Opinion filed February 28, 2020

In The

Eleventh Court of Appeals 

__________

No. 11-18-00060-CR

__________

GERONIMO MUNGUIA, III, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 161st District Court

Ector County, Texas

Trial Court Cause No. B-17-0272-CR

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

Appellant, Geronimo Munguia, III, entered a guilty plea to the offense of 

possession of a controlled substance, psilocin, four grams or more but less than 400 

grams. See TEX. HEALTH & SAFETY CODE ANN. § 481.116 (West 2017). In 

accordance with the terms of his plea bargain agreement, Appellant’s punishment 

was assessed at confinement for a term of seven years and a fine of $2,000. The trial 

court suspended the imposition of the sentence and placed Appellant on community 
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supervision for a term of seven years. Before he entered his plea, Appellant filed a 

motion to suppress that the trial court denied. Accordingly, Appellant preserved his 

right to appeal the suppression issue. On appeal, Appellant argues that the trial court 

erred when it denied his motion to suppress. We affirm.

Background Facts

While working for the Odessa Police Department, Officer Zachary Kraft 

received an anonymous tip that there was a marihuana grow house in the area. After 

corroborating the tip, Officer Kraft applied for a warrant to search the residence.

The warrant affidavit alleged that there was probable cause to issue a search warrant 

based on the following:

1. AFFIANT, Zachary Kraft, is a police officer in and for the City of 

Odessa, Texas. Affiant is currently assigned to the Criminal 

Investigation Division, Narcotics/Vice Unit as a narcotics detective, 

whose primary function is the investigation of narcotic and vice 

related offenses. Affiant has been a certified peace officer in the 

State of Texas for approximately 3 years.

2. Affiant received information from a crime stoppers tip that advised 

that a Trey Munguia had marijuana grow at 1515 N Muskingum and 

1519 N Muskingum. The crime stoppers tip advised that a single 

wide trailer next to a house that was on the same lot was filled with 

20 marijuana plants including the grow lights.

3. I investigated the tip and located 1519 N Muskingum which was an 

orange two story residence on the same lot as 1515 N Muskingum.

I then drove to the alley with my fellow detectives and initiated a 

trash run. We located a dumpster that was in-between 1515 N 

Muskingum and 1519 N Muskingum. Detectives initated [sic] a 

trash run where we took several bags from the dumpster to find and 

[sic] evidence of marijuana being grown from the target residence.

We located a trash bag that contained a piece of mail with the 

address 1519 N Muskingum and the name Geronimo Munguia on 

the front. In the same trash bag I located a green leafy substance 

that I know through my training and experience to be marijuana, the 

green leafy substance tested positive for marijuana using a morriskopec marijuana test kit. We also located several stems, planting 
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soil, and a grow light used for growing plants indoors. Pictures were 

taken of all of the findings.

4. Affiant knows, through training and experience, that narcotics 

dealers store quantities of narcotics in their residence to avoid 

detection from law enforcement.

5. Based on the aforementioned facts and circumstances, the Affiant 

believes that it is highly probable that a search of the said suspected 

place and premises will yield a quantity of marijuana.

The magistrate issued a search warrant based on the information in the 

affidavit, and officers searched the residence. The search yielded four ounces of 

marihuana and a felony amount of psilocybin mushrooms; no marihuana plants were 

found during the execution of the search warrant. Appellant was arrested and 

subsequently indicted in relation to the items found during the search.

After he was indicted, Appellant filed a motion to suppress the evidence found 

in his home. The trial court denied the motion, and Appellant ultimately pleaded

guilty to the offense. This appeal followed.

Issue One: Probable Cause

In his sole issue, Appellant contends that the search warrant affidavit failed to 

articulate sufficient facts to support a finding of probable cause. Specifically, 

Appellant argues that the magistrate could not have found probable cause that the 

items sought would be on the premises at the time the warrant was issued because 

the affidavit contained neither a date nor a time that the information was obtained. 

We disagree.

Standard of Review

We review a trial court’s denial of a motion to suppress under a bifurcated 

standard of review. State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. App. 2011).

We give almost total deference to the trial court as to the historical facts found; the 

trial court’s application of the law, however, is reviewed de novo. Id. Our duty “is 
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simply to ensure that the magistrate had a substantial basis for concluding that 

probable cause existed.” Illinois v. Gates, 462 U.S. 213, 214 (1983). The 

substantial-basis standard of review “does not mean the reviewing court should be a 

rubber stamp but does mean that the magistrate’s decision should carry the day in 

doubtful or marginal cases, even if the reviewing court might reach a different result 

upon de novo review.” Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010)

(quoting W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment

§ 11.7(c) at 452 (4th ed. 2004 & Supp. 2009–2010)).

Applicable Law

It is well established that “[t]he core of the Fourth Amendment’s warrant 

clause and its Texas equivalent is that a magistrate may not issue a search warrant 

without first finding ‘probable cause’ that a particular item will be found in a 

particular location.” State v. Elrod, 538 S.W.3d 551, 556–57 (Tex. Crim. App. 2017) 

(quoting State v. Duarte, 389 S.W.3d 349, 354 (Tex. Crim. App. 2012)).

Additionally, the information that supports a finding of probable cause must not be 

stale: “The facts submitted to the magistrate . . . must be sufficient to justify the 

conclusion that the property that is the object of the search is probably on the 

premises to be searched at the time the warrant issues.” Crider v. State, 352 S.W.3d 

704, 707 n.6 (Tex. Crim. App. 2011) (quoting Schmidt v. State, 659 S.W.2d 420, 

421 (Tex. Crim. App. 1983)).

“[P]robable cause exists when the facts and circumstances shown in the 

affidavit would warrant a man of reasonable caution in the belief that the items to be 

seized were in the stated place.” Elrod, 538 S.W.3d at 556 (alteration in original) 

(quoting Lopez v. State, 535 S.W.2d 643, 647 (Tex. Crim. App. 1976)). When we 

review the legitimacy of a magistrate’s probable cause finding—like the 

magistrate—we are “bound by the four corners of the affidavit.” Id. Nevertheless, 

a magistrate may draw inferences from the facts when assessing probable cause. Id.
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Accordingly, “although the magistrate’s determination of probable cause must be 

based on the facts contained within the four corners of the affidavit, the magistrate 

may use logic and common sense to make inferences based on those facts.” Id.

To determine whether a substantial basis existed for the magistrate’s decision, 

we are further instructed to avoid analyzing the affidavit in a hyper-technical 

manner. Gates, 462 U.S. at 236; McLain, 337 S.W.3d at 271. Instead, “when an 

appellate court reviews an issuing magistrate’s determination, that court should 

interpret the affidavit in a commonsensical and realistic manner . . . . When in doubt, 

we defer to all reasonable inferences that the magistrate could have made.” McLain, 

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

Staleness

Concerning the issue of staleness, we review each search warrant affidavit in 

light of the suspected criminal activity. Crider, 352 S.W.3d at 707. To be sure, 

probable cause evaporates quite rapidly when the item to be seized is alcohol in one’s 

bloodstream. See id. at 708. However, “time is a less important consideration when 

an affidavit recites observations that are consistent with ongoing drug activity at a

defendant’s residence.” Jones v. State, 364 S.W.3d 854, 860 (Tex. Crim. App. 

2012). Accordingly, “evidence of ongoing criminal activity will generally defeat a 

claim of staleness.” State v. Cuong Phu Le, 463 S.W.3d 872, 880 (Tex. Crim. App. 

2015) (quoting Jones, 364 S.W.3d at 861).

In Crider, the Court of Criminal Appeals identified four factors bearing on the 

issue of staleness:

(1) the type of crime—short-term intoxication versus long-term 

criminal enterprise or conspiracy;

(2) the suspect—“nomadic” traveler, “entrenched” resident, or 

established ongoing businessman;

(3) the item to be seized—“perishable and easily transferred” 

(evanescent alcohol, a single marijuana cigarette) or of “enduring 
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utility to its holder” (a bank vault filled with deeds, a “meth lab,” 

or a graveyard corpse); and

(4) the place to be searched—a “mere criminal forum of convenience 

or secure operational base.”

Crider, 352 S.W.3d at 708 (quoting United States v. Hython, 443 F.3d 480, 485 (6th 

Cir. 2006)). In this case, all four of these factors weigh in favor of the determination 

that the information in the search warrant affidavit was not stale.

Officer Kraft’s affidavit sought a search warrant for a residential property 

believed to be housing a marihuana-growing operation. According to the affidavit, 

the residence was believed to house twenty marihuana plants, potting soil, and a 

grow light, based on both a tip from an unknown informant and the investigative 

efforts of law enforcement. Through said investigative efforts, law enforcement 

discovered a piece of mail addressed to Appellant at the suspected property.

This was not a single criminal offense. Unlike a lone marihuana cigarette, 

twenty marihuana plants cannot be consumed in a mere instant. By contrast, the 

utility of marihuana plants endures for as long as they continue to produce 

marihuana. Moreover, the plants were believed to be concealed inside a residence. 

Specifically, it was believed that it was the residence of an individual with an 

expressed intent to remain at that location long-term, evidenced by the mail 

addressed to him at the suspected address. Accordingly, this marihuana-growing 

operation is better characterized as a (1) long-term criminal enterprise, (2) by an 

entrenched resident, (3) that is of enduring utility, and (4) located at a secure 

operational base.

In addition to the evidence that this was an ongoing criminal activity, 

Officer Kraft’s affidavit also contained statements relating to his present-tense belief 

that there was illegal activity taking place at the moment the affidavit was submitted

to the magistrate. The affidavit stated that the suspected location “is in charge of 
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and controlled by” Appellant (emphasis added). It continued, stating that “it is the 

belief of affiant, and affiant hereby charges and accuses, that said suspected party 

has possession of and is concealing” multiple illicit items (emphasis added). At the 

end of the probable cause portion, the affidavit further stated that “the Affiant 

believes that it is highly probable that a search of the said suspected place and 

premises will yield a quantity of marijuana” (emphasis added). In conjunction with 

the evidence of ongoing criminal activity, the present-tense language utilized in the 

affidavit would allow a magistrate to reasonably conclude there was probable cause 

to believe that the marihuana-growing operation was currently located at the 

suspected place.

The affidavit further mentioned that Officer Kraft “has been” a police officer 

for three years and was “currently assigned to the Criminal Investigation Division, 

Narcotics/Vice Unit as a narcotics detective, whose primary function is the 

investigation of narcotic and vice related offenses.” The implication of the language 

used is that any evidence of criminal activity was obtained, at most, three years prior. 

Likely, however, evidence related to narcotics would have been obtained more 

recently, as the language in the affidavit suggests that Officer Kraft had been a police 

officer for longer than he had been investigating narcotics.

Based on the information found within the four corners of Officer Kraft’s 

affidavit, we hold that the magistrate had a substantial basis to conclude, under the 

totality of the circumstances, that there was a fair probability that a search would 

uncover evidence of criminal wrongdoing at the location outlined in the search 

warrant. Nevertheless, our holding should not be interpreted as a tacit endorsement 

of Officer Kraft’s affidavit: “The better practice is for affiants to specify the times 

of critical events so that magistrates have precise information from which to 

determine probable cause. On different facts, a lack of specific information about 
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times might cause an affidavit to be insufficient.” Crider, 352 S.W.3d at 713 n.13 

(Womack, J., dissenting).

This Court’s Ruling

We affirm the judgment of the trial court.

KEITH STRETCHER

JUSTICE

February 28, 2020

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Bailey, C.J.,

Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, 

sitting by assignment.