COURT OF APPEALS
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
JOSE
GONSALES SALINAS,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
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No. 08-01-00193-CR
Appeal from the
238th
District Court
of Midland
County, Texas
(TC#
CR26372)
O P I N I O N
This is an appeal from a conviction
for the offense of possession of cocaine.
Appellant pleaded guilty to the court and the court assessed punishment
at eight (8) years= community supervision and a fine of $1,500. For the reasons stated in this opinion, we
reverse the judgment of the trial court.
I. SUMMARY OF THE EVIDENCE
At the hearing on the motion to
suppress the evidence, Officer Jesse Franco testified that on October 13, 2000,
he was employed by the Andrews Police Department and was assigned to the Trans
Pecos Drug Task Force. On that date he
drew up a search and arrest warrant for a house located at 406 Cowden Street in
Midland, Texas. The affidavit in support
of the search warrant stated in relevant part:
2. THERE IS AT
SAID SUSPECTED PLACE AND PREMISES, PROPERTY CONCEALED AND KEPT IN VIOLATION OF
THE LAWS OF THE STATE OF TEXAS AND DESCRIBED AS FOLLOWS: COCAINE, PHOTO COPIED CURRENCY.
3. SAID
SUSPECTED PLACE AND PREMISES ARE IN CHARGE OF AND CONTROLLED BY EACH OF THE
FOLLOWING PERSONS: COSME
ULN W/M, ANGELA ALDACO NAVARRETE DOB 08-02-56 AND PERSON(S)
UNKNOWN AT SAID RESIDENCE.
4. IT IS THE
AFFIANT=S BELIEF AND AFFIANT HEREBY CHARGES AND ACCUSES,
THAT: On or about October 13th, and on
or about the above described premises, the above named and/or described
individual(s) did then and there, intentionally and knowingly possess against
the laws of the State of Texas and were in the possession of A USABLE AMOUNT OF
COCAINE.
5. AFFIANT HAS
PROBABLE CAUSE FOR SAID BELIEF BY REASON OF THE FOLLOWING FACTS:
ON FRIDAY, OCTOBER 13, 2000, AFFIANT RECEIVED
INFORMATION FROM A CONFIDENTIAL INFORMANT, HERINAFTER (sic) CALLED C.I, WHOSE
IDENTITY MUST REMAIN CONFIDENTIAL DUE TO THE FACT THAT DEATH OR SERIOUS BODILY
HARM WOULD OCCUR TO C.I. IF IDENTITY WERE DISCLOSED. C.I. PURSHASED (sic) A USABLE AMOUNT OF
COCAINE FROM DESCRIBED PREMISES WITHIN THE LAST 48 HOURS OF THIS DATE. SAID COCAINE FIELD TESTED POSITIVE FOR
COCAINE. C.I. HAS PURCHASED QUANTITIES
OF THE ABOVE NAMED CONTROLLED SUBSTANCE NUMEROUS TIMES IN THE PAST THEREFOR
C.I. IS FAMILIAR WITH LOOK, ODOR, AND METHODS BY WHICH COCAINE IS INGESTED INTO
THE HUMAN BODY. ALSO C.I. HAS GIVEN
INFORMATION TO AFFIANT WHICH HAS PROVED TRUE, RELIABLE AND CORRECT AT LEAST TWO
TIMES. C.I. HAS PERSONAL KNOWLEDGE THAT
RESIDENCE IS OCCUPIED BY ABOVE SUSPECT COSME ULN W/M. IT IS ALSO AFFIANT=S BELIEF THAT MORE COCAINE EXISTS AT AFORE MENTIONED
RESIDENCE.
During the course of his testimony,
Franco stated that when he and three other officers executed the search and
arrest warrant on October 13, 2000 at 10:55 p.m., they did not Aknock and announce.@
They broke the door down and entered the residence. Franco testified