### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00284- CR

Henry Loera, A ppellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -DC- 10- 2059 98, H ONO RAB LE K AREN SAGE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Appellant Henr

y L oera was convicted b y a jury of possession of a controlled sub s t an ce, to wit, heroin, in an amount of four g rams or more but less than 200 g rams. See Tex. Hea lth & Safety Code Ann. § 481.115(d) ( West 2010). After f inding that L oera

had two previous felony convictions, the jury assessed punishm en t at seventy -five y ear s’ imprisonment. See Tex. Penal Code § 12.42(d) (West 2011). I n his sole issue on appea l, L oera asser ts th at t h e t ri al court

err ed in deny ing his motion to suppress th e ev idence obtained pursuant to a sear ch war rant. We aff irm the judg ment of the trial c ourt.

BACK GR OUND

Be tween Aug ust and September of 2010, a detec tive with the Austin Pol i ce Depa rtment’s Org anized Crime Division rec eived information from a confide ntial informant that anindividual named Henry , later identified as L oera , was selling heroin and cocaine. The detective 1 provided the confide ntial informant with “buy money ” and observe d the in f o r ma n t p u r c h a s in g h e roin from L oera

and his associa te J ohn Ochoa on at least thre e sepa

rate occa sions. On Octobe r 7, 2010, the informant told the detec tive that Ochoa was selling heroin and coca ine out of an apar tment. The informant g ave the detec tive the apar tment’s addre ss, and the detec tive and other members of the Org anized Crime Division prepa red for a final “contr olled buy .” At this c ontrolled buy , the detec tives sear ched the informant to make sure that he did not have any

narc otics in his possession. The office rs then provided the informant with buy money and observe d the informant call Ochoa and arr ang e a heroin purcha se at a prede termined location. Offic ers who

wer e observing the addre ss that the informant provided saw Ochoa leave the apar tment immediately afte r the informant’s call and proce ed to the location of the heroin purcha se. The office rs followed Ochoa the entire drive from the apar tment to the controlled buy ; Ochoa did not make any other stops. The de tective obse rved O choa se ll the informant appr ox imately .01 g rams of he roin. On October 9, 2010, the detec ti v e s u b m i t t ed an aff idavit for a sear ch war

rant for evidenc e rela ting to the sale of narc otics at the apar tment. A mag istrate issued a sear ch war rant for the apar tment that morning , which the d et ec tive and other office rs executed within seventy -two hours. During the sear ch of the apar tment, the detec tive discovere d approximately 14.62 g rams of heroin in the fre ezer, as well as digital scale s, hy podermic needle s, and other drug para pherna lia. L oera was prese nt at the apar tment at the time of the sear ch, and afte r the sear ch was conclude d, the office rs ar

rested L oera

for possession of na

rcotics.

The fac ts rec ited here in are taken from the testimony and exhibi ts admitted at the pretria l 1 hear ing a nd at trial. 2L o era was subsequently indicted for possession of narc otics, to wit, heroin, i n an

amount of four g rams or more but less than 200 g rams. See Tex. Hea lth & Safety Code Ann. § 481.115(d). At a p re t ri al hear ing, L oera moved to suppress the evidenc e obtained pursuant to
t h e s ea rch warr ant, arg uing that the warrant was not supported by probable cause . The trial cou rt denied the motion. At trial, the State introduced five witnesses, including the detec tive who led the investiga tion, two office rs who participa ted in the sear ch of the apar tment, and two fore nsic experts who analy

zed the evidence recove red from the apartment. L oera testified i n h i s own defense, but called no other witnesses. The jury convicted L oera of the offe nse as char g ed. L oera elec ted to have the jury assess punishment. At the punishment stag e, the jury found that L oera had been convicted of two pre vious felonies, and a ssessed punishment at s eventy -five y ear s’ i mprisonment. See Tex. Penal Code Ann. § 12.42(d) . This appea l followed.

STANDARD OF REVIEW Ordi n arily , a trial court’s ruling on a motion to suppress is revie wed under a bifurca ted standard, g iving almost total defe renc e to the trial court’s finding s of fac t but revie wing

c o n c lu s io n s o f la

w d e n o v o . S

ta te v
. M c La in , 3 3 7 S. W. 3 d 2 6 8 , 2 7 1 ( T e x. Cr im

. A p p . 2 0 1 1 )

. H o w e v e r , when ruling on a motion to suppress evidenc e obtained pursuant to a sear ch war rant, a trial court is limit ed to the four corne rs of the aff idavit supporting the wa rr an t an d thus makes no fac tual or

cre dibilit y

deter minations. Id. There fore , we revie w a trial court’s ruling on a motion to suppress evidenc e obtained pursuant to a sear ch war rant under a unique standard. See State v. W ebre , 347 S.W .3d 381, 384 (Tex. App.—Austin 2011, no pet.). This standard require s both trial and appellate
courts to be highly defe rential to a mag istrate’s decision to issue a sear ch war rant , re flec ting the

3constitutional pref ere nce that sear ches be conducte d pursuant to a war rant. McLa i n , 3 3 7 S

. W.3d at 271; Rodriguez v. State , 232 S.W .3d 55, 61 (Tex. Crim. App. 2007).

Rev i ew i n g courts must deter mine whether the mag istrate had a substantial basis for concluding that probable cause exis ted. State v. Jordan , 342 S.W .3d 5 6 5 , 569 (Tex. Crim. App. 2011) (quoting Illinois v. Gates , 462 U.S. 213, 238-39 (1983))

. Probable cause exis ts when, considering the totality of the circ umstances, there is a “fa ir probability that

. . . ev i d en ce wi ll be found at the specifie d location.” Rod r iguez , 232 S.W .3d at 60 (interna l quotations omitted). Whil e our revie w is limit ed to the four corne rs of th e af fi d avit, we interpre t the aff idavit in a “commonsensi ca l and rea listi c manner , rec og nizi ng that the mag istrate may draw rea sonable infere nces. When i n d o u b t we defe r to all rea sonable infere nces that the mag istrate could have made.” Id. at 61.

DISCUSSIO N

I n his sole issue on appea l, L oera arg ues that the trial court err ed in deny ing his motion to suppress evidenc e obtained pursuant to the sear ch war rant. Specifica lly , L oera claims that the affidavit in support of t he search warr ant focuses on Ochoa ’s s ale of narc otics but fails t o establish probable cause to believe that Ochoa was dealing narc otics out of the location specifie d in the war rant. I n deter

mining whether the war

rant was supported by probable cause , we consider only the evidenc e within the four corne rs of the aff idavit, ignor ing all other information in the detec tive’s testimony

. Rodriguez , 232 S.W .3d at 61. As the c ourt of cr iminal appeals e x plained, “[t] he issue is not whether there are ot h er fa cts that could have, or even should have, been included in the

4aff

idavit; we focus on the combined logic al forc e of fac ts that are in the aff idavit, not those that are omitted from the af

fidavit.” Id. at 62. An aff idavit in support of a sear ch war rant need not be b as ed solely on the direc t
persona l observa tions of the aff iant, an d i t may contain hear say information from an unnamed informant. See Henne

ssy v. State , 660 S.W .2d 87, 91 (Tex. Crim. Ap p . 1983); Flores v. State , 2 8 7 S. W. 3 d 3 0 7 , 3 1 2 ( T e x. A p p . — A u s ti n 2 0 0 9 ) , a

ff ’d , 3 1 9 S. W. 3 d 6 9 7 , 7 0 3 ( T e x. Cr im

. A p p . 2 0 1 0 )

. Howeve r, the aff

idavit must inform the mag istrate of some of the underly ing circ umstances

s u p p o r ti n g th e a f f ia n t’ s b e li e f th a

t a n in f o r ma n t is c r e d ib le a

n d th e in f o r ma ti o n is r e li a

b le

. S e e F lo r e s , 2 8 7 S .W.3d at 312. The informant’s “ver acity , reliability , and basis of i nformation” as contained in th e aff idavit are highly rele vant fac tors in deter mining whether probable cause exis ts. See id. (citing Gates , 462 U.S. at 238–39). Howeve r, whether probable cause exis ts to support the issuance of a war rant is judge d by the t otality of t he circumstance s, and t h e re l i ab ility and credibility of an informant may be supported by the aff iant’s rea sonable corr oboration of the in f o r ma n t’ s in f o r ma tion. See id. I n t h i s case, the aff idavit supporting the sear ch war rant was written by the lead detec tive. He stated that he had proba b l e cause to believe that “her oin; coca ine; cra ck coca ine; U.S. Currenc y derive d from the illega l sale of cra ck coca ine” and various other drug para pherna lia would be found in the apar tment and its curtilag e. The war rant listed L oera , L oera ’s g irlfriend, and Ochoa as persons suspected of being in “cha rg e of and control[] ” of the apar tment. I n support of his asser tion, the detec tive re ci t ed facts rela ting to the “contr olled buy ” betwee n the confide ntial informant and O choa. T he af fidavit provided, in re levant par t:

5On or about the 7th day of October 2010, y our aff iant rec eiv ed information fr om a confide ntial informant that heroin and coca ine was [si c] being kept at and sold from [ t h e apar tment] and in the car tilage [si c] are a . . . . The informant s t at ed t h at a Hispanic male l at er id as [Ochoa] sells illega l narc otics from this location

. T h e informan t stated that they are familiar with Ochoa from whom the informan t has purcha sed heroin in the rece nt past on multiple occasions

. W i t hin the past 72 hours, in a controlled buy situation, y our af fi an t used a confide ntial informant for the purpose of pu rc hasing heroin from Ochoa

. The informant was sear ched for narc otics or contra band with neg ative results prior to the bu y . The informant was provided with an amount of pre- rec orded “buy money ”. Detec tives from the Org anized Crime Division set up [s] urveillanc e at [t he apar tm en t]

. Your aff iant had the confide ntial information [si c] call Ochoa on the phone. After the confide ntial inf ormant called Ochoa on the phone, Detec tives observ ed Ochoa walked [si c] out of [t he apar tment] and g et into a [vehicle]. Detec tives followed Ochoa from [t he apar tment] to th e p r e - d e t e r

mi n e d me e t lo c a

ti o n b e tw e e n th e c o n f

id e n ti a l in f

o r ma n t a n d O c h o a . O c h o a d

r o v e s tr a ig

h t to th e me e t lo c a

ti o n , w it h o u t s t o p p i n g at any other location. Detec tives observe d the confide ntial informant meet with Ochoa

. Ocho a d eli vere d Her oin to the confide ntial informant. Your aff

i an t seized the Her oin from the confide ntial informant. The Her oin tested positive with a weig ht of .1 g rams. T h e c o n f id e n ti a l in f

o r ma nt has provided y our aff

iant with informati o n in the rec ent past reg arding the possession and distribution of illega l substances; sp ec i fi cally coca ine, cra ck coca ine and heroin in the Austin, Travis County , T ex as are a that has proven to be true and corr ect. . . . Your aff iant has sear ched the City of Austin computer i z ed utilit ies rec ords and foun d that acc ount #59610700 is for utilit ies service at [t he apar tment] , is curr ently active, and is in the name of [L oera’s g irlfriend’ s son]. [L oera ’s g irlfriend’ s son] i s t h e s on of [L oera ’s g irlfriend]. [L oera ’s g irlfriend] is g irlfriend/wife of [L oera ]. [L oera ] has Austin Police Depa

rtment involvement with [Ochoa]. (empha sis added)

.

6The aff

idavit conclude d by stating that, based on the detec tive’s experience and training in narc otics investiga tion, he knows that people involved in n ar co t i cs traff icking keep narc otics and various
para pherna lia in their reside nces, motor ve hicles, and on the ir persons.

The affidavit provided the foll owing rele vant facts: (1) the conf i d en t i al informant told the detec tive that Ochoa was selli n g n ar coti cs out of the apar tment; (2) the confide ntial informant purcha sed heroin from Ochoa “in th e rec ent past on multipl e occa sions”; (3) the confide ntial informant provided reliable information to the detec tive “in the rec ent past”; (4) during the controlled buy , the detec tives observe d Ochoa leave the ap ar t m ent to drive direc tly to a prede termined loca tion to sell heroin to the confide ntial inf ormant; (5) Oc hoa ac tually sold heroin
to the informant during the controlled buy ; (6) Ochoa had “Austin Police Depa rtment involvement” with L oera ; (7) L oera ’s g irlfriend’ s son’s name was on the utilit y acc ount for the apar tment; and (8) based o n the detec tive’s experience and training , evidenc e rela ting to the sale of narc otics would be found in the apar tment. Fur

thermore , althoug h not expli citly stated in the aff idavit, the

m agi s t rate could have rea sonably inferr ed that the confide ntial informant who told the detec tive about Ochoa ’s drug traff

icking is the same informa nt who participa

ted in the controlled buy

. Given the fac ts contained in the aff idavit and the rea sonable infere nces that could be made from the fac ts, we conclude that the trial court had a substantial basis to believe that probable

cause exis ted to sear ch the apar tment. The confide ntial informa n t’s statement that Ochoa was selling narc otics out of the apar tment, standing alone, may not be sufficie nt to establish probable

cause . Howeve r, the aff

idavit states that the confide ntial informant provided the detec tive with “true and corr ect” information about the sale and distribution of narc otics in the Austin are a in the rec ent

7past. This statement demonstrates that the confide ntial informant was cre dible and reli ab l e, and

thus his statement t hat Ochoa was dealing narc otics out of the apa rtment is more likely to be true. See Dixon v. Stat e , 2 0 6 S

. W.3d 613, 617 (Tex. Crim. App. 2006) (informa nt’s past reliability is “important fac tor in establishing the cre dibilit y of the informant as it may be inferr ed that the police

w o u ld n o t r e p e a

te d ly a c t o n in f

o r ma ti o n f r o m o n e w h o h a s n o t p r o v e n b y e xp e r ie n c e to b e r e li a b le

. ” )

. Thus, the aff

idavit in this case provides sufficie nt information to show that the informant was

cre dible. See id.

Fur thermore , the aff

idavit states that the confide ntial informant purcha sed narc otics fr o m Oc h o a o n multipl e occasions i n the recent past. This statement i s supported by the fact that the i nformant was ab l e t o call Ochoa and schedule the heroin purcha se during the controlled buy

. Therefo re , t h e mag istrate could rea sonably have inferr ed that, based on his repe at transac tions with Ochoa , the i nformant had some personal k n o wl edg e of Ochoa ’s drug dealing g ener ally

. See Branch v. State , 335 S.W .3d 893, 903 (Tex. App.—Austin 2011, pet. ref ’d) (noting that informant’s

r e p e a t d e a li n g s w it

h s u s p e c t s h o w s in f

o r ma n t h a d “ s o me f

a mi li a r it y ” w it h s u s p e c t)

. T h

u s , th e a f f id a v it provides “under ly ing fac ts upon which the informan t b ased his belief[]” that Ochoa was selling

narc otics out of the apar

tment, i.e., the informant’s repe at purcha ses of narc otics from Ochoa

. See W are , 724 S.W .2d at 40.

Fi n al ly , the controlled buy as descr ibed in the aff idavit supports the mag istrate’ s deter mination that there was probable cause to sear ch the apar tment. The aff

idavit states that police office rs observe d the confide ntial informant call Ochoa to schedule the drug purcha se, that office rs observe d Ochoa leave the apar tment and proce ed direc tly to the location of the controlled buy , and

8that Ochoa delivere d narc otics to the i nformant. The fact that Ochoa left t he apartment t o deliver

narc otics supports a rea sonable infere nce that narc otics wer e being k ep t i n the apar tment. See United States v. Aguirre , 664 F.3d 606, 611 (5th Cir. 2011) (holding that discovery of narc otics on suspect immediately afte r suspect left home cre ates likelihood s u s p ec t k ept narc otics at home). Fur thermore , the fac t that Ochoa left the apar tment to deliver narc otics corr oborate s the confide ntial in f o r ma n t’ s s ta te me n t th a

t O c h o a w a s d e a li n g n a

r c o ti c s o u t o f th e a

p a r tm e n t. S e e D ix o n , 2 0 6 S. W. 3 d at 617–18 (noting that informant’s state ments are more re liable when c orrobor ated)

.

L oera emphasizes that Ochoa is the focus of th e a f f id a v it, and the only fac t connec ting Ochoa to the apar

tment is that he was seen leaving the apar tment during the controlled buy

. Whether Ochoa was the focus of the aff idavit is i rr eleva

nt; the issue is whether the aff idavit established probable cause to sear ch the apar tment. W inkles v. State , 634 S.W .3d 289, 297–98 (Tex

. C ri m . App. 1981 ) (O d o m , J ., dissenting) (op. adopted on reh’ g ). The aff idavit clea

rly states that the confide ntial informant told the detec tive that Ochoa was dealing narc otics out of the apar tment. As we have discussed, the confide ntial informant’s cre dibilit y and reliability , along with the

corr oboration of his statements, create s a reasona b l e p ro b ab i lity that this statement was true. See Dixon , 206 S.W .3d at 617–18. There fore , we fi n d t h at t h e mag istrate had a substantial basis to conclude that there was a rea sonable probability that evidenc e rela ting to the sale of narc otics would be found in the apar

tment. Thus the trial court did not err in deny ing L oera ’s motion to suppress the evidenc e obtained pur suant to the sear ch wa rra nt. L oera ’s sole point of er ror is over

ruled.

CONCLUSION We affir m the judgme nt of the trial cour t.
9__________________________________________ Diane M. H enson, Jus tice Be fore J ustices Pury ear , Henson a nd Goodwin Affir med Filed: Aug ust 2, 2012 Do Not Publish

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