AFFIRMED; Opinion Filed October 17, 2018.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-17-01404-CR

No. 05-17-01405-CR

ROBERT LEE SPISER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 382nd Judicial District Court

Rockwall County, Texas

Trial Court Cause Nos. 2-17-0217 & 2-17-0218

MEMORANDUM OPINION

Before Justices Myers, Evans, and Brown

Opinion by Justice Evans

Robert Lee Spiser appeals his convictions for possession of the controlled substances 

alprazolam and methamphetamine. On appeal, appellant challenges the trial court’s denial of his 

motion to suppress contending that the search warrant affidavit failed to establish probable cause. 

We affirm.

BACKGROUND

On June 26, 2016, Sergeant Cantu with the Rowlett Police Department obtained a 

magistrate’s warrant to search appellant’s residence located at 9410 Shearer Street in Rowlett. The 

warrant authorized a search for methamphetamine and other evidence of drug trafficking. 

Following the search of his residence, appellant was indicted for the state jail felony offense of 

possession of alprazolam in a drug free zone and the second degree felony offense of possession 
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of methamphetamine in a drug free zone. Appellant filed a motion to suppress all of the items 

found during the search of his residence. During the hearing on appellant’s motion, appellant 

argued that the information pertaining to the informants and surveillance contained in the search 

warrant affidavit was conclusory and that the single search of appellant’s trash was insufficient to 

establish probable cause. After the trial court denied appellant’s motion, he pleaded guilty to each 

offense preserving his right to appeal. Pursuant to a plea bargain agreement, appellant was 

sentenced in the state jail case to two years’ imprisonment, probated for five years, and a fine of 

$1,000, and ten years’ imprisonment, probated for five years, and a $2,000 fine in the second 

degree felony case.

ANALYSIS

In his sole issue on appeal, appellant contends that the trial court erred by denying his 

motion to suppress because the search warrant affidavit failed to establish probable cause. We 

conclude that the magistrate did have a substantial basis for concluding that probable cause existed 

to support the issuance of the warrant.

A search warrant may not issue unless it is based upon probable cause, established by a 

sworn affidavit. See U.S. CONST. amend. IV; TEX. CODE CRIM. PROC. ANN. art. 18.01(b) (West 

Supp. 2017); State v. Jordan, 342 S.W.3d 565, 568 (Tex. Crim. App. 2011). The test is whether a 

reasonable reading by the magistrate would lead to the conclusion that the four corners of the 

affidavit provide a “substantial basis” for issuing the warrant. State v. Duarte, 389 S.W.3d 349, 

354 (Tex. Crim. App. 2012). Probable cause exists if, under the totality of the circumstances set 

forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular 

place at the time the warrant is issued. See Jordan, 342 S.W.3d at 568–69.

We typically apply a bifurcated standard of review to a trial court’s ruling on a motion to 

suppress by giving almost total deference to the trial court’s determinations of fact and reviewing 
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de novo the trial court’s application of law. See State v. McLain, 337 S.W.3d 268, 271 (Tex. Crim. 

App. 2011). However, where, as here, a motion to suppress is based solely on a magistrate's 

decision to issue a warrant, there are no credibility determinations to which we must defer because 

the trial court is constrained to the four corners of the affidavit. See State v. Webre, 347 S.W.3d 

381, 384 (Tex. App.—Austin 2011, no pet.). Accordingly, in reviewing the magistrate’s decision 

to issue a warrant, we apply a highly deferential standard because of the constitutional preference 

for searches to be conducted pursuant to a warrant as opposed to a warrantless search. See McLain,

337 S.W.3d at 271; Illinois v. Gates, 462 U.S. 213, 236 (1983). As long as the magistrate had a 

substantial basis for concluding that probable cause existed, we will uphold the magistrate’s 

probable cause determination. See Id. In doubtful or marginal cases, the magistrate’s 

determination should prevail. See Flores v. State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010). 

The magistrate may interpret the affidavit in a non-technical, common-sense manner and may draw 

reasonable inferences from the facts and circumstances contained within its four corners. Jordan,

342 S.W.3d at 569. The focus is not on what other facts could or should have been included in the 

affidavit; rather, the focus is on the combined logical force of facts that are actually in the affidavit. 

Duarte, 389 S.W.3d at 354–55.

The probable cause affidavit in support of the warrant read in relevant part as follows:

Your affiant, Sgt. O. Cantu #1109 is a Sergeant with the Rowlett Police Department 

and is currently assigned to the Criminal Investigation Division as narcotics 

supervisor. Affiant has more than twenty-one (21) years of law enforcement 

experience. Affiant has been to several narcotics related schools and conferences 

and is familiar with the way narcotics trafficking is conducted. Affiant is currently 

responsible for conducting and supervising criminal investigations regarding illegal 

drug traffickers by working with confidential informants, conducting surveillance, 

working undercover, and making drug purchases. Affiant knows from experience 

the methods in which drug traffickers operate and distribute their illegal narcotics.

The Rowlett Police Department has been conducting an ongoing investigation 

concerning subject named Robert Spiser who is selling methamphetamines and 

gamma-hydroxybutyric acid (GHB) from his residence, 9410 Shearer St., Rowlett, 

Rockwall County, Texas.
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Since March of 2016, multiple people have contacted the Rowlett Police 

Department concerning the illegal drug activity regarding Robert Spiser W/M 

12/11/72 who resides at 9410 Shearer St. Rowlett Texas, Rockwall County. These 

were all independent accounts of heavy illegal drug usage and distribution of illegal 

drugs, including methamphetamines and GHB.

During the course of the investigation Sgt. Cantu and Detective Hardman #1016 

with the Rowlett Police Department have conducted surveillance at the residence 

for several different days, at different times of the day. Sgt. Cantu and Detective 

Hardman observed heavy vehicle traffic going and leaving the Spiser residence. 

Most vehicles would stay at the residence for a short period of time before leaving 

the residence. This type of traffic is consistent with illegal narcotic trafficking and 

distribution.

In June of 2016 Sgt. Cantu was contacted by Sgt. Johnson of the Rockwall Police 

Department. Sgt. Johnson stated he received information from independent sources 

that Robert Spiser who resides at 9410 Shearer, Rowlett Texas is involved in selling 

methamphetamines and GHB out of his residence. Several narcotics related arrests 

were recently made by Rockwall Police Department by individuals who had just 

left the residence at 9410 Shearer.

On June 24th 2016 Detectives M. Hardman and S. Young with the Rowlett Police 

Department removed the discarded trash at 9410 Shearer St. This was the trash day 

pickup designated for that area, and the green trash polycart was out by the alley 

ready for pickup. Detectives removed 2 white trash bags from the polycart. In one 

of the bags was mail in the name of Robert Spiser with the address of 9410 Shearer, 

Detectives also located a clear zip lock bag approximately 2x3 inches with white 

crystal residue in it. Detective Hardman field tested the residue with a nartek drug 

test kit. The white residue tested positive for the presence of methamphetamines. 

The size of the bag is consistent with the distribution of large quantities of 

methamphetamines. Detectives also located a small syringe in the same trash bag.

Based on all of the foregoing information your Affiant has reason to believe and 

does believe that illegal narcotics including methamphetamines and GHB exist at 

the above described property and that there is probable cause to search the property 

at 9410 Shearer St., Rowlett, Rockwall County, Texas, as described above herein.

From the four corners of the probable cause affidavit, the magistrate could find the 

following circumstances: (1) Sgt. Cantu was a longtime peace officer with extensive training and 

experience in narcotics investigations; (2) beginning in March 2016, the Rowlett Police 

Department had conducted an ongoing investigation concerning appellant’s illegal drug activity 

from his residence based on information from multiple people who had contacted the department; 

(3) the information regarding the drug activity included appellant’s name, his address, and 
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accounts of heavy usage and distribution of specific drugs, i.e., methamphetamines and GHB; 

(4) during the investigation, Sgt. Cantu and Detective Hardman with the Rowlett Police 

Department conducted surveillance at appellant’s residence for several different days, at different 

times, and observed heavy vehicle traffic going to and leaving the residence after a short period of 

time; (5) the traffic patterns observed at appellant’s residence was consistent with illegal narcotic 

trafficking and distribution; (6) in June 2016, another officer, Sgt. Johnson, of the Rockwall Police 

Department, relayed to Sgt. Cantu information he had received from independent sources

regarding appellant’s involvement in selling methamphetamines and GHB out of his residence and 

the fact that there had been several narcotics arrests recently made of people who had just left the 

residence; (6) on June 24, 2016, Detectives Hardman and Young with the Rowlett Police 

Department found residue, which field-tested positive for methamphetamines, together with a 

small syringe, in the discarded trash at appellant’s residence in a bag consistent with the 

distribution of large quantities of methamphetamines; mail in appellant’s name was also found in 

the discarded trash.

Appellant argues that with the exception of a single trash pull conducted on June 24, 2016, 

none of the other information contained in the affidavit can be used to establish probable cause 

because they are conclusory statements which “lack the specificity, articulable facts, sufficient 

information, reliability, and credibility to contribute to the totality of the circumstances.” In 

support of this argument, appellant contends that the affiant relies on information from unnamed 

informants without reference to the tipsters’ credibility or the reliability, veracity or basis of their 

knowledge. The reliability of the affiant and his sources of information are within the “totality of 

the circumstances” which a magistrate should consider in making a probable cause determination. 

See Johnson v. State, 803 S.W.2d 272, 289 (Tex. Crim. App. 1990), overruled on other grounds 

by Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991); State v. Coker, 406 S.W.3d 392, 
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396 (Tex. App.—Dallas 2013, pet. ref’d). A magistrate is entitled to rely on information supplied 

by a private citizen, since, unlike many police informants, they are much less likely to produce 

false or untrustworthy information. See Johnson, 803 S.W.2d at 289; Coker, 406 S.W.3d at 396; 

see also Duarte, 389 S.W.3d at 356 (“The citizen-informer is presumed to speak with the voice of 

honesty and accuracy.”). During oral argument, appellant conceded that the magistrate could 

reasonably infer that the informers referred to in the affidavit were private citizens. Further, based 

on the specificity of the information given to the police, i.e., appellant’s name, his exact address, 

and the specific drugs being used and distributed, the magistrate could reasonably infer that the 

citizen informers had some familiarity with appellant and his affairs. See Flores v. State, 319 

S.W.3d at 703 (anonymous citizen could not give exact address but described vehicles found at 

residence, gave Flores’ name and first name of female who lived with him, observed cocaine in 

residence in the past, and stated that Child Protective Services had investigated Flores regarding 

use of marihuana in presence of his children).

Appellant also contends that the information regarding the surveillance does not contribute 

to a finding of probable cause because it fails to include a timeline and lacks specificity as to when 

the surveillance took place. Appellant makes this same argument regarding the statements in the 

affidavit pertaining to information Sgt. Cantu received in June from Sgt. Johnson concerning 

appellant’s illegal drug activity at his residence and the recent narcotic arrests made of people 

leaving the residence. However, by looking at the affidavit in its entirety, and considering all the 

facts in the affidavit, the magistrate could reasonably infer that the timeline for the surveillance 

was sometime during the three month period between March 2016, when citizens first contacted 

the police department concerning the illegal drug activity at the residence, and June 2016 when 

Sgt. Johnson relayed information to Sgt. Cantu about information he had received about the illegal 

drug activity and the narcotics arrests of people leaving the residence. Further, given the fact that 
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the statement regarding the narcotics arrests “recently” made appeared in the paragraph relaying 

the information Sgt. Cantu received from Sgt. Johnson in June 2016, the methamphetamine was 

found in the discarded trash on June 24, and the affidavit and warrant was presented to the 

magistrate on June 26, the magistrate could reasonably infer that the narcotic arrests of people 

leaving the premises took place during the previous three weeks of June. In addition, based on the 

statements that the surveillance took place on different days and at different times, that Sgt. 

Johnson received information from citizens in June regarding the illegal drug activity, and that

narcotics arrests were made in June, the magistrate could reasonably infer that the illegal drug 

activity at appellant’s residence was ongoing for the three months leading to the search of 

appellant’s residence. In any event, the court of criminal appeals has suggested that time is a less 

important consideration when an affidavit recites observations that are consistent with ongoing 

drug activity at a defendant’s residence. See Jones, 364 S.W.3d at 860–61 (citing McClain, 337 

S.W.3d at 273–74).

Appellant also takes issue with the affidavit’s reference to “heavy vehicle traffic” in the 

paragraph describing the surveillance and the lack of details about the vehicles. Again, the focus 

is not on what other facts could or should have been included in the affidavit; the focus is on the 

combined logical force of facts that are in the affidavit. See Duarte, 389 S.W.3d at 354–55; Coker, 

406 S.W.3d at 396.

We conclude that the trash search in this case was sufficient to establish probable cause to 

search appellant’s house in light of the totality of circumstances.

Appellant’s reliance on the holdings in Serrano v. State, 123 S.W.3d 53 (Tex. App.—

Austin 2003, pet. ref’d) and State v. Davila, 169 S.W.3d 735 (Tex. App.—Austin 2005, no pet.) is 

misplaced. In both Serrano and Davila, the court held that the one-time discovery of drug residue 

in the trash did not justify a finding of probable cause in light of the totality of the other 
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circumstances contained in the affidavit. Serrano, 123 S.W.3d at 62–63; Davila, 169 S.W.3d at 

740. In Serrano, the tip was that “a Daniel Serrano, a 25–year–old Hispanic male” was dealing 

cocaine in the Austin, Travis County area and that he had a 30–year–old brother, Earnest. Serrano, 

123 S.W.3d at 60. In Davila, the tip was that “information has been given to your Affiant by a 

Confidential Informant . . . regarding cocaine and marijuana being possessed” at a certain address. 

Davila, 169 S.W.3d at 739. Unlike the case here, in both Serrano and Davila, the affidavit did not 

provide any basis from which the magistrate could conclude that the informer was credible or 

determine that the tip was reliable; the affidavit did not state when the tip was received, when the 

informant obtained his information, or when the described incident took place. Serrano, 123 

S.W.3d at 60; Davila, 169 S.W.3d at 739. Further, the police investigation following the tip in 

Serrano consisted of nothing more than a search of the police computer files which revealed two 

addresses for a Daniel Serrano living in Austin and then a trash pull based on the affiant doing 

surveillance of the second address listed on the day scheduled for trash pickup and identifying 

Daniel Serrano leaving the residence based on a police photograph. There was nothing to suggest 

the probability that the items searched for were on the premises because there was no evidence 

that anyone had been on the premises and seen contraband, that known users of narcotics 

frequented the place, that people were coming and going at all hours, or that there were short stops 

by automobiles. Serrano, 123 S.W.3d at 61–63. In Davila, the only investigation following the 

informant’s tip was the single trash pull which revealed a bag containing marihuana residue. 

Davila, 169 S.W.3d at 740.

In this case, the determination of probable cause did not rest solely on the evidence found 

from the single trash search but was coupled with other circumstances. We conclude that all of 

the circumstances stated in the affidavit, including the multiple tips from citizens about the 

residence, the surveillance of traffic, the trash search, and the narcotics arrests of people who left 
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the residence provided the magistrate with a substantial basis to conclude that methamphetamine 

and other evidence of drug trafficking was probably in appellant’s residence at the time of the 

search. We overrule appellant’s sole issue.

CONCLUSION

We affirm the trial court’s judgments.

/David Evans/

DAVID EVANS

JUSTICE

Do Not Publish

Tex. R. App. P. 47

171404F.U05
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ROBERT LEE SPISER, Appellant

No. 05-17-01404-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 382nd Judicial District 

Court, Rockwall County, Texas

Trial Court Cause No. 2-17-0217.

Opinion delivered by Justice Evans, 

Justices Myers and Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 17th day of October, 2018.
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

ROBERT LEE SPISER, Appellant

No. 05-17-01405-CR V.

THE STATE OF TEXAS, Appellee

On Appeal from the 382nd Judicial District 

Court, Rockwall County, Texas

Trial Court Cause No. 2-17-0218.

Opinion delivered by Justice Evans, 

Justices Myers and Brown participating.

Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 17th day of October, 2018.