Fourth Amendment does not mandate that every fact in a supporting affidavit be
correct. See Franks, 438 U.S at 164-65.
In his affidavit for a search and arrest warrant, the officer who signed the
affidavit stated: “This [confidential informant] has a limited criminal history, with
no violent, no drug related charges, consisting of only misdemeanor charges and
no pending criminal charges[.]” In his appeal, Loften contends that he made a
preliminary showing that the officer who provided the affidavit failed to inform the
magistrate that the confidential informant had a record that included a crime of
moral turpitude. Additionally, Loften argues that the officer who signed the
affidavit falsely implied that he had run the confidential informant’s criminal
history before signing the affidavit.
Loften points to the trial testimony of one of the other officers involved in
the investigation to support his claim that the information in the affidavit about his
criminal history was false. Another officer that assisted in the investigation, while
being cross-examined during the trial, stated that she had worked with the
confidential informant on two or three occasions in the previous few years, that to
her knowledge the confidential informant was not being paid to provide
information and did not have a pending criminal case, and that she believed the
25
informant’s criminal history included a theft case. The probable cause affidavit
contains no mention of a theft conviction.
Subsequently, Loften recalled the officer who signed the affidavit that
supported the search warrant. The officer who signed the probable cause affidavit
stated that to his knowledge, the confidential informant had not been convicted for
theft, and the informant was neither being paid to provide information nor
providing information in exchange for a promise of leniency. The officer who
signed the probable cause affidavit also explained that he had not researched the
informant’s criminal history when preparing the probable cause affidavit, and he
stated that he had run the informant’s history on prior occasions. The officer who
signed the probable cause affidavit also testified that he was much more familiar
with the confidential informant’s background than the other officer that had
testified about her involvement with the informant.
To establish a right to a Franks hearing, the defendant must make a
preliminary showing that the individual who signed the probable cause affidavit
made statements that were deliberately false or made statements with a reckless
disregard for their truth; a mere showing of negligence or innocent mistake is
insufficient. Franks, 438 U.S. at 171. In this case, the defendant did not prove that
the informant’s criminal history included a conviction for theft. Instead, the trial
26
court heard conflicting testimony that the confidential informant’s criminal history
might include a crime of moral turpitude, and the officer whose affidavit indicates
the informant had no pending criminal cases admitted that he was relying on his
familiarity with the confidential informant and knowledge from running the
confidential informant’s criminal history at an undetermined time before the date
he prepared the probable cause affidavit. Additionally, there is no evidence proving
that the officer who signed the probable cause affidavit knew of any additional
criminal history about the confidential informant that he intentionally, knowingly,
or recklessly failed to disclose in his affidavit. Even if we assume that the officer
should have checked on the confidential informant’s more recent criminal history
immediately before he signed the affidavit, Loften has not shown that the officer
would have discovered that the informant had a pending case, or that the
confidential informant had a conviction for theft. We conclude Loften failed to
show that the officer’s affidavit contained false statements, and he failed to show
that any of the statements were, made intentionally, knowingly, or with reckless
disregard for their truth. See id.; see also Dancy, 728 S.W.2d at 782. We overrule
issue four.
Sufficiency of the Evidence
27
In his fifth issue, Loften challenges the sufficiency of the evidence to
support his conviction for possession with intent to deliver a controlled substance.
Loften argues the State failed to prove that he knowingly exercised care, custody,
and control over the contraband seized from the vehicle he was driving. Also,
Loften argues the State failed to establish he had exclusive possession of the
residence that the police searched when they executed the search warrant.
In reviewing a challenge to the sufficiency of the evidence to support a
conviction in a criminal case, the evidence is assessed in the light most favorable to
the prosecution to determine whether any rational trier of fact could find the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim.
App. 2010). Because it is the jury’s responsibility to resolve conflicting testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts, a jury verdict will be upheld “unless a reasonable juror must have
had a reasonable doubt as to at least one of the elements of the offense.”
Runningwolf v. State, 360 S.W.3d 490, 494 (Tex. Crim. App. 2012).
“‘Possession’ means actual care, custody, control, or management.” Tex.
Health & Safety Code Ann. § 481.002(38) (West Supp. 2014). “Possession is a
voluntary act if the possessor knowingly obtains or receives the thing possessed or
28
is aware of his control of the thing for a sufficient time to permit him to terminate
his control.” Tex. Penal Code Ann. § 6.01(b) (West 2011). Generally, a person’s
mere presence at the location where drugs are found is not enough, by itself, to
establish actual care, custody, or control of the drugs, but presence or proximity,
may be sufficient to establish that element beyond a reasonable doubt when that
circumstance is combined with other circumstantial or direct evidence. See Evans
v. State, 202 S.W.3d 158, 162 (Tex. Crim. App. 2006).
When the defendant is not in exclusive possession of the place where the
police find the contraband, additional independent facts and circumstances can
affirmatively link the accused to the contraband. See Poindexter v. State, 153
S.W.3d 402, 406 (Tex. Crim. App. 2005) (quoting Deshong v. State, 625 S.W.2d
327, 329 (Tex. Crim. App. 1981)). Having evidence affirmatively linking the
accused to the contraband requires that the evidence—whether direct or
circumstantial—establish that the defendant’s connection with the drugs was more
than fortuitous. Evans, 202 S.W.3d at 161. The logical force that the affirmative
links create determines whether the jury could rationally find beyond a reasonable
doubt that the defendant had actual care, custody, or control over the controlled
substance. Id. at 162.
29
The search and arrest warrant authorized the search of a particular residence
in Liberty, Texas where a controlled buy through a confidential informant had been
conducted on the day before Loften’s arrest. The officer in charge of Loften’s case
testified that after searching the informant and determining the informant carried
no drugs or money, he gave the informant two twenty-dollar bills. The confidential
informant remained in the vision of police officers until the informant entered the
residence. When the informant entered the residence, the officer in charge of
Loften’s case could see that Loften was inside. The informant left the residence
and remained in the view of police officers until the informant was searched a
second time. The officer in charge of Loften’s case obtained a warrant that evening
and executed the warrant within twenty-four hours of the time that it was issued.
Items in plain view that police seized after searching the house where the
controlled buy occurred included digital scales, an open box of plastic baggies, and
a plastic baggie containing an off-white substance. Police officers also seized an
open letter from the Internal Revenue Service that was addressed to Loften at a
post office box in Liberty, Texas. The officer in charge of Loften’s case testified
that in his experience as a law enforcement officer with twenty-five years of
experience, houses where drugs are being manufactured and delivered share certain
characteristics, including the presence of baggies, scales, and powdery residue of
30
the type that is visible in photographs of the interior of the residence of the house
that the police searched the day before Loften was arrested.
In addition to authorizing a search of the residence, the warrant ordered
Loften’s arrest. On the day of Loften’s arrest, the officers followed him to a
neighboring town, where they stopped the SUV he was driving. The sole passenger
was Loften’s elderly father. During the search of Loften that occurred immediately
after his arrest, the police discovered that Loften was carrying the two marked
bills, which had been used in the previous day’s controlled buy in his pocket, along
with approximately $6,000 in cash. The officers also searched the SUV. The
SUV’s center console contained a pair of sunglasses, several sets of keys, and a
plastic container holding thirteen off-white rock-like substances and small baggies
of white powder. One of the sets of keys opened the deadbolt to the house that the
police searched pursuant to the search warrant.
The identities of the persons who held the title to the residence that police
searched and the SUV that Loften was driving when he was stopped are not in
evidence. One of the officers who testified at the trial explained that the SUV was
owned by a rental company, and he indicated that he did not know who rented it. A
detective testified that at the time of Loften’s offense, she lived near the residence
that was searched, and she indicated that she drove by the residence frequently.
31
The detective explained that she saw Loften at the residence several times in the
two-to-three week period prior to Loften’s arrest, and that she had previously seen
Loften driving the same vehicle in which he was arrested. Another police officer
testified that Loften lived in the residence that was searched, and that she had also
seen Loften driving the SUV prior to the date he was arrested. The record includes
testimony that on the day he was arrested, Loften was seen arriving at the residence
that was searched, seen using keys to unlock the burglar bars there, and seen
entering the residence. The testimony of another police officer indicates that on the
day the police executed the search and arrest warrant, five people other than Loften
were seen coming and going from the house that was searched, but none of them
entered the residence.
Haley Yaklin of the Texas Department of Public Safety testified regarding
the forensic analysis of the substances that police seized pursuant to the search and
arrest warrant. The substance in the container retrieved from the SUV Loften was
driving when he was arrested contained 2.06 grams of loose cocaine with the
consistency of rock. There were also eight baggies of a moist off-white substance.
Yaklin indicated that these baggies contained another 2.35 grams of cocaine.
In this case, Loften was linked to the drugs as the driver of the SUV in
which the contraband was found. See Garcia v. State, 218 S.W.3d 756, 763 (Tex.
32
App.—Houston [1st Dist.] 2007, no pet.). He was also linked to the house that the
police searched. Loften had a key to the house, and a scale for weighing drugs was
in the house, and it was in plain view. A residue of a substance, consistent with
preparing drugs, was also present. See Hubert v. State, 312 S.W.3d 687, 691 (Tex.
App.—Houston [1st Dist.] 2009, pet. ref’d). The baggies, scales, and powdery
residue in plain view in the house support the inference that the residence was
being used as a “drug house.” Loften used keys to enter the residence the day the
officers executed the warrant, and keys to the residence were found in the closed
console of the SUV that Loften was driving when he was arrested. The SUV was
linked to Loften through testimony showing that Loften was seen driving the SUV
on multiple occasions before he was arrested, and testimony showing that Loften
was driving the SUV in which the police discovered the cocaine with which he was
charged for possessing. Loften was also linked to the money used to purchase
drugs the day before, as marked bills from that transaction were found in his
pocket.
The logical force of the evidence linking Loften to the cocaine in the
container found in the SUV’s center console makes Loften’s connection to the
controlled substance more than fortuitous. See Evans, 202 S.W.3d at 161. Given
the evidence about the purpose for which the house was used and about the marked
33
bills, the jury could also reasonably infer that Loften intended to sell the cocaine
that police found in the console of the SUV. We conclude that a rational trier of
fact could have found beyond a reasonable doubt that Loften knowingly exercised
care, custody, and control over the cocaine, and that he was guilty of the offense
for which he was convicted. See Jackson, 443 U.S at 319. We overrule issue five
and we affirm the trial court’s judgment.
AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on November 24, 2014
Opinion Delivered October 14, 2015
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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