Blake v. State

125 S.W.3d 717, 2003 Tex. App. LEXIS 10431, 2003 WL 22914560
CourtCourt of Appeals of Texas
DecidedDecember 11, 2003
Docket01-02-00530-CR
StatusPublished
Cited by110 cases

This text of 125 S.W.3d 717 (Blake v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blake v. State, 125 S.W.3d 717, 2003 Tex. App. LEXIS 10431, 2003 WL 22914560 (Tex. Ct. App. 2003).

Opinion

*721 OPINION

EVELYN V. KEYES, Justice.

Elbert Dwayne Blake, appellant, was charged with felony possession of methamphetamine with intent to deliver. After the trial court denied appellant’s motion to suppress evidence and his request for disclosure of the State’s informant, appellant pleaded guilty to the lesser felony of possession of methamphetamine. Pursuant to a plea bargain agreement, and after appellant pleaded true to a punishment enhancement offense of possession of a controlled substance, the trial court assessed punishment at five years’ confinement. In two points of error, appellant contends that the trial court erred in (1) denying his motion to suppress evidence seized pursuant to a search warrant and (2) refusing to order disclosure of an informant. 1 We affirm.

Background

The following facts are derived from Officer Santiago Turrubiate’s search warrant affidavit and the trial court’s hearing on appellant’s motion to suppress and motion to disclose the informant’s identity.

Although appellant lived permanently with his parents in Lufkin, he would come to Dickinson three to four times a month. When in Dickinson, he would stay at the 1024 Pin Oak home of Keith Calhoun. The Calhoun home was separated into two distinct areas — one apartment upstairs and one downstairs. Although the apartments were internally connected, furniture blocked access to the internal stairwell. Appellant stayed at the downstairs apartment and kept some personal belongings there, such as a computer and television.

Officer Turrubiate is a member of the Dickinson Police Department and of the Narcotics Task Force. Based on his August 8, 2001 affidavit, a search warrant was issued for the 1024 Pin Oak residence the same day. After describing the suspected place and premises of 1024 Pin Oak, Turrubiate noted in his affidavit that “there is at said suspected place and premises, property and items which possession of is prohibited by law, namely methamphetamine.” The affidavit named Ricky Blake, “Albert” (last name unknown) and “any other persons who’s [sic] identities are unknown to the Affiant at this time, but may be present at said residence.”

In over two single-spaced typed pages, Turrubiate then stated the probable cause facts. In May 2001, Turrubitate received narcotics information from Agent Delaney of the Galveston County Narcotics Task Force that persons unknown living at 1024 Pin Oak were manufacturing and delivering methamphetamine. Agent Delaney received this information from former Deputy Constable Doug Knight, who observed a white male in the process of manufacturing what he knew to be methamphetamine. On July 24, 2001, Corporal Fairchild, a Texas City Police Officer formerly assigned to the Narcotics Task Force, received information from a confidential informant that persons living in the Pin Oak home were in possession of methamphetamine, cocaine, and crack cocaine. Fair-child stated that this confidential informant was reliable and credible because of the informant’s past history; Fairchild had executed several search warrants using this informant. On July 25, 2001, Turrubiate met with this confidential informant, who stated that he/she had been inside *722 both Pin Oak apartments, that he/she met with Calhoun, and that he/she knew that Calhoun, Ricky Blake, and Albert were manufacturing and delivering methamphetamine. The confidential informant told Turrubiate that he/she saw glassware, beakers, tubes, and microwaves in the apartment believed to be used in the manufacture of methamphetamine, and smelled a strong odor of chemicals believed to be associated with the manufacturing of methamphetamine. The informant also informed Turrubiate that he/she knew that the person in the downstairs apartment was assisting the person in the upstairs apartment in the sale of narcotics, including methamphetamine. On August 8, 2001, the informant told Turrubitate that he/she saw a small amount of methamphetamine inside the downstairs apartment. The informant had been in the home in the past 24 to 48 hours and noticed that it was being monitored by video surveillance.

With this information, Officer Turrubiate believed that Ricky Blake or other persons unknown possessed methamphetamine. Based on this information, on August 8, 2001, Turrubitate obtained a search and arrest warrant for Ricky Blake and other persons unknown to him who might be present at the Pin Oak location.

On August 8, 2001, agents with the Galveston County Narcotics Task Force executed two search warrants on 1024 Pin Oak — one for the upstairs apartment and one for the downstairs apartment. There were two separate teams executing the warrants. Turrubiate entered the upstairs apartment and Fairchild secured entry of the downstairs apartment. The confidential informant was not present at the residence when the search warrant was executed. Appellant was found in the downstairs apartment sitting at his computer. No other persons were located in the downstairs apartment. During the search, Officers located a working methamphetamine laboratory, two plastic bags with a white powder believed to be methamphetamine, and glassware and other paraphernalia believed to be used in the manufacture of methamphetamine.

Discussion

Motion to Suppress

In his first point of error, appellant argues that the trial court erred in denying his motion to suppress evidence seized pursuant to a search warrant. In particular, appellant contends that the search warrant affidavit was inadequate as it “did not establish probable cause to believe contraband or evidence of a crime could be found at that location at the time the warrant was to be executed.”

In reviewing the trial court’s ruling on the motion to suppress, we apply a bifurcated standard of review. Carmouche v. State, 10 S.W.3d 323, 327 (Tex.Crim.App.2000). We give almost total deference to the trial court’s determination of historical facts that depend on credibility, while we conduct a de novo review of the trial court’s application of the law to those facts. Id. We review de novo the trial court’s application of the law of search and seizure and probable cause. State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App.2000); Wilson v. State, 98 S.W.3d 265, 271 (Tex.App.-Houston [1st Dist.] 2002, pet. refd). Appellate review of an affidavit in support of a search warrant, however, is not de novo. Rather, great deference is given to the magistrate’s determination of probable cause. Illinois v. Gates, 462 U.S. 213, 236-37, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983); Uresti v. State, 98 S.W.3d 321, 335 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The test for determination of probable cause is whether the magistrate had a substantial basis for concluding that a search would uncover evidence of wrong *723 doing. Gates, 462 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
125 S.W.3d 717, 2003 Tex. App. LEXIS 10431, 2003 WL 22914560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blake-v-state-texapp-2003.