## COURT OF APPEALS

SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 11

- 00560

- CR NO. 02

- 11

- 00561

- CR

MICHAEL FRED WEHRENB ERG APPELLANT

V.

THE STATE OF TEXAS STATE

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F ROM THE 43RD DISTRICT COURT OF PA RKER COUNTY

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### MEMORANDUM OPINI ON ON REMAND 1

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We held in the original opinion in this cause that the trial court had erred by

denying in part Appellant Michael Fred Wehrenberg’s motion to suppress

evidence because (1) exigent circumstances did not justify the initial warrantl ess
entry into the residence by police and (2) the federal independent source doctrine

1 See Tex. R. App. P. 47.4.2

did not apply to except the challenged evidence from the Texas exclusionary

rule. See Wehrenberg v. State , 385 S.W.3d 715, 717 (Tex. App.

— Fort Worth

2012) ( Wehrenberg I

)

, rev’d

, 416 S.W.3d 458 (Tex. Crim. App. 2013)

( Wehrenberg II

) . The court of criminal appeals subsequently granted the portion

of the State’s petition for discretionary review challenging our holding regarding

the independent source doctrine ; reversed ou r judgment, concluding that code of

criminal procedure article 38.23 is consistent with, and does not preclude

application of, the independent source doctrine ; and remanded the cause to this

court “for further consideration of [Wehrenberg’s] argument that the trial court

erroneously denied his motion to suppress.” 2 Wehrenberg II , 416 S.W.3d at 464,

467

– 73

. “[T]he core function of the independent source doctrine is to remove from

the scope of the federal exclusionary rule evidence that is actually discover ed

through an independent source and thus is untainted by the prior instance of

unlawful police conduct.” Id. at 4 6 7

. A lthough we ultimately declined to apply the

doctrine in our original opinion , we did make the following observation:

Investigator Monta nez testified that all of the information contained in the search warrant affidavit was derived from facts that were made known to him by the confidential informant before the warrantless entry into the residence. We have reviewed the affidavit, and Inves tigator Montanez’s testimony is accurate.

2 In a footnote, the court stated, “Regarding appellant’s argument that the independent source doctrine, even if generally applicable, does not apply to the facts of this case, we do not address t hat argument in this opinion because it is more properly addressed upon remand.” Wehrenberg II

, 416 S.W.3d at 464 n.3.3

Because the police did not rely upon any of the information that they may have gleaned during the initial warrantless entry to support their request for a search warrant, this case would appear to fall squarely wi thin the parameters of the independent source doctrine

. Wehrenberg I , 385 S.W.3d at 727. Our opinion of the record evidence has not

changed on remand. Investigator Montez testified at the suppression hearing

,

Q.

. . . . The confidential informant gave you all this information contained in the Affidavit, correct?

A. Yes.

Q. All right. So any

-- if you saw any items of contraband or items that may be used in the manufacture of methamphetamine in your protective sweep of the residence, did you tell Ju dge Merkley in your Affidavit, “Hey, I also saw these things on my own,” or is it just from what the confidential informant told you?

A. It’s just from what the confidential informant told me.

. . . .
Q. The confidential informant who relayed this in formation about what was going on at 501 Center Point Road, really when did he give you that information? Ball park.

A. A few hours before we detained everybody at the residence.

Q. Okay. So you had information a couple hours before you all go up to the house that there was an active or potentially an active meth lab going on in the house right there?

A. Yes.

W ehrenberg argues that “the search warrant was not based entirely on

information obtained before the illegal entry,” but he provides no furt her analysis4

or citation to the record, and his argument conflicts with Investigator Mon tanez’s

unambiguous

— and undisputed

— testimony from the sup pression hearing.

Accordingly, b ecause the facts contained in the search warrant affidavit

were derived from a source independent of the information that the police may

have gleaned during the ir initial warrantless entry into the residence , and

because the court of criminal appeals has clarified that the independent source

doctrine applies in Texas, we now hold th at the trial court did not err by denying

Wehrenberg’s motion to suppress evidence

. W e overrule Wehrenberg’s sole

point and affirm the trial court’s judgment.

/s/ Bill Meier

BILL MEIER JUSTICE

PANEL: GARDNER, WALKER, and MEIER, JJ.

DO NOT PUBLISH Tex. R. App. P. 4 7.2(b)

DELIVERED: March 6 , 2014