COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-12-00062-CR

NO. 02-12-00063-CR

GERARDO TOMAS RIVAS APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRICT COURT NO. 4 OF TARRANT COUNTY

TRIAL COURT NO. 1215971D, 1215973D

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OPINION ON REMAND

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I. Introduction

On October 30, 2009, the trial court placed Appellant Gerardo Tomas 

Rivas on deferred adjudication community supervision after Rivas entered open 

pleas of guilty to possession with intent to deliver a controlled substance 

(cocaine) of one gram or more but less than four grams; possession of a 

controlled substance (psilocin) of 400 grams or more; and possession with intent 
2

to deliver a controlled substance (hydrocodone) of twenty-eight grams or more 

but less than 200 grams. Rivas v. State (Rivas I), Nos. 02-11-00203-CR, 02-11-

00204-CR, 02-11-00205-CR, 2012 WL 5512450, at *1 (Tex. App.—Fort Worth 

Nov. 15, 2012, no pet.) (mem. op., not designated for publication).

Less than a year later, on September 27, 2010, Rivas was detained for 

new drug offenses—possession with intent to deliver a controlled substance 

(psilocin) of 400 grams or more and possession with intent to deliver a controlled 

substance (tetrahydrocannobinol) of four grams or more but less than 400 

grams—after police obtained a search warrant for his apartment based on a tip 

from Andrew Munchrath, who they had arrested during an undercover drug buy. 

See id. at *1–2. The State petitioned to proceed to adjudication based on the 

new offenses and, after denying Rivas’s motion to suppress,1the trial court found 

that Rivas had committed these new offenses by a preponderance of the 

evidence, revoked his deferred adjudication community supervision, and 

adjudicated him guilty of the three drug offenses. See id. at *2–3. We affirmed 

after determining that the magistrate had a substantial basis for concluding that 

the search warrant was supported by probable cause based on a drug-sniffing 

police dog’s alert to Rivas’s front door on the same day that the warrant was 

obtained and executed. Id. at *1, 5.

 

1

In Rivas I, Rivas argued in the trial court that Munchrath had no credibility, 

that his tip was uncorroborated, and that the search warrant affidavit’s 

information was stale. 2012 WL 5512450, at *4.
3

The trial court revisited Rivas’s suppression arguments in the subsequent 

trial on the new drug offenses. Rivas v. State (Rivas II), Nos. 02-12-00062-CR, 

02-12-00063-CR, 2013 WL 978911, at *1 (Tex. App.—Fort Worth Mar. 14, 2013, 

pet. granted) (mem. op., not designated for publication), vacated, 411 S.W.3d 

920 (Tex. Crim. App. 2013).2 After it again denied Rivas’s motion to suppress, 

Rivas pleaded guilty to the new offenses in exchange for seventeen years’ 

confinement on each count, to be served concurrently. Id. 

Twelve days after we affirmed the trial court’s judgments, the United States 

Supreme Court issued Florida v. Jardines, in which it concluded that using a 

drug-sniffing dog on a homeowner’s porch to investigate the home’s contents 

was a “search” under the Fourth Amendment. 133 S. Ct. 1409, 1413, 1415 & 

n.2, 1417–18 (2013) (holding suppression appropriate when Jardines had not 

given the police leave, even implicitly, to explore his home’s curtilage with a 

trained drug dog).3 The court of criminal appeals vacated our judgment and 

 

2

In Rivas II, Rivas re-urged his Rivas I arguments and argued that the 

drug-detection dog’s open-air sniff of his apartment door was illegal and was 

insufficient to support probable cause because the dog’s credentials were not 

adequately established. 2013 WL 978911, at *1.

3

In Jardines, police received an unverified tip about marijuana being grown 

in Jardines’s home and a month later brought a drug-sniffing dog to Jardines’s 

front porch. 133 S. Ct. at 1413. The dog made a positive alert for narcotics, and 

the police used that information to obtain a search warrant. Id. The Supreme 

Court held that whether the officer’s conduct was objectively reasonable 

depended upon whether he had an implied license to enter the porch, which in 

turn depended upon the purpose for which he entered it. Id. at 1417. When 

police behavior objectively revealed a purpose to conduct a search, there was no 

implied license. Id.
4

remanded Rivas II for us to reconsider in light of Jardines. 411 S.W.3d at 921. 

Concluding that Jardines does not affect the outcome, we affirm.

II. Discussion

In his original appellate brief in this case, Rivas argued that the trial court 

erred by denying his motion to suppress because the affidavit supporting the 

search warrant did not state probable cause, in that it did not allege that 

Munchrath was credible, the police did not corroborate Munchrath’s information, 

the affidavit’s facts were stale, and the dog sniff was illegal. Rivas II, 2013 WL 

978911, at *1. We must determine whether, excluding the dog-sniff, the affidavit 

was sufficient to support the magistrate’s probable cause determination. See 

Martin v. State, 67 S.W.3d 340, 343 (Tex. App.—Texarkana 2001, pet. ref’d) 

(stating that if the illegally obtained information is clearly unnecessary to 

establish probable cause for the search warrant, the defendant could not have 

been harmed by its inclusion).

When the trial court determines probable cause to support the issuance of 

a search warrant, there are no credibility determinations; instead, the trial court is 

constrained to the four corners of the affidavit. State v. McLain, 337 S.W.3d 268, 

271 (Tex. Crim. App. 2011). Accordingly, when reviewing a magistrate’s 

probable cause determination, we apply the deferential standard of review 

articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 

103 S. Ct. 2317 (1983). Swearingen v. State, 143 S.W.3d 808, 811 (Tex. Crim. 

App. 2004). Under that standard, we uphold the probable cause determination 
5

“so long as the magistrate had a ‘substantial basis for . . . conclud[ing]’ that a 

search would uncover evidence of wrongdoing.” Gates, 462 U.S. at 236, 103 S.

Ct. at 2331; see also McLain, 337 S.W.3d at 271; Flores v. State, 319 S.W.3d 

697, 702 (Tex. Crim. App. 2010). Probable cause exists when, under the totality 

of the circumstances, there is a fair probability that contraband or evidence of a 

crime will be found at the specified location, and the facts stated in a search 

warrant affidavit are “so closely related to the time of the issuance of the warrant 

that a finding of probable cause is justified.” McLain, 337 S.W.3d at 272. “The 

focus is not on what other facts could or should have been included in the 

affidavit; the focus is on the combined logical force of facts that are in the 

affidavit.” State v. Duarte, 389 S.W.3d 349, 354–55 (Tex. Crim. App. 2012). 

With regard to an informant’s tips, we take into account the informant’s 

veracity, reliability, and basis of knowledge to determine the value of his 

assertions, as well as whether his information is stale. Davis v. State, 144 

S.W.3d 192, 197 (Tex. App.—Fort Worth 2004, pet. ref’d) (op. on reh’g); see also 

Gates, 462 U.S. at 233, 103 S. Ct. at 2329 (stating that a deficiency in one of the 

considerations may be compensated for by a strong showing of another or some 

other indicia of reliability in determining the tip’s overall reliability); McKissick v. 

State, 209 S.W.3d 205, 214 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) 

(discussing staleness). With regard to staleness, time is a less important 

consideration when an affidavit recites observations that are consistent with 
6

ongoing drug activity at a defendant’s residence. Jones v. State, 364 S.W.3d 

854, 860–61 (Tex. Crim. App.), cert. denied, 133 S. Ct. 370 (2012). 

A tip by a confidential informant of unknown reliability, standing virtually 

alone, is not a sufficient basis for a magistrate’s probable cause determination.4 

Duarte, 389 S.W.3d at 353, 360–61 (“We decline to equate the reliability of a 

first-time, unnamed informant with that of a named-citizen informant.”). In 

contrast, an affidavit that identifies a named informant as supplying the 

information upon which probable cause is based is sufficient if it is sufficiently 

detailed to suggest direct knowledge on the informant’s part. Matamoros v. 

State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995). The facts contained in the 

affidavit need only provide a “fair probability” that the informant obtained his 

knowledge through first-hand accounts. Gates, 462 U.S. at 246, 103 S. Ct. at 

2336. 

As we previously set out in Rivas I, 

In his affidavit supporting the application for a search warrant 

to search Rivas’s apartment for marijuana and mushrooms, Officer 

Williams stated that on or around September 27, 2010—the same 

 

4

If a confidential informant’s tip is corroborated, constitutes a statement 

against penal interest, is consistent with other informants’ information, is a 

detailed first-hand observation, or is coupled with an accurate prediction of a 

subject’s future behavior, probable cause for issuance of a search warrant exists 

notwithstanding any actual or potential quid pro quo received by an informant 

with pending criminal charges in exchange for his information. Duarte, 389 

S.W.3d at 356–57. In Duarte, the magistrate was presented only with 

information obtained from a first-time confidential informant with pending criminal 

charges and no other verifying information besides the defendant’s address on a 

2008 traffic ticket. Id. at 351–53.
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day that the warrant was issued and executed—a white male known 

as “Jerry”—“about 6’0”, 300 lbs, approximately 45–50 years old, and 

known as ‘Gerardo Rivas’’’—was unlawfully possessing mushrooms 

and marijuana at 14605 Chimney Meadow Street, in the City of Fort 

Worth, Tarrant County, State of Texas, at the Centre Oaks 

Apartments, in apartment # 226. In his affidavit, Officer Williams 

described the target building and further stated, in pertinent part, the 

following facts and circumstances supporting his application as:

2. That on or about the 27th day of September, 2010, 

your affiant, along with other Officers of the Fort Worth 

Narcotic Unit continued an investigation of illegal mushrooms 

containing psilocybin sales from a subject identified as Andrew 

Munchrath W/M 2/15/92.

3. That on the 27th day of September, 2010, your affiant 

and Officer Vanwey # 3557 were acting in undercover 

capacity, driving an unmarked car. Officer Vanwey and your 

affiant had previously negotiated to buy 21⁄2 lbs of mushrooms 

from Munchrath in exchange for $5,000.00 of U.S. Currency 

during a previous encounter. At approximately 1400 hours, 

Munchrath called your affiant and Officer Vanwey and told us 

that he had the 21⁄2 lbs of mushrooms and to meet him at 3861 

S Cooper St at the AMC Theatre parking lot to buy them. We 

pulled up to this location and met with Munchrath. As Officer 

Vanwey met with Munchrath, he pulled out two plastic baggies 

containing mushrooms, which by smell and look are believed 

to contain psilocybin, in order to sell them to Officer Vanwey. 

As he did, Officer Vanwey gave the pre-determined arrest 

signal. We observed the arrest procedure and positively 

identified Narcotics Officers arresting Munchrath, and that he 

was the same person that sold us the mushrooms that are 

believed to contain psilocybin. Munchrath was arrested for 

Del C/S PG1 >400 GM. 

4. That after Munchrath was arrested, Officer White 

read Munchrath his Miranda Rights and began to interview 

him. During the interview, Munchrath told Officer White that 

he picked up the 2 1⁄2 lbs of mushrooms from a W/M named 

Jerry while Munchrath was at work. This information was also 

confirmed by your affiant during the previously mentioned 

undercover operation. Munchrath told Officer White that Jerry 

lived at the Centre Oaks Apartments. Munchrath said that 
8

approximately 3–4 weeks ago, Munchrath observed a large 

amount of mushrooms and marijuana, and cocaine in Jerry’s 

apartment. Munchrath said that when picking up the 

mushrooms from Jerry for this deal, Jerry told him that he had 

8 lbs of mushrooms and 1 lb of marijuana at his apartment 

right now, but that he was selling the rest to another buyer.

5. That once this interview was concluded, Officer 

Christensen # 3523 drove Munchrath by this apartment 

complex. While at this apartment complex, Munchrath pointed 

out and showed Officers the exact apartment complex and 

apartment residence that Jerry lives in, which was apartment # 

226 at 14605 Chimney Meadow St. at the Centre Oaks 

Apartment.

2012 WL 5512450, at *1–2. 

Although the affidavit did not include an allegation that Munchrath was 

credible and—other than the dog-sniff—there was no express corroboration of 

Munchrath’s information by the police, Munchrath was a named informant, and 

the magistrate could have found his information recent and detailed enough to 

suggest that he had direct knowledge sufficient for a probable cause 

determination. See Matamoros, 901 S.W.2d at 478; see also Dixon v. State, 206 

S.W.3d 613, 617 (Tex. Crim. App. 2006) (“An informant’s first-hand observation 

of criminal activity provides a strong basis for the informant’s knowledge of the 

facts he relays.”); State v. Stone, 137 S.W.3d 167, 178 (Tex. App.—Houston [1st

Dist.] 2004, pet ref’d) (stating that credibility need not be independently 

established when no confidential informant is used). Specifically, Munchrath told 

police about the existence of previous drug transactions and the exact amount of 

mushrooms and marijuana that could be found in the apartment “right now,” and 
9

he identified Rivas’s specific apartment complex and unit. See Flores, 319 

S.W.3d at 703 (indicating that when informant has familiarity with subject and his 

affairs, magistrate could reasonably conclude that informant’s tip regarding illegal 

activities was relevant consideration in probable cause analysis). Munchrath’s 

statement regarding the amount of drugs he had seen in Rivas’s apartment three 

or four weeks earlier also tends to indicate that this was an ongoing operation. 

See Jones, 364 S.W.3d at 860–61; McKissick, 209 S.W.3d at 214. Therefore, 

we conclude that, even excluding the dog sniff, the magistrate could have 

reasonably found that the search warrant affidavit established probable cause.5

III. Conclusion

Having reconsidered our prior opinion in light of Jardines as directed by the 

court of criminal appeals, we affirm the trial court’s judgment. 

PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and GABRIEL, J.

PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: September 25, 2014

 

5Based on this conclusion, we do not reach whether Jardines should apply 

retroactively. See Tex. R. App. P. 47.1.