COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00560-CR

NO. 02-11-00561-CR

MICHAEL FRED WEHRENBERG APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

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MEMORANDUM OPINION ON REMAND1

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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 warrantless 

entry into the residence by police and (2) the federal independent source doctrine 

 

1See 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 our 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 discovered 

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

unlawful police conduct.” Id. at 467. Although we ultimately declined to apply the 

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

Investigator Montanez 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 Investigator 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 that 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 

within 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 Judge 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 information 

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.

Wehrenberg argues that “the search warrant was not based entirely on 

information obtained before the illegal entry,” but he provides no further analysis 
4

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

unambiguous—and undisputed—testimony from the suppression hearing.

Accordingly, because the facts contained in the search warrant affidavit 

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

have gleaned during their 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 that the trial court did not err by denying 

Wehrenberg’s motion to suppress evidence. We 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. 47.2(b)

DELIVERED: March 6, 2014