### 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. 03-09-00472- CR

Oscar Capet illo L opez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. CR-08 -33 4, H ONO RAB LE GARY L. STEEL, JUDGE P RESIDING

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

A jury convicted Osca

r Capetillo L opez of possess i o n o f a controlled substance with intent to deliver. See Tex. Hea lth & Safety Code Ann. § 481.112 (West Supp. 2009). The jury also found two enhanc ement para g raphs to be true and assessed punishment at eig hty y ear s in prison. L opez argues that the sear ches pursuant to which the narc otics wer e seized wer e ei t h er illega l or based on invalid sear ch war rants and, there fore , the district court should have g rante d his motion to suppress. He also argues that the trial court err ed by submitt ing an incomplete jury instruction. We aff irm the judg ment of convic tion.

On December 13, 2007, San Marc os police rece ived a tip fr o m an anony mous 911 caller that L opez was sel ling drug s to minors at either 519 or 915 Gra vel Street in San Marc os. Howeve r, officers wer e acqua inted with L opez from a previous narc otics investiga tion and knew that he, in fac t, re s i d ed at 917 Gravel Street. When office rs arr ived at L opez’s residenc e, L opezand several other people were standing outside in the driveway

. As soon as L opez saw the poli ce

arr ive, he ran toward the back o f h i s house and behind a shed. I n their pursuit, police observe d L opez discard a clea

r plastic bag

. After discarding the bag , L opez stopped running and voluntarily approa ched pol i ce , wh o handcuf fed and detained him. Police walked to the spot wher e they had

seen L opez thr o w t h e bag and seized it. They discovere d that it contained two smaller bag g ies,

eac h of which contained a white powder y substance, later iden t i fi ed as coca ine weig hing a total of 1.14 g rams. When police wer e escort i n g L o p ez to the patrol car , L opez beg an shouting to other men in Spanish. One of the ot her men enter ed L opez’s residenc e. Police enter ed the house and detained that man. They then made a swee p of L opez’s residenc e and s ec u red the premises while they awa ited a sear ch war rant. A war

ran t wa s i s s u ed, and police sear ched the residenc e, assisted by a drug dog. T h ey fo u n d a larg e plasti c bag containing a white substance in one of the bedrooms, later identified as coca ine with a n ag g reg ate we ight of

53.77 g rams. Police also seized

sever al smaller plastic ba g s and an e lectronic scale

.

L opez was indicted on one count of po s s es s i o n of a controlled substance with intent to deliver and on two counts of endang ering a child. Only the possession count was submitt ed to the jury

. The jury convicted L opez as char g ed, and—finding two enh an ceme nt para g raphs to be true—a ssessed punishment at eig hty y ear s in prison. L opez argues that the sear ches pursuant to which the coca ine was seized wer e either illega l or based on invalid sear ch war rants and, there fore , the district court err ed in ref using to g rant his motion to suppress. He also argues that the trial court

err ed by submitt ing a

n incomplete instruction to the jury

.

2I n his first two issues, L opez argues that the first sear ch, the sear ch by which police

rec overe d the s maller bag of cocaine outside L opez’s residenc e, viol ated his rig hts under both the United States Constit ution and the Texas Constit ution beca use police had no probable cause to enter the cur tilage of L opez’s residenc e. We re view a tr ial court’s ruling on a motion to suppress under

a bifurca ted standard of revie w. Carmouche v. State , 10 S.W .3d 323, 327 (Tex. Crim. App. 2000);

see also G uzman v. State , 955 S.W .2d 85, 89 (Tex. Crim. App. 1997). The trial court’s denial of a motion to suppress is revie wed for an abuse of discretion, Oles v. Stat e , 9 9 3 S

. W.2d 103, 106 (Tex. Crim. App. 1999), but when the trial court’s ruling s do not turn on the cre dibilit y and demea nor of the witnesses, we apply a de no v o s t an d ard of revie w, Estrada v. State , 154 S.W .3d 604, 607 (Tex. Crim. App. 2005).

A police office r may stop and briefly detain a person for investigative purposes if the office r has r easona

ble suspicion supported by articula ble fa cts that criminal ac tivity may be af oot. W oods v. State , 956 S.W .2d 33, 38 (Tex. Crim. App. 19 9 7 ); Hernande z v. State , 983 S.W .2d 867, 869 (Tex. App.—Austin 1998, pet. ref ’d). The rea sonablene ss of a temporar y detention must be examined in terms of the totality of the c ircumstance s. W oods , 956 S.W .2d at 38. A deta ining office r must have specific , articula ble fac ts that, taken toge ther with rational infere nces from those fac ts, lead him to conclude that the person detained is, has been, o r soon will be enga g ed in criminal ac tivity

. Id.

An off i cer may rely upon information rec eived throug h an informant, rathe r than

on his direct o b s er v at i o n , so long as the office r confirms enoug h fac ts so that he may rea sonably conclude that the information provided is reliable and a detention is justified. See Alabama v. W hite ,

3496 U.S. 325, 330-31 (1990). This does not mean t h at t h e o ff i cer must persona lly observe the conduct that cause s him to rea sonably suspect that a cr i m e i s b ei ng , has been, or is about to be committed. Brother v. State , 166 S.W .3d 255, 259 (Tex. Crim. App. 2005). Rather, it mea ns that the police office r, in lig ht of the circ umstances, confirms enoug h fac ts to r easona bly conclude that the information g iven to him is reliable and a temporar y detention is thus just ified. Id. When the police rec eive information fr o m an informant, the totality of the circ umstances includes the vera city and reliability of the informant and the informant’s information,

as well as the basis for t h e i n fo rm ant’s knowledg e. See Illinois v. Gates , 462 U.S. 213, 230-31 (1983). An anony

mous tip alone will r are ly establish the level of rea sonable suspicion r equire d to justify a detention. Florida v

. J.L. , 529 U.S. 266, 270 (2000); W hite , 496 U.S. a

t 329. There must b e some further indicia of reliability , some additional fac ts from which a police offi ce r m ay

rea sonably conclude that the tip is reliable and a detention is justified. Pipkin v. State , 114 S.W .3d 649, 654 (Tex. App.—For t Worth 2003, no pet.). An office r’s prior knowledg e, his experience , and his corr oboration of the details of the tip may be consider ed i n establishing rea sonable suspicion. W hite , 496 U.S. at 329-30.

The respo n d i n g office r here , Offic er Elrod, had been previously acqua inted with L opez due to L opez’s involvement in at least one other drug -re lated inves tigation. The initial tip

ca m e i n the form of an anony mous 911 call. Although anony mous, the caller was appar entl y a wi t n es s to the events, as the caller identified L opez by name and descr ibed what he was we ar i n g and wher e he was selling drug s. Elrod found L opez in the place descr ibed and wea ring the clothing descr ibed. Elrod als o observe d L opez standing in his drivewa y with sever al other people. These

4observations wer e consistent with the information repor ted by the anony

mous caller

. As soon as L opez saw Elrod, L opez looked conce rned, pushed past the other people in the drivewa y , and beg an running toward a

shed in the bac ky ard. Viewingthis evidence in its totality —including Elrod’s prior know ledg e of L opez, the details lear

ned from the 911 call, which wer e cor robora ted by Elrod’s first-hand obs ervations, and L opez’s rea ction to Elrod’s arr ival—the district court co u l d have conclude d that police had formed a rea sonable suspicion that L opez had been, or soon would be, eng ag ed in criminal activity

. See W oods , 956 S.W .2d at 38. Ba sed on this rea sonable suspicion, Offic er Elrod was justified in detaining L opez for investig ative purpose s.

At the point that police formed a rea sonable suspicion that L opez had been or would be eng ag ed in criminal activity , L opez was still in his drivewa y , along with sever al other people. L opez’s drivewa

y is bot h v i s i b l e an d acc essible t o the publ ic. There fore , at t hat poi nt—the point when rea sonable suspicion arose —L opez had no rea s o nable expectation of privac y . See Bower

v. State , 769 S.W .2d 887, 897 (Tex. Crim. App. 1989), overruled on other grounds by Heitman

v. State , 815 S.W .2d 681, 685 (Tex. Crim. App. 1991). Hav i n g fo rm ed a rea sonable suspicion, police beg an to approa ch L opez to question him. L opez ran, ignor ing order s from police t o s top. When L opez ran, he was, as the district court found, evading arr est or detention, see Tex. Penal Code Ann. § 3 8

. 0 4 (W es t Supp. 2009), and police beg an lawfully pursuing him. I n the course of this lawful pursuit, L opez ran to the back part of his y ard, wher e he discarde d the bag containing coca ine. The police arr ested L opez and seized the bag of coca ine that L opez had discarde d in their plain view.

5The plain view do ct rine allows office rs, wit hout a warra nt, to seize items that they believe to be evidenc e or contra band if cer

tain criter ia are met. The theory supporting the doctrine is that there are no privac y interests for items kept in plain sight, and there fore , the prohibitio n s ag ainst unrea sonable sear ches and seizures are not implicated. See W alter v. State , 28 S.W .3d 538, 5 4 1 (Tex. Crim. App. 2000). The plain view doctrine require s that (1) law enfor ceme n t o ff i ci al s have a rig ht to be wher e they are , and (2) it is immediately appar ent that the item observe d or seized may constitute evidenc e, that is, there is probable cause to associate the item with criminal activity

. W alter , 28 S.W .3d at 541; Ramos v. State , 934 S.W .2d 358, 365 (T ex . Crim. App. 1996); Arrick v. State , 107 S.W .3d 710, 719 (Tex. App.—Austin 2003, pet. re f’d) . Probable c ause r equire s that the fac ts available to the office r would war rant a man of rea sonable caution in the belief that cer tain items may be contra

band or stolen proper

ty or useful as evidenc e of a crime. Texas v. B r own , 460 U.S. 730, 742 (1983).

Her e, the re co rd s u p p orts a finding that the State established both elements of the plain view doctrine. We have found that the district court could have conclude d that police had formed a rea sonable suspicion that L opez had been, or soon would be, eng ag ed in criminal activity , and, there fore , an investigative detention was appropr iate. Thus, the first element—that police wer e in a leg ally permissible location to make a plain view seizure—is satisfied. See W alter , 28 S.W .3d at 541. The rec ord also supports a finding that the State satisfied the second element, which require s that it be immediately appar ent that there is probable cause to associate the object observe d or seized with c riminal activity

. See id. Police observe d L opez discarding a clea r plastic bag

. Ba sed on the anony mous tip police had rec eived—that L opez wa s selling drug s—and on the fac t that, afte r

6discarding the bag , L o p ez wi llingly approa ched police, the district court could have found that

the second element of the plain view doctrine had been satisfied—that it was immediately appar ent to police that there was probable cause to associate th e b ag wi t h criminal activity

. I ndeed, when office rs approa ched the place wher e L opez had thrown the bag , t h ey d i s co vere d that it contained two smaller bag g ies, ea ch conta ining a white powder

y substance. I n sum, the rec ord supports the district court’s conclusion that the seizure of the 1.14- g ram bag of coca ine was proper . Police had rea sonable suspicion to make an investigative detention of L opez. When L opez ran, police lawfully pursued and detained him. I n the course of the pursuit and detention, police observe d L opez discard a clea r plastic bag in their plain view. Having lawfully detained L opez, police wer e justified in seizing the bag under the plain view doctrine. Acc ording ly , we ove rrule L opez’s first two issues.

I n his third and fourth issues, L opez argues that the second sear ch, the sear ch of his residenc e, violated his rig hts under both the United States Constit ution and the Texas Constitution beca use the mag istrate judge did not have probable cause to issue the sear ch war rant. Probable cause to sup p o rt t h e i s suance of a sear ch war rant exis ts when the fac ts submitt ed to the mag istrate

are sufficie nt to just ify

a conc lusion that the object of the se arc h is probably on the pre mises to be

sear ched at the time the war rant is issued. Cassias v. State , 719 S.W .2d 585, 587 (Tex. Crim. App. 1986); State v. Bradley , 966 S.W .2d 871, 873 (Tex. A pp.—Austin 1998, no pet.). The sufficie ncy of the aff idavit is deter

mined by considering the totality of the circ umstances set forth wit h i n the four c orner s of the docume nt. Gates , 462 U.S. at 238; Bradley , 966 S.W .2d at 873. The a ffidavit must be interpre ted in a common sense and rea listi c manner , rec og nizi ng that rea sonable infere nces

7may be draw n from the aff idavit. Hedspe th v. State , 249 S.W .3d 732, 737 (Tex. App.—Austin 2008, pet. ref ’d). The issuing mag istrate’s deter mination of probable cause must be g iven g reat defe renc e and will be sustained if the mag istrate had a substanti al b asi s for concluding that probable cause

was shown. Gates , 462 U.S. at 236-37; Swearingen v. State , 1 4 3 S

. W.3d 808, 811 (Tex. Crim. App. 2004). Acc ordi n g to L opez, all of the information prese nted to the mag istrate in the probable cause aff

idavit indicates that controlled substances would probably b e found in L opez’s y ard, not in his house. On this point, L opez notes that the confide ntial informant told dispatch that the nar cotics we re store d in a pipe outside L opez’s house. Howe ver, be y ond this information, the aff idavit contained additional fac ts—based, in part, on the first sear ch, which, as we have conclude d, compl i ed with constitutional require ments—to justify a conclusion that narc otics would probably be found in L opez’s residenc e.

The aff idavit included information derive d from the anony mous tip and from the first sear ch. Tommy Villanueva, the aff iant peac e office r, stated that a witness had observe d L opez selling narc otics to children and that police had confirme d that L opez was in the location descr ibed,

wea ring the clothes descr ibed, and surrounde d by a g roup of people. L opez immediately fled from police, and upon further investigation, police lear ned that L opez had been in po s s es s i o n o f a bag containing a subst ance that a field analy sis showed contained cocain e. I n addition to information derive d from the tip and from the sear ch war rant, Vil l an u ev a’s aff

idavit contained information from po l i ce rec ords, showing that office rs had previously investigated L opez at least once for

narc otics dealing s and that L opez had been previously arr ested eig ht times for drug -re lated offe nses.

8I n the affidavit, Villanueva also descr ibes his own backg rou n d i n n arcotics, stating that, based on

his experience narc otics deale rs usually conduct their narc otics operations—and store information about their ope rations—in their re sidence s.

Ba sed on the totality of the circ umstances set forth in Villanueva’ s aff idavit, and draw ing rele vant infere nces, the mag istrate was justified in concluding that narco tics would probably be found in L opez’s residenc e. See Gates , 462 U.S. at 236-38; Cassias , 719 S.W .2d at 587; Hedspe th , 249 S.W .3d at 737. Acc ording ly , we ove rrule L opez’s third and four th issues. I n his fifth issue, L opez argues that the district court s u b m i tted an incomplete jury instruction on the use of juror notes and that this incomplete instruction cause d L opez eg reg ious harm. Specifica lly , L opez argues that eg reg ious harm resulted from the omission of the caution that notes should not be used to resolve testimony disputes and that such disputes m ust be re solved by

resor ting to the of

ficial tra nscript. The decision to allow juror note-taking lies within the trial court’s sound discretion. Price v. State , 887 S.W .2d 949, 954 (Tex. Crim. App. 1994). The Texas Court of Criminal Appea ls has set out the followinginstruction to be g iven, which in this case was g iven:

You have been permitted to take notes during the testimony in t h i s ca s e. In the event any of y ou took note s, y ou may rely on y our notes during y our deliberations. Howeve r, y ou may not sh ar e y o ur notes with the other jurors and y ou should not permit the other jurors to share their notes with y ou. You may , howeve r, discuss the contents of y our notes with the other jurors. You shall not use y our notes as authority t o p er suade y our fellow jurors. I n y our deliberations, g ive no more and n o l es s weig ht to the views of a fellow juror just beca use that juror did or did not take notes.

9See id. at 955. Also included in the instruction se t out in Price , but not included in the instruction

g iven her e, is the following :

Your notes are not officia l transcr ipts. They are persona l memory aids, just like the notes of the judge and the notes of the lawy ers. Notes are valuable as a stimul ant to y our memory . On the other hand, y ou might make an err or in observing or you might make a mistake in rec ording what y ou have seen or hear d. There fore , y ou are not to use your notes as authority to persua de fellow jur o rs o f what the evidenc e was during the trial. Occ asionally , d

u r in g ju r y d e lib e r a ti o n s , a dispute arises as to the testimony prese nted. I f this should occur in this case , y ou shall inform the Court and reque st that the Court rea d the portion of disputed testimony to y ou from the officia l transcr ipt. You shall not rely on y our notes to resolve the dispute beca use those notes, if an y , are not officia l transcr ipts. The dispute must be settled by the officia l transcr ipt, for it is the officia l transcr ipt, rathe r than any juror’s notes, upon which y ou must base y our deter mination of the fac ts and, ultimately , y our ver dict in this case.

See id. Even acc epting L opez’s argument that the district co u rt er re d by not submitt ing the instruction exactly as set out by the court of criminal appea ls in Price , reve rsal is not war rante d. Where, as here , no objec t i o n i s m ade to the char g e at trial, we reve rse for char g e err or only if the rec ord shows that the err or cause d eg reg ious harm. See Almanza v. State , 686 S.W .2d 157, 171 (Tex. C ri m . App. 1985). Har m must be actua l harm and must be evidenc ed in the rec ord. Id. There is no indication in the rec ord to sug g est that any thing in the jury ’s decision was a result of a juror’s h aving relied on his own not es or the not es of another juror rather than on the officia l transcr ipt in rea ching his decision. Nothing in the rec ord indicates that there was any dispute about the evidenc e at all. I ndeed, nothing in the rec ord show that t h e jurors took notes to which

10they later ref err ed during deliberations. Thus, L opez cannot show actua l harm, as required under Almanza

. See id. Acc ording ly , we ove rrule L opez’s fifth issue.

Havingoverr

uled ea ch of L opez’s issues, we a ffirm the judg ment of convic tion.

__________________________________________ G. Alan Waldrop, Just ice Be fore Chief J ustice Jones, J ustices Pemberton a nd Waldrop Affir med Filed: August 6, 2010 Do Not Publish

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